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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.8 OF 2007 (Against the judgment dated 12.4.2006 of the High Court of Sindh, Karachi passed in I.T.A.No.55/1999) Fancy Foundation …Appellant(s) VERSUS Commissioner of Income Tax, Karachi …Respondent(s) For the appellant(s): Mr. Iqbal Salman Pasha, ASC For the respondent(s): Mr. M. D. Shahzad Feroz, ASC Date of hearing: 13.4.2017 … ORDER MIAN SAQIB NISAR, CJ.- The facts of this appeal are that the appellant, namely, Fancy Foundation, is a registered charitable trust. It purchased property bearing Plot No.7/3, Survey Sheet SR-1, Serai Quarters, I. I. Chundrigar Road, Karachi (the property) vide a registered sale deed, on 28.06.1963, for a consideration of Rs.1,895,183/-. It finally sold the property for Rs.18,287,500/- in the year 1995. The appellant filed its income tax return for the year 1996- 97, in which it claimed exemption from payment of income tax on the surplus/differential between the purchase and sale prices of the property in terms of Section 27(2)(a) of the Income Tax Ordinance, 1979 (the Ordinance). However, the department passed an assessment order to the effect that the profit made upon the sale of the property was income from business thus the appellant was liable to pay income tax thereupon in light of Section 22 read with Section 2(11) of the Civil Appeal No.8 of 2007 -: 2 :- Ordinance. The appellant’s appeals before the Commissioner Income Tax (Appeals) and the Income Tax Appellate Tribunal, and the income tax reference before the learned High Court all failed. Leave was granted on 03.01.2007 to consider whether “the petitioner was not an adventure in the nature of trade and was not liable to tax under the Income Tax laws as the surplus amount/profit received by the petitioner Foundation from the transaction of sale was in the nature of capital gain which is exempt from charge to tax.” 2. Heard. We will first attend to the argument of the learned counsel for the respondent that the reference before the learned High Court was not maintainable as no question of law arose from the order of the Tribunal. In the judgment reported as Naseer A. Sheikh and 4 others Vs. The Commissioner of Income-Tax (Investigation), Lahore and others (1992 PTD 621) this Court held that the High Court had erred in returning the reference to the Tribunal without answering the questions referred to it because whether or not the sale of the second lot of shares (resulting in a gain to the appellants) constituted an adventure in the nature of trade, was a mixed question of law and fact whilst the High Court had wrongly treated it as a pure question of fact.1 Thus we hold that the question of whether the sale/purchase of property constitutes ‘business’ within the meaning of Section 2(11) of the Ordinance and its effect on the taxpayer involves a factual determination of the characteristics of the transaction in question and an interpretation of the aforesaid provision of law, therefore, this is a mixed question of fact and law and the reference before the learned High Court was maintainable. 3. Sections 22 and 27 of the Ordinance (relevant parts) read as under:- 1 See also Oriental Investment Co., Ltd Vs. The Commissioner of Income-tax Bombay (AIR 1957 SC 852), Juggilal Kamlapat, Kanpur Vs. Commissioner of Income Tax, U. P. (AIR 1970 SC 529) and Commissioner of Income-tax, Bombay Vs. H. Holck Larsen (AIR 1986 SC 1695). Civil Appeal No.8 of 2007 -: 3 :- 22. Income from business or profession.– The following incomes shall be chargeable under the head "Income from business or profession", namely:- (a) profits and gains of any business or profession carried on, or deemed to be carried on, by the assessee at any time during the income year; (b) …………………………………………………….; and (c) …………………………………………………… Explanation……………………………………………… 27. Capital gains.- (1) Any profits or gains arising from the transfer of a capital asset shall be chargeable under the head "Capital gains" and shall be deemed to be income of the income year in which the transfer took place. (2) For the purposes of sub-section (1) and section 28 and 29,– (a) "capital asset" does not include- (i) ……………………………………………………; and (ii) any immovable property; and (b) "transfer" includes the sale, disposition, exchange or relinquishment of the asset, or the extinguishment of any rights therein, but does not include– ⁞ 4. Section 15 of the Ordinance provides various heads of income for tax purposes. The two relevant heads are ‘income from business or profession’ [Section 15(d)] and ‘capital gains’ [Section 15(e)]. According to Section 27 of the Ordinance, any profits or gains arising from the transfer of a capital asset shall be chargeable under the head ‘capital gains’ and shall be deemed to be income of the (income) year in which the transfer took place. As per Section 27(2)(ii) of the Ordinance, for the purposes of Section 27(1) thereof, capital asset does not include any immovable property. It is the appellant’s case that the property they sold was an immovable property and not a capital asset: therefore the profit/gain from its transfer was not chargeable to income tax under the Civil Appeal No.8 of 2007 -: 4 :- head ‘capital gains’. Whereas the department’s stance is that the purchase and ultimate sale of the property was an “adventure in the nature of the trade” in terms of Section 2(11) of the Ordinance thus the profit/surplus made on the sale thereof was a profit and gain of a business carried on by the appellant and was chargeable to income tax under the head ‘income from business or profession’ under Section 22(a) of the Ordinance. Hence the terms ‘adventure’ and ‘trade’ need to be defined. The ordinary dictionary meaning of ‘adventure’ is as follows:- Black’s Law Dictionary (9th Ed.) 1. A commercial undertaking that has an element of risk; a venture. Chamber’s 21st Century Dictionary 1. an exciting and often dangerous experience. 2. The excitement of risk and danger. Oxford Advanced Learner’s Dictionary (9th Ed.) 1. an unusual, exciting or dangerous experience, journey or series of events. P. Ramanatha Aiyar’s Concise Law Dictionary (4th Ed.) A mercantile or speculative enterprise of hazard; a venture; ‘Trade’ has been defined as under:- Black’s Law Dictionary (9th Ed.) 1. The business of buying and selling or bartering goods or services. (n) 2. A transaction or swap. 3. A business or industry occupation; a craft or profession (vb) Chamber’s 21st Century Dictionary 1. a. the act, an instance or the process of buying and selling; 3. a. business and commerce, especially as opposed to a profession or the owning of landed property; Civil Appeal No.8 of 2007 -: 5 :- Oxford Advanced Learner’s Dictionary (9th Ed.) 1. the activity of buying and selling or of exchanging goods or services between people or countries. P. Ramanatha Aiyar’s Concise Law Dictionary (4th Ed.) Trade in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture. State of Punjab v. Bajaj Electricals Ltd., AIR 1968 SC 739, 741. 5. Is the buying and selling of a single property an adventure in the nature of trade, rendering it a business? From the above definitions, “any adventure in the nature of trade” means an enterprise, venture or activity involving the buying and selling of goods or services. On a strict interpretation, the action of buying and selling property by the appellant may conceivably be tantamount to business. But, as per Section 2(11) of the Ordinance, ‘business’ “includes any, trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture.” The use of the word ‘includes’ in the definition means that the definition is not exhaustive or all-encompassing, and it may well cover things other than those mentioned therein. Therefore ‘business’ has to be given its widest possible amplitude by examining its ordinary dictionary meaning, in the light whereof “adventure in the nature of trade” needs to be understood. ‘Business’ has been defined as under:- Black’s Law Dictionary (9th Ed.) 1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain. 2. Commercial enterprises. 3. Commercial transactions. Civil Appeal No.8 of 2007 -: 6 :- Chamber’s 21st Century Dictionary 1. the buying and selling of goods and services. Also called commerce, trade. 3. A regular occupation, trade or profession. Oxford Advanced Learner’s Dictionary (9th Ed.) 1. the activity of making, buying, selling or supplying goods or services for money. P. Ramanatha Aiyar’s Concise Law Dictionary (4th Ed.) The word “business” is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. Barendera Prasad v. I.T. Officer, AIR 1981 SC 1047, 1953. [Income-tax Act (43 of 1961), S. (1)(i)(a)]. Major Law Lexicon (4th Ed.) 2010 An element of continuity and habit is essential to constitute the exercise of a profession or business. [AIR 1919 All. 13(2)] Business connotes some real, substantial and systematic or organized course of activity or conduct with a set purpose. [Narain Swadeshi Mills v. Commissioner of Excess Profits Tax, AIR 1955 SC 176] In its ordinary parlance, ‘business’ entails regularity or continuity in an activity with the intention of earning income. Consequently, generally the adventure in the nature of trade must involve regular and continuous activity. Before giving a conclusive finding on what does or does not constitute an “adventure in the nature of trade” and is a ‘business’ within the contemplation of Section 2(11) of the Ordinance, it is pertinent to advert to the case law on the matter. 6. In Commissioner of Income-Tax (Central), Karachi Vs. Messrs Habib Insurance Co. Ltd., Karachi (PLD 1969 Karachi 278),2 2 This judgment was upheld by this Court in Messrs Habib Insurance Co. Ltd. Vs. Commissioner of Income-Tax (Central), Karachi (PLD 1985 SC 109). Civil Appeal No.8 of 2007 -: 7 :- the case was decided in favour of the department on the facts but the learned Division Bench of the High Court of Sindh held that:- …in order to constitute a business, there must be a continuous exercise of activity for the purpose of gain. This element of continuity is essential to constitute a business of investment. The reason for this condition is that in modern society people no longer hold their savings in gold or cash but are encouraged to invest their savings in property and securities, yet a man who invests his savings in buying a property would not be said to be carrying on a business if he lets out the property on rent, nor would a person who has purchased shares out of his savings be said to carry on business merely because he derives income from his investments. If, however, he regularly buys and sells property or shares, so as to make profit out of the fluctuations in the prices of property or shares, then it would be said that he was carrying on the business of investment; there is thus a fundamental distinction between the business of investment, and the purchase and sale of investments by a person. As pointed out by Lord Wright, in the definition quoted, even occasional speculation in shares does not amount to carrying on a business; therefore, a person, who buys property or shares and retains them for a long period of time, would not be considered to be carrying on the business of investment. In Naseer A. Sheikh’s case (supra) this Court, while considering whether a transaction of sale of shares by the assessee was an adventure in the nature of trade, held as under:- It is to be noticed that even if a receipt is of casual and non-recurring in character, it shall be liable to tax, if it arises out of business. The definition of the term `business', as given in section 2(4) of the Act, has already been noticed. The question as to whether or not that (sic) a transaction is an adventure in the nature of trade has to be determined, keeping in view the intention of the assessee, in the light of the legal requirements of concept of the business. Civil Appeal No.8 of 2007 -: 8 :- In the case of Commissioner of Income Tax Vs. Mahmood Ali (2008 PTD 82) the High Court of Sindh opined as under:- The intention must be deduced from the facts and circumstances of each case and whether a man makes a business of speculation the same must be deduced from the facts of each case. The mere change of investment would not amount to adventure in nature of trade. It will be beneficial to quote the law laid down in the case of (1966) 62 ITR 578. In that case the company was a family company which was formed for the purpose of dealing in properties transferred to it and it had power to purchase and sell properties. The company made profits on the sale of land but it was held that the transaction of sale of plots was one that prudent owner of land would engage in and which was, therefore, no more than realization of a capital investment or conversion of land into money and not a venture in the nature of trade. 18. We may further observe that in determining the nature of the transaction regard has to be made to the nature of the property, length of its ownership and holding, actual conduct of the assessee in respect of it all along and other factors including absence of evidence of any trading activity of the speculative venture. In another case the Indian Supreme Court in the case reported as AIR 1959 SC 1252, while striking down the finding of the department, pointed out that mere fact that the assessee had realized that the property was valuable and would increase in price was no reason to hold that it should be treated as income and reliance was placed on a decision of the House of Lords in which it was held that: "An accretion of capital does not become income merely because original capital was invested in the hope and expectation that it would rise in value. If it so rises its realization does not make it income." Again the High Court of Sindh had the opportunity to dwell upon the issue of what constitutes an adventure in the nature of trade in the Civil Appeal No.8 of 2007 -: 9 :- judgment reported as Major General (Retd.) M. Jalaluddin Vs. ACIT, CIR-VI, Zone-C, Karachi (2011 PTD 1377) in which the Court held:- 6. Before adverting to the issue in hand, it would be pertinent if the law regarding adventure in the nature of trade be first examined. It is a trite proposition of law that facts of one case are to be examined on the basis of the surrounding circumstances of that case only. There may be occasions where the facts of one case may be akin to the facts of the other case but as no two sun rises are same so are the cases of tax laws. The prime consideration is the cases wherein the question of adventure in the nature of trade is involved is to examine and gather information from which it can be deduced as to what the intention of the purchaser was at the time of the purchase of the plot. If from the facts gathered it becomes imperative that the said plot was purchased with the intention of resale then the case squarely falls under the ambit of adventure in the nature of trade but if due to subsequent facts and circumstances the assessee had to sale a plot for some reasons to convert an un-remunerative asset into a remunerative asset and obtains a gain, specially in the case of sale of plot, the gain arising there-from is a capital gain on which no tax is applicable subject to the condition that the assessee is neither a dealer nor a habitual purchaser and seller of the plots, though this gain is not considered to be a yardstick so far as the sale of plots are concerned. It has been held in some decisions that under the given circumstances an isolated transaction of sale of the plot was held to be an adventure in the nature of trade and under different circumstances a series of sale of plots can be held not to be so. Therefore, no yardstick or parameter, as far this aspect is concerned, could be laid down and each case is to be judged on the basis of the facts pertaining to that case only. It is also a trite proposition of law that the onus of proving adventure in the nature of trade lies squarely on the department. Civil Appeal No.8 of 2007 -: 10 :- In Pakistan Steel Mills Corporation (Pvt.) Ltd., Karachi Vs. Commissioner Inland Revenue (Legal Division), Karachi and another (2012 PTD 723) the High Court of Sindh observed that:- “12. In order to establish that a transaction whereby a plot of land has been sold out for profit constitutes as “adventure in the nature of trade”, we have to take cognizance of the entire transaction keeping in view intention of the assessee at the time of purchasing the said land as well as future transaction whereby such land has been sold out by the assessee with a intention to earn profit. No hard and fast rule can be adopted in cases of adventure in the nature of trade and each transaction has to be examined on the basis of its own facts.” 7. Coming to cases from the Indian jurisdiction, in the case of Messrs Narain Swadeshi Weaving Mills Vs. The Commissioner of Excess Profits Tax (AIR 1955 SC 176) the Supreme Court, while interpreting the term ‘business’ as defined in Section 2(5) of the Excess Profits Tax Act, 1940 (which is identical to the definition of ‘business’ in the Ordinance), held that:- “14. …Whether a particular activity amounts to any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufacture is always a difficult question to answer. On the one hand it has been pointed out by the Judicial Committee in the – ‘Commissioner of Income-tax, Bengal v. Shaw Wallace & Co.’, AIR 1932 PC 138 (A), that the words used in that definition are no doubt wide but underlying each of them is the fundamental idea of the continuous exercise of an activity. The word ‘business’ connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose. On the other hand, a single and isolated transaction has been held to be conceivably capable of falling within the Civil Appeal No.8 of 2007 -: 11 :- definition of business as being an adventure in the nature of trade provided the transaction bears clear indicia of trade. The question, therefore, whether a particular source of income is business or not must be decided according to our ordinary notions as to what a business is. In the facts and circumstances of the case, the Indian Supreme Court was of the opinion that the letting out of plant, machinery, etc., could not be held to fall within the definition of ‘business’ under Section 2(5) ibid. In the judgment reported as G. Venkataswami Naidu & Co. Vs. The Commissioner of Income Tax (AIR 1959 SC 359) the Indian Supreme Court, in great detail, observed as under:- 16. As we have already observed it is impossible to evolve any formula which can be applied in determining the character of isolated transactions which come before the Courts in tax proceedings. It would besides be inexpedient to make any attempt to evolve such a rule or formula. Generally speaking, it would not be difficult to decide whether a given transaction is an adventure in the nature of trade or not. It is the cases on the border line that cause difficulty. If a person invests money in land intending to hold it, enjoys its income for some time, and then sells it at a profit, it would be a clear case of capital accretion and not profit derived from an adventure in the nature of trade. Cases of realisation of investments consisting of purchase and resale, though profitable, are clearly outside the domain of adventures in the nature of trade. In deciding the character of such transactions several factors are treated as relevant. Was the purchaser a trader and were the purchase of the commodity and its resale allied to his usual trade or business or incidental to it? Affirmative answers to these questions may furnish relevant data for determining the character of the transaction. What is the nature of the commodity purchased and resold and in what quantity was it purchased and resold? If the commodity purchased is generally the subject-matter of trade, and if it is purchased in very large quantities, it would tend to eliminate the possibility of investment for personal use, possession or enjoyment. Did the purchaser by any act subsequent to the Civil Appeal No.8 of 2007 -: 12 :- purchase improve the quality of the commodity purchased and thereby made it more readily resaleable? What were the incidents associated with the purchase and resale? Were they similar to the operations usually associated with trade or business? Are the transactions of purchase and sale repeated? In regard to the purchase of the commodity and its subsequent possession by the purchaser, does the element of pride of possession come into the picture? A person may purchase a piece of art, hold it for some time and if a profitable offer is received may sell it. During the time that the purchaser had its possession he may be able to claim pride of possession and aesthetic satisfaction; and if such a claim is upheld that would be a factor against the contention that the transaction is in the nature of trade. These and other considerations are set out and discussed in judicial decisions which deal with the character of transactions alleged to be in the nature of trade. In considering these decisions it would be necessary to remember that they do not purport to lay down any general or universal test. The presence of all the relevant circumstances mentioned in any of them may help the Court to draw a similar inference; but it is not a matter of merely counting the number of facts and circumstances pro and con; what is important to consider is their distinctive character. In each case, it is the total effect of all relevant factors and circumstances that determines the character of the transaction; and so, though we may attempt to derive some assistance from decisions bearing on this point, we cannot seek to deduce any rule from them and mechanically apply it to the facts before us. 17. In this connection it would be relevant to refer to another test which is sometimes applied in determining the character of the transaction. Was the purchase made with the intention to resell it at a profit? It is often said that a transaction of purchase followed by resale can either be an investment or an adventure in the nature of trade. There is no middle course and no half-way house. This statement may be broadly true; and so some judicial decisions apply the test of the initial intention to resell in distinguishing adventures in the nature of trade from transactions of investment. Even in the application of this test distinction will have to be made between initial intention to resell at a profit which is present but not dominant or sole; in other Civil Appeal No.8 of 2007 -: 13 :- words, cases do often arise where the purchaser may be willing and may intend to sell the property purchased at profit, but he would also intend and be willing to hold and enjoy it if a really high price is not offered. The intention to resell may in such cases be coupled with the intention to hold the property. Cases may, however, arise where the purchase has been made solely and exclusively with the intention to resell at a profit and the purchaser has no intention of holding the property for himself or otherwise enjoying or using it. The presence of such an intention is no doubt a relevant factor and unless it is offset by the presence of other factors it would raise a strong presumption that the transaction is an adventure in the nature of trade. Even so, the presumption is not conclusive; and it is conceivable that, on considering all the facts and circumstances in the case, the court may, despite the said initial intention, be inclined to hold that the transaction was not an adventure in the nature of trade. We thus come back to the same position and that is that the decision about the character of a transaction in the context cannot be based solely on the application of any abstract rule, principle or test and must in every case depend upon all the relevant facts and circumstances. In the case of Saroj Kumar Mazumdar Vs. Commissioner of Income- tax, West Bengal (AIR 1959 SC 1252), the Indian Supreme Court, while determining whether the transaction in question had characteristics which would allow one to conclude that it was a venture in the nature of trade, held:- Hence, the possibility or the probability that the site may appreciate in value, would not necessarily lend itself to the inference that the transaction was a venture in the nature of trade, as distinguished from a capital investment. In all the circumstances of this case, the total impression created on our mind is that it has not been made out by the Department that the dominant intention of the appellant was to embark on a venture in the nature of trade, when he entered into the agreement which resulted in the profits sought to be taxed. Civil Appeal No.8 of 2007 -: 14 :- In The Commissioner of Income-tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pardesh Vs. Prabhu Dayal (dead) by his legal representatives (AIR 1972 SC 386) the Supreme Court of India, while dealing with the question whether the compensation received by the assessee for the termination of the agreement was a capital receipt and hence not taxable, held as follows:- 11. Business as understood in the income-tax law connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose – see the decision of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 = (AIR 1955 SC 176). By this statement we do not mean to say that under no circumstance a single transaction cannot amount to a business transaction. But this is not one such. Herein we are dealing with the stray activity of a non- business man. Hence it is difficult to agree with the Revenue in its contention that the agreement entered into by the assessee with the Dalmia Dadri Cement company should be considered as a business activity. In the judgment reported as The Commissioner of Income-tax, Nagpur Vs. M/s. Sutlej Cotton Mills Supply Agency Ltd. (AIR 1975 SC 2106) the Indian Supreme Court was faced with the question as to whether the profit arising from the sale of shares was assessable as business profit. The Court observed as under:- 13. Where a purchase is made with the intention of resale, it depends upon the conduct of the assessee and the circumstances of the case whether the venture is on capital account or in the nature of trade. A transaction is not necessarily in the nature of trade because the purchase was made with the intention of resale… 14. A capital investment and resale do not lose their capital nature merely because the resale was foreseen and Civil Appeal No.8 of 2007 -: 15 :- contemplated when the investment was made and the possibility of enhanced values motivated the investment (see Leeming v. Jones, (1930) 15 Tax Cas 333 and also the decisions of this Court in Saroj Kumar Mazumdar v. C. l. T. (1959) 37 ITR 242 (250-251) = (AIR 1959 SC 1252, 1258-1259) and Janki Ram Bhadur Ram v. C. I. T. (1965) 57 ITR 21 = (AIR 1965 SC 1898)). 15. In I. R. C. v. Fraser, (1942) 24 Tax Cas 498 (502) (Scot) Lord Norman said: “The individual who enters into a purchase of an article or commodity may have in view the resale of it at a profit and yet it may be that that is not the only purpose for which he purchased the article or the commodity, nor the only purpose to which he might turn it if favourable opportunity for sale does not occur. An amateur may purchase a picture with a view to its resale at a profit, and yet he may recognise at the time or afterwards that the possession of the picture will give him aesthetic enjoyment if he is unable ultimately, or at his chosen time, to realise it at a profit…” 16. An accretion to capital does not become income merely because the original capital was invested in the hope and expectation that it would rise in value; if it does so rise, its realisation does not make it income. Lord Dunedin said in Leeming v. Jones, (1930) 15 Tax Cas 333 at p. 360: "The fact that a man does not mean to hold an investment may be an item of evidence tending to show whether he is carrying on a trade or a concern in the nature of trade in respect of his investments, but per se it leads to no conclusion whatever." This Court laid down in Venkataswami Naidu & Co. v. C.l.T.(1959) 35 ITR 594 (610; 622) = (AIR 1959 SC 359 at p.367; 374) that the dominant or even sole intention to resale is a relevant factor and raises a strong presumption, but by itself is not conclusive proof, of an adventure in the nature of trade. Civil Appeal No.8 of 2007 -: 16 :- 17. The intention to resell would, in conjunction with the conduct of the assessee and other circumstances, point to the business character of the transaction. In the judgment reported as Commissioner of Income Tax Vs. A. Muhammed Mohideen [(1989) 176 ITR 393] the High Court of Madras held that the transaction whereby the assessee purchased a property and sold the same after converting it into small housing plots did not amount to an adventure in the nature of trade as no material was presented by the department to indicate that the assessee ever intended to indulge in any trading activity. In holding so, the Court relied upon its own previous decision rendered in Commissioner of Income Tax, Madras Vs. Kasturi Estates (P.) Ltd. [(1966) 62 ITR 578] in which it held that:- Can we then say that the sales of land in the accounting year were transactions constituting an adventure in the nature of trade? A great deal of stress has been laid for the revenue on the objects mentioned in the preamble to and in the body of the memorandum and articles. Undeniably, the company has the power to deal or traffic in immovable property, to purchase and sell it at a profit as a business. But the objects by themselves are not determinative of the character of the transaction, though the objects should be kept in view. A sale of immovable property may possibly be a trading or commercial transaction, but need not necessarily be so. Here is a company possessed of vast immovable property including lands in different parts of the city and mofussil. It may well be described that the company is a land-owner or at least its position may be similar to it. There are no facts and circumstances present in the case which may be inconsistent with that way of looking at it, notwithstanding the objects shown in the memorandum and articles. If a land-owner developed his land, expended money on it, laid roads, converted the land into house sites and with a view to get a better price for the Civil Appeal No.8 of 2007 -: 17 :- land, eventually sold the plots for a consideration yielding a surplus, it could hardly be said that the transaction is anything more than a realisation of a capital investment or conversion of one form of asset into another. Obviously, the surplus in such a case will not be trading or business profit because the transaction is one of realisation of assets in investment rather than one in the course of trade carried on by the assessee or an adventure in the nature of trade. The case of the assessee can stand on no different footing, as we think, only because it is a company which has among its objects power to trade or traffic in land. There is here no evidence of a venture or adventure. The transaction involved no risk or speculation; nor can it be truly said that it is a “plunge in the waters of trade.” It is a transaction which any prudent owner of land will engage in and which is, therefore, no more than realisation of capital investment, conversion of land into money, not a venture in the nature of trade. Having regard to the nature of the property, length of its ownership and holding, actual conduct of the assessee in respect of it all along and all other facts including absence of evidence of any trading activity or speculative venture, we are of the view, therefore, that the Tribunal was right in its conclusion that the surplus from sale of the land did not result from any trade or business in land carried on by the assessee or from any transaction which may properly be described as an adventure in the nature of trade. 8. In light of the above discussion, we find that indeed there can be no hard and fast rule as to whether a transaction constitutes an “adventure in the nature of trade” amounting to ‘business’ in terms of Section 2(11) supra; instead, such a determination is dependent upon the facts and circumstances of each case. However, in order to make such a determination, the following guiding principles may be employed:- (a) Generally, in order to constitute ‘business’, there must be a continuous, regular or habitual activity for the purpose of earning gain or profit; Civil Appeal No.8 of 2007 -: 18 :- (b) However, this does not mean that a single transaction cannot constitute an adventure in the nature of trade, which must be examined on a case to case basis; (c) A transaction is not necessarily in the nature of trade because the purchase was made with the intention of resale; (d) A capital investment and resale do not lose their capital nature merely because the resale was foreseen and contemplated when the investment was made and the possibility of enhanced values motivated the investment; (e) The intention to resell, by itself is not conclusive proof, of an adventure in the nature of trade, rather would have to be examined in conjunction with the conduct of the assessee and attendant circumstances, to determine the business character of the transaction; and (f) If it is alleged that an activity is in the nature of an adventure, there must be positive material brought on the record to prove that the assessee intended to indulge in such an activity and, in the absence of evidence, the sale of immovable property would give rise only to capital accretion. 9. The appellant is a charitable foundation which is clear from its memorandum of association (MOA). While Clause 21 of the MOA allows the appellant to “purchase, take on lease, exchange, hire or otherwise acquire any real and personal or immoveable and moveable property and any rights and privileges whatsoever and to build, construct, alter and maintain buildings, house or other constructions for the housing of the Foundation or its staff or as necessary or convenient for any of the objects or purposes of the Foundation;” mere permissibility of a transaction by itself does not automatically confer on Civil Appeal No.8 of 2007 -: 19 :- it the status of a business. It is settled law that the burden to prove that an assessee’s receipts fell within the scope of ‘income’ and were liable to be taxed, lies on the department, and if the latter manages to establish this, then the burden shifts onto the former to show that such receipts were exempt from tax. In this regard reference may be made to the case reported as The Commissioner of Income Tax Vs. M/s. Smith, Kline & French of Pakistan Ltd. and others (1991 PTD 999).3 This is particularly so in the cases where a single transaction of immovable property is involved and it is not established on the record that a person engages in continuous, regular and habitual activities for the purposes of earning profit. Therefore, in the instant case, the burden was on the department to prove that the surplus earned from the single transaction of sale of the property fell within the scope of ‘income’ being a profit/gain of the appellant’s business. As is evident from the assessment order, the department wanted to draw an inference from the fact that the appellant converted the property into a parking lot and derived some rental income therefrom, that the appellant had intended, at the time of purchase of the property, to indulge in an adventure in the nature of trade to generate profit. The Commissioner Income Tax (Appeals), the Tribunal and the learned High Court made bald insinuations that the appellant’s conduct vis-à-vis the property and the circumstances surrounding the Fancy family suggested that the property was purchased with the sole intention to sell it at a later time for profit and not to utilise it for charitable purposes. The department failed to discharge its initial burden as there was no concrete material presented by it which proved that the appellant purchased the property 3 See also the Indian cases reported as Parimisetti Seetharanamma Vs. Commissioner of Income-tax, Hyderabad (AIR 1965 SC 1905) = [(1965) 57 ITR 532], S. A. Ramakrishnan Vs. Commissioner of Income-Tax Madras [(1978)] 114 ITR 253 (Mad)] and Sumati Dayal Vs. Commissioner of Income-tax Bangalore (AIR 1995 SC 2109). Civil Appeal No.8 of 2007 -: 20 :- with the intention to indulge in a trading activity. Therefore the question of the appellant proving that the transaction was not an adventure in the nature of trade and hence a business, did not arise as the burden never shifted onto the appellant. That the property had increased in value when it was finally sold by the appellant and therefore fetched a price higher than that for which it was purchased, would not ipso facto mean that this act of selling was an “adventure in the nature of trade” and constituted a ‘business’ under Section 2(11) of the Ordinance and was liable to tax under Section 22(a) thereof. Rather, being a sale of an immoveable property and not a capital asset, the profit/gain from its transfer was not chargeable to income tax under Section 27(2)(a)(ii) of the Ordinance. Thus, the single and isolated incident of buying and selling property by the appellant is not an “adventure in the nature of trade” and would not constitute ‘business’ in terms of Section 2(11) supra, and the surplus earned therefrom was not a profit/gain in terms of Section 22(a) ibid and was not liable to income tax. 10. In the light of the above, this appeal is allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 13th of April, 2017 Approved For Reporting Mudassar/*

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{'id': 'C.A.8_2007.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 900 OF 2020 (On appeal against the judgment dated 23.10.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 618- P/2019) PESCO, Wapda House through its Chief Executive …Appellant(s) VERSUS Ishfaq Khan and others …Respondent(s) For the Appellant(s): Mr. Asad Jan, ASC For Respondent(1-10): Mr. Abdul Hafeez Amjad, ASC Mr. Mehmood A. Sheikh, AOR Date of Hearing: 01.02.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court, the appellant has called in question the vires of the impugned judgment dated 23.10.2019 passed by the Peshawar High Court, Peshawar, whereby the Writ Petition filed by the appellant was dismissed and the judgment dated 07.01.2019 passed by the Labour Appellate Tribunal, KPK, Peshawar was upheld. 2. Briefly stated the facts of the matter are that the respondent Nos. 1-10 are working as regular Upper Technical Subordinate (UTS) in the appellant department. They filed appeal before the appellant PESCO for their promotion to the post of Junior Engineers/Assistant Managers (BPS-17) against 5% quota reserved for UTS graduate engineers. The said appeal was turned down vide order dated 21.12.2015 on the ground of non-availability of the vacancy with further clarification that the said quota is meant for induction/direct recruitment and not promotion. This led to filing of a Grievance Petition by the respondents before the Labour Court, Peshawar. The learned Labour Court allowed the Grievance Petition Civil Appeal No. 900/2020 -: 2 :- vide judgment dated 09.04.2018 by holding that since there is 5% quota for promotion according to the policy issued by the WAPDA and since all other similar electric companies are following the policy of WAPDA, the appellant PESCO is also bound to follow instructions and policies of WAPDA. Being aggrieved, the appellant department filed Labour Appeal before the Labour Appellate Tribunal, Peshawar, which was dismissed vide judgment dated 07.01.2019. The appellant challenged the judgment of the Labour Appellate Tribunal before the Peshawar High Court by filing Writ Petition No. 618- P/2019 but it also met the same fate vide impugned judgment dated 23.10.2019. Hence, this appeal by leave of the Court. 3. Learned counsel for the appellant inter alia contended that the learned High Court has failed to take into consideration that though PESCO is a constituent company of parent department WAPDA but being an autonomous body it has its own statutory rules and as such it has been separated from WAPDA in this regard; that while drawing analogy from the rules framed by the parent department, the appellant cannot be asked to adopt its rules; that this very aspect was totally ignored by the High Court and without giving any definite finding regarding the maintainability of the grievance petition before the Labour Court, the impugned judgment resulted into grave miscarriage of justice; that the judgment passed by the Labour Court directing the appellant to grant promotion to the respondents in lieu of the 5% quota reserved for UTS graduate engineers is without any legal justification, which aspect was altogether ignored by the learned High Court while handing down the impugned judgment. 4. On the other hand, learned counsel for the respondents has candidly defended the impugned judgment. The main stay of the arguments advanced by the learned counsel was that 5% quota was reserved for Upper Technical Subordinates for promotion to the post of Assistant Manager/Junior Engineers (BPS-17) pursuant to the letter issued by WAPDA dated 16.09.2005, which was declined to the respondents by the appellant department, therefore, the grievance petition was competent and in accordance with law. 5. We have heard learned counsel for the parties and have gone through the record. During the course of arguments, learned Civil Appeal No. 900/2020 -: 3 :- counsel for the respondents was specifically asked to show any provision of law which empowers the Labour Court to strike down a policy or notification or it can direct a statutory body to adopt the rules/policies of another statutory body. Learned counsel failed to substantiate any legal justification and candidly conceded that the Labour Court has no jurisdiction to do so. It is now established without any reservation that for striking down a policy, notification or an executive order if it infringes the rights of an individual or group of individuals or if it is found to be arbitrary, unreasonable or violative of law or Constitution, the power exclusively rests with the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and a challenge could be thrown to such a policy, notification or the executive order by way of filing a Constitutional Petition. The Labour Court is not seized with such jurisdiction, therefore, the jurisdiction exercised by it while directing the appellant to constitute a committee to grant promotion to the respondents against 5% quota while drawing analogy with other similar electric companies is beyond its scope. 6. There is yet another question i.e. whether the respondents could have claimed promotion instead of induction against 5% quota by way of filing grievance petition. For this it would be in order to reproduce Section 37(1) of the KPK Industrial Relations Act, 2010, which reads as under:- “37(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within three months of the day on which the cause of such grievance arises” 7. A close reading of the above-quoted provision of law would show that the grievance petition would only be competent if the grievance is with regard to a ‘right guaranteed under law, settlement, or award’. We do not want to delve into the question whether the respondents are ‘workmen’ or not but even for the sake of arguments, if it is admitted that the respondents are ‘workmen’ Civil Appeal No. 900/2020 -: 4 :- within the purview of the aforesaid KPK Industrial Relations Act, 2010, even then the claim of the respondents for which they filed grievance petition does not fall within the ambit of ‘right guaranteed or secured to them by any law’. When we confronted learned counsel for the respondents with this aspect of the matter, he contended that the word ‘law’ means policy of the organization. However, we are not convinced with the contention of the learned counsel. The word ‘law’ in Section 37 of the Act means that it has to be a legal right guaranteed by the statute. 8. The respondents were basically seeking ‘promotion’ to the post of Junior Engineers/Assistant Manager (BPS-17). The learned courts below have held that all the similar electric companies like the appellant have adopted the WAPDA rules for promotion of the similarly placed employees, therefore, the clog of departmental promotion and fresh induction by the PESCO will make their previous service tenure redundant/forfeited. Admittedly, PESCO is a distinct entity, which has its own statutory rules. The law does not permit that a statutory body, who has its own rules, be compelled to adopt the rules of another separate entity. The Labour Court only had the authority to interpret and deal with the respondents under the policy of PESCO, which clearly says that the 5% quota is for induction/direct recruitment and not for promotion. Learned counsel could not controvert that pursuant to the clarification issued by the PEPCO dated 08.03.2010, the posts in question in the appellant department were to be filled in by way of induction and not promotion, which means that there would be fresh appointment and not the continuation of the earlier job. Departmental induction means that the employer takes competitive examination from among the serving eligible candidates for the higher post and the candidates who rank on top according to merit are appointed afresh whereas the remaining continue to perform their job on the previous posts. In these circumstances, we are of the view that the learned Labour Court had no power to direct the appellant company to adopt the rules of WAPDA or similar constituent companies and has wrongly assumed jurisdiction. There can be no doubt that if an order is void, without jurisdiction, ultra vires and passed in disregard of the law, any superstructure raised Civil Appeal No. 900/2020 -: 5 :- over it would automatically fall to the ground and it cannot sustain in the eyes of law. 9. For what has been discussed above, we allow this appeal and set aside the impugned judgment of the Peshawar High Court, Peshawar dated 23.10.2019. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 1st of February, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, C.J. MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEALS NOs. 902 AND 903 OF 2020 (Against the judgment dated 10.3.2020 of the Peshawar High Court, Mingora Bench, (Dar-ul-Qaza), Swat passed in Writ Petitions No.71-M/2019 & 108-M/2019) 1. University of Malakand through Registrar & another Vs. Dr. Alam Zeb etc. In CA 902/2020 2. Vice Chancellor, University of Malakand & another Vs. Dr. Imtiaz Ahmad etc. In CA 903/2020 For the Appellant(s): Mr. Khaled Rehman, ASC Mr. Muhammad Hamayun, Asst. Registrar Legal (In both cases) For the Respondent(s): Mr. Muhammad Asif Yousafzai, ASC (For respondent No. 1 in CA 902/2020) (For respondents 1-7 in CA 903/2020) Mr. Muhammad Sharif Janjua, AOR Date of Hearing: 03.02.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these appeals by leave of the Court, the appellant has called in question the vires of the impugned judgment dated 10.03.2020 passed by the Peshawar High Court, Mingora Bench, whereby the Writ Petitions filed by the respondents were allowed and the respondent No. 1 in Civil Appeal No. 902/2020 and respondents No. 1-7 in Civil Appeal No. 903/2020 were held entitled to payment of salary during the period they remained abroad while availing leave for higher studies, which was duly sanctioned by the competent authority. 2. Briefly stated the facts of the matter, are that respondent No. 1 in Civil Appeal No. 902/2020 and respondent Nos. 1-7 in Civil Appeal No. 903/2020 were initially appointed as CIVIL APPEALS NO.902 AND 903 OF 2020 -: 2 :- Lecturers on contract basis on different dates in the years 2001 to 2005. The contract of the respondents was extended from time to time on the basis of their performance. Subsequently, their services were regularized in the year 2007. They applied for study leave abroad for the sake of higher studies (Ph.D program). Their applications were duly processed and as a consequence, those were allowed by the Vice Chancellor of the University and the respondents were allowed study leave for different tenures without payment of salary. They were also selected for overseas scholarship for higher studies due to their academic qualifications. On return after completion of their studies, they approached the appellant authority with the request that their leave without pay may be treated as leave with full pay. The request was considered by the Syndicate in its meeting held on 27.05.2013 and was turned down. The respondents then preferred review to the Syndicate, which was placed before the Syndicate in its next meeting held on 25.12.2013. The Syndicate constituted a Committee to look into the matter and report. On receipt of the report, the review was once again placed before the Syndicate in its meeting held on 28.06.2014 but it also met the same fate. Ultimately the respondents filed appeals before the Chancellor/Governor KPK but they were also dismissed vide order dated 06.11.2018. This led to their filing of Writ Petitions before the Peshawar High Court, which have been allowed vide impugned judgment dated 10.03.2020. Hence, these appeals by leave of the Court. 3. Learned counsel for the appellants inter alia contended that grant of leave is neither a vested right nor the respondents can claim the same as such; that the learned High Court has misinterpreted Rule 89 of the Service Rules of University of Malakand, according to which study leave can be granted to an employee who has put in at least three years service in the University or its constituent units; that the word ‘employee’ means a regular employee having three years service and not the contract employee and all the respondents were contract employees at the time when the study leave was granted to them; that the writ petitions were hit by the doctrine of laches as leave without pay was CIVIL APPEALS NO.902 AND 903 OF 2020 -: 3 :- granted in the year 2007 whereas the writ petitions were filed in 2019 after a lapse of 12 years. 4. On the other hand, learned counsel for the respondents contended that although the respondents were initially appointed on contract basis but subsequently their services were regularized and their previous service was also directed to be considered for the purpose of seniority; that according to Rule 89 of the Service Rules, an employee who has three years of service on his credit can be granted leave on full pay; that the word ‘employee’ according to the Rules means a person who is being paid from the University funds. He lastly contended that the impugned judgment passed by the High Court is well reasoned and in accordance with the spirit of law and the same may be maintained. 5. We have heard learned counsel for the parties and have perused the record of the case. 6. Firstly, we will take the issue as to whether the writ petitions were hit by laches or not because according to learned counsel for the appellants leave without pay was granted to the respondents in the year 2007 whereas the writ petitions were filed in 2019 after a lapse of 12 years, therefore, the writ petitions were hopelessly barred by limitation. However, we have noted that although leave without pay was granted to the respondents in the year 2007 but after their return they remained knocking the door of the department to get the relief and ultimately in the year 2014 their request was turned down by the competent authority. Thereafter, they filed appeal before the Chancellor of the University i.e. Governor KPK which was rejected on 06.11.2018. In this view of the matter, it can safely be said that finally the cause of action accrued to the respondents on 06.11.2018, therefore, the writ petitions filed on 24.01.2019 were within time. 7. Now we will advert to the question whether the word ‘employee’ mentioned in Rule 89 of the Service Rules covers a contract employee or does it mean a regular employee. It would be in order to reproduce the said Section, which reads as follows:- “89. Study leave on full pay may be granted to an employee who has put in at least three years service in the University or its constituent units. It shall not be granted to an employee within three years of the date on which he/she has the option of retiring. Nor should it CIVIL APPEALS NO.902 AND 903 OF 2020 -: 4 :- be granted to an employee who is about to retire on proportionate pension.” 8. The learned High Court in paragraph 9 of the impugned judgment has dealt with this issue. Relevant portion of the judgment reads as under:- “9. We have considered the respective contentions of the parties in the context of the Rules. In Rule 89, the word ‘employee’ is mentioned who is eligible to study leave with pay with the additional qualification that he must have three years of service in the University, and no distinction has been drawn in the said rule, as to whether the said employee is a regular employee of the University or his employment is on contract basis. Rule 4(h) of the Rules, the ‘university employee’ has been defined to mean a person who holds a post in the university service and who is paid from the University funds whereas ‘regular appointment’ has also been defined in Rule 4(f). Thus, the occurring of word ‘employee’ in Rule 89 appears to be intentional and not an accidental slip or a draftsman’s error. Viewing the aforesaid rule through the prism of literal construction, which envisages that a word used in the statute is to be given its ordinary meaning and the Court has indeed no authority to read a word into an Act of the parliament or omit the same unless clear reason for it is to be found within the four corners of the Act itself. ‘Maxwell on the Interpretation of statutes’ (12th Edition) has explained this position as under:- “It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”. “We are not entitled,” said Lord Loreburn L.C. ‘to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional. We see no reason to infer from the plain reading of Rule 89 that the word employee occurring in the said rule means a regular employee and the period of his employment should be on regular side and not on a contract base because the rules itself have defined both types of employees differently in the definition clause.” 9. A close reading of the above portion of the impugned judgment leaves no room to believe that the word ‘employee’ mentioned in Rule 89 means a regular employee. The learned High CIVIL APPEALS NO.902 AND 903 OF 2020 -: 5 :- Court has very elaborately dealt with this issue and we find no reason to differ with the findings of the High Court. 10. Now the question, which remains to be decided is whether the respondents had the requisite service of three years in terms of Section 89 ibid or not. Despite that the word ‘employee’ used in Section 89 ibid means a regular employee, in the present case it would not be of any benefit for the appellant department. The record shows that although the respondents were appointed on contract basis on different dates in the years 2001 to 2005 but their services were regularized in the year 2007. It is clearly mentioned in their regular appointment orders that their previous service shall be considered for the purpose of seniority, therefore, it can be concluded that the total length of service rendered by the respondents at the time of availing the leave was more than three years, which entitles them to study leave with full pay. 11. The learned High Court in paragraph 10 of the impugned judgment has also dealt with the issue, as to when the respondents were allowed study leave then after availing the same and after joining the duties, whether they are not estopped by their conduct to claim the said study leave with full pay. The learned High Court after relying on the judgments of this Court came to the conclusion that as a rule of evidence estoppel can be invoked by a party, however, the same cannot be accepted against the statutory obligation of a person even though one party might not have expressly claimed his right which was available to him under the law. This Court in the case of Zarai Taraqiati Bank Limited Vs. Said Rehman etc (2013 SCMR 642) has candidly held that “there is no estoppel against law”. The same view was expressed by Indian Supreme Court in the cases of Union Territory, Chandigarh Admn Vs. Managing Society, Goswami, GDSDC (AIR 1996 SC 1759) and P.R. Deshpande Vs. Maruti Balaram Haibatti (AIR 1998 SC 2979) by holding that principle of estoppel does not apply against statute and it has no application when statutory rights and liabilities are involved. As it is now well settled that no estoppel exists against law, therefore, keeping in view the facts and circumstances of the cases, we are compelled to observe that one wrong of the respondents of not claiming their right earlier cannot be acted upon CIVIL APPEALS NO.902 AND 903 OF 2020 -: 6 :- as a precedent when it comes to give effect to the express words of a statute. If a person has been bestowed some legal right by law/statute and he omits to claim such legal right for a certain period of time, it does not mean that he has waived his legal right and subsequently he cannot claim such right. Inherent power and doctrine of estoppel cannot be applied to defeat the provisions of statute. When the statute clearly provided that study leave on full pay may be granted to an employee who has put in at least three years service, the appellant authority ought not to have refused the respondents their right guaranteed under the statute. 12. For what has been discussed above, we find that the learned High Court has passed a well reasoned judgment to which no exception can be taken. The appeals having no merit are accordingly dismissed with no order as to costs. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 3rd of February, 2021 Approved For Reporting Khurram

{'id': 'C.A.902_2020.pdf', 'url': ''}

{'id': 'C.A.902_2020.pdf', 'url': ''}

1 ن�� � ِ�ا� )�ِ�� ر�اِ�ا ( د��: � ،ن� � �ود � ب� � ،�و� قر� � ب�  �ا�دى� �ا٩٠٤/٢٠١٣  � ِ�ز)٢(١٨٥ِ �آ،ل� �� ن�� ١٩٧٣؁ ء ) ف�ِ  ��� ِ�ا�رو�  ،د�آ �ا�، �ر�د�آ �ا ٠٣۔٠٦۔ ٢٠١٣  رد �ا�د ���ى� �ا�رد٢٠١٠/٢٣( ن� �� � )ہ� �ا( م�  �ا�ا �وہ� )� ل�(  ��ہ� �ا:  ب� �� م�،��  �و � ِ�ا�  � �را ىر��� ِ�ا� �و � ،)�� �(  ��� ل�: � ،�ر �ا �ا� ِ�ا� �و ��  ىر��� �ا� ِ�ا� �و � ،)�� �( �� ِ�ر�: ٣٠ ��، ٢٠١٦؁ء  C.A. No. 904 of 2013 2 � � ،ن� � �ود:۔  �� ��� :  �و� � � ل� ہ�و �ا�ا �� ل�اى ٦٩١١ �ر� ہ� �� ١٧۔٠١۔٢٠٠٧ِ رز �ر روا ى �� �وا� �ارا � ور � ُ  � �٣۔ � ل�ا جرد �ور �� ٢۔ ل�ا ِ�� ہ� �ا �ارا /� ��ا� ِ� ل� را� �و�ور ُ� �� � ر�ا �  � سا � ل� راد � ہر����� ےد ن� �ا � ر� ى�� ہو � ہو � ر� ��ز  � سُا  ضا�ا/�ا� � ر�اِ� � � جرد  ، را� �ا�رد ى �� � � � � ں�ُا ا� ِ � ل�� � � �  � �� � � روا � � � �� � ل�ا �ا �ر� � �ِ Ex. (PW 3/2) ۔� � � ٣۔  � �� ��د�ا�د� � ر� را�ا � � � � � � لِۂ ٹر�ر � � �ا�   � ىد � �� � � � �ر� � ل� � � � � م� م�� ر� ى� � � � سُا روا ۔� ٤۔ ٗہ� �ر� ٢٧۔٠٦۔٢٠٠٧ �� ��و ہ� �د � � ل� ِ�و � ������� � � ل�  �اد روا � �ا� ى�د با�ٰ � �اد � د� �� � سُا � ر� �ز� �� � �ا� ِ�اد � �د �� ہو � ��ُا زا�ا � � ى� ت�ا�ا � ى�د با� � � روا �ٰىٰ � � �ر� �   �� ك� روا � � �� ��رِا روا � � � �� � � سد�ا ِ�� �� ۔� � � � �   ہر� ن�ا�٢٤۔٠٤۔٢٠٠٨�ُا � � ل� � ������  � �� � � � � ر� ى�� ر�ا � � د�ا � ��اڈ �ىر�� روا �� ہد�  ر� � � ل� ِ�و � � � جرد � ى�د �������ٰ  ر�ا ��� � ۔ ٥۔ �د � �ا�ا ِ�ا�ىٰ � ہ� �ا/�ف� � � � رد� ى�ڈ � � � � ل�  � � � �ا � �ا ِ�ا�  � � � �اد � �� � �� �  �ارا � ہد� � ف� �ا �� �ا ں�ود �رذ � � � � � � �اد �ا ف� ��� �� � � ٣ �ر� �  ٠٥۔١٢۔٢٠٠٩۔� جر� �  � � ل� � � سا �ا�د �ا� رو� �� ِ�ا� � � ہ�ر C.A. No. 904 of 2013 3 ٢٣/٢٠١٠ �  �ر�١٤۔٠١۔٢٠١٠ �ر� � �� � م� � �� ِ�ا� � � � �اد �  ٠٣۔٠٦۔٢٠١٠� روا �� �� ر� � زا � تد ں�ود �� �� �ا � � � ا�د ع� ِ�  � � �� �� �ا�� ت� � � تد� ِ�د � د� ہ� �ا � � ں�� � � ، ۔� �اد ا� ِ�ا � ہ�  �� �وء ۔� ہ�� ر� � �� تد� روا � � � � � ��د � ٦۔  ِ�� ہ� �ا ِ�و/ � �� ِ�ا� � �د روز � � ��� سا �� �د ��د � ��  �د ِ�ز ر�ا١١٥ � دو� ��ا �ا�د ��ا رواِ� ط� ہ�� � �د � ت� � �  �  �ا�  �� �� خ�� � � � � � � ط�� ��ا � � نا  �� �د ��د �� ۔ � �او �  ا � �و ��ِ� � را� �  � � �� ِ�ا� � تد� روا ت� �و� ِ   �� � � � �  �ا� ِ� �� � � ��� �ا � ر� ىر� � �ا � م� ٔ� � ہ ور � ر� �او � ُ �و� �اد � � �� � �، � ز� ر � ہ� ل� راد � �د ن� ى�� رواا� �ا� �  ن�ا� ں�ود� � ز� ِ�ا راد �ذ ىر�� �ا � � سا � ۔� �� � � سا � �� تد� ِِ �� � �� ہو � �� در � ن�� �ر ��  � � �� ِ�ا �� � �� ل� را� �� � � ز  ��� روا � � تد� ۔� �� � ہ� � � � � � � ى�� �ا�رد � �� �� �د�  � �� ح� �اِد�ار�� ى�ر  /اڈ� ل� � � � � � � �ُا �رذ � ىر�� � � جرد ل�ا ِ�� � � ن�ا� �� � � ل� � � � � ٢٤۔٠٤۔٢٠٠٨ ِ�اد �  � � � � �ا� � � � جرد � �و �ا ى�د �ٰ ِ� �� رود�ا � � جرد � �� �  � ا� ��ا � ل �  � ىز� ل� �� � �� � �اڈ � �ار � � �ا� روا ف�ا � � ل� ن�� �ور زا � � � �د � ہ�� � سُا � تر� � � � � �� ف�  �اِ  � ء����� �� ��ا � � ������������� � راد�را� سا �� ہ� �ا ہو �رذ  / ���" �د١٣  � ن��"  ت� � �ر� � � ��� � �ر� � ود�� �� �� � ں��۔ ٧۔  � ل� ِ�و ��/��� � � �ا ط� � ِ�ز � � �� �د روز �  ِ�ا�   جرد � ��� � �  � ا� ِ�ا� �� � �د �� � ��د �ا � ں�ا � � سا روا  �� نا� �ِ ہ� � س� م� ہ�و � �)� �� ِ� ��� � ِ�ا�ت�  ہ� ��ل�  ٢٠٠٧ � � ٥٠٤ (� � � ا� ِ�ا� � ں�ا � � �� ۔� ار� � نا�ا ��� �ر� �د  C.A. No. 904 of 2013 4 � م� ہ�و �رور�ا )ِ� ��� � ِ�ا� � ت� � ہ� �� ��ر ��ہر�۔ہ� ل�٢٠١٣ ��٨٦٦ (۔�د �ا� � � � روا ��د �� �ر� سا � � ور � �� تدُ � ىرا�د �� � � � � �  �� �� ��� � �ا � �� �� � � ہ�� ��� � � �او � � �� �� �� � ���ا� � � �� �� راور�  �� ے� �� � �د ہ�� � �  � سا � �� راو ر� �  � ہ� �ا �� ۔ےد �د م�اِ�ِ�ا� � ظ�ا ف�ا و /� � روا � � م� ٔ� ن��ا   � و � � د� � � سا ا� ۔� د�� تد� ��ز روا ى�� � ت� � � روا �� ر�ود � �ا � ِ� �� �� � � � �� � � �� ِ�ا� �� د�ا� ہر� ت � � � نارود �  � � �� ہد� � ر� �ز� ٔ�� � � روا ىد ٹر�ر � � �ا � ل� /� �� �   �ا� ِ�اد � � �� � �� �� � � � � � ےد � ہ� جرد ہر�� � ن�ا� ِ��  �� ك� ��  �ا � � ل� ا� � �� روا � � � ٹ� ےڑور � ہار � ف�ا و �ا ۔� �� م� � ��ا ٨۔  � � ف�ا و ن�� ل�ُا � �ِ � � ں�ا� � ود  � � تد� � � ت� � � � �� � � ں� د� د� � �� � � ِ�ا� �� � � �� �� در � �� ِ�ا� �� ر�ا �  نُا ف� �د � � � � � دو� � ت� ���١١٥ جرد � �ا�د ٔ�� ۔� ٩۔  � � سا �� � د�� ہ�ذ �و � �� و ت� � � ا� ِ�ا� � � سا ��اِِ  نا� �� � �ہ�و � ل�)  ،��ر � ن�� ن�� PLJ 1983  � � � ِ�ا�٠١( �  ہد�ز ل�ُا ہ� �و ى� � � ىر� �� � � � ِ�ز � ق�ا � سا �� �� � ل� روا ۔� � �� روا �� � ر� � ١٠۔  � � � � � � � ل�ُا � � ر� �او � ا� ِ�ا� � �� �ر� � ت� �� ِ�ا��   ن�� � � � ت�او �� � � �� ِ�ا� � د�� � ب�را � � �  سا روا �� �� ع� ِ� زا � � � تد� � � ں� ۔� � �� � � ر� � �ا� � سا C.A. No. 904 of 2013 5 � ر�ا � �� �ا � � ��� ِ�ا�  ن�ا � �ز �ار � � سا ��ا � �� � ِ ۔� � د��  � � � ت��و �� �ر� �� � ں�� � ن�� و ف�ا �ا ِ�ز � � �� ِ�ا� �ا� � روا � ت� � � � ��  �� � �� �ا� �� �� در � ر� ى�� �   � � � � � ب�را � � ��� � �� ہر�� ا� ۔ � � �ز� ف�ا ض� �� �ردِ  ى�ڈ � � �� � ل� � ت� � � � � �ا�د �� �ا� � � � خ� � ى�ڈ و � ہ� �ا ِ�/۔� �� � ل� �� ١١۔  �� �ا�۔� �� � ھ�  � � �آ م�ا،د٣٠ ،�� ٢٠١٦ء ؁ )ر� � � ��ا( �و �ا

{'id': 'C.A.904_2013.pdf', 'url': ''}

{'id': 'C.A.904_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 908 OF 2012 (On appeal against the judgment dated 17.5.2012 passed by the Islamabad High Court, Islamabad in Writ Petition No. 622/2007) Pakistan Telecommunication Company Limited … Appellant VERSUS Employees Old Age Benefit Institution and another … Respondents For the Appellant: Mr. Hamid Khan, Sr. ASC Mr. M.S. Khattak, AOR For the Respondents: Mr. Tariq Bilal, ASC Date of Hearing: 01.03.2016 JUDGMENT FAISAL ARAB, J.- Telegraph & Telephone Department was originally a department of the Federal Government. Under Pakistan Telecommunication Corporation Act, 1991 (Act XVIII of 1991) the Telegraph & Telephone Department was transformed into a Corporation and its affairs were entrusted to a board comprising of a chairman and 11 other directors appointed by the Federal Government. In the year 1996, for the purposes of reorganizing the telecommunication system in the country, the Pakistan Telecommunication (Re-organization) Act, 1996 (Act XVII of 1996) was passed. It was intended to dissolve the Corporation and in its place create five different entities in which the rights, properties and liabilities of the Corporation were to vest. These five entities Civil Appeal No. 908/2012 2 that were to form under the said Act are (i) Pakistan Telecommunication Authority, (ii) Frequency Allocation Board, (iii) National Telecommunication Corporation, (iv) Pakistan Telecommunication Employees Trust and (v) Pakistan Telecommunication Company Limited. Out of these five entities, the entity mentioned last was to be incorporated as a company limited by shares under the Companies Ordinance, 1984. The remaining entities were to come into existence as four distinct statutory bodies that were to perform various functions under the administrative control of the Federal Government. Relevant for the purposes of these proceedings is the status of ‘Pakistan Telecommunication Company Limited’ a company limited by shares which was incorporated with effect from 1.1.1996. This limited company that was formed is the appellant in the present proceedings. Under the Pakistan Telecommunication (Re- organization) Act, 1996, all employees of the defunct Corporation were to be transferred to the five distinct entities out of which a very large number was transferred to the appellant company. The employees of the defunct Corporation, who were transferred to the appellant company, their terms and conditions of service were secured under Section 36 of the Pakistan Telecommunication (Re- organization) Act, 1996. 2. In the year 1998, respondent No. 1 called upon the appellant company to pay contributions in terms of Sections 9 & 9- B of the Employees Old-Age Benefits Act, 1976 from the date of its incorporation. Such demand was resisted by the appellant Civil Appeal No. 908/2012 3 company by taking the plea that Section 47(f) of the said Act exempts all statutory bodies from the application of the said Act and as the appellant company was created under the Pakistan Telecommunication (Re-organization) Act, 1996, it enjoys the status of statutory body and thus not liable to pay contributions. This led to the issuance of show cause notice, which was then followed by registration of the appellant company under the Employees Old-Age Benefits Act, 1976. To challenge it registration on the ground that the appellant Company being a statutory body was not liable to make contributions, it first lodged a complaint with the Institution under Sections 33 of the Employees’ Old-Age Benefits Act, 1976 and when its complaint was rejected it appealed to the Board of the Institution as envisaged under Section 35 of the said Act. Having availed both the statutory remedies provided under Sections 33 and 35 the Employees’ Old-Age Benefits Act, 1976 and failed, the appellant company was served with a demand notice in March, 2007. Faced with coercive action in the wake of the demand notice, the appellant company challenged the demand notice in a Constitution Petition filed under Article 199 of the Constitution of Pakistan. This petition was initially filed in the Rawalpindi Bench of the Lahore High Court. However, after the establishment of the Islamabad High Court, the same was transferred to it for disposal. The Constitution Petition was eventually dismissed vide impugned judgment dated 17.5.2012. Aggrieved by such decision, leave to appeal was filed in this Court, that was granted and Civil Petition No.1299 of 2012 was converted into present appeal. Civil Appeal No. 908/2012 4 3. Learned counsel for the appellant Mr. Hamid Khan argued that the appellant Company was the creation of a statute as it was created under Pakistan Telecommunication (Re- organization) Act, 1996 and thus being a statutory body, by virtue of Section 47(f) nothing in the Employees Old-Age Benefits Act, 1976 applies to the persons who are in service of statutory bodies. He, therefore, submitted that the demand raised by the respondent No. 1 for realizing contributions under Employees’ Old-Age Benefits Act, 1976 was without jurisdiction. In the alternative, it was also argued that as many employees of the Pakistan Telecommunication Corporation were originally the employees of Telegraph & Telephone Department, who at that time enjoyed the status of civil servants and thereafter as employees of the statutory body, their terms and conditions of service were protected under Section 36 of the Pakistan Telecommunication (Re-organization) Act, 1996, therefore, the appellant company was not liable to make contributions under the provisions of Employees’ Old-Age Benefits Act, 1976 in so far as such employees are concerned. 4. The only question that needs to be decided is whether the appellant company can be described as a statutory body as stated in Section 47(f) of Employees’ Old-Age Benefits Act, 1976 and therefore not amenable to the provisions of the said Act. 5. The appellant company was incorporated as a limited company under the provisions of the Companies Ordinance, 1984. Civil Appeal No. 908/2012 5 It did not come into existence under the Pakistan Telecommunication (Re-organization) Act, 1996. This Act only provided that a company limited by shares shall be incorporated under the provisions of the Companies Ordinance, 1984, as is evident from Section 34 of the Pakistan Telecommunication (Re- organization) Act, 1996. This legal position is realized by the appellant Company itself as in the memo of appeal, it is stated that the appellant company remained a statutory body at-least till such a time it was transformed from a state owned statutory body to a public limited company and such transition took place upon transfer of the management of the appellant company to a foreign company i.e. Etisalat International Pakistan LLC in May, 2006 and therefore uptill May, 2006 it is to be regarded as a statutory body. 6. In our view only such entities can be described as statutory bodies which come into existence by virtue of a Statute. Where the legislature has not brought into existence an entity through a special law but the same has been incorporated under some existing statute then such entity cannot to be assigned the status of a statutory body. If every entity that is formed under some existing statute is to be described as ‘statutory body’ then we are afraid every limited company incorporated under the Companies Ordinance, 1984, every partnership concern formed under the Partnership Act, every association formed under the Societies Act and every co-operative society formed under the Cooperative Societies Act is also to be described as ‘statutory body’. For an entity to be described as a ‘statutory body’, its birth itself Civil Appeal No. 908/2012 6 should have been caused by a special statute. In other words, such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute. Examples of some entities that are creatures of the Statues itself are Karachi Port Trust, Pakistan International Airlines, and WAPDA. Such entities only are to be regarded as statutory bodies. How the appellant company, which came into existence under the provisions of the Companies Ordinance, 1984, could be regarded as an entity incorporated under Pakistan Telecommunication (Re- organization) Act, 1996 when it was incorporated under the Companies Ordinance, 1984. As the appellant company was incorporated under an existing law, it cannot be regarded as a ‘statutory body’. None of the employees of the appellant company also, from the date of its incorporation, can be regarded as employees of a statutory body so as to enjoy the benefit of the provisions of Section 47(f) of Employees’ Old-Age Benefits Act, 1976. The management of the appellant company may have been transferred to a foreign company i.e. Etisalat International Pakistan LLC in May, 2006 but that cannot be made the starting point to reckon its transition from a statutory body to a non- statutory body. The deciding factor would be when the appellant company, as a separate and distinct entity limited by shares, was incorporated under the provisions of the Companies Ordinance, 1984. It matters not that at the time of its incorporation its shares were solely held by the Federal Government. Civil Appeal No. 908/2012 7 7. In view of the above discussion, the appellant company cannot be regarded as a statutory body and thus has become liable to pay contributions under the provisions of Employees’ Old-Age Benefits Act, 1976 from the date of its in-corporation. This appeal is therefore dismissed. JUDGE JUDGE JUDGE Islamabad, the Announced on _______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NOs. 909 TO 912 OF 2020 & CRIMINAL ORIGINAL PETITION NO. 87 OF 2020 (On appeal against judgment dated 31.01.2020 passed by the High Court of Balochistan, Quetta, in CP No. 246/2008 & 334/2019) Khalilullah Kakar (In CAs 909 & 911 of 2020) Irfan Ali (In CA 910 of 2020 & Cr.O.P. 87 of 2020) Abdul Haleem and another (In CA 912 of 2020) … Appellants/Petitioner VERSUS Provincial Police Officer, Balochistan etc (In all cases) … Respondents For the Appellants: Mr. Muhammad Shoaib Shaheen, ASC (In CAs 909 & 910 of 2020) In person (In CA 911 of 2020 & Cr.O.P. 87 of 2020) Sh. Riazul Haque, ASC Syed Rifaqat Hussain Shah, AOR (In CA 912 of 2020) For the Respondents: Syed Iftikhar Hussain Gillani, Sr. ASC (For respondent Nos. 2, 3, 5 to 10, 20 in CA 909 of 2020, respondent Nos. 2, 3, 5, 8, 12 in CA 910 of 2020 and respondent Nos. 2, 3, 5 to 10, 12 in CA 911 of 2020) Mr. Adnan Basharat, ASC (For remaining repondents in CAs 909 to 912/2020) For Govt of Balochistan: Mr. Ayaz Khan Swati, Addl. A.G Date of Hearing: 24.03.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated judgment, we intend to decide the above titled cases, as the issue involved in these cases is common and they have arisen out of the same judgment. Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 2 2. Civil Appeal Nos. 909/910/911/912/2020: Through these appeals by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as ‘the Constitution’), the appellants have called in question the judgment dated 31.01.2020 passed by the High Court of Balochistan, Quetta, whereby the Constitutional Petitions filed by the respondents were allowed and the Provincial Police Officer, Balochistan, was directed to issue a joint seniority list of Deputy Superintendents of Police (hereinafter to be referred as ‘DSPs’) of all cadres/branches. 3. Succinctly stated the facts of the matter are that as per practice at some point of time there was a joint seniority list of DSPs belonging to different cadres/branches of the Balochistan Police Force. However, subsequently the seniority lists upto the rank of DSPs qua some of the branches was separated keeping in view the nature of work. The respondents being DSPs of legal/prosecution branch challenged the issuance of separate seniority lists by filing Constitutional Petition No. 246/2008 before the High Court of Balochistan, Quetta. The said Constitutional Petition was finally accepted vide judgment dated 23.04.2009. Consequently, a joint seniority list of DSPs was issued on 16.08.2009. The police officers of the rank of DSPs of different cadres challenged the judgment of the High Court dated 23.04.2009 by filing an application under Section 12(2) CPC, which was accepted vide judgment dated 20.06.2017. Resultantly, the earlier order dated 23.04.2009 was recalled and the petition was directed to be amended by impleading the DSPs of other branches as respondents. This order was assailed before this Court through Civil Petition No. 5196/2017 and this Court maintained the same vide order dated 11.06.2018. The appellant department although issued joint seniority list on 11.12.2017 but ultimately issued two separate notifications on 06.03.2019 determining the seniority of 26 DSPs belonging to legal/prosecution branch in one notification whereas through the other notification, the seniority of 170 DSPs of other branches was determined separately. The DSPs of the legal/prosecution branch filed objections qua the separate seniority lists but without awaiting its fate filed Constitutional Petition No. 334/2019 before the High Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 3 Court of Balochistan, Quetta. Both the above-said Constitutional Petitions were allowed vide impugned judgment and the department was directed to issue joint seniority lists of DSPs of all branches. Hence, these appeals with leave of the Court. 4. Learned counsel for the appellants along with appellant in person in Civil Appeal No. 911/2020 inter alia contended that in all the Provinces of Pakistan including Islamabad Capital Territory, the seniority of prosecution/legal branch is being maintained separately as the qualification and training for this branch of Police is entirely different than that of the other branches, which are called general cadre; that the law also does not permit making of a joint seniority list; that as the respondents were civil servants, the learned High Court while adjudicating the constitutional petitions has wrongly assumed jurisdiction, which is contrary to the spirit of the Constitution of Islamic Republic of Pakistan; that the learned High Court has travelled beyond its jurisdiction and authority to declare the separate seniority lists as illegal without considering the legal and factual aspects of the case. They lastly prayed that the impugned judgment being against the law, may be set aside. 5. On the other hand, learned counsel for the respondents have defended the impugned judgment on the ground that the police force has already been declared one indivisible body possessing various limbs performing the assigned functions and each of these limbs of the establishment are in-fact integral part of police force and as such under no rule of construction they can be considered as separate or different cadres, therefore, there is no irregularity in the impugned judgment. It has been further argued that the seniority list with specified assignment of job is classified only to the rank of DSPs whereas on further promotion the same is merged into and the seniority list irrespective of the classification of branch becomes irrelevant. 6. We have heard learned counsel for the parties and have perused the record as well as the relevant law. 7. The questions involved in these appeals are two fold i.e. (i) whether in the given facts and circumstances of this case the constitutional petitions were maintainable before the learned High Court in view of the specific bar contained in Article 212(2) of the Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 4 Constitution of Islamic Republic of Pakistan, 1973, and (ii) whether there should be a joint seniority list of DSPs of all cadres/branches and the same is sustainable due to the requirement of classification, manner of selection, training procedure and identification through the same uniform and rank. 8. As far as the first question which could hit the very roots of this case is the assumption of jurisdiction by the learned High Court of Balochistan under Article 199 of the Constitution in the presence of specific bar provided under Article 212(2) of the Constitution is concerned, there is no denial to this fact that the respondents being employees of Balochistan Police Force are civil servants and the matter pertaining to issuance of joint seniority lists specifically relates to their terms and conditions of service, which particularly rests within the jurisdiction of Balochistan Service Tribunal. The learned High Court mainly assumed jurisdiction on the ground that at the time of passing of the impugned judgment, the Balochistan Service Tribunal was not functional. The Service Tribunal was not non-functional for an indefinite period. It has been brought to our notice that the earlier Chairman of the Balochistan Service Tribunal remained performing his duties with effect from 06.12.2016 to 05.12.2019 and thereafter the incumbent Chairman was appointed on 05.05.2020 whereas Constitutional Petition Nos. 334/2019 was filed on 01.04.2019 when the Tribunal was operational. Similarly, Constitutional Petition No. 246/2008 was initially filed on 11.05.2008 and after the judgment of this Court dated 06.11.2018 the amended petition was filed on 24.09.2019. On these dates also, the Tribunal was functional. Therefore, it can be safely said that the very institution of the Constitutional petitions was against the Constitutional mandate. It is an established principle of law that the courts assume their jurisdiction through particular law conferring a particular jurisdiction. Article 212(2) of the Constitution specifically places an embargo on all other courts except Service Tribunal to grant an injunction, make any order or ‘entertain’ any proceedings in respect of any matter relating to the terms and conditions of service even if they are mala fide, ultra vires or coram non judice. It would be in order to reproduce the said Article 212(2) of the Constitution, which reads as under:- Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 5 (2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.” 9. The word ‘entertain’ used in Article 212(2) of the Constitution is of significance importance. This means that any petition or proceeding relating to the terms and conditions of service even should not be entertained by the High Court in its constitutional jurisdiction under Article 199 of the Constitution. In view of the facts and circumstances of this case, entertaining and then proceeding with the constitutional petitions amounts to defeating the express Constitutional mandate under which Tribunal is vested with jurisdiction to deal with the matters of civil servants. This Court in the case of Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) has held as under:- “149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.” 10. In Asadullah Rashid Vs. Muhammad Muneer (1998 SCMR 2129), this Court held as under:- “Constitutional petition under Art. 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of Art. 212 of the Constitution of Pakistan. Orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 6 Civil Courts including High Court is ipso facto ousted as result of barring provision of Art. 212 of the Constitution.” 11. The same was the view of this Court in National Assembly Secretariat Vs. Manzoor Ahmed (2015 SCMR 253). The writ jurisdiction is extraordinary in its scope, it has to be exercised sparingly. The jurisdiction conferred on the High Courts under Article 199 of the Constitution is an extraordinary relief and the same has to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums. When the law has provided an adequate remedy, constitutional jurisdiction under Article 199 of the Constitution cannot be exercised as the same has to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction. It has time and again been said by this Court that tendency to bypass remedy provided under relevant statue by resorting to constitutional jurisdiction is to be discouraged so that legislative intent is not defeated. The same is meant to be exercised in extraordinary circumstances and not in run of the mill cases. Even otherwise, we have noted that the respondents had not approached the learned High Court after exhausting the remedy of filing departmental appeal. Therefore, we are compelled to observe that the very constitutional petitions were not maintainable before the learned High Court. 12. The second question before us is whether there should be a joint seniority list of DSPs of all cadres or it has to be separated from each other depending upon the nature of work. It is a matter of common practice, which is prevalent in all four Provinces and Islamabad Capital Territory that seniority lists of DSPs of legal/prosecution branch is being prepared separately as compared to DSPs of other branches. Section 2(b) of the Baluchistan Deputy Superintendents of Police Service Rules, 1978, speaks about different branches of the Police. It says, ““branch” means a branch of the Department organized as a separate and self-contained unit such as General Branch, Prosecution Branch, Tele communication Branch, Special Branch, Motor Transport Branch, Finger Print Branch and Anti Corruption Branch.” So, the very enactment, which deals with only the DSPs of Balochistan, itself admits about the different branches. The aforesaid DSP Rules, 1978, Balochistan Civil Appeal Nos. 909 to 912 of 2020 & Criminal Original Petition No. 87 of 2020 7 Police Act, 2011 and the Police Rules, 1934, are silent on the point as to whether there should be separate or joint seniority lists of DSPs but the language used therein about the different branches of the police force and the fact that the mode of recruitment, nature of job, duties and training of legal/prosecution branch of the Balochistan Police is different than the other branches of the police, leaves no room to believe that the act of issuing separate seniority lists is well reasoned, in line with the practice followed in other Provinces including Islamabad Capital Territory and Gilgit Baltistan and in accordance with the intent of the law. So far as the law laid down by this Court in Gul Hassan Jatoi (2016 SCMR 1254) is concerned, the issuance of separate seniority lists upto the rank of DSPs does not in any manner bifurcate the compactness of the Police force when it is established that beyond the rank of DSPs, the seniority list is again merged into one unit and as such supplement the words of this Court ‘one indivisible body’. 13. For what has been discussed above, these appeals are allowed and the impugned judgment is set aside. 14. Criminal Original Petition No: 87/2020: Since, the main appeals have been allowed, this Criminal Original Petition for initiating contempt proceedings against the respondents has become infructuous and is disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE Islamabad Announced on 21.05.2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja, Mr. Justice Sarmad Jalal Osmany Civil Appeal No. 90 of 2011 (Against the judgment dated 18.5.2010 passed by the Lahore High Court in WP.4729 of 2010) Ghazala Tehsin Zohra. … Appellant(s) Versus Mehr Ghulam Dastagir Khan and another. … Respondent(s) For the appellant(s): Mr. Saif ul Maluk, ASC with appellant and her daughter (Hania Fatima) For the Respondent-1: Sardar Muhammad Aslam, ASC Respondent-2: Proforma respondent. Date of hearing: 02.02.2015 Judgment Jawwad S. Khawaja, J.- The appellant in this case is Mst. Ghazala Tehsin Zohra. Undeniably she was married to the respondent Mehr Ghulam Dastagir Khan on 9.8.1997. On 21.03.2000 a daughter Hania Fatima was born from this wedlock and on 9.2.2001 a son Hasan Mujtaba was also born. The respondent took a second wife. Thereafter, a suit for maintenance was filed by the appellant for herself and for their two children. When notice of the suit was served on the respondent, he made out a written talaq nama (Ex. D/3) on 26.06.2001. On 6.7.2001, the respondent filed a declaratory suit denying his paternity of the two children mentioned above. Para five of the plaint which sets out the main thrust of the suit is in the following terms:- These averments were denied by the appellant in her written statement. Civil Appeal No.90 of 2011 2 2. Thereafter, 6 issues based on the pleadings were duly framed by the trial Court; the first two being relevant for the present matter are in the following terms:- “1. Whether there was born no son or daughter out of marriage between the parties and Mst. Hania Fatima and Hassan Mujtaba have no relation whatsoever with the plaintiff and record if any, showing that the said children are son and daughter of plaintiff is forged, fictitious, result of fraud and inoperative upon rights of plaintiff? OPP 2. Whether plaintiff is estopped through his words and conduct to file his suit, OPD” 3. The respondent-plaintiff appeared as his own sole witness as PW-1. An important element of his testimony is that although he leveled various allegations against the appellant and also imputed unchastity to her by naming some other person as the father of the two children, he admitted in his cross examination that he had conjugal access to the appellant in his marital relationship until the dissolution of his marriage with the appellant. The other significant aspect of the respondent’s testimony is that he did not deny his paternity of the two children at or immediately after their birth. The relevance of this fact is considered below. 4. The trial went on for some time and when it was to conclude after the evidence of both sides had been recorded, the respondent filed an application on 27.10.2007 i.e. six years after filing of the suit. In the application, he prayed that a DNA test be conducted to establish his denial of paternity. The application was dismissed by the trial Court on 20.03.2008. A revision petition filed by the respondent was, however, allowed on 9.2.2010 by the learned Additional District Judge. The revisional judgment was affirmed when writ petition No.4729/10 filed by the appellant was dismissed. The revisional judgment and the judgment of the High Court, both proceed on erroneous bases and are liable to be set aside for the reasons considered below. 5. There are quite a few aspects of this case which have very far reaching consequences and, therefore, need to be dealt with in depth so that the law can be clearly enunciated in the light of Article 189 of the Constitution. However, before discussing these material aspects, it is important to set out briefly the relevant facts, to provide context for the discussion which follows. Civil Appeal No.90 of 2011 3 6. The suit filed by the respondent sought a declaration to the effect that the two children Hania Fatima and Hassan Mujtaba were not the natural/biological children of the respondent/plaintiff, and that any official record in this regard was bogus and had been fraudulently prepared. In addition to the contents of para 5 of the plaint reproduced above, the plaint also stated that the respondent-plaintiff had extremely cordial relations with the appellant and that the agricultural land which he had given to the appellant at the time of their marriage had been retransferred to him by the appellant vide mutation No. 459 dated 26.3.2001. As per plaint, it is only after 26.3.2001 that the parents of the appellants became aware of the mutation and they forcibly took her away from the matrimonial home although the appellant statedly was not willing to go with her parents. It is also averred in the plaint that the appellant-defendant had applied to the Tehsildar for the cancellation of mutation No. 459 but the respondent obtained a temporary injunction against such cancellation. 7. Another important feature of this case is the talaq nama (Ex.D/3) which was made in circumstances which have relevance and are considered later in this opinion. In the talaq nama also it has been narrated that it is only after the above referred mutation that the parents of the appellant took her away from the respondent’s home. Serious allegations against the character and chastity of the appellant were also made in the talaq nama which find mention in the respondent’s plaint. The parties examined themselves as their own sole witnesses. 8. The chronology of relevant events such as the date of marriage (9.8.1997), date of birth of Hania Fatima (21.3.2000), date of birth of Hassan Mujtaba (9.2.2001) and the talaq nama (26.6.2001) are part of the record and are undisputed. Furthermore, from the talaq nama (Ex.D/3) it is clear that even according to the respondent-plaintiff the appellant was residing in the matrimonial home and it is only after mutation No.459 (26.3.2001) and before the talaq nama dated 26.6.2001 that the appellant was taken away from there by her parents. These facts and relevant dates make it clear that the two children Hania Fatima and Hassan Mujtaba were not only conceived but were also born during the subsistence of the marriage between the appellant and the respondent. 9. We were informed by learned counsel that there are judgments from Courts across the border dealing with and interpreting Section 112 of the Evidence Act, which provision Civil Appeal No.90 of 2011 4 was the precursor to Article 128 of the Qanun-e-Shahadat Order. There are, however, material differences between the wording of Section 112 and Article 128 which obviously were not before the Courts considering Section 112 ibid. Judgments, therefore, which interpret section 112 are not helpful in the present case. Thus, as far as this Court is concerned, the matter before us is one of first impression requiring interpretation of Article 128 of the Qanun-e-Shahadat Order. Article 128 of the Qanun-e-Shahadat Order, to the extent relevant, is reproduced as under:- “Birth during marriage conclusive proof of legitimacy.---(1) The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless:- (a) the husband had refused, or refuses, to own the child;” 10. We are cognizant of the ramifications and serious consequences which will follow if the impugned judgment remains a part of our case law as precedent. We, first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohesion and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two years after the dissolution of the marriage between his parents (the mother remaining un-married) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the framers of the Qanun-e-Shahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanun-e-Shahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will be called out by their mother’s name. It shows that the Divine Being has, in His infinite Civil Appeal No.90 of 2011 5 wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not be delved into or divulged. 11. We may, at this point, add that the Qanun-e-Shahadat Order (‘QSO’) stipulates that when one fact is declared “to be conclusive proof of another [fact], the Court shall on proof of one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it” (emphasis supplied). This provision of the QSO [Article 2(9)] has to be reconciled with clause 1(a) ibid. It now remains to be seen as to how clause (a) of Article 128(1) of the QSO is to be interpreted. Can an attempt be made to interpret Article 128 and Article 2(9) of the QSO harmoniously so as to save the entire Article 128 to the extent relevant for the present case. The stipulation in Article 128 is that the birth of a child within the period stipulated in Article 128 is conclusive proof that he is a legitimate child. Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Article 128 are proved, and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the period aforesaid. How then is the husband’s refusal to own the child to be dealt with? The answer follows. 12. It is a matter of concern that on such a vital issue we have not received much assistance at the bar as to how Article 128 ibid is to be interpreted. Redundancy is not lightly to be imputed to the legislature. For the purpose of harmonious construction of the said statutory provision, we may have resort to section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) which stipulates that “notwithstanding any custom or usage, in all questions regarding … legitimacy or bastardy … the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims”. Since both parties before us are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provisions of Article 128 of the QSO. For this purpose, it is necessary to ascertain the rules of Muslim Personal Law when a person denies that he is the natural/biological father of children born within the period stipulated in Article 128 ibid. The Muslim Personal Law (Shariat) is clear and well settled on the subject. Firstly, it provides that legitimacy/paternity must be denied by the father immediately after birth of Civil Appeal No.90 of 2011 6 the child as per Imam Abu Hanifa and within the post natal period (maximum of 40 days) after birth of the child as per Imam Muhammad and Imam Yousaf. There can be no lawful denial of paternity after this stipulated period. The Hedaya, Fatawa-e-Alamgiri and other texts are all agreed on this principle of Shariat. In the present case the daughter Hania Fatima was born on 21.3.2000 while the son Hassan Mujtaba was born on 9.2.2001. The very first denial of paternity appearing from the record is in the talaq nama (Ex.D3) which was made on 26.6.2001. Clearly, therefore, while applying the principles of Muslim Personal Law (Shariat) as mandated by the Act V of 1962, the respondent-plaintiff cannot be allowed to deny the legitimacy/paternity of the two children. This is also consistent with Article 2(9) of the QSO which, when read in the context of the present case, does not allow the Court to allow any evidence to be adduced to disprove legitimacy. The wisdom of this rule of Muslim Personal Law cannot be gainsaid, considering in particular the patriarchal and at times miogynistic societal proclivities where women frequently donot receive the benefit of laws and on the contrary face humiliation and degrading treatment. It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization. 13. The rationale of the law set out in Article 128 of the QSO read with Section 2 of Act V of 1962 is quite clear. Both statutes ensure (in specified circumstances) an unquestioned and unchallengeable legitimacy on the child born within the aforementioned period notwithstanding the existence or possibility of a fact through scientific evidence. The framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in knowledge. The conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate. There is a much greater societal objective which is served by adhering to the said rules of evidence than any purpose confined to the interests of litigating individuals. There are many legal provisions in the statute book and rules of equity or public policy in our jurisprudence where the interests of individuals are subordinated to the larger public interest. In our opinion the law does not give a free license to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers. Civil Appeal No.90 of 2011 7 14. The other question arising in this case which is of significance is that the two children Hania Fatima and Muhammad Hassan Mujtaba have not been impleaded as parties in the suit filed by the respondent-plaintiff. This, in our opinion, is a fatal flaw in the respondent’s case and is by itself sufficient for the purpose of dismissing the suit because the appellant cannot act for or be compelled to act for or on behalf of the two minors. Fourteen years have passed since the institution of the suit. We find it quite extraordinary that the two children who are to suffer approbrium and vilification without their fault, for the rest of their lives should stand condemned without being given an opportunity of defending themselves through a proper and fair trial. Even their right to plead the Qanun- e-Shahadat Order and the Muslim Personal Law (Shariat) has been denied to them. We are also dismayed at the apparent lack of competent assistance at the Bar because the above discussed aspects of the case were not urged before us or apparently before the Courts below. It is most likely for this reason that grave prejudice has been caused to the appellant and her two children. An even more formidable reason for setting aside the impugned judgments is that no DNA test to determine paternity can possibly be conducted without the participation and involvement of the children whose legitimacy is being denied. A mother (such as the appellant) is wholly irrelevant for the purpose of a paternity test. Unfortunately this aspect of the case has been overlooked in the impugned judgments. 15. For completeness we may note the submissions of learned counsel for the respondent. He referred to the case titled Muhammad Shahid Sahil Vs. The State (PLD 2010 FSC 215) in support of his contention that a DNA test had been considered the best scientific evidence. The said case, however, is distinguishable firstly on the ground that it was a criminal case involving the rape of a woman and the question of paternity of a child alleged to be that of the rapist was in question when it was held by the Shariat Court that the rapist could be compelled to submit to a DNA test. That is not a relevant precedent in the circumstances of the present case for the reasons discussed above because there was no occasion for the Shariat Court to consider Article 2(9) or 128 of QSO or Section 2 of Act V of 1962 read with the established rules of Muslim Personal Law (Shariat) for the purpose of examining the question of legitimacy of a child born during the subsistence of a lawful marriage. Civil Appeal No.90 of 2011 8 16. In view of the foregoing discussion, we allow this appeal with costs. As a consequence, the revisional judgment and the judgment of the High Court in Writ Petition No.4729/10 impugned before us are set aside and the suit of the respondent is dismissed. This judgment shall not preclude the appellant (or the two minors) from invoking any remedy available to them against the respondent, under law. It also appears to us from the record prima facie, that the respondent-plaintiff may have committed offences under Chapter XI PPC such as giving false evidence, while testifying as PW1. In the event the trial Court may proceed against him in accordance with law. Judge Judge Islamabad 2nd February, 2015 A. Rehman APPROVED FOR REPORTING.

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-311PRFAVIE � •LIRT � 1..2.A.KI4G TV.A.f-,7 (Appellate Jurisdiction) Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Appeal .Ne,92'6 of 2020 [Against the judgment dated 29.07.2020, passed by the Peshawar High Court, Peshawar in Writ Petition No.2527-P of 2020] The Chairman Board of Governors, Medical Teaching institute (MTI) Lady Reading Hospital, (LRH), Peshawar and others. Versus Syed. Roidar Shah, Clinical Technician (Pharmacy), Medical 'leaching Institute (11/ITI), Lady Reading Hospital (LRH), Peshawar and others. ...Appellant (s) ...Respondent(s) For the Appellant (s) � Mr. Waseem-ud-Din Khattak, ASC Mr. M.S.Khattak, AOR For Respondents No.1-7 � IViian Shafaqat Jan, ASC Syed Rifaqat Hussain Shah, AOR For Respondent No.9 � Imran � Hamid, � Additional Secretary, Health Department, KP Hafeez ur Rehman Shah, S.O. Health Department, KP Shehbaz Khan, Superintendent, Health Department, KP Date of Hearing � 03.02.2021 ORDER Guire".:e Ahmed, CJ,— The appellants have challenged the judgment dated 29.07,2020, passed by the learned Division Bench of the Peshawar High Court, Peshawar (the High. Court} by which the order of termination of deputation of the private respondents (the respondents) was set aside and the appellants were directed to continue the employment of the respondents on ,C.A po.9.75 01.7920 � 2 deputation and their arrival reports be accepted. Leave to appeal was granted vide order dated 23.10.2020, relevant portion thereof is as follows: - "The learned counsel for the petitioners contends that the respondents were not the employees of the petitioners rather they were on secondment to the petitioners. Adds that the petitioners having terminated their secondment and relieved them to report for duties to their parent department, such order could not have been interfered with by the learned High Court in exercise of its writ jurisdiction, in that, the petitioners are not interested to retain them as their employees and they cannot be forced upon the petitioners. 2. At the outset, learned counsel for the appellants has contended that all the respondents working in the Medical Teachings Institutions (MTI) were employed on deputation as per the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 (the Act of 2015), as amended from time to time, and the Board of Governors of the MTI was competent to terminate the deputation and to relieve the deputationists for reporting to their parent department. He has further contended that the very fact that the respondents were deputationists is not mentioned in the impugned judgment and thus, the High Court made a serious mistake in law by allowing the writ petition filed by the respondents, allowing them to continue on deputation in MTI. 3. Learned counsel for the respondents admitted the fact that the respondents were working on deputation in MTI and also read Regulation 16(3A) of the Act of 2015 to contend that it was cA.bio,925 11 2.1129_ only the Board, which was competent to terminate the deputation of the respondents; whereas, in the order of relieving though it is mentioned that the Board of Governors of MTI has passed the order terminating the deputation and relieving the respondents with direction to report to their parent department, but contends that the very order of the Board of Governors is not attached. We have asked the learned counsel for the respondents to show us as to where in the writ petition the respondents have asserted this very point, as is raised by the learned counsel for the respondents before us, he admitted that such point has not been raised by the respondents in the writ petition. 4. � To appreciate the arguments of the learned counsel for the parties, it is imperative to consider the provisions of Subsections (3A) and (3B) of Section 16 of the Act of 2015; which are as follows: "16(3A) Civil servants, who do not opt for absorption in the Medical Teaching Institution, so notified, shall be dealt with in such a manner as provided in section 11A of the Khyber Pakhtunkhwa Civil Servants Act 1973; for their future posting, which includes deputation to the Medical Teaching Institution subject to a request being made by the Board: Provided that a civil servant working in a Medical Teaching Institution, shall at all times, be deemed to be on deputation. All deductions made from the pay of such civil servants shall be deposited by the borrowing authority. (3B) A civil servant at the request of the Board may be sent on deputation to a Medical <7.4.No.92.5of 2020 Teaching Institution by the Government. For civil servants on deputation to the Medical Teaching Intuition, pension contribution shall be made by the Medical Teaching Institution. The deputation of a civil servant to a Medical Teaching Institution may be terminated by the Board at any time without assigning any reason thereof and such civil servants services shall revert to the Government immediately upon such termination being notified by the Board." The reading of the above provisions show that all civil servants employed in MTI are deemed to be on deputation and the Board of Governors is competent to terminate the deputation period and relieve the employees from MT' and it is not required to give any reason for doing so. The submission of the learned counsel for the respondents that Board of Governors' order has not been filed by the appellants is of not much significance for the reasons; firstly, the respondents have not taken up this issue before the High Court in the very writ petition and secondly, the very letter of terminating the deputation period and relieving the respondents specifically mentioned that it is issued on the directions of the Board of Governors. 6. � The very mentioning that the letter has been issued on the direction of the Board of Governors, apparently, is sufficient for meeting the requirements of the compliance of law noted above, unless the respondents could have shown otherwise, which they have not done so. C.A.JVO. 92.i o12020 - 5 - 7. � It is established law that a deputationist has no right to continue in an employment as a deputationist and the employer, where the deputationist is employed, is competent to terminate the deputation and relieve the deputationist from its employment for reporting to his parent department. Reference in this regard is made to the case of Dr. Shafi-ur-Rehman .Afridi vs. C. D.A. , Islamabad through Chairman and others (2010 SCMR 378), wherein it was held as under: - We may mention here that the deputationist • by no stretch of imagination and in absence of any specific provision of law can ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. ..." Further reference is made to the cases of S. Masood Abbas Rizvi vs. Federation of Pakistan through. Secretary Establishment and others (2014 SCMR 799) and Senate Secretariat through Ch.airman and another vs. Miss Faiga Abdul Hayee (2014 SCMR 522). L. � We may note that the mistake has occurred in passing the impugned judgment by the High Court, in that, the High Court has altogether omitted to take into consideration the very fact that the respondents were deputationists and their deputation in terms of the law, as noted above, was always liable to be terminated by the Board of Governors without assigning any reason. No right of the respondents at all is violated and thus, the very writ petition c'.4.No.925 p_f_20?0 � - 6 - filed by the respondents before the High Court was on its face not maintainable. 9. � In view of the above, the impugned judgment is not sustainable in law. The same is, therefore, set aside and the appeal is allowed. ck (7' Bench-I. IslaniEhBa 03_02.2021 APPROVED FOR REPORTING Rabbani./

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL APPEAL NO.931 OF 2020 [Against the judgment dated 8.9.2015, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar, in Appeal No.1681 of 2011] Wali Jan. …Appellant Versus Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock Cooperative Department, Peshawar and others. …Respondents For the Appellant : Mr. Amjad Ali (Mardan), ASC (via video link from Peshawar) Haji Muhammad Zahir, AOR (absent) Respondents : Mr. Zahid Yousaf Qureshi, Addl. A.G., KPK Date of Hearing : 01.02.2021 O R D E R GULZAR AHMED, CJ.- The service appeal filed by the appellant in the Khyber Pakhtunkhwa Service Tribunal, Peshawar (the Tribunal) was dismissed by the impugned judgment dated 08.09.2015. The operative part of which is as follows: “7. From perusal of the record it transpired that at the time of consideration for promotion anti-corruption proceedings for two different cases No.191 of 2001 and 29 of 2002 were pending adjudication in the Court of Special Judge Anti-corruption CA.931 of 2020 - 2 - which were decided on 14.10.2003 and 26.02.2004 respectively and appellant was acquitted on the benefit of doubt. The deferment of the appellant on the relevant time was thus in accordance with the provision as contained in the promotion policy of the Provincial Government. Moreso, the appellant failed to agitate his deferment in time but took up the matter on 12.05.2011 after abnormal delay of almost 9 years. It is also ironical to observe that assessment of suitability and fitness for the higher post is a pre-requisite for promotion, it entails assumption of higher responsibilities and actualization of charge in the higher post which is not possible under the existing law/rules on promotion. The prayer of the appellant for promotion to the higher post after a long time of his retirement carries no weight and cannot be entertained. The cases cited by the appellant were also not identical, hence no discrimination against him. For these reasons the appeal being devoid of any merits is dismissed. …” 2. The learned counsel for the appellant contends that the last acquittal of the appellant took place on 15.04.2011, which the Tribunal did not take into consideration. 3. We have asked the learned counsel for the appellant to show from the Memo of Appeal filed before the Tribunal about the appellant’s acquittal on 15.04.2011, the learned counsel was unable to show that any such acquittal was relied upon by the appellant in the service appeal filed before the Tribunal. CA.931 of 2020 - 3 - 4. We have also asked the learned counsel to show from the very departmental appeal as to whether the acquittal on 15.04.2011 was mentioned in it. No such mention was found even in the departmental appeal filed by the appellant. 5. It is settled law that a party has no right to raise an absolutely new plea before this Court and seek a decision on it, nor could such plea be allowed to be raised as a matter of course or right on the pretext of doing complete justice. Besides, this Court in its appellate jurisdiction will not generally determine a question of fact that has not been pleaded or raised by the party in the lower forum. Reliance in this regard may be made to the case of Sarhad development Authority N.W.F.P. (Now KPK) v. Nawab Ali Khan (2020 SCMR 265). 6. The Tribunal has already dealt with the matter and no illegality has been pointed out in the impugned judgment. The same is, therefore, maintained. The appeal is dismissed. CHIEF JUSTICE JUDGE Bench-I Islamabad 01.02.2021 NOT APPROVED FOR REPORTING Mahtab/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NOs. 936 & 937 OF 2020 (On appeal against the judgment dated 07.04.2020 passed by the High Court of Sindh, Karachi in Constitutional Petition Nos. D-5850 & D-5851 of 2018) M/s Sui Southern Gas Company Ltd (In both cases) … Appellant VERSUS Zeeshan Usmani etc (In CA 936/2020) Saima Athar etc (In CA 937/2020) … Respondents For the Appellant: Mr. Asim Iqbal, ASC (In both cases) For Respondent (1): Malik Naeem Iqbal, ASC (Islamabad) Mrs. Abida Parveen Channar, AOR (through video link from Karachi) Date of Hearing: 18.02.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these appeals under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has called in question the legality of the impugned consolidated judgment dated 07.04.2020 passed by the High Court of Sindh, Karachi, whereby the Constitutional Petitions filed by the respondents were disposed of and the appellant department was directed to regularize them in service. 2. Briefly stated the facts of the matter are that respondents No. 1 in both the appeals were appointed in the appellant Sui Southern Gas Company Ltd on contract basis vide order dated 14.11.2012. They remained working on contract until 31.12.2017 but were not regularized and their contract stood terminated on the said date i.e. 31.12.2017. It appears from the record that the appellant had framed a policy i.e. Uniform Recruitment and Promotion Policy for regularizing the services of contract employees on the basis of certain criteria. Against the said policy, some of the colleagues of the respondents approached the Civil Appeal Nos. 936 & 937 of 2020 2 High Court of Sindh for their regularization by filing Constitutional Petition Nos. D-3759 & S-4422 of 2017 which were allowed and the appellant department was directed to regularize them in service. This judgment was upheld by this Court vide order dated 12.03.2018 passed in Civil Petition Nos. 67-K & 68-K of 2018. To get the same relief, the respondents also filed Constitutional Petitions No. D-5850 & D-5851 of 2018, which have been disposed of vide impugned judgment and the appellant has been directed to regularize the respondents without any discrimination. Hence, these appeals by leave of the Court. 3. Learned counsel for the appellant inter alia contended that the appellant Sui Southern Gas Company Limited has no statutory rules of service and the relationship between the company and the respondents is governed by the principle of ‘master and servant’; that contractual employment does not confer any vested right in favour of a servant to seek regularization in service; that the contract of the respondents had ended on 31.12.2017 and after eight months of the termination of contract, they have filed Constitutional Petitions, which were not maintainable. 4. On the other hand, learned counsel for the respondents No. 1 in both the appeals has contended that some of the colleagues of the respondents, who were similarly placed, have been regularized in service but the same relief has been denied to the respondents, which amounts discrimination in law, therefore, the learned High Court has rightly ordered their regularization. In support of his contention, learned counsel relied on the case of Hameed Akhtar Niazi Vs. Secretary Establishment Division (1996 SCMR 1185). 5. We have heard learned counsel for the parties and have perused the case record. 6. Admittedly, the respondents were contract employees and their relationship was governed by the principle of ‘master and servant’. This Court in a number of cases has held that contract employees have no vested right to claim regularization. This Court in the case of Government of KPK, Workers Welfare Board Vs. Raheel Ali Gohar (2020 SCMR 2068) has categorically held that contractual employees, who are governed by the principle of ‘master and Civil Appeal Nos. 936 & 937 of 2020 3 servant’ do not have the right to approach the High Court in its Constitutional jurisdiction to seek redressal of their grievances relating to regularization. The only question which needs to be seen in the present case is whether the respondents deserve the same treatment, which was meted out to their colleagues. We have been apprised that the contract of the ex-colleagues of the respondents was terminated somewhere in June, 2017, against which they approached the High Court. Upon notice issued by the High Court, the department issued letter of termination, which was suspended by the High Court through an interim order and ultimately, the said writ petitions were allowed by the High Court. This clearly shows that at the time of allowing of the writ petitions, the said contractual employees/colleagues of the respondents were in service. However, admittedly in the present case the contract of the respondents was terminated on 31.12.2017 and they filed the impugned writ petitions on 11.08.2018 after eight months of their termination. The regularization of the respondents is not part of the terms and conditions of service because for that purpose statutory rules are required and admittedly there are no statutory rules of the appellant. We are of the view that the learned High Court could not have ordered regularization of the respondents without reinstating them in service, which was clearly not possible keeping in view the fact that at the time of filing of the writ petitions, there was no relationship between the appellant and the respondents because they were no longer in service. In the case of the colleagues of the respondents, there was continuity in service but the same is lacking in the instant case. This Court in Naureen Naz Butt Vs. Pakistan International Airlines (2020 SCMR 1625) while relying on earlier judgments of this Court has held as under:- “Thus, the establish law is that a contract employee, whose period of contract employment expires by afflux of time, carry no vested right to remain in employment of the employer and the Courts cannot force the employer to reinstate or extend the contract of the employee.” 7. So far as reliance placed by learned counsel for the respondent on Hameed Akhtar Niazi supra case is concerned, we have noted that the ratio in Hameed Akhtar Niazi's case was that Civil Appeal Nos. 936 & 937 of 2020 4 where a Tribunal or Court decides a point of law relating to terms and conditions of service of civil servants which governs not only those who litigated but also those who have not resorted to any legal proceedings, then irrespective of this they too become entitled to the same benefit. Hameed Akhtar Niazi's case therefore extends benefit to civil servants who were not party to the litigation and the entitlement of benefit granted to the litigating civil servants is so common that it is also extendable to those who have not litigated, therefore, they too can legitimately claim the same irrespective of the fact that they were not party to the litigation. However, in the present case, the situation is altogether different. In the present case, the respondents went to the High Court eight months after termination of their contract, therefore, they were no longer in service, which could have entitled them to claim the same relief as meted out to their colleagues. 8. For what has been discussed above, we allow these appeals and set aside the impugned judgment of the High Court of Sindh, Karachi dated 07.04.2020. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 18th of February, 2021 Not Approved For Reporting Khurram

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w I IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: \Mr. Justice Umar Ala Bandial Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Sayyed Mazahar Ali Akbar Naqvi 4- CIVIL APPEAL NO.937 OF 2018 (Against the judgment dated 05.072018 of the Lahore High Court, Lahore passed in Writ Petition No.222873/2018) Rana Muhammad AsifTauseef Appellant(s) Versus Election Commission of Pakistan through its Chairman, Islamabad and others Respondent(s) For the Appellant(s): Sardar M. Latif Khan Khosa, Sr. ASC Sardar M. Shahbaz Khosa, ASC For the Respondent(s): Ex-parte For the ECP: Mr. Muhammad Arshad, D.G. (Law) Date of Hearing: 1811.2020 JUDGMENT Sayved Mazahar All Akbar Na pvi, 3.- This appeal with leave of the Court under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment passed by the learned Division Bench of the Lahore High Court, Lahore dated 05.07.2018 in Writ Petition No.222873/2018. 2. The brief facts leading to filing of the instant appeal are that the appellant being ticket holder of a political party opted to contest the general elections to be held in the year 2018 from constituency NA- 105 Faisalabad-V. The appellant filed three nomination papers to establish his claim as a candidate on 08.06.2018. The objections were filed by Civil Appeal No.937/2018 -: 2 respondent No.5 calling in question the eligibility of the appellant as a candidate before the Returning Officer in each nomination paper. The main objection raised against the appellant was that he was not eligible to contest the elections as he does not qualify the requirements of the law being hit by Articles 62/63 of the Constitution. He is further disqualified on the basis that a decree has already been passed by the learned Special Judge, Banking Court-11, Faisalabad against the spouse of the appellant dated 13,06.2018. It was lastly objected that the name of the appellant is duly mentioned in the report of Credit Information Bureau (CIB) and that he has also obtained loan from the financial institution against Rana Fabrics (Pvt.) Ltd., an establishment to whom the appellant represents as a Director. The objections raised by respondent No.5 were duly replied by the appellant before the Returning Officer. The Returning Officer, after taking into consideration arguments advanced by both sides, repelled the objections raised while accepting the nomination papers of the appellant without any reservation. Being aggrieved, respondent No.5 filed election appeal bearing No.190-Al2018 before the learned Election Tribunal which was dismissed vide order dated 25.06.2018. 3. A constitutional petition was filed by respondent No.5 calling in question the order of the Returning Officer dated 19.06.2018 as well as the learned Election Tribunal dated 25.06.2018. The said petition was adjudicated by the learned Division Bench especially constituted to deal with election matters. The learned Bench, after hearing both the sides, accepted the constitutional petition vide impugned judgment dated 05.07.2018, consequently it reversed the findings of both the courts below, resultantly, the nomination papers filed by the appellant were ordered to be rejected, he was further declared to be in-eligible to contest elections on the grounds mentioned above, Hence this appeal with leave of the Court. 4. At the very outset, learned counsel for the appellant has submitted that the learned High Court has not properly appreciated the law on the subject while rejecting the nomination papers of the appellant; that the appellant was legally bound to file nomination papers supported by an A Civil Appeal No.937/2018 -:3 affidavit disclosing any liability till 30062017; that the learned High Court made basis for rejection of the nomination papers a decree which was passed subsequent to the cut-off date on 04.12.2017; that the judgment of the learned High Court was in defiance of the spirit of Section 60(2)(d) of the Election Act, 2017; that the total shareholding of the spouse of the appellant was nominal which do not comes within the ambit of major shareholding which can be instrumental for declaring anybody a defaulter. 5. On the other hand, the proceedings before this Court against respondent No.5 are carried out ex-parte because he had already been proceeded under Order XVI Rule 6 of the Supreme Court Rules, 1980 by the office vide order dated 0508.2019. Mr. Muhammad Arshad, Director General (Law) has appeared on behalf of the Election Commission of Pakistan but he has not controverted any arguments advanced by the learned counsel for the appellant. 6. We have heard the learned counsel for the appellant and gone through the record. 7. The nomination papers filed by the appellant with respect to candidature of NA-1 05 Faisalabad-V were objected by respondent No.5 on two grounds: (I) that a decree has been passed by the Banking Court against the spouse of the appellant; and (ii) that his name do figure in the report of CIa The objections raised by respondent No.5 were discarded by the Returning Officer as well as the learned Election Tribunal. However, during the adjudication of constitutional petition, the learned Division Bench of the Lahore High Court reversed the findings given by both the fora below and as such a direction was given to declare the appellant in- eligible to contest the elections and the nomination papers filed by the appellant were ordered to be rejected. A further direction was issued to the Returning Officer to delete the name of the appellant from the list of eligible candidates vide order dated 05.07.2018. 8. Leave to appeal was granted by this Court vide order dated 10.07.2018 mainly on the ground that the learned High Court has Civil Appeal No.93712018 -:4 overlooked Section 60(2)(d) of the Act and the same has been interpreted in contravention of spirit of the aforesaid provision of law. It was further observed by this Court that the decree issued by the court which was made basis for declaration qua rejection of the nomination papers filed by the appellant was passed against the spouse of the appellant on 04.12.2017 after the cut-off date as envisaged in Section 60(2)(d) of the Act. To appreciate the arguments, it seems advantageous to reproduce the provision of Section 60(2)(d) of the Act which reads as below:- "60. Nomination for election.— (I) ............... (2) Every nomination shall be made by a separate nomination paper on For A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by:- (a) (b) (c) (d) a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B. (3) Plain reading of the above said provision demonstrates without any ambiguity that the assets, liabilities of the appellant, his spouse and dependent children were to be disclosed on the preceding thirtieth day of June as required in Form B duly issued by the ECP i.e. 30.06.2017. There is no denial to this fact that according to election schedule announced by the ECP, general election was to be held in 2018 while the appellant was supposed to furnish the details of personal assets and liabilities and dependents including spouse till 30° June, 2017 as per the demand of law duly mentioned in Section 60(2)(d) of the Act. The learned High Court while pressing into Section 62(9)(c) of the Act declared the appellant in- eligible to contest elections while directing the Returning Officer to delete the name from the list of the candidates. Perusal of the aforesaid provision clearly reveals that the said provision revolves around the Returning Officer Civil Appeal No.937/2018 -: 5 and its authority to proceed with the matter of his own or on the objection raised by any of the objector before it. The said provision further authorizes the Returning Officer a discretionary power to conduct preliminary inquiry while exercising the authority of the office to ascertain the facts and circumstances to arrive at a just conclusion in order to satisfy the spirit of Section 62(9)(c) of the Act. 9. Academically speaking the learned High Court while exercising constitutional jurisdiction under Article 199 of the Constitution, inter alia, provides a relief in the form of a declaration, prohibitory order, mandatory order or an order in the nature of quo-warranto, subject to one commonality in the exercise ofjurisdiction that it is discretionary in nature. Therefore, it is incumbent duty of the court to deliberate in a manner with extra care and caution eliminating any element of unfairness/injustice. Undeniably the constitutional jurisdiction is wide in its scope and ordinarily it is not subject to any judicial constraints. This aspect further burden its exercise because of the reason that it is subject to extra-ordinary circumstances, it has to be exercised in so classified manner while creating a balance in its exercise so that no one should suffer because of the exercise of discretionary power. The contention of the learned counsel that no one should suffer because of an act of court is directly related to the dictum of administration of justice. In a democratic State, political activity is a common feature, however, there are certain limitations which might vary from one State to another. In our homeland the right to form an association or a union is a constitutional right which has been made part of fundamental rights under Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973. It is advantageous to reproduce the said Article which reads as follows: "17. (1) Every Citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. (2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member UviI Appeal No.937120 IS fl of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Plain reading of the aforesaid provision of Article 17 clearly envisages that it ensures freedom of association or union but subject to certain reasonable restrictions imposed by the law. The aforesaid restrictions are further classified to the extent of interest, sovereignty or integrity of Pakistan, public order or morality. Superior courts of this country while interpreting Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973 have broadened its scope and same has been brought to its logical conclusion. The ordinary meaning of language of Article 17 becomes meaningless if an activist who becomes part of association or union is not let to further participate in political activities within the limits prescribed by the law which ultimately relates to election process. The interpretation of Article 17 while elaborating its scope the same has been broadened while associating with it the election process so that the participant becomes useful entity to be recognized while strengthening the process of Parliamentary system. This Court in Miss Benazir Bhutto Vs. Federation of Pakistan and others (PLD 1988 SC 416), Mrs. Benazir Bhutto and another Vs. Federation of Pakistan and another (PLD 1989 SC 66), Muhammad Nawaz Sharif Vs. President of Pakistan (PLD 1993 SC 473) and Workers' Party Pakistan Vs. Federation of Pakistan (PLD 2012 SC 681) has held that participation in elections is a constitutional right. According to Article 17(2) every citizen, who is not in service of Pakistan, has a right to form a political party or he can become member of any party. Every party is made up of several individual persons. If one individual is not allowed to contest elections imposing upon him certain restrictions, then the question of Civil Appeal No.93712018 -: 7 forming a political party does not arise, because these are the individuals who collectively form a party. 10. There is no second cavil to this proposition that according to the Constitution the general elections are held after the expiry of a term which ordinarily comprises of five years. The learned Division Bench of the High Court while adjudicating the matter mis-interpreted Section 62(9)(c) and as such a declaration was issued. In ordinary jurisdiction the scheme of law is loaded with so many remedies to redress the grievance but in such like situation in which the litigant has to wait for the expiry of the term of elections, that too, if the credentials are fully satisfied and make the appellant eligible to contest election, that sounds inapt regarding exercise of extra-ordinary jurisdiction to deprive someone of his constitutional right. It is an established law that every Judge must wear all the laws of the country on the sleeve of his robes. Reference is placed on Muhammad Sarwar Vs. The State (PLD 1969 SC 278) and Muhammad Aamir Khan Vs. Government of Khyber Pakhtunkhwi (2019 SCMR 1021). This Court in Muhammad Sanvar's case has observed as follows:- "It appears that the learned Judges were not properly advised, but it falls to be said that there is a well-known adage that a Judge must wear all the laws of the country on the sleeve of his robe." 11 Now the question which erupts in the mind of this Court is whether, in the given facts and circumstances, the appellant is victimized due to an act of court, has any relevance. In order to meet the aforesaid contention, this Court is clear to hold that no doubt the impugned order has deprived the appellant to participate in political activities for a specific period but to establish this aspect, there should be some material placed on the record to establish that the act of the court was based upon some specific consideration which is missing in this case. Hence it can safely be said that the judgment passed by the learned High Court was merely due to an omission of a provision of law. However, the responsibility of the Court to be vigilant while exercising the authority either in original jurisdiction or constitutional jurisdiction cannot be absolved. In this regard, reliance can - 1 "T - Uvil Appeal No.937/2018 be placed on the judgment reported as Rod ger Vs. The Comptoir d'Escompte de Paris [(1871)3 PC 465] in which the Court has observed as follows:- "One of the first and highest duties of all Courts is to take care that the act of the Courts does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case." As a consequence, when it is established that the appellant has finally succeeded in making out a case in his favour it clearly reflected that he was not a sufferer of the act of the court, rather finally his grievance was redressed and as such he can claim that he is not a victim of law, rather a beneficiary of the process of law. 12. For what has been discussed above, we are constrained to hold that the judgment of the learned High Court is based upon misconception of law and the same could not prevail in the eyes of law. Resultantly, we allow this appeal, set aside the impugned judgment passed by the Lahore High Court, Lahore dated 0507.2018 and restore that of the learned Election Tribunal dated 25.06.20 18 and the Returning Officer dated 19.06.2018 accepting the nomination papers submitted by the appellant. Islamabad, the 18th of November, 2020 Approved for reporting Waqas Naseer

{'id': 'C.A.937_2018.pdf', 'url': ''}

{'id': 'C.A.937_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR Civil Appeal Nos. 939/2004, 144-K-145-K of 2009, HRC Nos.20691-S of 2013 & 48247-S of 2013 (On appeal from the judgment dated 29.10.2002 & 04.10.2006, respectively passed by High Court of Sindh, Karachi & High Court of Sindh, Hyderabad Circuit passed in HCA No.114/1993, Const. P.D-219 & 337 of 2004) Dilawar Hussain, etc. (In CA 939/2004) DDO (Revenue), etc. (In CA 144-K/2009) DDO (Revenue), etc. (In CA 145-K/2009) Applications by Dilawar Hussain Rajabali (In HRC 20691-S/2013 & HRC 48247-S/2013) … Appellants VERSUS The Province of Sindh & others (In CA 939/2004) Shahabuddin Shah (In CA 144-K/2009) Balocho (In CA 145-K/2009) … Respondent(s) For the Appellant(s): Syed Shahenshah Hussain, ASC (In CA 939/04) Mr. Adnan Karim, Addl. AG Sindh Mr. Khair Muhammad, AC Sanghar (In CA 144-K&145-K/09) For the Respondent(s): Mr. Ghulam Mohiuddin Qureshi, ASC Mr. Mazhar Ali B.Chohan, AOR. (In CA 144-K & 145-K/09) Mr. Adnan Karim, Addl.AG Sindh Mr. Abdul Ghaffar Sheikh, AC Korangi Muhammad Ibrahim Junejo, Mukhtiarkar (In CA 939/04) Date of Hearing: 14.01.2016 * * * * * * * * * * Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 2 :- JUDGMENT MIAN SAQIB NISAR, J.- These appeals, by leave of the Court, are being disposed of together as the same legal points are involved therein. Civil Appeal No.939 of 2004: 2. The facts in relation to the instant appeal are that the land owned by the appellants was acquired under the Land Acquisition Act, 1894 (the Act) through notifications under Section 4 thereof dated 2.2.1960 and 5.3.1960 respectively. The Land Acquisition Collector (LAC) announced the award on 17.12.1960 which was assailed by the respondents through a reference. The Referee Court enhanced the compensation vide judgment dated 27.8.1970. Being dissatisfied with the increase in compensation, the appellants approached the learned High Court in appeal and further enhancement was accorded to them through judgment dated 26.9.1977; and on their appeal before this Court compensation was yet further increased vide judgment dated 18.2.1987. The appellants then filed an execution petition for recovery of their dues (enhanced compensation) before the learned High Court (which was the executing court) and also for the first time sought additional compensation under Section 28-A of the Act, which reads as under:- “28-A. Additional Compensation.– In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under Section 4, an additional amount of fifteen percent per annum of the compensation so fixed shall be paid from the date of the notification under Section 4 to the date of payment of the compensation.” The Executing Court vide order dated 31.5.1993 while interpreting the provisions of Section 28-A held that it (section) would not apply to past Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 3 :- and closed transactions. In this context the relevant portion of the order reads as:- “It is, therefore, clear that Section 28-A in the Act, introduced through the amendment of 1984 is applicable to pending proceedings so long as it does not inter-act on past and closed transactions. Still, what may, in the present context, be such transaction? It would seems to be just and fair and in line with the spirit of the amendatory law as regards awards, rendered prior to the amendment but pending examination at subsequent levels, to say that to the extent a land-owner had already received compensation antecedent to the amendment, even though under protest, the question of permitting solatium on the amount or amounts already so paid, before the amendment, be treated as a transaction past and no additional payment may accrue following upon the amendment on such disbursement of compensation, duly paid and received. However, where compensation is enhanced and enhanced compensation is not received or paid and, during the time intervening, the amendatory law has appeared on the statutes book any subsequent payment including that already due before the amendment but not paid would carry a further solatium at the rate of 15% per annum from the date of notification upto the date of actual payment of compensation.” Aggrieved of the above, the appellants filed an appeal before the High Court and the learned Division Bench of the Court held:- “………………………We are inclined to agree with Mr. Sharif that the question of amount of compensation payable from the date of Notification under Section 4 till the entire amount of Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 4 :- compensation is determined is a single transaction and additional compensation under Section 28-A would have to be calculated by bifurcating the unpaid amount from that which has already been received by the land owner. …………………………By incorporating Section 28-A, the legislature apparently intended to compensate such land owners by providing additional compensation and at the same time deter acquiring from delaying payment. However, it cannot be assumed that it permitted a owner to take a premium on the basis of the entire amount of compensation inclusive to amounts already pocketed by him. It may also be noticed that the legislature has not used the expression “final payments” and in a given case there could be several dates of payments of different amounts falling short of the payments to be made upon final determination. …………………………For the foregoing reasons, we dismiss the Appeal directing the parties that the Appellants were entitled to receive the additional compensation under Section 28-A for the unpaid amount of the compensation from the date of notification under Section 4 of the Act till the final payment of the compensation is made to the Appellants. There will be no orders as to costs.” Leave in this case was granted vide order dated 28.7.2004 primarily to consider whether:- “…………………………the petitioners would be entitled, in view of the above said provision of law, to claim benefit of additional compensation under the ibid Act on the entire amount of compensation from the date of notification issued under Section 4 Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 5 :- of the Land Acquisition Act till final payment of compensation is made to the petitioners or only on the amount of compensation which was not paid upto the time of promulgation of Ordinance No.XXIII of 1984?”. 3. Learned counsel for the appellants has argued that the language of Section 28-A leaves no room for doubt that the additional compensation is payable from the date of notification under Section 4 of the Act till the date of the payment of compensation. He states that to interpret the section in a manner whereby the compensation shall only be payable on the unpaid amount is not a valid construction of the said section; this is tantamount to reading into the provision which cannot be done as the provision is clear and the rule of literal interpretation of statutes should be resorted to rather than looking into the intent of the legislature. He states that the person whose land is acquired is ipso jure entitled to compensation as per the provisions of Section 34 of the Act with regard to interest and thus the additional amount of compensation under Section 28-A is also available to him as a matter of right. He relies on the Construction of Statutes (1940) by Crawford, Government of Sindh and 2 others Vs. Syed Shakir Ali Jafri and 6 others (1996 SCMR 1361), Province of Sindh through Collector of District Dadu and others Vs. Ramzan and others (PLD 2004 SC 512), and Land Acquisition Officer and Assistant Commissioner, Hyderabad Vs. Gul Muhammad through Legal Heirs (PLD 2005 SC 311). 4. Learned Additional Advocate General, Sindh has submitted that the provisions of Section 28-A do not have any retrospective effect. As the award was announced on 17.12.1960 and the appellant had already received a substantial amount of compensation before the enforcement of the said section, therefore, he could not ask for a Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 6 :- premium over the amount so received. He submitted that Section 28-A was challenged before the learned Federal Shariat Court and was declared repugnant to the injunctions of Islam vide judgment reported as In re: The Land Acquisition Act (I of 1894) (PLD 1992 FSC 398) and pursuant thereto the law was repealed by virtue of the Land Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010)1 (the “repealing Act”). 5. Heard. Before considering the plea(s) raised by the learned counsel for the appellants, we deem it proper to dilate upon the submission of the learned Additional Advocate General about the declaration of Section 28-A as against the injunctions of Islam, its repeal and effect thereof. The provisions of the Act came under scrutiny before the Federal Shariat Court, in its suo moto jurisdiction, to consider whether those were in accordance with the injunctions of Islam and the Court vide judgment dated 27.3.1984 made some declarations and recommendations with regard to bringing the said law in conformity with Islamic principles and one of the recommendations stated:- “In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an amount of 15% per annum shall be paid as additional compensation to the person found entitled to compensation from the date of notification under section 4 to the date of payment of compensation.” It is pursuant to the above that Section 28-A was inserted in the Act vide Land Acquisition (Sind Amendment) Ordinance XXIII of 1984 notified in the Gazette of Sindh on 30.9.1984. However, the aforesaid 1 PLD Unreported Statutes, 2010 Sindh Statutes page 97. Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 7 :- judgment of the Federal Shariat Court was assailed before the Shariat Appellate Bench of this Court and the judgment was set aside. Thereafter, the Federal Shariat Court took up the matter for reconsideration and vide its judgment dated 30.4.1992 specifically declared Section 28-A as violative of Islamic injunctions. The relevant portion of the said judgment reads as under:- “34. In this respect, it is also noticeable that the Government of Balochistan as well as the Government of Sindh by Act XIII of 1985 amended on 9-10-1985 and Sindh Ordinance XXIII of 1984 as amended on 30-9-1984 respectively, the Land Acquisition Act, 1894, in pursuance of the decision dated 27-3-1984 of this Court, a new section 28-A was added which provided for additional compensation in the following words:-- “28-A. Additional compensation.---In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an additional amount of fifteen per cent per annum of the compensation so fixed shall be paid from the date of the notification under section 4 to the date of payment of the compensation.” We are afraid, the above provision in the Balochistan Act XIII of 1985, and Sindh Ordinance XXIII of 1984 is not sustainable in the light of the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (p.b.u.h.) as discussed in the judgment on Riba, referred to above. Even otherwise, in view of the setting aside of this Court’s judgment dated 27-3-1984 by the Shari’at Appellate Bench of the Supreme Court the earlier judgment of this Court does not hold the field Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 8 :- and the view having not been adopted by us in our present judgment, Sindh Ordinance XXIII of 1984 and Balochistan Act XIII of 1985 call for their repeal, which also stand nullified by the judgment of the Supreme Court, referred to above.” Pursuant to the above, Section 28-A was repealed by the repealing Act, mentioned above, which reads as under:- “4. Omission of Section 28-A of Act No.I of 1894.--- In the said Act, section 28-A shall be omitted and shall be deemed to have been so omitted as if it had never been enacted.” (Emphasis supplied) It is evident that repeal of Section 28-A ibid is a departure from the normal words employed to repeal the provisions of law. Why is this so? Perhaps because the amendment was not brought about by the Provincial Assembly on its own, but rather on the recommendation of the Federal Shariat Court, which judgment as mentioned above was set aside by the Shariat Appellate Bench of this Court and thereafter the Federal Shariat Court itself declared that amendment a nullity. Besides, there is the use of ‘deeming’ terminology whereby a legal fiction is created and secondly there is a retrospectivity given to the repeal of said section in that it is to be treated as it had never been enacted i.e. we are required to go back to a point of time viz 1984 and imagine that Section 28-A had never been brought into effect. As opposed to this unique repeal of said section we must consider the effects of Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) which is couched in identical terms as Section 6 of the General Clauses Act, 1897. Article 264 of the Constitution is reproduced herein below:- Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 9 :- “264. Effect of repeal of laws.− Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution,- (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation legal proceeding or remedy in respect of any such 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 imposed, as if the law had not been repealed.” In the normal course of our jurisprudence when a provision of law is repealed protection is accorded to the previous operation of the repealed enactment and to those rights which may have accrued under the enactment so repealed. However, in these unique circumstances the question arises whether the appellants will be entitled to any compensation under the repealed Section 28-A given that the said section was repealed in terms of the repealing Act with effect from Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 10 :- 29.10.2009 on which date the appellants were still in the process of agitating their rights/claims under Section 28-A and therefore they cannot even claim the benefit of a past and closed transaction. In this regard we may rely on the case cited as Mehreen Zaibun Nisa Vs. Land Commissioner, Multan and others (PLD 1975 SC 397), wherein this Court (at page 433) interpreted a deeming clause as under:- “When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd v. Finsbury Borough Council (1) namely: “Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” In the remarkable 17 member judgment of this Court reported as Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad Vs. Dr. Mubashir Hassan and others (PLD 2012 SC 106) the following question was formulated (at page 126):- “Issue No (iv) Whether the effect of repeal of an Ordinance or law in terms of Article 264 of the Constitution and section 6 of the General Clauses Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 11 :- Act is the same as that of an Ordinance or law being declared non est and null and void.” The earlier judgment of this Court reported as Jannat-ul-Haq and 2 others Vs. Abbas Khan and 8 others (2001 SCMR 1073) was quoted with approval wherein, inter alia, it was held (at page 1081):- “……………………Similarly operation of a law declared to be repugnant to the Injunctions of Qur’an and Sunnah or anything done or suffered thereunder before a specified date or continuation of suits pending on the specified date also does not amount to the repeal of law…………………………” The judgment of the Peshawar High Court reported as Muhammad Iqbal and 17 others Vs. Ghaunsullah Khan and 17 others (2002 CLC 1533) was also reproduced with approval, wherein it was held (at page 1537):- “7. A perusal of the abovequoted provisions of the Constitution and the General Clauses Act would reveal that the expression “ceased to have effect” cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be dealt with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the latter eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 12 :- unless a different intention appears from repealing enactment.” (Emphasis supplied) In the present circumstances, the Federal Shariat Court found the provisions of the Section 28-A to be repugnant to the Injunctions of Islam. The preamble of the repealing Act states that the Federal Shariat Court has directed that certain amendments be made to the Act in its application to the Province of Sindh. The plain words of section 4 of the repealing Act indicate the intention of the legislature that this Section 28-A is non est and therefore as per the ratio of the Dr. Mubashir Hassan case (supra) the appellants cannot be granted the benefit of Section 28-A as claimed in the instant appeal. It is settled law that appeal is a continuation of the original lis and therefore there is no past and closed transaction which may have afforded them protection in the event of the Section 28-A being declared to have “never been enacted”. But as this point has not been taken into consideration by the forums below, and this too is not a point on which leave was granted, therefore, we do not intend to refuse this appeal on the above score alone. 6. As the case has been argued at length before us we are minded to give our opinion as to the scope of Section 28-A had it been applicable to the appellants. The object of Section 28-A has been explained in the judgment reported as Syed Saadi Jafri Zainabi Vs. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472) in the following terms:- “7. A perusal of section 28-A will show that it is mandatory in nature and provides for additional compensation from the date of publication of notification under section 4 to the date of payment Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 13 :- of compensation. The main purpose of making this provision is to discourage the tendency to delay the payment of compensation in time and to ensure that the party whose property has been acquired, is duly compensated without unnecessary loss of time. It is the duty of the Collector that on making an award under section 11 he should tender payment of the compensation awarded by him to person entitled to it according to the award unless he is prevented by any reason provided in section 31. In case the party is not available or does not consent to receive, the Collector shall deposit the amount of compensation in the Court to which a reference under section 18 would be submitted. Therefore, after the award has been made there should be no delay in making payment or depositing the compensation in the Court.” 7. Now, attending to the arguments of the learned counsel for the appellants that by applying the rule of literal interpretation due effect to Section 28-A be given and the appellants be allowed additional compensation on the enhanced amount assessed by the Courts (Referee/Appellate Courts), suffice it to say that the plain wording of said section does not stipulate that the additional compensation is to be paid even in cases where the enhancement has been made by the Courts. Obviously in such a situation where a section cannot be given its due effect while reading its plain word(s); the cardinal principle of interpretation is to be resorted to which has two intertwined aspects: one, the wording of the statute itself; and second, the purpose of the enactment. Thus the question before us is whether the object and purpose of the amendment (insertion of Section 28-A ibid) in the Act and the intention of the legislature in respect of the amendment should be given precedence or whether the provision should be given effect through a Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 14 :- literal construction. Where the language of the section is ambiguous, is the Court barred from examining it in order to discover its true purpose and intent (especially where the provision has been brought into the statute through an amendment)? Construction of Statutes (1940) by Crawford, relied upon by the learned counsel for the appellants in support of a literal interpretation, actually encourages a discernment of the purpose of the statute and the intention of the legislature; the relevant extract reads as follows:- “Since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting statutes…ascertaining the intention of the legislature forms the very heart of the interpretative process………………………The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject matter and purpose of the enactment.” (Emphasis supplied) In the case reported as Union of India Vs. Sankalchand Himatlal Sheth and another (AIR 1977 SC 2328) (5 member bench) at paragraphs 11 and 55 it has been held as under:- “11. The normal rule of interpretation is that the words used by the legislature are generally a safe guide to its intention……………………………But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the court would be justified in construing the words in a manner which will make Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 15 :- the particular provision purposeful. That, in essence is the rule of harmonious construction. In M. Pentiah v. Veeramallappa, AIR 1961 SC 1107 at p. 1115 this Court observed: "Where the language of a statute, in its ordinary meaning and grammatical construction leads to, a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence………………………” …………………………In the view which I am disposed to take, it is unnecessary to dwell upon Lord Denning's edict in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 at p. 164 that when a defect appears in a statute, a Judge cannot simply fold his hands and blame the draftsman, that he must supplement the written word so as to give force and life to the intention of the legislature and that he should ask himself the question how, if the makers of the Act had themselves come across the particular ruck in the texture of it, they would have straightened it out. I may only add, though even that does not apply, that Lord Denning wound up by saying, may be not by way of recanting, that “a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.” “…………………………language at best is an imperfect medium of expression and a variety of significations may often lie in a word of expression…………………………It was said by Mr. Justice Holmes in felicitous language in Towne v. Eisner (1917) 245 US 418 that “a word is not a crystal, transparent and unchanged; it is the skin of Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 16 :- a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used". The words used in a statute cannot be read in isolation: their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use word ‘context’, I mean it in its widest sense “as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which-the statute was intended to remedy". The context is of the greatest importance in the interpretation of the words used in a statute. "It is quite true" pointed out by Judge Learned Hand in Helvering v. Gregory, 69 F 2d 809 "that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create." Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing, be it a statute, a contract, or anything else, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon's case Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 17 :- (1854) 76 ER 637 which requires four things to be "discerned and considered" in arriving at the real meaning : (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning – “produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification”, the Court would be justified in "putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.” Vide River War Comrs v. Adamson, (1877) 2 AC 743.” More recently, “The Judge in a Democracy” by Aharon Barak2 sets out the merits of purposive construction which ought to consider the context of the statute as well as principles, values, and the fundamental views of society rather than a literal or textual interpretation of a statute. An analysis of the cases of Syed Shakir Ali Jafri (supra), Ramzan (supra) and Gul Muhammad (supra) does not support any enunciation of law wherefrom it can be said that some bar or fetter has been placed upon the court in interpreting the said provision by seeking out its object and purpose whilst also taking into account its literal meaning. 8. In fact, a purposive approach in interpretation has been approved and employed to achieve the intent of the legislature while 2 2006 Edition, Chapter 5. Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 18 :- interpreting certain provisions of the Constitution in the cases reported as Messrs Gadoon Textile Mills and 814 others Vs. WAPDA and others (1997 SCMR 641), Rana Aamer Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6), Province of Sindh through Chief Secretary and others Vs. MQM through Deputy Convener and others (PLD 2014 SC 531) and Dr. Raja Aamer Zaman Vs. Omar Ayub Khan and others (2015 SCMR 1303). In Gadoon Textile Mills (supra) it has been stated: “To interpret is to understand. For a purposive construction of the statutory and constitutional provisions, the courts now freely make use of their parliamentary history, policy statements of the movers of the Bills and the concerned ministers in particular. That is interpreting the constitutional provisions in light of the well-known circumstances that produced them. Even in England, the historic rule that the court must not look at the parliamentary history of legislation as an aid to the interpretation of a statute has been recently relaxed in Pepper (Inspector of Taxes) v Hart (1993) 1 ALL ER 42).” In Reference No.01 of 2012 (PLD 2013 SC 279) this Court opined:- “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………………………” Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 19 :- It is also a fundamental rule of interpretation that while interpreting an amended provision, the object and purpose of the amendment must necessarily be looked into, as has been done by this Court in the case reported as Federation of Pakistan through Ministry of Finance and others Vs. M/s Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710). In this context Crawford propounds as follows:- “………………………..in construing the amended statute, the court should consider the change sought to be affected by the legislature. The amendatory act should be construed in relation to the condition created by the amended act as well as the objects and purposes of the act itself as therein defined. In short, regard must be had for the law as it was before being amended, and the amendatory act should be construed to repress the evils under the old law and to advance the remedy provided by the amendment.” The “cardinal rule of construction of statutes” (which as we observe below encompasses the purposive rule of interpretation) was explicitly referred to by this Court in the judgment reported as Mumtaz Hussain Vs. Dr. Nasir Khan and others (2010 SCMR 1254) wherein it was held as under:- “…………………………while interpreting an Act, the intent of the Legislature is of supreme importance. The cardinal rule of the construction of Acts of Parliament is that the words of the Act should be construed according to the intention expressed in the Acts themselves. The word “intent” essentially include two concepts – that of purpose and that of meaning. In many cases, the Court will endeavour to ascertain the legislative purpose but, only as a step in the process of discovering the Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 20 :- legislative intent. And it is perhaps possible that the legislative intent and legislative purpose may coincide. Moreover, so far as legislation is concerned, the law maker may have several purposes in mind when they enact a given law. The fact which can be taken into account in ascertaining the intention of the Legislature is the history of the Act, the reason which led to the passing of the Act, the mischief which had to be cured, as well as the cure proposed and also other provisions of the Statute.” (Note: We may, however, find that the same Hon’ble Judge in a subsequent part of his opinion seems to have departed from the above view) Reference may be made with good effect to the case cited as Oliver Ashworth (Holdings) Ltd. Vs. Ballard (Kent) Ltd ([1999] 2 All ER 791) wherein it has been stated by Law, LJ: “By way of introduction to the issue of statutory construction I should say that in my judgment it is nowadays misleading—and perhaps it always was— to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between purposive and literal construction is in truth one of degree only. On received doctrine we spend our professional lives construing legislation purposively, inasmuch as we are enjoined at every turn to ascertain the intention of Parliament. The real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Frequently there will be no opposition between the two, and then no difficulty arises. Where there is a Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 21 :- potential clash, the conventional English approach has been to give at least very great and often decisive weight to the literal meaning of the enacting words. This is a tradition which I think is weakening, in face of the more purposive approach enjoined for the interpretation of legislative measures of the European Union and in light of the House of Lords' decision in Pepper v. Hart [1993] A.C. 593. I will not here go into the details or merits of this shift of emphasis; save broadly to recognise its virtue and its vice. Its virtue is that the legislator's true purpose may be more accurately ascertained. Its vice is that the certainty and accessibility of the law may be reduced or compromised. The common law, which regulates the interpretation of legislation, has to balance these considerations.” The cardinal principle of construction entails two features: (i) meaning, and (ii) object and purpose. “Meaning” refers to what the precise words of the statute [or its particular provision(s)] denote whereas “object and purpose” refers to the reason, rationale, objective, aim, underlying principle, or raison d'être of the statute. Thus, such interpretive approach necessarily combines both the literal and purposive approach in discerning the legislative intent. That is to say, the intention of the legislature is discovered, determined and understood by bearing in mind the meaning of the words used in the statute, while taking into consideration the purpose and object of the statute and also the mischief which the statute sought to curb.3 9. Clearly, the intent of the legislature carries significant weight for purposes of construing Section 28-A. In the light of the object and purpose of the said section mentioned above (Syed Saadi Jafri Zainabi’s case), 3 See AIR 2007 SC 1563 and AIR 2001 SC 724 Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 22 :- and also the history as to how and why this amendment was brought about, it is not a provision simpliciter which can be said to provide compensation to the persons whose land has been acquired as compulsory charges or interest which are provided under other sections of the Act (see Section 34 of the Act); rather this enactment prescribes an inducement to compel the acquiring agency to make prompt payment of the amount of compensation assessed. In other words, this provision does not provide an additional premium for the benefit of the land owner. Obviously as an “inducing” provision it has to be given a narrow effect; it is to be limited to the extent of the amount which has not so far been paid to the land owners (i.e. only payable on the outstanding amount). In the above context, various scenarios may arise, for instance, where the amount of compensation has been assessed by the LAC but payment is not made within reasonable time on that assessment; the land owner shall be entitled to compensation at the rate provided under Section 28- A from the date of issuance of the notification under Section 4 till the final payment is made. On the other hand, where partial payment is made promptly and some amount is left outstanding; in such eventuality, compensation would only co-relate to the amount unpaid. However, as mentioned earlier this amount shall not ipso jure be given to the land owner from the date of notification till the date of payment of the balance amount on the entire amount including the portion which has been received by him. Therefore we do not find any merit in this appeal which is accordingly dismissed. Civil Appeal Nos.144-K- & 145-K of 2009 10. The facts of these cases are that the land of the respondents was acquired and the award was passed by the LAC on 5.12.1992. Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 23 :- Being satisfied with the compensation so granted, they accepted the same and did not challenge it. However, on 8.9.2004 a constitutional petition was filed by the respondents before the learned High Court seeking additional compensation as per the provisions of Section 28-A ibid. This was allowed by the learned High Court through the impugned judgment dated 4.10.2006. Aggrieved by the said judgment, the appellants approached this Court and leave was granted vide order dated 11.06.2009 to consider:- “whether respondents’ constitutional petitions were not hit by the principle of laches.” 11. The learned Additional Advocate General argued that the writ petition filed by the respondents was hit by laches, that it was a past and closed transaction and that the claim of the respondents was barred under the law and such bar could not be surmounted by invoking the constitutional jurisdiction of the learned High Court. It is submitted that the rule of estoppel, acquiescence and waiver come in the way of the respondents as they had already accepted the amount of compensation awarded by the LAC and failed to challenge the same till 14 years later. 12. Answering the above, learned counsel for the respondents states that there is no estoppel against law; that the respondents were entitled to the additional compensation under the clear terms and mandate of Section 28-A; that it was the duty of the appellants to pay the compensation and thus, in order to seek enforcement of such a duty, the respondents could validly invoke the constitutional jurisdiction of the High Court in terms of Article 199 of the Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 24 :- compensation had been awarded to an aggrieved person, the matters were brought to this Court and either they were not pressed or in some cases the Court declined relief to them. The respondents rely upon the case reported as Niaz Muhammad and others Vs. Assistant Commissioner/Collector, Quetta and others (2005 SCMR 394). 13. Heard. While deciding Civil Appeal No.939 of 2004 above, we have held that the land owner shall not be entitled to receive additional compensation for the amount already received and that Section 28-A ibid would only be attracted to those cases where some amount remained unpaid/outstanding on account of delay by the acquiring authority. In these matters (Civil Appeal Nos.144-K- & 145-K of 2009) the respondents never claimed that some amount of the original compensation was outstanding on the basis of which they became entitled to receive the compensation in terms of Section 28-A. Besides, the doctrine of past and closed transaction comes in their way which (doctrine) has been adopted and applied in a catena of judgments including those reported as Pakistan International Airlines Corporation Vs. Aziz-Ur-Rehman Chaudhry and another (2016 SCMR 14), Waris Vs. Muhammad Sarwar (2014 SCMR 1025) and Trustees of the Port of Karachi Vs. Organization of Karachi Port Trust Workers and others (2013 SCMR 238) in refusing to re-open or interfere with such transactions as they stood concluded. 14. If the respondents thought they were entitled to the additional amount of compensation as per Section 28-A they should have moved the Collector to give them such compensation and this could have been done within the time prescribed by law and if not so prescribed, within a reasonable period of time. Likewise, the respondents could also have invoked the plenary jurisdiction of the Civil Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 25 :- Court for the recovery of that amount within the prescribed period of limitation; the maximum period in this regard, if no other article of the Limitation Act, 1908 was attracted, was six years from the date of the award. Further, if they were not advised to file a civil suit they could have directly invoked the constitutional jurisdiction of the High Court within reasonable time if it was so permissible under the law. None of this was done. In fact, the respondents kept silent and slept over their rights for over fourteen years whereafter they decided to invoke the constitutional jurisdiction of the learned High Court directly which is discretionary in nature. We are not persuaded to hold that in these circumstances the rule of past and closed transaction as mentioned above is not attracted to the instant matters. The rule of laches (the point on which leave was granted) is/was duly attracted to the matter in hand because the petitioners (before the learned High Court) (respondents in CA No.144-K and 145-K/2009) have been unable to explain as to what steps they took to ascertain and agitate their right on the basis of the Section 28-A ibid before the competent authority before the filing of the constitutional petition. In the case of S. Sharif Ahmed Hashmi Vs. The Chairman, Screening Committee, Lahore and another (1980 SCMR 711) a four member bench of this Court refused to condone the delay of twelve years in approaching the constitutional jurisdiction of the High Court and held that the case was squarely hit by the doctrine of laches. In the absence of any explanation as to why the rule of laches should not be duly applied the discretionary relief of issuance of a writ as envisaged by Article 199 of the Constitution should not have been granted, especially when the claim of the respondents to enforce their right under Section 28-A in the ordinary course before the LAC and the Court of plenary jurisdiction was barred by limitation. With regard to the Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 26 :- submission on behalf of the respondent that as it was the legal duty of the appellants to pay the amount under Section 28-A thus, for enforcing such duty and the right of the respondent neither rule of laches could be attracted nor the principles of estoppel could be resorted to, it may be mentioned that the discretionary relief in the nature of a writ cannot be granted to compel the appellants to perform its duty in favour of persons who are so indolent in matters relating to enforcement of their rights that they slept over the same for more than fourteen years and whose remedy in normal course was time-barred, as such, discretion is not exercisable in favour of those who slumber on their rights.. In light of the above, these appeals are allowed and the impugned judgments are set aside. HRC Nos.20691-S of 2013 & 48247-S of 2013 15. As the main appeals stand decided, these cases are accordingly disposed of. JUDGE JUDGE JUDGE Announced in Open Court on 21.3.2016 at Karachi Approved For Reporting Ghulam Raza/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali, CJ. Mr. Justice Amir Hani Muslim. Mr. Justice Iqbal Hameedur Rahman. Civil Appeal No. 946/2014. (On appeal against the judgment dated 03.06.2014 passed by the Election Tribunal, Rawalpindi, in E. P. No. 188/2013/RWP/05/2013) Ch. Muhammad Ayaz. Appellant(s). Versus Asif Mehmood, etc. Respondent(s). For the Appellant(s): Syed Iftikhar Hussain Gillani, Sr. ASC. For Respondent No. 1: Dr. Babar Awan, ASC. Syed Rifaqat Hussain Shah, AOR. Date of Hearing: 07.12.2015. JUDGMENT Iqbal Hameedur Rahman, J: - This appeal is directed against the judgment dated 03.06.2014 passed by the Election Tribunal, Rawalpindi (hereinafter to be referred as “the Tribunal”), in E. P. No. 188/2013/RWP/05/2013, whereby the said petition has been dismissed by holding that the appellant has failed to produce authentic and reliable evidence in support of his petition. 2. The relevant facts are that the appellant and respondents contested election for the slot of Member Provincial Assembly (MPA) from the constituency of PP-9 Rawalpindi-IX during the general elections held on 11.05.2013. The respondent No. 1, Asif Mehmood, was declared as a Returned Candidate who had secured 29797 votes while the appellant was the runner up candidate by securing 29524 votes, there being a difference of 273 votes. The appellant through his election petition averred that respondent No. 1 had maneuvered his win through corrupt and illegal C. A. No. 946/2014. 2 practices with the assistance of polling staff during the process of election who had exhorted and instigated the voters to vote for Pakistan Tehreek-e- Insaf (PTI) candidate i.e., respondent No. 1. It was further averred that the polling staff performed their duties in a partial manner on the premises of paradigm shift in the politics of the country. The appellant had stated in his petition that a complaint had been moved by one Muhammad Asim Afzal Kiani to the Returning Officer (RO) concerned against the Presiding Officer (PO) of polling station No. 53, but the same was not adhered to. It was also alleged that at polling station No. 78, from where the PO handed over a statement of count in Form-XIV to appellant’s polling agent namely Talia Kanwal, respondent No. 1 had secured 413 votes whereas Form-XIV depicts that he got 295 votes which figure was tampered with after comparing the results of the constituency of NA-54. The appellant in this regard had immediately moved an application to the RO on the same day alongwith Form-XIV as a fax copy and the appellant also moved an application on the next day to the DRO, Rawalpindi, which was stated to have been forwarded to the RO, but it was not decided till 15.05.2013. In this regard the appellant asserted that he had obtained the copy of the order dated 15.05.2013, but he found that the said application had already been dismissed on 12.05.2013 instead of 15.05.2013. It was also alleged that massive irregularities and illegalities had been committed during the election process by the PO alongwith polling staff who extended undue advantage to respondent No. 1, a PTI candidate. That the RO did not count/check the rejected votes, many votes were cast in different polling stations where either the voters had died or their votes had already been casted especially indicating that such exercise was committed in Askari-14. The appellant had further alleged that mal-practices had been committed in polling stations No. 1, 2, 4 to 12, 22, 24, 32, 38, 48, 62 & 78 wherein C. A. No. 946/2014. 3 results were handed over to the polling agent of the appellant on plain paper instead of Form-XIV. It was also alleged that polling papers had not been got signed by the POs. The appellant also alleged that respondent No. 1 was also disqualified to contest the election having violated Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as “the Constitution”) as he neither showed his assets nor disclosed his spouse as serving lady. That respondent No. 1 was also a tax evader. In the light of the above, the appellant had prayed that the election of respondent No. 1 be declared void and he be declared as duly elected MPA from PP-9 Rawalpindi-IX. The petition had duly been contested by respondent No. 1 who filed written replies. Thereafter, on framing of issues and recording of pro and contra evidence, the Tribunal dismissed the election petition of the appellant vide impugned judgment by holding that he has failed to produce any authentic and reliable evidence which could entail acceptance of the petition. Being aggrieved, the appellant has now filed the instant appeal. 3. The learned counsel for the appellant at the very outset argued that there is a very minor difference of 273 votes between the appellant and respondent No. 1 and that had occurred on account of clear interpolation of the result of polling station No. 78 wherein on the maneuvering of respondent No. 1 the PO had made interpolation on the statement of count by cutting the figure of 295 and awarding the respondent No. 1 with 413 votes, and if those are reversed the result would be in favour of the appellant and the said error had not been rectified through any counter signature by the PO as such the figure of 413 in favour of respondent No. 1 stands disputed, hence it could not have been taken into consideration. That respondent No. 1 in this regard failed to produce the PO, Mrs. Shaista Banu, in order to discharge his burden that the statement of count was C. A. No. 946/2014. 4 correctly prepared whereas the appellant in support of his case produced Sabir Ayaz (PW-1) and Mst. Shaban Jumshad (PW-10) and their evidence had not been rebutted by respondent No. 1. He next vehemently argued that it was an established fact that in seven polling stations counting was done in the absence of the polling agent of the appellant and in this regard an application had been moved for recount, but the same had not been done. The main stress of the learned counsel for the appellant was that respondent No. 1 stood disqualified under Sections 12 & 14 of the Representation of the People Act, 1976 (hereinafter to be referred as “the Act”) and Articles 62 & 63 of the Constitution for concealment of his assets while filing nomination papers as was required under an oath but he had failed to give complete details of his property i.e., H. No. 39/10-B-III, Usman Street, Abadi No. 2, Tench Bhata, Rawalpindi, and in this regard the Tribunal had only held that the same being inherited property does not come within the circumference of assets. While relying upon the case of Iqbal Zafar Jhagra and others vs. Khalilur Rehman and 4 others (2000 SCMR 250), he argued that respondent No. 1 while filing his nomination papers was required to declare the same and by not declaring the said property he stood disqualified under the above referred provisions of laws because his mother had passed away on 07.03.2012 and he inherited H. No. 39/10-B-III, Usman Street, Abadi No.2, Tench Bhata, Rawalpindi, but the said property had not been declared by respondent No.1 and in this regard adverted our attention to nomination papers wherein respondent No. 1 under solemn affirmation had filed the said papers without declaring the said ancestral property as his asset. It was also further argued that there is a verification under oath that he has made a correct declaration, but by concealing the said property the respondent No. 1 comes within the purview of Articles 62 & 63 of the Constitution, which the Tribunal has failed to appreciate as C. A. No. 946/2014. 5 such the instant appeal deserves acceptance and impugned judgment be set aside. 4. On the other hand, learned counsel for respondent No. 1 submitted that respondent No. 1 had filed written reply with certain preliminary objections that the election petition of the appellant is liable to be dismissed under Section 63 of the Act because the requirements of Section 55 of the Act have not been fulfilled. The appellant did not verify the contents of the petition alongwith schedule and annexures which was clear violation of Section 55 of the Act. Even the affidavit was not filed with the titled petition and the same fact was admitted by the appellant when he had filed an application under Section 62 of the Act seeking amendment in the election petition wherein para-2 he admitted that, “at the time of filing of election petition by inadvertence, the petitioner has not signed the verification, however the counsel for the petitioner has signed the certificate underneath the verification. This act of the petitioner was a human error as to overlook to do the needful.” It was further stated in the application that non-signing of the verification is a mere irregularity. The learned counsel further submitted that the said application had been filed with a considerable delay as such an application for condonation of delay was also filed. Even the petition had not been sworn on solemn affirmation. While relying upon the cases of Zia-ur-Rehman vs. Syed Ahmed Hussain and others (2014 SCMR 1015), Inayatullah vs. Syed Khursheed Ahmed Shah and others (2014 SCMR 1477) and Muhammad Naseem Khan vs. Returning Officer, PP-12 and others (2015 SCMR 1698), the learned counsel submitted that from day one the petition of the appellant was non est. The learned counsel secondly controverted the contention of the appellant, that respondent No. 1 had failed to disclose in his list of assets the inherited house, by asserting that the same was in the name of his C. A. No. 946/2014. 6 mother who died on 07.03.2012 as such at the time of filing of nomination papers the same had not been got transferred in his name and it is yet to be seen whether the said house devolves on the respondent or otherwise. He further submitted that the plea regarding the said property had not been pleaded by the appellant in his election petition as such he cannot go beyond his pleadings and in this regard he relied upon the case of Muhammad Saeed Awan and another vs. District Returning Officer, Attock and others (2006 SCMR 1495). While adverting to the allegation of the appellant regarding interpolation in the statement of count of polling station No. 78, the learned counsel for respondent No. 1 submitted that the same was signed by the PO and in this regard the application of the appellant was entrusted to the RO who justified the cutting on statement of count and resultantly the said application was dismissed vide order dated 12.05.2013 which had attained finality. In rebuttal, the learned counsel for the appellant adverted our attention to the affidavit of the appellant filed before the Tribunal and submitted that the same was signed by the appellant. 5. We have heard the arguments of the learned counsel for the parties and have perused the impugned judgment of the learned Tribunal as well as the material placed on record. 6. Before proceeding with the appeal in hand it would be appropriate and proper to discuss the thrust of the arguments of the respondent's learned counsel with regard to maintainability of the election petition on account of non-compliance of the mandatory provisions contained in Section 55(3) of the Act as well as Order VI Rule 15(2) CPC as to the verification of the election petition alongwith schedule and annexures. He has adverted our attention to the fact that upon filing of the election petition certain preliminary objections had been raised by the respondents that the appellant C. A. No. 946/2014. 7 while filing his election petition had not verified the contents of the petition alongwith schedule and annexures which was clear violation of Section 55(3) of the Act and on taking of such objection, an application had been filed by the appellant under Section 62(3) of the Act seeking amendment in the election petition wherein in para-2 it has been admitted that at the time of filing of election petition by inadvertence, the petitioner has not signed the verification, however, the counsel for the petitioner has signed the certificate underneath the verification. This act of the petitioner was a human error as to overlook to do the needful. It has been further asserted that the said application had been filed after considerable delay and as such an application for condonation of delay had also been filed. In the light of the above it would be appropriate to reproduce Section 55(3) of the Act which reads as under:- 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. Since the verification as per the above provisions is to be made according to the provisions of Order VI Rule 15 CPC, the same is also reproduced for ready reference:- 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. C. A. No. 946/2014. 8 From the perusal of the election petition it is apparent that the verification at the time of its filing had not been made by the appellant and neither the annexures alongwith schedule had been signed which had been sought to be rectified through amended application subsequently submitted by the appellant after a considerable delay and also after passing of the period of limitation. It has been observed that the above quoted provisions specifically state that verification is to be made at the time of filing of the election petition and any default in this regard would be considered to be a significant omission and fatal. Admittedly the appellant had sought amendment in the election petition after the period of limitation as such the petition, in the light of the above provisions, could not have been considered and allowed and warranted dismissal being not maintainable on this very score. Keeping in view the above provisions verification of the election petition was a mandatory requirement and that too in accordance with the provisions of Order VI Rule 15(2) of CPC 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. It is an admitted position that the appellant had initially not verified the election petition filed by him which is apparent as he subsequently filed application seeking amendment to do so and that also with an application for condonation of delay. In the light of the above whether the election petition was maintainable and the deficiency could have been allowed to be rectified and that also after the passing of the period of limitation and in circumstances non-compliance of the mandatory provisions of Section 55(3) of the Act is fatal to the maintainability of the election petition. We are benefited here from the dictums laid down by this Court in chain of judgments. In the case of Malik Umar Aslam Vs. Sumera Malik (PLD 2007 SC 362) it has been held that non-verification of pleadings on oath or C. A. No. 946/2014. 9 solemn affirmation before the person authorized to administer oath, such pleadings would be deemed not to be duly verified on oath, relevant part whereof is reproduced as under:- "5. We have heard parties' counsel at length and have also taken into consideration the material so made available on record. A perusal of the scheme of the Act, 1976 relating to filing of Election Petition under Chapter VII reveals that the lawgivers, to ensure expeditious decision of election disputes, has authorized the Election Tribunal to regularize the proceedings itself, instead of following the technicalities of C.P.C. except application of some provisions specifically made applicable for limited purposes. Under section 55(3) of the Act, 1976, it has been made obligatory upon the person, who has challenged the Elections, to verify the same in the manner prescribed for verification of plaint by C.P.C. thus by reference, the provisions of Order VI, Rule 15, C.P.C. have been made applicable. As per its provision, every pleading is required to be verified on oath or solemn affirmation at the foot by the party or by one of the parties to pleadings or by some other person to the satisfaction of the Court acquainted with the facts of the case. It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oath Act, 1873, by adding the words "on oath or solemn affirmation" after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the Court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. without calling for an affidavit in ex parte proof. We believe that there is no point to address ourselves on this question namely if verification on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of Almighty Allah if the truth is not spoken. Under section 6 of the Oath Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorized person. Admittedly in instant case, verification has not made on oath before an authorized person, therefore, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly." In the case of Iqbal Zafar Jhagra Vs. Khalil-ur-Rehman (2000 SCMR 250) it has been held as under:- C. A. No. 946/2014. 10 "Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, Rule 15, CPC which when read with section 29, CPC 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 Syed Iftikhar Hussain Gilllani, 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 said that the requirement of section 36 of the Act, 1976 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 with the provisions of section 36 of the Act, 1976 and are of the view that these reasons do not suffer from any legal infirmity." Further in the case of Ch. Muhammad Ashraf Vs. Rana Tariq Javed and others (2007 SCMR 34), this Court has held as under:- "…….. The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such refusal of the Election Tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil- ur-Rehman and others 2000 SMCR 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 (supra) that an election petition not having been filed in compliance with the provisions of section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under section 63 of the Act as the requirement of both the sections were held by this Court as mandatory." In the case of Sumaira Malik (supra), following observations have been made:- "…So far as grant of amendment in the petition or verification clause is concerned, it depends upon the nature of the amendment sought in the pleadings, on a case to case basis. In the case in hand, the appellant knowing well the mandatory provisions of section 55(3) of the Act, 1976, did not apply for amendment within the prescribed period of limitation for filing Election Petition. Undoubtedly, if during period of limitation for filing of petition such an amendment is sought, the Court may consider the request according to the settled principle relating to amendment in the pleadings but once limitation period has already expired, then it is the duty of the Court to examine whether a right, C. A. No. 946/2014. 11 which has been created on account of bar of limitation in favour of the opposite side can be snatched by allowing amendment in pleadings, enabling the plaintiff (petitioner) to put up a better/perfect case against the defendant (respondent). In this behalf the consistent practice of the Courts is that amendment in such matters, where limitation creates a hurdle, is not to be allowed on condoning the delay, particularly where no request has been made to enlarge the period of limitation. For the above proposition we are fortified by the judgments in the cases of Bhagwanji vs Alembic Chemical Works (AIR 1948 PC 100) and Saeed Sehgal vs Khurshid Hassan (PLD 1964 SC 598)." Further in a well reasoned judgment of Hina Manzoor Vs. Malik Ibrar Ahmed and others (PLD 2015 SC 396) this Court has met with the said proposition as under:- "6. It is, indeed true that in suitable cases and where the amendment sought is necessary for the purposes of determining the real issue, the bar of limitation may be overlooked, however, the amendment, rather the making up of lacuna, sought to be allowed cannot be considered to be an amendment necessary for the adjudication of the controversy/allegation pertaining to rigging and corrupt practices in the election process, as were involved in the present case. Furthermore, since the petition suffered with the inherent defect of non-compliance of section 55(3) of the ROPA, consequently resulting in its summary dismissal as prescribed by section 63 of the ROPA, the petitioner cannot be allowed to circumvent the purpose of law in the manner sought by him……" Further in the case of Zia ur Rehman Vs. Syed Ahmed Hussain and others (2014 SCMR 1015) this Court has in categorical terms held as under:- " In the instant case, the application for amendment dated 14th October, 2013 was apparently filed on 23rd October, 2013 well beyond the period of limitation i.e. 45 days for filing of an election petition, as provided by section 52 subsection (2) of the Representation of the People Act, 1976, hence, could not have been allowed by the Election Tribunal through the impugned judgment." By taking benefit of the above guidelines, it has been examined that the appellant while filing his election petition had not complied with the mandatory requirements enunciated in Section 55(3) of the Act which are mandatory in nature and the same cannot be controverted in the presence of application submitted by the appellant under Section 62(3) of the Act C. A. No. 946/2014. 12 seeking to rectify the said lacuna as the same had also been filed after the period of limitation propounded in the Act could not have been allowed by way of amendment to cure the defect of verification after the expiry of period of limitation and according to the dictums mentioned above, it has been consistent view of this Court that such defect in the election petition could never have been allowed in the presence of the provisions enunciated in Section 55(3) of the Act, therefore, in the light of the above provisions, the election petition of the appellant merited dismissal under Section 63 of the Act. The appellant was bound according to the mandatory provisions mentioned above to verify his election petition and the same could not be cured after expiry of the limitation period. Admittedly his election petition had been filed not fulfilling the requirements of the said provisions as regard to the verification of the petition which merited outright rejection of the same by the Election Tribunal and when the same stands admitted by the appellant by seeking amendment to do so which according to him has been inadvertently left out on account of human error. 7. In view of the above discussion, the instant appeal merits dismissal, the same is therefore, dismissed. Chief Justice. Judge. Judge. ISLAMABAD. 07.12.2015. (Farrukh) Not Approved for Reporting.

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{'id': 'C.A.946_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NOs. 957 & 958 OF 2014 (On appeal against judgment dated 19.06.2013 passed by the Peshawar High Court, Peshawar in Writ Petition No. 2927/2009) Secretary Local Government, Election Rural Development, KPK etc (In both cases) … Appellants VERSUS Muhammad Tariq Khan (In CA 957/2014) Muhammad Tahir Abbas etc (In CA 958/2014) … Respondents For the Appellants: Barrister Qasim Wadood, Addl. A.G. (In both cases) For the Respondent: Mr. Muhammad Akram Sheikh, Sr. ASC (In CA 957/2014) Syed Iqbal Hussain Shah Gillani, ASC (For respondent No.1 in CA 958/2014) Mr. Sabah ud Din Khattak, ASC (For respondent No. 2 in CA 958/2014) Date of Hearing: 25.05.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated judgment, we intend to decide the above-titled civil appeals filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, as they have nexus inter-se and a common question of law has been raised in these appeals. 2. The facts of Civil Appeal No. 957/2014 are that the respondent was appointed as Assistant Director Civil (BPS-17) in the Provincial Urban Development Board on contract basis vide order dated 16.02.1995. However, on 30.05.1998 he along with several other employees was terminated from service by the department. Being aggrieved by his termination, the respondent filed Writ Petition No. 973/1998 before the Peshawar High Court. Some other employees also Civil Appeal Nos. 957 & 958/2014 2 challenged the said termination before the Peshawar High Court by filing other writ petitions. During the proceedings before the High Court vide an interim order, the respondent and others were allowed to continue in service till the final disposal of the writ petitions. Ultimately, vide consolidated judgment dated 30.09.1999, the writ petitions filed by the respondent and others were adjudicated and decided wherein the department was directed to consider them for appointment on available vacancies, while evaluating their case on merits upon the basis of ‘last cum first go’. The respondent challenged the said order before this Court by filing Civil Petition No. 116-P/2000 but the same was dismissed as barred by time vide order dated 13.10.2000. He also filed Civil Review Petition No. 279/2000 before this Court, however, it also met the same fate vide order dated 01.11.2001. Thereafter, the respondent again filed Writ Petition No. 225/2009 but the same was dismissed as withdrawn on 09.06.2009. The respondent filed yet another Writ Petition No. 2927/2009 before the Peshawar High Court, which was disposed off with certain observations vide order dated 04.02.2010. Being aggrieved by this judgment, the Government of KPK challenged it before the High Court by filing review petition but the same stood dismissed vide order dated 15.06.2010. This order in review was challenged before this Court in Civil Petition No. 660-P/2010 and this Court vide order dated 07.11.2012 remanded the matter back to the High Court with certain observations to decide Writ Petition No. 2927/2009 afresh. During the proceedings before the learned High Court after remand, the impugned judgment dated 19.06.2013 has been passed with a direction to the appellant department to re-adjust the respondent with all benefits accrued to him except the wages of the intervening period. As far as facts of Civil Appeal No. 958/2014 are concerned, the respondent No. 1 Muhammad Tahir Abbas was appointed as Assistant Director Civil (BPS-17) in the Provincial Urban Development Board on contract basis vide order dated 18.10.1993. However, on 30.05.1998 he along with several other employees was terminated from service by the department. Being aggrieved by his termination, the respondent filed Writ Petition No. 978/1998 before the Peshawar High Court. Some other employees also challenged the said termination before the Peshawar High Court by filing various writ petitions. However, the respondent did not press his petition before the High Court provided he Civil Appeal Nos. 957 & 958/2014 3 was given pay and other allowances upto 31.05.1998 i.e. the expiry of the project and the same was disposed of accordingly vide consolidated order dated 30.09.1999. So far as the other employees are concerned, the learned High Court vide the judgment dated 30.09.1999 directed the department to consider the aggrieved employees for appointment on available vacancies on merit. It appears from the record that the respondent did not challenge this order of the High Court before this Court and it ultimately attained finality. However, the record shows that subsequently, he filed another Writ Petition No. 102/2002 against his termination and when he was declined the relief sought for from the High Court, he challenged the same before this Court by filing Civil Petition No. 1241/2002, which was disposed of on 16.03.2005 by observing that the respondent being junior most, his service was rightly terminated and he was advised to approach the Government for consideration for fresh recruitment being a previous employee of the Board. The respondent then approached the department but when he saw that nothing favourable to him is likely to happen, he filed another Writ Petition No. 322/2009 wherein vide order dated 06.10.2011, the department was once again asked by the High Court to consider the case of the respondent on humanitarian grounds but the department vide order dated 05.01.2012 refused to adjust the petitioner, which led to filing of yet another Writ Petition No. 1180/2012, which has been disposed of vide impugned order dated 19.06.2013 whereby the appellants are directed to adjust the respondent with all consequential benefits except wages. Hence, the instant appeals by leave of this Court. 3. Learned Additional Advocate General, KPK, while opening address inter alia contended that the respondents were project employees; that it is clearly mentioned in their appointment letters that appointment is contractual/temporary in nature and would be liable to be terminated subject to one month’s notice; that the project was never regularized or taken on the budget and the same was completed; that the matter of termination of the respondents had already been decided by this Court in the earlier round of litigation and the same has attained finality; that the respondents cannot be given any leverage on the basis of earlier order of this Court dated 13.10.2000 passed in Civil Petition Nos. 1752/1999 etc because only those persons who Civil Appeal Nos. 957 & 958/2014 4 were party to that order were appointed by the department; that the Project Management Unit as also Provincial Urban Development Board, NWFP, do not exist being dissolved and instead new development companies like Mardan Development Authority and Peshawar Development Authority etc have been created; that the learned High Court has wrongly interpreted and applied the principle of discrimination in the impugned judgments; that the respondents could not be adjusted against the posts of Assistant Directors as no post is available in the department; that the impugned judgment suffers from legal and factual infirmities and requires interference by this Court. 4. On the other hand, learned counsel for the respondent in Civil Appeal No. 957/2014, inter alia, contended that if one category of the employees is given relief, the other category falling under the same parameter cannot be denied the relief; that the respondent was never non-suited by this Court and his rights are in continuity; that keeping in view the performance of the respondent, he was subsequently promoted to BS-18, which shows that he is a competent employee; that after the afore-referred judgment of this Court dated 13.10.2000, the terminated Assistant Directors including the respondent were included in the seniority list of Assistant Directors and the name of the respondent was placed at serial number 92, which impliedly means that the department had recognized all the Assistant Directors to be regular employees of Provincial Urban Development Board; that if the similarly placed employees have been re-appointed by the department, the respondent also deserves the same treatment to be meted out and this fact has already been mentioned in paragraph 6 of the impugned judgment; that the respondent was appointed as BS-18 officer in the Municipal Services Delivery Program but after the impugned judgment, resignation was taken from him and he was reinstated as Assistant Director in BPS-17. 5. Learned counsel for the respondent No. 1 in Civil Appeal No. 958/2014 while adopting the arguments of learned counsel for the respondent in the connected Civil Appeal No. 957/2014, inter alia, contended that pursuant to judgment of this Court dated 16.03.2005 passed in Civil Petition No. 1241/2002, the respondent was considered to be employee of the Board and not a project employee, therefore, the order of the termination had no force. Civil Appeal Nos. 957 & 958/2014 5 6. We have heard learned counsel for the parties and have perused the available record. 7. The issues involved in these appeals are three fold: (i) whether the project/temporary employees have the right to be retained in service after expiry of the project; (ii) whether on the matter of re- appointment, the respondents have been discriminated against; and (iii) whether the subsequent writ petitions filed by the respondents were maintainable and not contrary to the principle of res judicata? 8. Admittedly, the respondents were contract employees and were hired by the Project Management Unit for the project of slum upgrading, site and service etc, which subsequently came to an end and the respondents were terminated from service. This Court in a number of cases has held that contract/project employees have no vested right to claim regularization. The direction for regularization, absorption or permanent continuance cannot be issued unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts, which admittedly is not the case here. Respondents were appointed on temporary basis pursuant to the Provincial Urban Development Board Service Rules, 1988. There was no provision in the said Rules for absorption of a project employee. The said Provincial Urban Development Board was dissolved and probably a new department City Development and Municipal Development was created, which has its own different Rules. The respondents have no vested right to claim regularization against regular posts, being contractual employees of the project, the tenure of which has already been expired, thus they being project employees and hired for the said project period are not entitled to be regularized. When the project is completed and closed, the employees have to go along with its closure. Temporary/project employees, who are appointed specifically till the completion of a certain project cannot be regularized as they have neither any vested right to hold such post beyond prescribed period nor the Government owes any obligation to maintain continuity in their service for an unlimited period. We have perused the appointment orders of the respondents and found that regularization / re- adjustment was not part of terms and conditions of their service. In Civil Appeal Nos. 957 & 958/2014 6 paragraph No. 4 of the appointment letter of respondent Muhammad Tariq Khan dated 16.02.1995, it has been specifically mentioned that his employment was purely temporary and could be terminated at one month’s notice. Similarly, the appointment letter of respondent Muhammad Tahir Abbas dated 18.10.1995 clearly stipulates that his services were on contract basis and would be liable to termination at any time without any notice. Both the respondents had accepted the contingent terms of service and cannot blow hot and cold in the same breath to claim regularization subsequently. 9. Now the question which remains to be looked at is whether the respondents have been discriminated against or not. In the earlier round of litigation, after the consolidated judgment of the Peshawar High Court dated 13.09.1999 whereby the department was directed to consider the terminated Assistant Directors for appointment on available vacancies on merit and on the basis of ‘last cum first go’, the respondent Muhammad Tariq Khan had approached this Court by filing Civil Petition No. 116-P/2000, which was dismissed solely on the ground of being barred by time vide order dated 13.10.2000. He had also filed Civil Review Petition No. 279/2000 but the same was also dismissed vide order dated 01.11.2001. So far as the respondent Muhammad Tahir Abbas is concerned, he had not pressed his writ petition bearing No. 978/1998 before the High Court provided he was given pay and other allowances upto 31.05.1998. This prayer was accepted by the learned High Court and the writ petition was disposed of as not pressed. The order of the learned High Court dated 30.09.1999 specifically finds mention of this fact. It appears from the record that the respondent Muhammad Tahir Abbas did not challenge this order before this Court and subsequently filed another writ petition against his termination order and when he did not get any relief from the High Court, he challenged the said order before this Court by filing Civil Petition No. 1241/2002, which was disposed of on 16.03.2005 by observing that the respondent being junior most, his service was rightly terminated. He was advised to approach the Government for consideration of fresh recruitment being a previous employee of the Board. The respondent then approached the department but when he could not get any relief, he filed yet another Writ Petition No. 322/2009. When the petition of respondent Muhammad Tariq Khan Civil Appeal Nos. 957 & 958/2014 7 was dismissed as being barred by time before this Court vide order dated 13.10.2000 and respondent Muhammad Tahir Abbas had not pressed his writ petition before the High Court, the matter had attained finality. Knocking the doors of High Court and this Court again and again amounts to mockery of law. The other employees, who had also filed writ petitions and whose writ petitions were decided on 13.09.1999 vide consolidated judgment by the Peshawar High Court had filed Civil Petition Nos. 1752, 1753/1999 etc before this Court, which were disposed of vide order dated 13.10.2000 and the department was directed to reconsider the facts of the cases of the petitioners therein in juxtaposition with the cases of 29 other Assistant Directors, who were retained in service although they were junior to them. It appears from the record that pursuant to this judgment of this Court, a seniority list of 93 Assistant Directors was prepared and some of them were adjusted. Learned counsel for the respondents put much stress on the point that pursuant to the judgment of this Court dated 13.10.2000 passed in Civil Petition Nos. 1752, 1753/1999, the respondents ought to have been adjusted but they were discriminated against. However, we do not tend to agree with learned counsel for the respondents because the afore-referred judgment of this Court was restricted only to the Assistant Directors, who were party/petitioners in the said case. This Court in the judgment dated 27.08.2012 passed in Civil Petition No. 346-P/2003 while dealing with the cases of similarly placed Assistant Directors has specifically taken note of this fact and has held that “this Court (vide order dated 13.10.2000) had not ordered the re-instatement of the petitioners before it but directed that their cases be considered viz-a-viz some other Assistant Directors. The relief granted by the Supreme Court was restricted to the petitioners before it.” So far as certain appointments/regularization of Assistant Directors, which have been mentioned by the learned High Court in the impugned judgments are concerned, neither their letters of termination nor appointment letters are available on record so that we could know as to what were their terms and conditions of service. Even otherwise, the learned High Court itself has mentioned that not all terminated Assistant Directors have been re-appointed/adjusted/regularized. Although some of them have been adjusted but still there are persons, who have not been adjusted again, therefore, the question of discrimination does not arise. So far as the argument of learned Civil Appeal Nos. 957 & 958/2014 8 counsel for the respondent Muhammad Tariq Khan that he was appointed as BS-18 officer in the Municipal Services Delivery Program but after the impugned judgment, resignation was taken from him and he was reinstated as Assistant Director in BPS-17 is concerned, despite our asking, learned counsel could not place on record any document to support his argument, therefore, we are unable to consider the same. 10. Now we come to the third question i.e. whether the writ petitions filed by the respondents in the instant round of litigation are hit by the principle of res judicata? There is an old latin maxim ‘res judicata pro veritate accipitur’. According to this maxim, a suit/dispute in which the matter directly or substantially in the issue has been directly/substantially in issue in a former suit/proceeding between the same parties or between parties under whom they or any of them claim has been decided by a competent court shall not be tried again in the same matter in any other courts. In simple words, a decision once rendered by a competent court on a matter in issue between the parties after a full inquiry should not be permitted to be agitated again by the same court or some other court between the same parties in the same matter. The rule of estoppel by res judicata is a rule of evidence, which prevents any party to a suit/proceeding which has been adjudicated upon by the competent court from disputing or questioning the decision on merit in subsequent litigation. It is based on the concept of public policy and private justice which apply to all the judicial proceedings. According to this, public policy involves that the general interest of the litigation must come to an end or that the litigation must have its finality. Similarly, private justice requires that an individual should be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enable him to abuse the process of court. A decision by a competent court, which is final, should be binding and the same questions are sought to be controverted in the subsequent litigation for which this maxim applies. The only point in issue on which the respondents filed the subsequent writ petitions was their termination from service. As discussed in the preceding paragraph, the issue was already put to rest and once it attained finality, the second/continued litigation by filing number of writ petitions was not warranted under the law. It Civil Appeal Nos. 957 & 958/2014 9 would be of considerable advantage to refer to a judgment of this Court reported as Khurshid Soap and Chemical Industries (Pvt) Ltd Vs. Federation of Pakistan (PLD 2020 SC 641) wherein it was held as under:- “9. The principle of res judicata is a principle of peace. Once a controversy with regard to a right in property or a right to office is adjudicated upon and attains finality through a judicial pronouncement of a competent Court of law, it no more remains open to challenge in any subsequent judicial proceedings between the same parties on the same subject matter. This principle is intended not to afford a litigant more than one opportunity for resolution of a judicial dispute and thus eliminates the chances of repetitious and successive litigation against a party on the same issue. The maxim that there should be an end to litigation is germane to such matters. 10. Any relief which a litigant seeks in a judicial proceeding with regard to any power or a right or an obligation connected with some property or an office which power or right or obligation is not dependent upon the legitimacy of a legislative enactment and stands or falls on its own strength then in such cases when the decision rendered by a court of competent jurisdiction attains finality, there is no difficulty in applying the principle of res judicata to such a decision. However, it would be difficult to apply such a principle in matters where a power or a right or an obligation solely depend upon the very legitimacy of the enactment that has come under challenge in a Court of law on the touchstone of the Constitution. In such a situation the existence of such power or right or obligation would solely depend on the final adjudication as to the legal validity of the enactment itself. This could be understood from a situation where a controversy as regards constitutional validity of an enactment has come under challenge before two High Courts, one declaring the enactment ultra vires the Constitution and the other intra vires. If the principle of res judicata is applied to the decision of the High Court that declared the law ultra vires as the same was not challenged any further by the Government then two conflicting declarations would stand side by side on the legitimacy of a legislative enactment, one party treating the law valid and the other invalid. This would lead to treating an Act of the parliament valid for some and invalid for others though both the set of persons are similarly placed. If the decision rendered by the High Court that declared the law intra vires the Constitution is only challenged before the Supreme Court and after examining the merits of the case the enactment is declared by this Court to be intra vires the Constitution, then in such peculiar situation when this Court finally validates the legislative enactment then the same has to be applied uniformly to every person falling within its ambit. Such final judicial determination on the legitimacy of a legislative enactment has to be treated as a judgment in rem regardless of the fact that the judgment of the High Court that invalidated the very same enactment was not challenged before this Court. Such a situation warrants departure from the doctrine of res judicata. Omission of a public functionary to file appeal cannot put fetters on the universal application of a legislative enactment declared by this Court to be constitutionally valid as it would amount to repealing the statute for some and treating Civil Appeal Nos. 957 & 958/2014 10 it valid for others. Hence conflicting decisions on the vires of a legislative enactment of two High Courts, decision of one remains unchallenged in the hierarchy as no appeal was preferred and the other is challenged before this Court, then the verdict of the High Court that went unchallenged, which is in conflict with the final decision of this Court has to be treated as outmoded and no longer executable. The Supreme Court of the United States of America took note of a similar situation in the case of United States v. Stone and Downer Co. [274 U.S. 225 (1927)] and held that if some of the persons are released from the application of a provision of legislative enactment on the principle of res judicata, it will lead to inequalities and discrimination causing injustice and confusion. It was held that in such a situation the plea of res judicata cannot be sustained.” (Underlined to lay emphasis) 11. In view of the above said discussion on various aspects of the case and the law laid down by this Court, we are of the considered view that the relief sought by the respondents does not commensurate or is covered by any legal premises / provision of law on the subject and the same is claimed on its own strength without any backing of law. We are, therefore, constrained to hold that the Constitutional Petitions filed by the respondents before the Peshawar High Court, which have been decided through the impugned judgments, were primarily not maintainable being hit by the principle of res judicata. 12. For what has been discussed above, these appeals are allowed and the impugned judgments are set aside. CHIEF JUSTICE JUDGE JUDGE Islamabad Announced on 01.07.2021 Approved For Reporting Khurram

{'id': 'C.A.957_2014.pdf', 'url': ''}

{'id': 'C.A.957_2014.pdf', '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 APPEAL NO. 95/2005 (Against the judgment dated 5.12.2003 passed by High Court of Sindh, Karachi passed in Cons.P. No.1443/1996) M/s Pakistan International Airlines Corporation Appellant(s) Versus The Board of Trustees, EOBI etc. Respondent(s) For the Appellant(s): Mr. Anwar Mansoor Khan, Sr. ASC. Mr. Mehr Khan Malik, AOR. For the Respondent(s): Mr. Tariq Bilal, ASC. Mr. Babar Bilal, ASC. Mr. M. S. Khattak, AOR. Noor Ahmed, Dy. Director, Law, EOBI On Court’s Notice: Mr. Abdul Rasheed Awan, D.A.G. Date of Hearing: 20.01.2016. ORDER MIAN SAQIB NISAR, J:- This appeal, by leave of the Court, entails the facts, in that, the appellant had challenged the order dated 24.11.1995 passed by the Adjudicating Authority of the Employees’ Old Age Benefits Institutions (EOBI), whereby the kitchen and engineering departments of the appellant were declared to be establishments within the purview of the Employees’ Old-Age Benefits Act, 1976 (the Act), before the Board of Trustees of EOBI/respondent No.1 which dismissed the appeal vide order dated 10.6.1996. Both these orders were assailed by the appellant by filing a constitutional petition before the learned High Court of Sindh, which (petition) was dismissed vide the impugned judgment, hence the appellant approached this Court. Leave in this case Civil Appeal No. 95/2005 2 was granted vide order dated 3.2.2005, the relevant part wherefrom is reproduced as under:- “(i) Whether clause (c) & (f) and proviso of section 47 of Employees Old Age Benefits Act XIV of 1976 read with section 33 of the said Act have been correctly and rightly interpreted by the High Court? (ii) Whether the definition of “Manufacture” and “Manufacturing Process” given in the various dictionaries in the absence of definition under the Factories Act could be made basis of the judgment against the petitioner? (iii) Whether the provision of Act XIV, 1976 and Factories Act, 1934 and the P.I.A.C. Act, 1956 have been erroneously interpreted/considered in the impugned judgment? and (iv) Whether the petitioner-Corporation being statutory corporation under Government of Pakistan through Ministry of Defence, would be governed by any other law than P.I.A.C. Act, 1956 and Rules & Regulations made thereunder?” Adding to the facts, it may be mentioned that the Assistant Director (Inspection), EOBI moved a complaint under Section 33 of the Act before the Adjudicating Authority, EOBI that the kitchen and the engineering departments of the appellant require compulsory registration with EOBI and are liable to pay contributions under the Act, which the appellant has not so done and this is a lapse on its part, thus a direction to that effect be given. The Adjudicating Officer, after seeking a reply from the appellant, passed the order dated 24.10.1995 wherein considering that both the kitchen and the engineering departments have been registered by the appellant under the Factories Act, 1934 (Factories Act) and also by Civil Appeal No. 95/2005 3 interpreting various relevant provisions of the Act has come to the conclusion that the departments are “establishments” within the purview of the law and they require compulsory registration. It may be mentioned that with regard to the interpretation of the relevant provisions the working/functioning of both the departments have been taken into consideration. In appeal before respondent No.1, the order dated 24.10.1995 has been upheld but on examination of the order dated 10.6.1996 passed by it, we find that such upholding has been done without giving any separate or additional reasons. 2. Learned counsel for the appellant has argued that clauses (c) and (f) of Section 47 read with Section 33 of the Act have not been correctly and rightly interpreted by the learned High Court; the departments, such as the kitchen and engineering departments, of the appellant cannot be segregated into separate entities to be termed as “establishments” for the purposes of invoking the provisions of the Act; Section 3 of the Act contemplates the concept of an “establishment” which is an organization as a whole and not of its different departments/components; the term “establishment” as defined in Section 2(e) of the Act is not applicable to the various departments of an establishment as a whole; the fact that the two departments were registered under the Factories Act, cannot be taken as a ground for registering those departments for the purposes of the Act on account of Section 2(e)(iii) (of the Act); the kitchen and engineering departments do not engage in manufacturing process. 3. On the other hand learned counsel for the respondent has argued that the factum of registration of the kitchen and engineering departments under the Factories Act is sufficient per se to render them to be liable to registration under the Act and therefore the question of Civil Appeal No. 95/2005 4 whether or not they are “factories” by virtue of their respective functions does not remain. Further, he made reference to Section 4(2)(e) of the Pakistan International Airlines Corporation Act, 1956 (PIAC Act) and the relevant portion of the impugned judgment, to argue that since the appellant repairs equipment of other airlines, the exemption under Section 47 of the Act does not apply. He further stated that the appellant being a corporation registered under the Companies Ordinance, 1984 (Ordinance) was no longer immune from the applicability of the Act. To support his arguments, learned counsel for the respondent relied upon Province of N.W.F.P. through Secretary, Local Government and Rural Development, Peshawar v. Pakistan Telecommunication Corporation through Chairman and others (PLD 2005 SC 670), Don Basco High School v. Assistant Director, E.O.B.I. and others (PLD 1989 SC 128) and Lahore Race Club through Secretary v. Deputy Director, Employees’ Old-Age Benefits Institution, Lahore and 2 others (1998 SCMR 1571). The learned Deputy Attorney General has submitted that the order of respondent No.1 is sketchy and that there was no proper adjudication of the matter neither by the Adjudicating Authority nor the respondent No.1, making this a case fit for remand. 4. Heard. The key questions involved in this matter are:- first, whether the kitchen and engineering departments of the appellant are “establishments” within the meaning assigned in the Act; and secondly, whether the Act is not applicable to the appellant by virtue of Section 47 of the Act. In order to appreciate the above, the relevant provisions (parts) of the law are reproduced as below:- “Employees’ Old-Age Benefits Act, 1976 2. Definitions. – In this Act, unless the context otherwise requires,– Civil Appeal No. 95/2005 5 (e) "establishment" means- (iii) a factory as defined in the Factories Act, 1934 (XXV of 1934); 47. Act Not to Apply to Certain Persons.– Nothing in this Act shall apply to– (f) person in the service of statutory bodies other than those employed in or in connection with the affairs of a factory as defined in section 2 (j) of the Factories Act, 1934 (XXV of 1934), or a mine as defined in the Mines Act, 1923 (IV of 1923): Provided that workshop maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause; Factories Act, 1934 2. Definitions.– In this Act, unless there is anything repugnant in the subject or context— (g) “manufacturing process” means any process— (i) for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or (j) “factory” means any premises, including the precincts thereof, wherein ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923);” 5. Now coming to the first question as to whether the kitchen and engineering departments of the appellant are “establishments” Civil Appeal No. 95/2005 6 within the meaning assigned in the Act, Section 1(4) of the Act provides for the Act to be applicable to every establishment, Section 3 states that there is to be compulsory insurance of all employees in an establishment, and Section 11 deals with registration of establishments, which (registration) was directed by all the fora below in the instant matter, thus an elucidation of the meaning of “establishment” is necessary. However before proceeding we find it pertinent to deal with the argument of the learned counsel for the appellant that the various departments of an organisation cannot be “establishments” rather it has to be the organisation as a whole; suffice it to say that there may very well be organisations comprising of a vast array of sub-organisations wherein each sub-organisation carries out an activity that may be wholly or substantially different from that of another sub-organisation, rendering only one or some of the sub-organisations as “establishment(s)” under the Act and not the others. To hold that an “establishment” as provided for under the Act only contemplates organisations as a whole/composite and not its individual departments/sub-organisations would mean to deprive the employees of insurance benefits who would otherwise be entitled as the sub-organisation they work for may fall within the definition of “establishment” under the Act. Hence, we are of the opinion that the kitchen and engineering departments of the appellant are not precluded from falling within the definition of “establishment” as provided for under the Act. The definition of “establishment” has been provided in Section 2(e), the relevant sub-clause of which is (iii), that is, a “factory as defined in the Factories Act, 1934”. “Factory” has been defined in Section 2(j) of the Factories Act (reproduced above), wherein the determinative factor for our purposes is that of “manufacturing process”, which in turn has been Civil Appeal No. 95/2005 7 assigned a meaning in Section 2(g) of the Factories Act, the germane sub- clause of which is (i). The question boils down to whether such “manufacturing process” is being carried out in the kitchen and/or engineering departments of the appellant. With regard to the kitchen department, flight kitchen production or flight catering consists of mass- scale food production, where food is prepared, cooked and arranged for final service for countless number of passengers and flight crew on numerous local and international fights round the clock every day. This makes it lose its semblance to a regular kitchen, and renders it more akin to a food manufacturing plant, where finished dishes are made from the raw material (fresh food items, etc.) and finally packed and loaded onto flight catering carts for use on-board the appellant’s air carriers, thereby bringing such process within the “process for making…packing…any article or substance with a view to its use…” making it a “manufacturing process” and consequently rendering the kitchen department a “factory” in terms of the Factories Act. Accordingly, such department would necessarily constitute an “establishment” for the purposes of the Act. Suffice it to say that there is no provision in the Act which provides that objects ancillary to the main object of an organisation such as the appellant would not be subject to the application of the Act, and the argument of the learned counsel for the appellant in this regard is unconvincing. Further with regard to his submission that the food is being prepared for the appellant’s own use, we do not find this to be a reason within the relevant law to make the Act inapplicable to the kitchen department, and in any case, the services being provided by the said department are very much a part and parcel of the appellant’s object to provide air-transport to passengers. With respect to the engineering department, even if it is accepted that no manufacturing whatsoever is taking place within such Civil Appeal No. 95/2005 8 department as submitted by the learned counsel for the appellant, but repairing and servicing of airplanes, which is admittedly being carried out, would certainly bring it within the definition of “factory” since a “manufacturing process” is taking place, which encompasses “repairing” of the airplanes “with a view to its use” as per Sections 2(g)(i) and 2(j) of the Factories Act. Consequently, the engineering department is also an “establishment” under the Act. 6. Adverting to the second question, we find it important to state at this juncture that this appeal was previously decided vide judgment dated 19.4.2011 on the primary ground that Section 47 was only meant for “persons” employed to be excused from making payments/contributions as required by the Act, and not the appellant as an employer. Subsequently the review petition filed by the appellant was allowed and the appeal restored to its original number for re-hearing vide order dated 4.3.2015 on the main ground that Section 47 was a part of the original Act at which time employees were under no obligation to make any payments/contributions to the EOBI Fund, suffice it to say that we find this to be the correct position and thus the appellant as an employer is entitled to take the benefit of the provisions of Section 47. For ease of reference, Section 47(f) may be divided into three parts:- (i) persons in the service of statutory bodies; (ii) other than those employed in or in connection with the affairs of a factory as defined in Section 2(j) of the Factories Act; and (iii) the proviso, that workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of Section 47(f). It is an undisputed fact, that the appellant is a statutory body, having been established by statute, i.e. the Pakistan International Airlines Corporation Act, 1956, Civil Appeal No. 95/2005 9 and its employees consequently in the service of a statutory body. It may be pertinent to mention here that we find force in the argument of the learned counsel for the appellant that the mere factum of registration of the kitchen and engineering departments under the Factories Act (which is undisputed) will not be sufficient to satisfy the second part of Section 47 for the reason that the phrase “registered under” was taken out of Section 47(f) of the Act and replaced with “as defined in” by virtue of an amendment (Employees’ Old-Age Benefits (Amendment) Ordinance, 1983). Be that as it may, as opined above in paragraph 5, the kitchen and engineering departments are nevertheless “factories” within the meaning provided in Section 2(j) of the Factories Act, hence the Act would be applicable to the employees of the appellant working in the said departments. The attempt of the learned counsel for the appellant to bring at least the engineering department within the purview of the proviso to Section 47(f) by stating that such department repairs airplanes of the appellant only is inapt, as it has come on the record (in the form of an affidavit vide CMA No.385/2016) that repair and maintenance services are also being provided to airplanes of airlines other than that of the appellant, which in any case is a public domain fact in our opinion; and that the appellant also repairs and services the aircrafts and equipment of the Pakistan Navy and Air Force was admitted by the appellant in the proceedings before the Adjudicating Authority, EOBI, therefore, bringing the appellant out of the ambit of the proviso to Section 47(f), consequently rendering the provisions of the Act applicable to the persons working in the engineering department of the appellant. 7. Finally, there is nothing on the record such as a Form A or Form 29 issued by the Securities & Exchange Commission of Pakistan to suggest that the appellant has been conclusively converted into a limited Civil Appeal No. 95/2005 10 company under the Ordinance to enable us to decisively hold that the Act would apply to the appellant on this account. 8. In light of the foregoing, we find that no case for interference with the impugned judgment has been made out; therefore, this appeal is dismissed with no order as to costs. Judge Judge Judge Announced in open Court on 09.02.2016 at Islamabad Not Approved For Reporting Ghulam Raza/*

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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 MUNIB AKHTAR Civil Appeal No.960 of 2017. (Against the judgment dated 19.5.2017 passed by the Lahore High Court Rawalpindi Bench in CR No. 75 of 2010) Saddaruddin (since decd) thr. LRs. Appellant(s) Versus Sultan Khan (since decd) thr. LRs etc. Respondent(s) For the Appellant(s) : Syed Qalb-e-Hassan, Sr. ASC. In CMA No.2817/20 Mr. Tanveer Iqbal, ASC For the Respondents,1-5 : Ex parte. Date of Hearing : 13.01.2021 ORDER Sajjad Ali Shah, J.- This direct appeal is filed against the judgment of the Lahore High Court Rawalpindi Bench whereby the said Court while exercising revisional jurisdiction by reversing the judgment of the appellate Court restored the dismissal decree passed by the trial Court. 2. Briefly the appellant on 18.5.2004 filed a suit against the respondent seeking declaration regarding his ownership in respect of a house, subject matter of the lis. It was claimed by the appellant that in the year 1971, through an oral agreement he has purchased the subject property from the respondent for a sum of Rs.7500/- and the respondent after having received the sale price CA 960/2017 2 handed over the original title documents of the subject property. In order to justify filing of suit for specific performance after almost 33 years the appellant pleaded that the cause of action accrued a week before filing of suit when the respondent refused to execute the sale deed in favour of the appellant. On the other hand, respondent emphatically denied the claim of the appellant and asserted that he was inducted as a tenant in the year 1971 and was handed over the title documents recently for getting electricity connection and now the appellant has turned dishonest and has laid a false claim of sale against the subject property. Issues accordingly were framed and the trial Court, after allowing the parties to adduce evidence, dismissed the suit. The appellant filed an appeal which was allowed giving rise to the respondent to approach the High Court by filing a civil review petition which, after hearing, was allowed through the impugned judgment. 3. Learned counsel for the appellant contends that the High Court erred in setting aside a well reasoned judgment of the appellate Court which has discussed in detail the effect of non- production of witnesses of sale on account of their death and production of one witness of arbitration before whom the parties took their dispute when the respondent refused to execute the sale deed. The Court had further considered the effect of prolonged possession coupled with title documents, installation of electricity meter and additional construction which had fortified the appellant’s claim of ownership. The High Court therefore, was not justified to reverse the well reasoned judgment of the appellate Court. CA 960/2017 3 4. However, we have found that the appellant has neither detailed the material contents of the sale agreement in the plaint nor the fact that the said oral agreement was witnessed by any one or the witnesses of the oral sale had died. Even the plaint does not describe the event of jirga which the plaintiff has disclosed in his evidence. We have further found the evidence adduced on behalf of the appellant to be against the pleadings as in the plaint appellant in order to justify filing of suit for specific performance after almost 33 years of alleged oral sale agreement has asserted that just a week before filing of suit, the cause of action has accrued whereas PW-3 Muhammad Sharif alleged witness of the arbitration whose evidence was recorded on 19.11.2005, asserted that the arbitration took place in his shop in March last year i.e. March, 2004 whereas the suit was filed by the appellant on 19.5.2004 by asserting that the cause of action has arisen a week before filing of suit i.e. May 2004. Beside, we have noticed that the claim of the appellant suffers from major legal flaws; firstly, that the appellant tried to establish the oral sale agreement through his evidence by asserting two witnesses of sale and further that on refusal to execute sale deed a Jirga took place and a witness to affirm the Jirga was produced. However, we do not find any of such pleas in the plaint and consequently the evidence though neither here nor there but still cannot be considered on the basis of principle laid down by this Court that the parties are required to lead evidence in consonance with their pleadings and that no evidence can be laid or looked into in support of a plea which has not been taken in the pleadings. A party, therefore, is required to plead facts necessary to CA 960/2017 4 seek relief claimed and to prove it through evidence of an unimpeachable character. Reference can readily be made to the case of Sardar Muhammad Naseem Khan versus Returning Officer, PP-12 and others (2015 SCMR 1698) and Binyameen and others versus Chaudhry Hakim and another (1996 SCMR 336). The second legal flaw is that in cases where the sale is pleaded through oral agreement then the terms and conditions which were orally agreed are to be stated in detail in the pleadings and are to be established through evidence. In such like cases, the plaintiff beside detailing subject matter of the sale, the consideration, detail of striking of the bargain, name of the witnesses in whose presence the said oral agreement to sale was arrived at between the parties and other necessary detail for proving the sale agreement as if it would have been executed in writing. Reference can readily be made to the case of Sheikh Akhtar Aziz versus Mst. Shabnam Begum and others (2019 SCMR 524) and Muihammad Nawaz through LRs versus Haji Muhammad Baran Khan through LRs (2013 SCMR 1300). Lastly as to the claim of the appellant regarding his prolonged possession coupled with title documents, suffice it to observe that mere prolonged possession even coupled with title document by itself does not establish the claim of ownership unless the sale is established and in this case the claim of the appellant was met with the plea of tenancy and since neither the sale is established nor the status of the appellant as tenant, therefore, we would not like to further dilate upon the status of the appellant vis-à-vis the subject property. CA 960/2017 5 5. For the foregoing reasons, no case of interference is made out. This appeal is consequently dismissed. Judge Judge Judge Islamabad 13.01.2021 A.Rehman Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MUHAMMAD NAWAZ ABBASI CIVIL APPEAL NO. 970 OF 2003 (On appeal against the judgment dated 2.6.2003 passed by the Peshawar High Court, Peshawar in Election Petition No. 29 of 2002) Atique Rehman … … Appellant Versus Haji Khan Afzal, etc … … Respondents For the Appellant: Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR For the Respondents: Mr. Abdul Aziz Kundi, AOR Date of Hearing: 2.10.2006 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ: Instant appeal has been filed against the judgment dated 2nd June 2003 passed by the Peshawar High Court, Peshawar in Election Petition No. 29 of 2002. Precisely stating facts of the case are that appellant submitted nomination papers on 23rd August, 2002 to contest the Election of the Office of MPA from PF 42, Hangu-I. The Returning Officer after having examined his documents vide detailed order dated 2nd September 2002 concluded that he was qualified to contest the election and thus in the contest, the appellant secured more votes to that of his opponent and as such was declared successful candidate. The respondent filed an Election Petition against the appellant, which was allowed by the election Tribunal constituted CA 970/2003 2 under Representation of People Act, 1976 and presided over by a learned Judge of the Peshawar High Court, vide judgment dated 2nd June 2003. The appellant has thus filed the instant appeal under Section 67(3) of the ibid Act [hereinafter referred to as the Act]. Learned counsel for appellant contended that no such ground in respect of the age of appellant less than 25 years on the date of filing the nomination papers, was taken in the election petition or at any subsequent stage by any of the contesting candidate, rather the Presiding Officer of the Tribunal himself having posed the question regarding the age of the appellant on the date of filing of the nomination papers, held that he being less that 25 years of age was not qualified to contest the election. Learned counsel submitted that it was brought to the notice of Tribunal that much before the filing of nomination papers, a civil suit was filed by the appellant for correction of his date of birth which was subsequently decreed in his favour and according to the verdict given by the Civil Court, he was above 25 years of age on the date of filing the nomination papers and the decree having been not challenged, attained finality, which was still holding field to be given effect for all intents and purposes. The learned counsel for the respondents, on the other hand, submitted that the decree in question was passed on the basis of medical certificate wherein the approximate age of the appellant was given which cannot be considered as conclusive evidence of his age and further the same having been obtained subsequent to the filing of nomination papers, may not be relevant to determine the correct age of the appellant on the target date, therefore, the High Court has rightly held that on the day of filing of the nomination papers, the appellant was not qualified to contest the election. CA 970/2003 3 After hearing the learned counsel for the parties at length and having carefully perused the record with their assistance, we in the light of the provisions of Section 99 of the Act, 1976 have found that a candidate intending to contest election for the seat of member provincial Assembly must fulfill the condition contained therein including attaining the age of 25 years on the date of filing the nomination paper and should also be enrolled as voter in the constituency from which he is contesting the Election. The appellant having fulfilled the above essential conditions contested the Election as a validly nominated candidate therefore, it would hardly make any difference that decree was passed subsequent to 23rd August 2002 which was the last date for filing the nomination papers. It is evident from the contents of the decree that appellant has attained the age of 25 years much before the target date and the same having been not assailed in the appropriate proceedings was still holding the field, so much so the application under Section 12 (2) CPC filed by the respondents for setting aside the decree was also dismissed. The validity of the decree passed by the civil court neither could be challenged before the Election Tribunal established under Representation of People Act, 1976 nor the same could be ignored to be given legal effect and thus we are of the considered opinion that so long the decree of the Civil Court determining the age of appellant above 25 years on the date of filing of nomination papers was intact, the objection that he was less than 25 years of age on the date of nomination papers could not be raised to contend that he was suffering from disqualification to contest the election. The contention regarding the other conditions relating to the eligibility of appellant to contest the election is also without any substance. The appellant was enrolled as voter in the constituency from which he was contesting the CA 970/2003 4 election and he having been not found to have been suffering from any disqualification to contest the election was declared a validly nominated candidate. It may be noted that neither any appeal was filed against the acceptance of nomination paper of the appellant nor the order passed in the application under Section 12 (2) CPC challenging the decree was further assailed and thus the Tribunal being not competent to sit over the judgment of civil court would have no jurisdiction, to go beyond the decree and pass a contrary order in respect of age of appellant. In the light of forgoing reasons the appeal is allowed, impugned judgment is set aside and Election Petition filed by the respondent is dismissed with costs of Rs. 10,000/- (Rupees ten thousand only). Chief Justice Judge Islamabad 02.10.2006 MS/* Not Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed CIVIL APPEALS NO. 977 & 978 OF 2018 AND C.M.A. NO. 3658/2019 IN CIVIL APPEAL NO. 978/2018 (Against judgment dated 26.02.2018 passed by the Islamabad High Court Islamabad in F.A.O. No.42/2016) M/o Information Technology and Telecommunications, Islamabad (in C.A. No.977/2018) The Pakistan Telecommunications Authority, Islamabad (in C.A. No.978/2018 & C.M.A. 3658/2019 inC.A.978/2018) …Appellant(s) Versus CM Pak (Pvt) Ltd. Islamabad & another (in C.A. 977/2018) CM Pak (Pvt) Ltd. Islamabad (in C.A. 978/2018) …Respondent(s) For the Appellant/: Mr. Sajid Ilyas Bhatti, Addl. A.G.P. Applicant(s) M. Ayub, Ministry of I.T. (in C.A. 977/2018) Mr. Munawar Iqbal Duggal, ASC Sajjad Latif, D.G. (Law) PTA M. Khurram Siddiqui, Director Law, PTA M. Kashif, A.D. PTA (in C.A. 978/2018) For the Respondent(s): Mian Shafaqat Jan, ASC M. Sharif Janjuah, AOR (in all cases) Mr. Rashid Hanif, ASC (in C.M.A. 3658/2019) Date of hearing: 22.04.2020. . . . . . . . . Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 2 ORDER Umar Ata Bandial, J. The impugned judgment dated 26.02.2018 was passed by the learned High Court in a first appeal bearing No. FAO 42 of 2016 filed by the respondent telecom licensee under the Pakistan Telecommunication (Re-Organization) Act, 1996 (“Act”). The respondent licensee had challenged the suspensory direction dated 28.03.2016 issued by the appellant Pakistan Telecommunication Authority (“PTA”). However, the impugned judgment struck down the policy directive dated 26.12.2009 published by the Ministry of Information Technology (I.T. & Telecom Division) under Section 8(2)(c) of the Act. The impugned judgment held that the said policy directive failed to meet the criteria and conditions laid down in Section 54(2) and (3) of the Act. 2. Pursuant to this impugned policy directive dated 26.12.2009, PTA from time to time had issued directions whereby cellular services provided by telecom licensees were ordered to be suspended in specified areas for limited time on grounds of national security. To illustrate this point, certain suspensory directions issued by PTA are given below. Email dated 22.03.2016: “all Mobile and Wireless (2G/3G/4G/LTE/ CDMA/WiMax) Voice & Data Services would remain blocked in 20 kilometer radius around Multi Purpose Ground, Islamabad to avoid any untoward incident during Joint Services Pakistan Day Parade at Multi Purpose Ground” Email dated 21.10.2015: “the closure timing for closing of Mobile and Wireless Services (2G/3G/4G/ LTE/CDMA/WiMax Voice & Data Services) in district/cities/areas forwarded vide trailing emails is: from 0630 Hours to 2000 Hours on 24th October 2015 (10 Muharram ul Haram). It is Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 3 pertinent to highlight that the area of Karachi is all five districts.” 3. It is common ground that the events that invite such directions are invariably related to national security or public safety. What is disputed by the respondent licensee who succeeded before the learned High Court is the extent of such restrictions in terms of time, space and type of services that are blocked. Specifically, the respondent licensee had challenged the suspensory directions dated 28.03.2016. The first direction was sent at 12.27 am: “It is requested to block all cellular mobile (2G/3G/4G/LTE) Voice & Data services in 10km radius around D-Chowk, Red Zone, Islamabad to avoid any untoward incident by 0030 hrs on March 28 2016 and control spill over sites as well. The services would remain blocked till further notice.” This was followed by a further direction at 06.24 am: “Is requested to restore mobile services by 0700 hrs on March 28, 2016 and confirm through return email.” There is agreement between the parties that national security or public safety priorities should justify the imposition of such restrictions and directions. However, the respondent licensee contends that the Federal Government ought to have settled procedures and benchmarks to regulate its discretion. This is urged because the respondent has a right to do business and the sudden curtailment of its rights has negative implications. 4. The impugned directions dated 28.03.2016 under the policy directive dated 26.12.2009 were not impeached by the respondent licensee before PTA but were straightaway challenged before the High Court in an appeal filed under Section 7(1) of the Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 4 Act. However, it appears that at the hearing the respondent licensee’s challenge shifted to the policy directive. There is nothing on record to indicate that the respondent licensee expressed its grievance before the Federal Government or its concerned agencies about the said directive dated 26.12.2009 in the seven years that elapsed before the filing of its appeal. Be that as it may, the impugned judgment considered the provisions of the Act and concluded that Section 54(3) of the Act which authorises the suspension of services of telecom licensees is not attracted to the facts of the case. That the policy directive issued under Section 8(2)(c) of the Act is controlled by Section 54(3) ibid and therefore, the policy directive dated 26.12.2009 issued under the Act by the Government is ultra vires. 5. It would be useful at this stage to reproduce the relevant provisions of the Act: “8. Power of the Federal Government to issue policy directives.- (1)… (2) The matters on which the Federal Government may issue policy directives shall be— (a)… (aa)… (b)… (c) requirements of national security and of relationships between Pakistan and the Government of any other country or territory outside Pakistan and other States or territories outside Pakistan.” (2A)… (3)… “54. National Security.-- (1) Notwithstanding anything contained in any law for the time being in force, in the interest of national security or in the apprehension of any offence, the Federal Government may authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system. Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 5 (2) During a war or hostilities against Pakistan by foreign power of internal aggression or for the defence or security of Pakistan, the Federal Government shall have preference and priority in telecommunication systems over any licensee. (3) Upon proclamation of emergency by the President, the Federal Government may suspend or modify all or any order or licences made or issued under this Act or cause suspension of operation, functions or services of any licensee for such time as it may deem necessary; Provided that the Federal Government may compensate any licensee whose facilities or services are affected by any action under this sub- section.” Having carefully perused the foregoing provisions of the Act, we are of the view that both sections cater to different circumstances. Section 54(3) confers powers on the Federal Government to modify or suspend all or any orders or licences in a situation where an Emergency is imposed by the President under Article 232 of the Constitution. On the other hand, Section 8(2)(c) empowers PTA to take steps pertaining to matters of national security, diplomatic protocols and State functions. The purpose of the two sections is distinct. Section 54(3) is reactive and defensive in nature, coming into the field when on account of grave circumstances in the country or its provinces a Proclamation of Emergency is issued by the President potentially involving suspension of Fundamental Rights and the Provincial Government(s). Conversely, Section 8(2)(c) contemplates pre-emptive action as it allows for the disruption of services before any perceived threat in a specified area materialises. Further, under Section 54(3) cellular services may according to the terms of the Emergency be disrupted for a lengthy period of time over an extensive area. In contrast, disruption of services under Section 8(2)(c) is likely to be event specific and localised, in effect applying only for a temporary Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 6 period of time across a limited area. Clearly then, both sections operate in separate spheres and situations with no conflict between them nor any primacy being given to one over the other. 6. As far as the policy directive dated 26.12.2009 is concerned, it has been issued by the Federal Government in exercise of its power under Section 8(2)(c) of the Act. Consequently, the said directive is a piece of delegated legislation. The purpose of such an executive instrument has been set out by this Court in Muhammad Amin Muhammad Bashir Limited Vs. Government of Pakistan (2015 SCMR 630) at para-7: Para 7:… “[delegated legislation is] intended to enforce the law, not override it. [It] can fill in details but not vary the underlying statutory principles.” The policy directive dated 26.12.2009 sets out the purpose, causes and parameters of suspensory action by PTA. It gives law enforcement authorities the power to forward written requests to PTA specifying the cellular services to be closed, the time and duration of closure and the specific area where such closure is to be implemented in case of significant threat of “hostilities against Pakistan by a foreign power” or “internal aggression by terrorists/groups.” It is obvious that these events are significant for public safety and national security. However, their limited and transient occurrence cannot justify the imposition of an Emergency under the Constitution which can continue uninterrupted for 60 days without sanction of the two Houses [Article 232(7) of the Constitution]. Therefore, there is nothing in the policy directive dated 26.12.2009 which contravenes any substantive provision of Section 54 of the Act. Instead, it complements and strengthens the purpose of the Act by attending Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 7 to national security situations that fall outside the ambit of Section 54(3). 7. Consequently, the only question arising before us for determination is whether PTA has exercised its power under the policy directive dated 26.12.2009 reasonably, fairly, justly and for the advancement of the purposes of the Act [ref: Section 24-A(1) of the General Clauses Act, 1897 (“1897 Act”)]. This test has been reiterated by this Court in the Muhammad Amin case (supra). Reasonableness and fairness are criteria that bear nexus with the factual matrix of a grievance and with the object of the law. In the present case, the factual background for the impugned exercise of such power vide PTA’s email dated 28.03.2016 has not been examined by the learned High Court. In our considered view, in a country where there is sectarian tension during the Ashoora in Moharram the Zuljinah procession ought to be protected from attacks and turmoil. This is attempted by PTA’s email dated 21.10.2015 which is necessary to ensure the religious freedom guaranteed to the citizens under Article 20 of the Constitution. Equally, the Pakistan Day Parade by the Armed Forces is an annual national event where apart from the Armed Forces personnel, the highest State and foreign dignitaries are assembled to view the military parade. This again is an event which deserves security protection. Indeed, PTA’s email dated 22.03.2016 seeks to ensure that. Similarly, the impugned directions of 28.03.2016 were issued during the protest which marked the Chehlum of Mumtaz Qadri. This protest had involved severe damage to public property (Danish Hussain, ‘D-Chowk Protestors End Sit-In After Successful Talks’ The Express Tribune (Islamabad, 31 March 2016)). Therefore to curtail further escalation of damage/violence Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 8 there was a legitimate need to suspend cellular services. These protective measures are taken on the request of law enforcement authorities in view of past experience of terrorist activities at similar events. If such events caused the issuance of the impugned directions then the same would be in the public interest, reasonable, fair, consistent with the object of the law and therefore valid. Accordingly, the exercise of power by PTA under the policy directive dated 26.12.2009 ought to be evaluated in the light of the threat that is anticipated. 8. To our minds, the power of PTA under the policy directive dated 26.12.2009 does not conflict with Section 54(3) of the Act which operates in a different field. In fact, it is regulated by Section 8(2)(c) of the Act read with Section 24-A(1) of the 1897 Act and the law laid down by this Court controlling the exercise of delegated authority. Apart from the aforesaid parameters, it is not within the province of a Superior Court to strike down or interfere with decisions taken by Federal Government bodies pursuant to the policy directive dated 26.12.2009. 9. Accordingly, for the reason that the impugned judgment has failed to examine the impugned suspensory directions dated 28.03.2016 in the context of the power conferred on PTA, we consider that the impugned judgment has arrived at a hasty and incorrect conclusion. The learned High Court has construed Section 8(2)(c) to be subservient to Section 54(3) of the Act. In reaching this decision, the learned High Court has misread the Act, specifically the provisions of Section 54, all of which serve an express purpose/function. Whilst these purposes/functions may incidentally be effectuated by the exercise of power under Section 8(2)(c) of the Act but this does not lead to the conclusion Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018 9 that Section 54 ibid controls the exercise of such power. Consequently, the impugned judgment is set aside. If the respondent telecom licensee had any grievance regarding the manner in which the power under Section 8(2)(c) of the Act was exercised by PTA it should have taken up the matter in the first instance with the Federal Government. Therefore, its recourse to a Court of law straightaway was pre-mature and vexatious. The appeals are accordingly allowed. C.M.A. No.3658 of 2019: Disposed of. Judge Judge Islamabad, the 22th April, 2020 Approved for reporting Ghulam Raza/Meher LC

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Umar Ata Bandial, HACJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Munib Akhtar Civil Appeal No.97/2003 (On appeal from the judgment dated 10.09.2002 passed by the Lahore High Court, Rawalpindi Bench in C.R. No.507/1992) Faiz Ullah and others Appellants Versus Dilawar Hussain and others Respondents For the Appellants: Mr. Zulfiqar Khalid Maluka, ASC Syed Rifaqat Hussain Shah, AOR For Respondents No.1,3-4: Barrister Umar Aslam, ASC For Respondents No.2,5-12: Ex-parte Date of Hearing: 01.09.2021 JUDGMENT Mazhar Alam Khan Miankhel, J.- This appeal with leave of the Court is directed against the judgment dated 10th September, 2002 whereby Civil Revision No.507/1992, filed by Mst. Noor Bibi (now deceased), mother of the appellants, was dismissed and judgments and decrees of the Courts below (decreeing the suit of plaintiffs/respondents No.1 to 7) were upheld. 2. The facts necessary for adjudication of this matter are that one Alia (in revenue record, recorded as Ali Bakhsh), who was the common ancestor of the parties, was owner of 218 kanals 05 marlas of agricultural land situated in Chak No.491/GB, Tehsil Samundri. Upon his death, his three sons namely Imam Din, Karim Bakhsh and Rahim Bakhsh inherited his aforesaid property in equal shares. Imam Din died in the year 1922. Having no mail issue, his widow namely Mst. Amina Bibi, succeeded him as a limited owner C.A.97/03 2 under the customary law prevailing at that time, for her lifetime or until her remarriage. She got re-married somewhere in 1935/36. Her re-marriage resulted into termination of her limited interest in the property. Mst. Noor Bibi (now deceased), defendant No.1, daughter of Imam Din and mother of the present appellants (Mst. Noor Bibi), replaced her mother with similar terms as a limited owner of the said property until her marriage. She got married in the year 1944-45 which legally terminated her limited interest in the property but no changes in the revenue record were made in this regard. The claim of the plaintiffs (L.Rs. of Karim Bakhsh) through plaint was that after the marriage of Mst. Noor Bibi, the limited owner, the property left by the last full owner (Imam Din) would revert back to his actual legal heirs, the real brothers Karim Bakhsh and Rahim Bakhsh, (the predecessors of plaintiffs and defendants No.2 to 6 respectively). It is in this backdrop, Dilawar Hussain etc. respondents herein, the plaintiffs of the main suit (“plaintiffs”), filed a suit for declaration that they, being legal heirs of Karim Bakh, along with legal heirs of Rahim Bakhsh (the defendants No. 2 to 6 in the main suit) (defendants), may be declared as owners in possession of the said property by updating/correcting entries of the revenue record in this regard. Since Mst. Noor Bibi married with Faiz Muhammad (one of the son of Rahim Bakhsh), the legal heirs of Rahim Bakhsh did not join the plaintiffs, Dilawar Hussain etc. in the suit, therefore, they were impleaded as defendants. The suit of the plaintiffs was decreed by the learned Civil Judge, Samundri vide Judgment & Decree dated 28th November, 1987 appeal where against filed by Mst. Noor Bibi, defendants No.2 and 4 to 6 (the son and the daughters of Rahim Bakhsh), was dismissed by the learned Additional District Judge, Faisalabad vide Judgment & Decree dated 23rd February, 1992 and concurred with the findings of trial Court. The civil revision, filed by C.A.97/03 3 Mst. Noor Bibi alone by making her other co-appellants as respondents, was also dismissed by the High Court vide impugned judgment dated 10th September, 2002. Hence the instant appeal with leave of the Court granted on 29th January, 2003 which reads as under:- “Leave to appeal is granted to consider entitlement of Mst. Amina Bibi as widow of Imam Din to the extent of 1/8th share under the Islamic law of whom Petitioners are the heirs. 2. Status quo as on date to be maintained by the parties.” 3. We have heard the learned counsel for the parties and have gone through the available record. 4. The record shows that the legal heirs of Karim Bakh, the plaintiffs (respondents No.1 to7 herein) filed a suit for declaration by impleading Mst. Noor Bibi as defendant No.1 and legal heirs of Rahim Bakhsh as defendants No.2 to 6 (respondents No.8 to 12 herein) and alleged and claimed the suit property to be their exclusive ownership along with legal heirs of Rahim Bakh, defendants No.2 to 6, in equal shares (as sharers) by excluding Mst. Noor Bibi as being not entitled after termination of her limited interest. Mst. Noor Bibi (now the appellant) through her legal heirs, denied the allegations made in the plaint and claimed herself to be the exclusive owner of the entire property, inherited from her father. Their suit was decreed in their favour by Civil Judge, Samundari, Faisalabad vide judgment and decree dated 28.11.1987 by holding the plaintiffs and defendants No.2 to 6 to be the owners to the extent of their respective shares on termination of limited interest and by operation of law automatically and attestation of any mutation in this regard is not necessary. Besides the above, there was no specific finding regarding the entitlement of Mst. Noor Bibi (predecessor of appellants) and decided C.A.97/03 4 issues No.9 & 10 in favour of plaintiffs and defendants No.2 to 6 (all respondents herein). Similarly issue No.2 regarding limitation was also decided in their favour. 5. The appeal against the judgment & decree dated 28.11.1987 of the Civil Judge, Samundari, Faisalabad filed by Mst. Noor Bibi, defendant No.2 Faiz Muhammad, her husband, and the three daughters of Rahim Bakhsh was dismissed by the learned Additional District Judge, Faisalabad vide his judgment & decree dated 23.02.1992. However, the question of limitation was concurrently decided in favour of the parties. The civil revision was filed by Mst. Noor Bibi alone. The learned Judge-in-Chambers upheld the concurrent findings of the two Courts below including the question of limitation. Perusal of the findings of all the three Courts below would reflect that the plaintiffs (legal heirs of Karim Bakhsh) and defendants No.2 to 6 (legal heirs of Rahim Bakhsh) (both of them now respondents) have been declared to inherit as residuaries/collaterals after termination of the limited interest of defendant No.1 (predecessor of appellants) but nothing specifically has been said regarding the entitlement of Mst. Noor Bibi. 6. The controversy between the parties revolves around the inheritance of one Imam Din son of Alia (Ali Bakhsh) who died in the year 1922 (as appears from the inheritance mutation in the name of his widow Mst. Amina Bibi) when the customary law of inheritance was prevailing in the area. After his death, her widow Mst. Amina Bibi succeeded him as a limited owner as he had no male issue and when she got remarried (somewhere in the year 1934/35), the limited interest in the property left by Imam Din was transferred to Mst. Noor Bibi his daughter and mother of present appellants. When Mst. Noor Bibi got married probably in the year 1944/45 (the evidence and the record confirm so and are also not disputed by anyone else) her C.A.97/03 5 limited interest in the property was legally terminated but no such entries were made in the revenue record and her name appears now as a full owner in the existing revenue record. The dispute between the parties starts from here. 7. The law on the subject is very much clear that in the event of death or marriage of a Muslim female, having limited interest in the property under the customary law, the succession would be deemed to open on such termination in favour of all the persons who would have inherited the last full owner at the time of his death, had the Punjab Muslim Personal Law (Shariat) been applicable at the time of his death. Even in case of death of any legal heir before termination of the limited interest, as stated above, succession would also devolve on his legal heirs to the extent of share of deceased legal heir. The law had also protected the shares of females who retained limited interest in the property will also get their sharai shares as if the Muslim Personal Law (Shariat) was applicable at the time of death of last full owner. Section 3 of The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (“Act-IX of 1948”) which deals with the situation is reproduced for ready reference:- “3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors, existing at the time of the termination of the limited interest of the female, as if the aforesaid such person had died at C.A.97/03 6 the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share which the female limited owner would have inherited, had the Muslim Personal Law (Shariat) been applicable at the time of the death of last full owner, shall devolve on her, if she loses her limited interest in the property, on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death. 8. Since there were different laws in force in the different provinces of West Pakistan, a consolidated law known as West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (the “Act V of 1962”) was promulgated on 31st December, 1962, section 2 whereof is the reproduction of section 2 of the Act of 1948. However, under section 3 of the same, the limited estates held by Muslim females under the Customary Law were terminated and section 5 thereof prescribed the procedure for the devolution of property on the termination of such estate more or less in the same manner as was provided under section 3 of the Act of 1948. The Act of 1962, while repealing all the previous laws and removing the ambiguities in the previous laws, prescribed the following procedure in section 5 supra for the devolution of property on the termination of limited interest in the property: - “5. Devolution of property on the termination of life estate and certain wills.---- The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and C.A.97/03 7 if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her”. Besides the above, Act V of 1962 has also given the retrospective effect to the provisions of Sections 3, 4 and 5 which even covers the questions and ambiguities of law of limitation in such like matters which will be discussed in detail hereinafter. A similar provision, rather in more clear words, is provided in Section 4 of the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 (“Act VI of 1935”). 9. A look at the above quoted provisions of law would simplify the question/controversy, the parties of this lis are facing. There is no dispute between the parties regarding their inter se relationship and similarly the termination of limited interest of Mst. Noor Bibi, as evident from the record and the same is not disputed between the parties that after the death of last full owner, Imam Din in the year 1922, his property devolved twice as a limited estate, initially upon his widow Mst. Amina Bibi and after her re-marriage, upon his daughter Mst. Noor Bibi till her marriage. Mutation of widow Mst. Amina Bibi is available at page-94 of the paperbook and entries in its last column reflect that the widow at the time of death of her husband was pregnant which means the daughter (Mst. Noor Bibi) of Imam Din was born after the death of her father. This very mutation was attested by Karim Bakhsh, as Numberdar of the village). Mst. Noor Bibi, as per mutation entries of 1934 at page-92 & C.A.97/03 8 93 of the paperbook, succeeded to get limited interest in the property left by her father till her marriage. Again, it has undisputedly come on the record that she got married in the year 1944/45. Her marriage resulted into termination of her limited interest in the property. This termination, no doubt, was by operation of law. Here a big question mark would be as to whether further non-compliance of said termination by the concerned (the revenue authorities) would adversely affect the rights of all those who have suffered due to said non-compliance. The answer to this question would be a big “No”. This would also get further explanation hereinafter. 10. The other important and legal aspect which requires consideration is that both the learned counsel for the parties, during arguments, agreed to the proposition that the provisions of Section 2- A of the Act V of 1962 are not applicable in the facts and circumstances of the case. In this case, the widow of the last full owner Imam Din succeeded her late husband as a limited owner till her death or re-marriage and similarly the daughter of the Imam Din acquired the same limited interest in the property on similar terms from her mother Mst. Amina Bibi. When Mst. Noor Bibi got married in the year 1944/45 (as per available record and not disputed by anyone) her limited interest in the landed property was terminated and as per law the property has to revert back to actual legal heirs (lineals and collaterals) but such termination, as per record, was not incorporated in the relevant record and till filing of the suit she remained recorded as full owner (in the course of time, her limited status was changed to full owner but no explanation in this regard is available on the record) which even otherwise is against the law. According to the above quoted provisions, on the termination of the limited interest of Mst. Noor Bibi, the property is to be considered as the ownership of the last full owner Imam Din and should have to C.A.97/03 9 devolve upon his Shari heirs alive at the time of his death and if anyone of such heirs has died prior to the termination of the limited estate his heirs shall also get the share to which their predecessor would have been entitled if alive. Accordingly, the limited owners were also held entitled to their Shari share whether alive or dead. Reference in this regard may be made to SUBA through his L.Rs. v. Mst. Fatima Bibi (1992 SCMR 1721). Thus, Mst. Noor Bibi is entitled only to the extent of 1/2 share as legal heir of her father (the last full owner) and a share from her mother probably that would also be 1/2 from her 1/8 share. As such termination completed in the year 1944/45 prior to the Act IX of 1948 and the succession as per Muslim Personal Law stood completed under Section 3 of the Act IX of 1948. Thereafter, nothing left to be implemented. So, the provision of Section 2-A and other provision of Act V of 1962 are not applicable to the facts and circumstances of this case. 11. Moreover, the marriage of Mst. Noor Bibi, resulted into termination of the limited interest in the property held by her and as per the provisions of Section 3 of the Act of 1948, the matter reverted back to the year 1922, the year when the last full owner Imam Din died. All the persons entitled to succeed the last full owner (the sharers, residuaris, distant, kindred etc.) would succeed, as per their respective share, as if the last full owner died during the application of Muslim Personal Law “Shariat”. The proviso to Section 3 also clearly speaks of the females retaining the property with limited interest. They would also be entitled to get as per their ordained shares in the sharia. The application of above provisions of law would paint a picture showing Mst. Amina Bibi, the widow of Imam Din to get 1/8 share, Mst. Noor Bibi, the daughter, defendant No.1, was entitled to get 4/8 (1/2) (as she was the only daughter) and the remainder 3/8 would go to the brothers Karim Bakh (predecessor of C.A.97/03 10 plaintiffs) and Rahim Bakhsh (predecessor of defendants No.2 to 6) as residuaries. Besides the above, the defendant No.1 (mother of appellants) would also inherit her mother Mst. Amina Bibi as a sharer. 12. Now comes the question of limitation which was very forcefully argued by the appellants. The acquisition of a limited interest and then its termination makes the actual legal heirs to inherit under the Muslim Personal Law and provision of Section 3 of the Act IX of 1948 gives inbuilt/implied retrospective effect for such inheritance. All the persons entitled to inherit the predecessor (who were alive at the time of death of the predecessor) become the owners to the extent of their respective shares from the date of his death as discussed above. It is also the established law that inheritance under Muslim Personal Law/Muhammadan Law opens just after the death of a Muslim. All the legal heirs, lineal and collaterals inherit/acquire to the extent of their respective shares just after the death of a Muslim. They all by such inheritance/acquisition become co- sharer/co-owner in the estate left by the deceased Muslim under sharia. The shares of each heir/residuary are fixed and determined in sharia. Our law so far developed in the country is that every co- sharer/co-owner is presumed to be in possession of every inch of the joint property unless the same is partitioned. Reference may be made to the cases of Shabla v. Ms. Jahan Afroz Khilat (2020 SCMR 352), Ghulam Sarwar (Deceased) v. Ghulam Sakina (2019 SCMR 567), Ahmad Khan v. Abdur Rehman (2009 SCMR 191), Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah (2007 SCMR 1884) and Mst. Reshman Bibi v. Amir (2004 SCMR 392). The law of the land further goes to the extent that no limitation runs against a co-sharer/co-owner. Reference here may also be made to the cases Khan Muhammad v. Mst. Khatoon Bibi C.A.97/03 11 (2017 SCMR 1476), Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Riaz Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328) and Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC 1). Whenever the rights of a co-sharer are infringed, by way of wrong entries or by any other means, he can seek the redressal by way of a suit for declaration under Section 42 of the Specific Relief Act, 1877. When no limitation runs against a co-sharer/co-owner and the attestation of a mutation also established law of the land, is just for updating the revenue record and for the fiscal purposes creating no title nor is considered as a document of title then no question of limitation arises against co-sharers. The question of limitation in the matters of inheritance, with respect, is being misunderstood for quite some time. When a legal heir becomes owner and at the same time a co- sharer in the property left by a deceased Muslim and attestation of mutation in this regard is also immaterial and is meant for very limited purposes and besides the above, possession of a co-sharer is considered as a possession on behalf of all other co-sharers then it is, at least, beyond our consumption and understanding of law of inheritance and the law of limitation as to how the law of limitation can be made applicable for disinheritance of a legally entitled person who becomes owner/co-sharer by operation of law. As per Para 7.1.(v) of the Land Record Manual, recording/entering of a mutation of inheritance is the job of local revenue officials but with the passage of time it has been left to the legal heirs and the parties concerned. Any delay for asking for correction of entries in the record of rights is then attributed to the parties which is not appropriate and against the law. For convenience, the same is reproduced as under:- C.A.97/03 12 “ … (v) It shall not be difficult for a Patwari (resident official) to learn in normal course of the occurrence of death of land-owner in his small circle. Mutations of inheritance in such case can, therefore, be entered by the Patwari suo motu on the basis of his personal knowledge without waiting for any formal intimation from any quarter. In further failure to enter a mutation of inheritance on the death of a resident land- owner shall be construed to reflect adversely on the vigilance and awareness of Patwari and shall be taken due notice of. …” 13. In the facts and circumstances of the present case, the predecessor of plaintiffs and the defendants No.2 to 6 (now all respondents) became owners and co-sharers being residuaries to the last full owner just after the termination of the limited estate held by the predecessor of the appellants, Mst. Noor Bibi, in the year 1944/45 and this termination took the matter back to the year 1922 (the year of death of predecessor Imam Din) as per Section 3 of the Act of 1948, as discussed above in detail, which made them co- sharers/co-owners since 1922. Whether non-attestation of mutation in their favour by the local revenue officials would make them to lose their legal and sharai right when they were also in possession of their property. As per un-rebutted evidence on the record that after termination of limited estate, they, by operation of law, became owners in possession of the property. After termination of limited estate, noted above, they lived upto 1967 and 1968 with the impression that they after such termination became owners (this has been alleged in pleadings as well as in evidence) but the revenue record was not updated by the revenue officials and the wrong entries of the revenue record continued in the name of Mst. Noor Bibi C.A.97/03 13 showing her to be owner beyond her legal and sharai entitlement (now she is recorded as full owner to the extent of 1/3 share, held by her father). Whether such wrong entries would legitimize her excessive land beyond her entitlement? We can have a look from just another angle. All the parties are co-sharers since the demise of their propositus and are in actual physical possession of their joint property as per the latest entries of record of rights available on the record. One co-sharer is the protector of possession of all the others, as per established law of the land then how the question of limitation would come into play against the co-sharers. The law of the land, developed so far, is that every wrong entry in the record of rights gives fresh cause of action if the parties are in possession. Here in this case, all the co-sharers are in physical possession from day one what to talk of their symbolic possession. A co-sharer with symbolic possession even can safeguard his rights. Reliance in this regard can well be placed on the cases of Faqir Ali and others Vs. Sakina Bibi and others (PLD 2022 SC 85), Khan Muhammad through L.Rs. and others Vs. Mst. Khatoon Bibi and others (2017 SCMR 1476) and Mst. Gohar Khanum and others Vs. Mst. Jamila Jan and others (2014 SCMR 801). So, we are of the view that all the three Courts below have rightly decided the question of limitation in favour of the plaintiff/respondents. Since the question of limitation was argued with great vehemence, so, an attempt to explain the same in detail has been made. The most of the judgments of this Court through which clog of limitation on inheritance matters has been imposed and the law of limitation have been made applicable are not regarding simple claim of inheritance. We have attempted to go through many of such judgments on this issue which, in our opinion, are distinguishable. The main distinction that requires to be kept in mind is that the case in hand revolves around the question of inheritance C.A.97/03 14 alone and for that matter a lengthy discussion has been made above but the judgments being referred to and distinguished almost involve the issues of transfer of lands by way of sale, gift etc. by the predecessors themselves in their lifetimes and not challenged or questioned by them. The heirs, feeling themselves aggrieved, challenged the same by claiming their right of inheritance after a considerable delay and such cases were dismissed on the question of limitation for want of proof and justifying the delay. Yes, in such like cases, we can agree with the ratio laid down in the case of Mst. Grana through legal heirs and others Vs. Sahib Kamal Bibi (PLD 2014 SC 167) that law of limitation involving matter of inheritance cannot be ignored altogether but the narrow line of distinction is that where the predecessor/propositus has transferred his property by way of sale, gift etc. in his lifetime and after his death, the legal heirs claiming right of inheritance regarding said property after lapse of considerable time by questioning such transfer cannot be ignored lightly. For convenience, the observations made in the above mentioned case is as under:- “6. It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali’s case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant…” 14. Perusal of this case too would reflect that certain transfers through registered sale deed and mutation were challenged after a lapse of considerable delay and right of inheritance was claimed. Similar is the case of Mst. Phaphan through Legal Heirs Vs. Muhammad Bakhsh and others (2005 SCMR 1278). Facts and C.A.97/03 15 circumstances of the case as reflected in the judgment justify the application of Article 120 of the Limitation Act, 1908. The case of Lal Khan through Legal Heirs Vs. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657) is also distinguishable. The case of Atta Muhammad Vs. Maula Bakhsh and others (2007 SCMR 1446) also cannot be made basis for invoking the provisions of Limitation Act in the case in hand. The facts narrated in the judgment rendered in the case of Muhammad Rustam Vs. Mst. Makhan Jan (2013 SCMR 299) would justify the question of limitation but cannot be compared with the facts and circumstances of the present case. So, in our view, looking each and every case involving the question of inheritance with a yardstick of limitation, simply for the reason of delay, would not be appropriate as vested rights of people cannot be tackled so lightly. Each and every case requires to be dealt with according to its own facts and circumstances. 15. This would also not be out of context to discuss that an order of this Court dated 14.11.2017 would also reflect that an attempt by the learned counsel for the appellants was made to confuse the things by arguing that the controversy in hand, in fact, relates to matters which falls within the purview of the Colonization of Government Lands (Punjab) Act, 1912 (“the Act of 1912”) and as such the Civil Court lacks jurisdiction to entertain and adjudicate the present lis. It has been noted with great concerns that this was no body’s case from day one. So, making altogether a new case that too, at this stage, is not permissible under the law. This is a simple case of inheritance of private land of the parties who being the owners of the same from day one; thus, the Civil Court has had the jurisdiction in the matter in hand. Moreover, neither was it a government land nor was any question of tenancy or lease involved in the matter. So the provisions of Sections 21(b) & 36 of the Act of 1912 are not C.A.97/03 16 applicable in this case, as argued by the learned senior counsel for the appellants. 16. For what has been discussed above, the appeal in hand is partially allowed and the judgments and decrees of the learned Courts below are modified accordingly. The mother of appellants namely Mst. Noor Bibi becomes entitled to inherit her 1/2 share from her father Imam Din (the last full owner) plus share from her mother (as discussed above) whereas the respondents (both plaintiffs and defendants No.2 to 6) would be entitled to inherit their predecessors Karim Bakhsh and Rahim Bakhsh to the extent of 3/8 shares equally from Imam Din (the last full owner). Decree be drawn up accordingly. 17. Before parting with the judgment, it has been observed with a great concern that the copies of the record annexed with the petitions do not reflect the exhibit marks, as if attached or brought on the record for the first time. The law is very much clear in this regard that fresh record and new documents cannot be attached/brought on the record except in accordance with the procedure prescribed under Rule 4 of Order XXXIII of the Supreme Court Rules, 1980. Since none of the parties disputed the authenticity of these documents, so we looked into and considered the same. The office however should be vigilant in future and should not accept such like record. Acting Chief Justice Judge Judge Announced in open Court on at Islamabad Judge (Approved for Reporting)

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, C.J. Mr. Justice Ijaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL APPEAL NO. 985 OF 2020 (Against the judgment dated 21.11.2019 of the K.P.K. Service Tribunal, Peshawar passed in Appeal No.961/2018) Secretary Elementary & Secondary Education Department, Government of KPK, Peshawar and others …Appellant(s) VERSUS Noor-ul-Amin …Respondent(s) For the appellant(s): Mr. Zahid Yousaf Qureshi, Additional Advocate General, KPK For the respondent(s): Mr. Khaled Rahman, ASC Syed Rifaqat Hussain Shah, AOR Date of hearing: 22.02.2021 … ORDER Gulzar Ahmed, C.J.- The respondent was employed as Primary School Teacher (“PST”) in the Education Department of Khyber Pakhtunkhwa. He was granted ex- Pakistan leave from 02.12.2012 to 01.12.2014 vide order dated 31.12.2012. As the respondent did not report to duty on expiry of his ex-Pakistan leave, he was issued show-cause notice dated 24.10.2017. As the respondent did not report for duty despite issuance of notice in the newspaper, therefore, vide order dated 03.01.2018 the respondent was removed from service. The CIVIL APPEAL NO. 985 OF 2020 -: 2 :- respondent filed service appeal before the KPK Service Tribunal (“Tribunal”) which by the impugned judgment was partly allowed by converting the major penalty of removal from service into a major penalty of compulsory retirement with effect from the date of his absence i.e. January, 2013 and the absence period was treated as unauthorized absence. While doing so, the Tribunal in paragraph No.6 dealt with the matter as follows:- “6. Perusal of the record reveals that the appellant was serving in Education Department as Primary School Teacher. He was appointed as Primary School Teacher in the year 2000. The appellant was imposed major penalty of removal from service but the respondent-department has not conducted a proper regular inquiry as neither charge sheet statement of allegation was framed and served upon the appellant nor any regular inquiry was conducted against the appellant. Though the respondent-department has issued a show- cause notice but neither the respondent- department has dispensed the regular inquiry in the show-cause notice nor any reason for dispensing the regular inquiry has been mentioned in the show-cause notice. Moreover, the appellant was appointed as Primary School Teacher in the year 2000 and he was imposed major penalty of removal from service on the allegation of his absence from duty with effect from January 2013 meaning thereby, that he was having more than 10 years service in his credit with effect from his appointment till his absence, therefore, the impugned order of removal from service appear to be harsh. As such, we partially accept the appeal, set aside the impugned order and convert the major penalty of removal from service into a major penalty of compulsory retirement with effect from the date of his absence i.e. January 2013. The absence period is treated as unauthorized absence. Parties are left to bear their own costs. File be consigned to the record room.” CIVIL APPEAL NO. 985 OF 2020 -: 3 :- It may be noted that the Tribunal has proceeded to modify the penalty on two counts; one that no regular inquiry was conducted and the other that the respondent has 10 years service. So far the question of regular inquiry is concerned, we note that the very fact of respondent remaining absent is not a disputed fact and thus there was no occasion for holding a regular inquiry in the matter. Reliance in this behalf can be placed upon the judgment reported as National Bank of Pakistan and another Vs. Zahoor Ahmed Mengal (2021 SCMR 144). 2. Being an employee for 10 years did not give any authority to the respondent on the basis of which he can stay away from job continuously for years altogether and thus in our view, such ground could not have been pressed for modifying the penalty imposed by the department upon the respondent giving premium to him on this misconduct. More so, when we look at the travelling history of the respondent given at page 15 of the paper-book it shows that almost twelve times the respondent has visited abroad and returned to Pakistan showing that he has some other activities and thus was not interested in continuing as PST. We, therefore, find that the modification of penalty by the Tribunal was not in accordance with law. In this behalf reliance can be placed upon the judgments reported as Commissioner Faisalabad Division, Faisalabad and another Vs. Allah Bakhsh (2020 SCMR 1418) and Government of the Punjab through Chief Secretary Vs. CIVIL APPEAL NO. 985 OF 2020 -: 4 :- Muhammad Arshad and 2 others (2020 SCMR 1962). Resultantly, the impugned judgment to the extent of modification of penalty is set aside and the appeal to this extent is allowed. Chief Justice Judge Judge Islamabad, the 22nd of February, 2021 Approved for reporting Waqas Naseer/*

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{'id': 'C.A.985_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 (On appeal against the judgments dated 12.11.2012, 11.02.2013, 13.11.2012, 06.05.2014, 25.03.2014, 26.03.2014 passed by the Lahore High Court, Rawalpindi Bench in ITR Nos. 14, 18, 19, 21, 22, 23, 24 to 34, 43, 69 to 72, 74, 75, 76 of 2012, 02, 03, 04, 05, 11, 15 & 16 of 2013) S.No. Parties’ names Case No. 1. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Khan CNG Filling Station, Rawalpindi and others CAs 992, 997 & 998/2013 2. Commissioner Inland Revenue Zone-II, RTO, Rawalpindi Vs. M/s Badhan CNG Filling Station, Rawalpindi and others CA 993/2013 3. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Zam Zam CNG Filling Station, Rawalpindi and others CAs 994 & 1010 of 2013 4. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Techno Gas Service CNG Station, Rawalpindi and others CAs 995-996/2013 5. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Khan Gee CNG Filling Station, Rawalpindi and others CAs 999 to 1001 of 2013 6. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Azizid and Alyees Associates CNG Station, Rawalpindi and others CAs 1002 & 1009 of 2013 7. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Rehman Associates CNG Station, Rawalpindi and others CAs 1003, 1206 & 1207 of 2013 8. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Rawal Gas Co. CNG Station, CA 1004/2013 CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 2 Rawalpindi and others 9. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Rawal Gas Co. CNG Filling Station, Rawalpindi and others CA 1005/2013 10. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Gas Ways CNG Station, Rawalpindi and others CA 1006/2013 11. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Shaheen CNG Station, Rawalpindi and others CA 1007/2013 12. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Al Burhan CNG Station, Rawalpindi and others CA 1008/2013 13. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Rizwan and Co. CNG, Rawalpindi and others CAs 1011 & 1012 of 2013 14. Commissioner Inland Revenue Zone-III, RTO, Rawalpindi Vs. M/s Goodluck CNG Filling Station, Rawalpindi and others CAs 1013 & 1014 of 2013 15. Commissioner Inland Revenue Zone-II, RTO, Rawalpindi Vs. M/s Fuel Power CNG Filling Station, Rawalpindi and others CA 1015/2013 16. Commissioner Inland Revenue, RTO, Rawalpindi Vs. M/s Kaka Khel & Co. CNG Station, Rawalpindi and others CAs 1016 & 1017 of 2013 17. Commissioner Inland Revenue Zone-I, RTO, Rawalpindi Vs. M/s Mecca CNG Gas Enterprises, Rawalpindi and others CAs 21 & 22/2015 18. Commissioner Inland Revenue Zone-II, RTO, Rawalpindi Vs. M/s Mak Gas Station, Rawalpindi and others CAs 57 & 58/2015 19. Commissioner Inland Revenue Zone-II, RTO, Rawalpindi Vs. M/s Raja CNG, Gujar Khan and others CA 59/2015 CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 3 For the Appellants: Dr. Farhat Zafar, ASC Mr. M.S. Khattak, AOR Mr. Javaid Iqbal, Commissioner IR Mrs. Nafeesa Satti, Commissioner IR Mr. Tahir Mehmood Bhatti, IRO Mr. Amir Sultan, Law Officer For the Respondent (1): Hafiz Muhammad Idris, ASC Syed Rifaqat Hussain Shah, AOR (In CAs 992, 995 to 1001, 1004, 1005, 1007, 1012, 1017 of 2013, 21 & 22 of 2015) N.R. (In CAs 993, 994, 1002, 1003, 1006, 1007 to 1010, 1013, 1015, 1206, 1207 of 2013 & 57 to 59/2015) Date of Hearing: 04.04.2017 JUDGMENT FAISAL ARAB, J.- The respondents are engaged in the business of selling Compressed Natural Gas (CNG). It is produced by compressing the natural gas to less than one percent of the volume it occupies. Economy in space facilitates the storage of CNG in hard containers for use as a fuel. The natural gas is supplied in volume which in Pakistan is measured on the gas meters as well on the monthly bills by its energy content Million British Thermal Unit known by the acronym MMBTU. After it is converted into CNG, it is sold at the CNG stations by mass i.e. in kilograms at a retail price regulated by Oil and Gas Regulatory Authority (OGRA). For the purposes of determining the retail price per kilogram of CNG, OGRA has adopted a formula that converts volume i.e. MMBTUs of natural gas into kilograms of CNG. 2. It appears that the tax authorities of Rawalpindi region took a decision to select CNG stations as a separate class of CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 4 business in order to audit their income tax affairs. Their returns of income were thus scrutinized and in the process, disparity between the CNG sales reported by the respondents with the corresponding purchase of the natural gas was noticed in the tax years 2004 and 2007. This conclusion was drawn after the prices of natural gas and its volume (MMBTUs) consumed by the respondents in the tax years in question were procured from Sui Northern Gas Pipelines Limited (SNGPL) and the prices of CNG for the tax years in question and the formula for converting MMBTUs of natural gas into kilograms of CNG were procured from OGRA. Such information was gathered from both the institutions by invoking the provisions of Section 176 of the Income Tax Ordinance, 2001 (Ordinance for short). As to the adoption of conversion formula by OGRA, we may state that internationally, the natural gas after it is transformed into CNG is sold either by mass or on the basis of its energy level or by gasoline gallon equivalent (gge). OGRA had adopted conversion formula that is based on sale of CNG by mass (in kilograms). This conversion formula is used by OGRA in the determination of countrywide retail price per kilogram of CNG. After noticing significant disparity in the consumption of natural gas and the sale of CNG declared in the returns of income on the basis of the data procured from SNGPL and OGRA, the Commissioner, Inland Revenue issued notices under sub-Section (9) read with sub-Section 5 of Section 122 of the Ordinance to confront the respondents with his intention to amend the assessment orders that were deemed to have been issued under the provisions of Section 120(1) of the Ordinance. Finally the Commissioner, Inland Revenue after hearing the representative of the respondents applied OGRA’s conversion formula (volume to CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 5 mass) to the information procured from SNGPL and OGRA and determined the quantum of CNG produced by each of the respondents in a tax year. After determining the quantum of CNG, an allowance of 11% wastage of natural gas in the process of conversion was also given to the respondents. Then, on basis of actual prices of natural gas as well as of the CNG that were prevalent from time to time in the tax years in question, the quantum of CNG sold in the tax years in question was determined. This exercise was repeated for all the tax years in question and the amended assessment orders were issued accordingly. 3. Keeping aside the determination of quantum of CNG on the basis of OGRA formula for a moment, the Commissioner, Inland Revenue made certain other amendments in the original assessment orders on the basis of discrepancies that were noticed in the returns of income which were separately pointed out in the notices to each of the respondents. One of such discrepancies pertained to the difference between the actual cost of natural gas and the cost that was declared in the returns of income towards the purchase of natural gas. Another discrepancy that was pointed out was with regard to profit and loss expense account. Upon failure of the respondents to substantiate such discrepancies, the Commissioner, Inland Revenue adjusted the expenses which increased the tax liability. The tax liability so imposed was not challenged by the respondents in the departmental appeals and hence no more remained the subject matter of dispute in these proceedings. The only controversy that remained alive was with regard to the application of OGRA’s conversion formula that was applied to CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 6 determine the quantum of CNG produced from the natural gas consumed in the tax years in question, which resulted in issuance of amended assessment orders. 4. Against the decision of the Commissioner, Inland Revenue to amend the original assessment orders on the basis of application of OGRA’s conversion formula, the respondents preferred departmental appeals but remained unsuccessful. Having failed in the departmental appeal as well, the respondents filed their respective appeals before the Appellate Tribunal, Inland Revenue, Islamabad. The Tribunal, however, decided in respondents’ favour and annulled the amended assessment orders. The tax department then chose to file Tax References in the Lahore High Court, Rawalpindi Bench under Section 133 of the Ordinance. In all Tax References following legal question was framed:- “Whether ‘OGRA formula’ constitutes ‘definite information’ for determination of sales and, therefore the deemed assessment order passed under Section 120 of the Income Tax Ordinance, 2001 could be amended under Section 122(5) of the Income Tax Ordinance, 2001?” 5. The learned Division Bench of the Lahore High Court vide its judgment dated 12.11.2012 answered the legal question in the negative after holding that the ‘OGRA formula’ does not constitute ‘definite information’ within the meaning of Section 122(5) of the Ordinance so as to justify amendments in the original assessment orders. The reasons that mainly prevailed with the Lahore High Court in reaching such conclusion were as follows:- CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 7 “12. The term "definite information" in section 122(5) of the Ordinance is not just any information but definite enough to satisfy the concerned officer that income chargeable to tax of an assessee has escaped assessment or total income of an assessee has been under-assessed, etc6. "Definite" means indisputable, known for certain, explicitly precise, clearly defined, leaving nothing to implication, established beyond doubt and cut and dried. Definite information is, therefore, that select information which falls within the restrictive meaning of the word "definite" explained above. The law also provides that definite information must be acquired from audit or otherwise. Applying the interpretative tool/doctrine of ejusdem generis which literally means "of the same kind or class" and the doctrine provides that where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned the word "otherwise" appearing next to the word "audit" in section 122(5) of the Ordinance on the basis of the above doctrine means a methodology akin or similar to audit where some determined, final, certain, indisputable, calculated information is picked up from any available record of the assessee. "Otherwise," therefore, does not mean putting information through further process of calculation by the department. The word "acquired" used in section 122(5) of the Ordinance which literally means to "gain possession of" in the present context connotes that the information already exits and has to be picked up from the records or documents. This acquisition provides no margin for incomplete, imprecise and inexact information to be completed through further calculation or processing as that would not be acquiring information but analyzing it.” 6. Having felt dissatisfied, the appellants challenged the decision of the Lahore High Court in the present appeals after obtaining leave of this Court. CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 8 7. Learned counsel for the appellants argued that in all these cases, the respondents were given due notice to respond to the determination of quantum of CNG produced in the disputed tax years on the basis of the conversion formula, which was adopted by OGRA in consultation with SNGPL and All Pakistan CNG Association and having received no challenge to the authenticity of the formula, the same was applied. She further submitted that over and above the determination of quantum of CNG by applying the conversion formula, a wastage allowance of 11% was also granted while amending the assessment orders. With regard to the veracity of OGRA’s conversion formula, learned counsel for the appellants submitted that this formula has also been accepted by CNG owners in the legal proceeding that culminated upto this Court. In this regard, reference was made to an unreported judgment rendered on 24.06.2016 in Civil Appeal Nos. 1436 to 1450 of 2015 by this Court in the case of Shabbir Husseini vs. Federation of Pakistan and other connected appeals. 8. The leaned Counsel for the respondents on the other hand argued that reliance on OGRA formula was misplaced as it could not be made basis to estimate how much CNG was actually sold by the respondents. It was contended that the actual sales made by the respondents in the tax years in question were duly disclosed in the returns of income alongwith the quantum of natural gas purchased and even the gas bills were provided during the process of investigation and audit yet the OGRA formula was CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 9 applied which in law does not constitute ‘definite information’ so as to warrant amendment to the original assessment orders. In support of his arguments, the counsel for the respondents relied upon the cases reported as Central Insurance Co Vs. Central Board of Revenue, Islamabad (1993 SCMR 1232); Inspecting Assistant Commissioner and Chairman Panel 20 Companies Vs. Pakistan Herald Ltd (1997 SCMR 1256); Edulji Dinshaw Limited Vs. Income Tax Officer (1990 PTD 155); EFU General Insurance Co. Limited Vs. Federation of Pakistan (1997 PTD 1693) and Income Tax Officer Vs. Chappal Builders (1993 PTD 1108) wherein the scope of ‘definite information’ has been elaborately discussed. 9. We shall first proceed to examine the scope of making amendment to a tax return filed under the provisions of Income Tax Ordinance, 2001, which came into effect from 01.07.2002. Where a return of income filed by a taxpayer is in accordance with the provisions of sub-section 2 of Section 114 of the Ordinance then in terms of Section 120(1) of the Ordinance, it is to be regarded as complete and taken to be an assessment made and order issued by the Commissioner though no assessment is made by him with conscious application of mind. Notwithstanding such deeming provision, Section 120(1A) of Ordinance vests in the Commissioner the power to conduct audit of income tax affairs of a person in the manner prescribed in Section 177 of the Ordinance. Under the provisions of Section 177 of Ordinance, the Commissioner can call from a taxpayer inter alia record or documents including books of accounts, examine the same and make enquiries into the CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 10 expenditure, assets and liabilities. If deemed appropriate and necessary, he may even order forensic audit to be conducted. Thus the Commissioner can gather necessary information or data for the purpose of investigation and audit. After completing the audit, if the Commissioner considers necessary, he may obtain taxpayer’s explanation on all issues raised in the audit and proceed to amend the assessment by virtue of the power contained in sub-section (1) or sub-section (4) of Section 122 of the Ordinance as the case may be. Apart from conducting audit, the Commissioner, Inland Revenue is also vested with the power under sub-section (5A) of Section 122 of the Ordinance to amend an assessment after making or caused to be made such enquiries as he deems necessary if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of the revenue. In cases where a person has either not maintained or failed to produce books of accounts or any document or record required to be maintained under Section 174 of the Ordinance or any other evidence that was required for the purpose of audit or investigation, the Commissioner is vested with the power under Section 121 of the Ordinance to make best judgment assessment based on any available information or material and issue assessment order. Only when the Commissioner, Inland Revenue invoke his powers as contained in the above referred provisions of the Ordinance in order to conduct audit or investigation of the income tax affairs of a person, the original (deemed) assessment order come under scrutiny with conscious application of mind. Thus the Commissioner, Inland Revenue by virtue of and in exercise of the powers contained in Sections 120 (1A), 121, 122 (1)(5A) and 176 and 177 of the Ordinance can initiate CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 11 the proceedings for investigating the income tax affairs of a person notwithstanding the fact that such return of income by virtue of Section 120(1) of the Ordinance was taken as an assessment made and assessment order issued by the Commissioner, Inland Revenue. The deemed assessment order after its amendment with conscious application of mind loses its legal effect in terms of sub-section 10 of Section 177 of the Ordinance. 10. The judgments cited by respondents’ counsel pertain to disputes arising from the provisions of repealed income Tax Ordinance, 1979. A bare comparison of the provision of Section 65 (2) of the repealed Ordinance and Section 122(5) of the Income Tax Ordinance, 2001 shows that the procedure prescribed for amending an assessment order under the repealed law was not the same as in the present law. In order to appreciate the difference between these provisions of the two laws, it would be advantageous to reproduce Section 65(2) of the repealed Ordinance and Section 122(5) of the present Ordinance:- Section 65(2) of Income Tax Ordinance, 1979 “65. Additional assessment.- (1) ……………………………………… (2) No proceedings under sub-section (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner [and] he has obtained the previous approval of the Inspecting Additional Commissioner of Income Tax in writing to do so. Section 122(5) of Income Tax Ordinance, 2001 “122(5) An assessment order in respect of tax year, or an assessment year, shall only be amended under sub-section (1) and CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 12 an amended assessment for that year shall only be further amended under sub-section (4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that — (i) any income chargeable to tax has escaped assessment; or (ii) total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or (iii) any amount under a head of income has been mis- classified.……………………………………………….” (underling is ours to lay emphasis) 11. From the above provisions of the two laws, it is evident that the power to initiate proceedings to amend an assessment order was not available under Section 65(2) of the repealed Ordinance unless some definite information had already come in the hands of the Income Tax Officer. This was so, as under the repealed Ordinance, the initial assessment used to be made by the Income Tax Officer with the conscious application of mind, therefore, second opinion on such assessment was not permissible as a matter of course. The Income Tax Officer had to have definite information in his hands before he could even initiate proceedings for making additional assessment. In the case of Central Insurance Co. Vs. Central Board of Revenue, Islamabad (1993 SCMR 1232) while discussing the scope of Section 65 of the repealed Ordinance, it was held that once the return of income, disclosing all material facts without any concealment has been assessed under Section 59 of the CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 13 repealed Ordinance then unless some definite information first became available to the income tax authorities, the assessment order cannot be re-opened for scrutiny. In other words, no change of opinion was held to be permissible on the basis of material on which the Income Tax Officer has already made assessment with conscious application of mind. Thus in absence of definite information, the very initiation of the proceedings with the intent to make additional assessment was prohibited under the repealed law. The ratio of other judgment cited at the bar by the counsel of the respondents is also the same. Under the Income Tax Ordinance, 2001, however, the Commissioner has been given the authority to initiate proceedings such as audit and investigation and in the process if he acquires ‘definite information’ which satisfies him to form an opinion that any income chargeable to tax has been under assessed or escaped assessment or wrongly classified or assessed at too low a rate then he can proceed to amend the original assessment order, which on account of provisions of Section 120(1) of Ordinance was deemed to have already been issued by him. The main reason behind this change brought about under the Ordinance was that the original assessment orders are not issued with conscious application of mind as was the case under the repealed Ordinance and therefore the question of prohibiting second opinion on a consciously assessed assessment order does not arise under the present Ordinance. 12. Before we examine what ‘definite information’ came in the hands of the Commissioner, Inland Revenue which CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 14 prompted him to amend the assessment orders, it would be advantageous to reproduce the definition of the term ‘definite information’ as defined in sub-section (8) of Section 122 of the Ordinance. It states “For the purposes of this section, “definite information” includes information on sales or purchases of any goods made by the taxpayer, receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under this Ordinance, and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer.” Now, the information available with the tax authorities in the present case was the volume of natural gas purchased by each of the respondents and the rates of the natural gas as well as of the CNG that were prevalent in the tax years in question. Such information was procured from SNGPL and OGRA by exercising powers contained in Section 176(1) (a) of the Ordinance. After applying OGRA’s conversion formula to the volume of the natural gas consumed, the tax authorities ascertained the kilograms of CNG produced by the respondents in each tax year in question. A wastage allowance of 11% in the conversion process was also granted. On the basis of the quantum of CNG so ascertained and taking into account the rates of CNG that were prevalent at the relevant time, the tax authorities reached the conclusion that the respondents have not been truthful in their disclosures as they underreported the sale of CNG in their returns of income. Based on such calculations, the amended assessment orders were issued. CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 15 13. It is not the case of the respondents that the quantity of CNG produced from a given volume of natural gas is not ascertainable at all. Certainly it can be done with the application of a mathematical or scientific formula and that is exactly what has been done in the present case when conversion formula was applied. For the purpose of determining the correct tax liability, any information falling within the ambit of ‘definite information’ may not by itself produce an answer unless such information is further processed. The use of any process to ascertain something depends upon the type of information and the result that is sought to be obtained. So the process could be a chemical analysis conducted in a laboratory or the application of some mathematical or scientific formula or simply the use of a calculator. For example need may arise to apply some formula or method which converts volume into weight or vice versa, miles into kilometers or vice versa. The word ‘definite’ not only means being certain of something but also means that one knows with certainty that something will happen. In the 9th edition of Oxford dictionary by A.S. Hornsby1 the word ‘definite’ has been defined as “something that you are certain about or that you know will happen”. Internationally there are three formulas that are used to convert the volume of natural gas into CNG. Of these, the one that is applied to convert volume of natural gas into kilograms of CNG has been adopted by OGRA. The definite information procured by tax authorities was then processed through this formula to find out how much CNG was produced from the natural gas consumed. To prohibit use of the conversion formula would in 1 Oxford Advanced Learner’s Dictionary, 9th edition, A.S. Hornby CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 16 reality amount to prohibiting the tax authorities from ascertaining the quantum of CNG sold by the respondents. If the tax authorities are denied the means to ascertain the quantum of CNG then no matter how disproportionate the sale of CNG to the consumption of natural gas is declared, the same had to be accepted by Income Tax Authorities and the evasion of tax would go undetected. Therefore, application of any scientific or mathematical method to determine the quantum of sale of CNG for the purpose of determining the tax leviable under the Ordinance, by no stretch of imagination can be excluded from consideration. We may point out here that the parameters of conversion formula applied in the present case for the purposes of converting the volume of natural gas into weight of CNG, which were also reproduced in the amended assessment orders, were also never challenged by the respondents to be arbitrary or not sustainable on any mathematical or scientific basis. 14. As to the veracity of the OGRA’s conversion formula, it is pertinent to point out that a dispute between CNG station owners and Sale Tax authorities came up for consideration before the High Court of Sindh and with it came up for consideration OGRA’s conversion formula. The decision rendered by the Sindh High Court on 06.10.2015 in Constitution Petitions No. 3266 of 2014 (Shakeel Ahmed Vs. Federation of Pakistan alongwith several other connected petitions) was challenged by CNG station owners before this Court. After grant of leave, the appeals of CNG owners were dismissed on 24.06.2016. In this decision the validity of conversion formula adopted by OGRA has been clearly acknowledged by CNG owners. The relevant portion CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 17 in paragraph 10 of the said judgment of this Court authored by our learned brother Sheikh Azmat Saeed, J in Civil Appeals Nos. 1436 to 1450 of 2015 ‘Shabbir Husseini Vs. Federation of Pakistan and other connected cases is reproduced below:- “……………………… There is an admitted formula for conversion of Natural Gas into CNG, which is employed for determining the tax liability. In pith and substance, it is the case of the Appellants that though such formula may be scientifically correct yet in practicable terms there is some wastage in the process of conversion, as a consequence whereof, Sales Tax is collected on Natural Gas with regard to its levy on CNG, including the Natural Gas, which is lost through wastage and is never supplied by the Appellants to the CNG consumers resulting in collection of the Sales Tax with regard to the supply of CNG which is never made. It is also the case of the Appellants that such wastage is about 11% of the Natural Gas. By way of the impugned judgment, it has been held that the conversion formula has been notified and takes into account the element of wastage.” 15. The above quote from Shabbir Husseini’s case supra shows that CNG owners did not dispute the conversion formula and were only seeking that wastage of natural gas, which in their opinion occurs to the extent of 11% in the process of conversion, ought to have also been factored in while fixing the price of CNG. This claim for wastage was based on the ground that it has been historically accepted by Federal Board of Revenue. We do not think it is necessary to deliberate upon the question whether any wastage occurs in the process of conversion or not for the simple reason that in the cases before us wastage to the extent claimed by the CNG CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 18 owners i.e. 11%, has already been accounted for by the Commissioner, Inland Revenue while amending the assessment orders. The tax department also chose not to challenge the grant of 11% wastage allowance to the respondents before higher forum and thus never made an issue in the present proceedings. 16. From the above discussion, it is quite apparent that the quantum of CNG produced by the respondents in each of the tax years in question was not determined on the basis of some hypothetical or arbitrary criteria. The tax authorities first procured from SNGPL the volume of natural gas consumed by the respondent and its rates that were prevalent during the tax years in question. Likewise, they procured from OGRA the rates of CNG prevalent in the tax years in question. All such information was procured by exercising powers contained in Section 176 of the Ordinance. Both the sources of information i.e. SNGPL and OGRA are bodies that are competent to divulge such information with absolute correctness as one is the supplier of natural gas and the other fixes the retail price of CNG in the country. To the information so procured, which on the face of it fall within the ambit of ‘definite information’, the tax authorities applied OGRA’s conversion formula to ascertain the quantum of CNG produced from the natural gas consumed in each of the tax years in question. It then transpired that the sale of CNG has been under-reported, which led to issuance of amended assessment order. We find no legal infirmity in the manner in which the tax authorities ascertained the quantum of CNG produced from the volume of natural gas consumed in the process of conversion. CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 & 22 OF 2015, 57 TO 59 OF 2015 19 17. In view of what has been discussed above, the answer to the legal question framed by the High Court could only be in the affirmative. We, therefore, allow these appeals, set-aside the impugned judgment passed in all connected cases and restore the amended assessment orders issued to the respondents. CHIEF JUSTICE JUDGE JUDGE Islamabad, the Announced on _______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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{'id': 'C.A.992_2013.pdf', 'url': ''}

- S IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRES MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALT AKBAR NAQVI Th%. H Civil Appeal No.997 of 2010. (On appeal against the order dated 25.09.2010 P ic assed by the Lahore High Court, Muirart Bench, Multan in PM No 198-2003) Rana Muhammad Hanif Khan (decd) through LRs. Versus Appellant(s) Saddiq Khan (deed) through LRs. . - .Respondent(s For the Appellant(s): Rain M. Zahid, ASC. (via video-link from Lahore) For Respondents.] (I -11) Nem o. For Respondent No. 02 Ex-parte. Date of Hearing: 14.02.2022 PRDER 1JAZ UL AWSAN, J.- This appeal is directed against a judgment of the Lahore High Court, Lahore dated 23.06.2010 rendered in RFA No.198 of 2003 filed by the Respondents. Through the impugned judgment, the judgment and decree dated 21.11.2003 passed by the Trial Court was set aside and it was held that the Civil Court(s) of Pakistan had no jurisdiction to entertain the suit which, even otherwise, was barred by time. 2. Briefly stated the facts necessary for disposal of this Appeal are that, the Appellants filed a suit for recovery of Rs.55,67,633/ as comPensationIdages As per the plaint, one Kalu Khan was a joint owner in equal share(s) with Atta Muhammad in respect of land measuring 1081 acres of Rich 0 Civil Appeal No.997 of 2010. 2 Rice Ranch in Willow Glen, California, USA. He executed a Will in respect of his entire property and created a Trust. One Faza.l Muhammad was appointed as Trustee through the Will and the beneficiaries of the Trust were his brothers namely Abdul Majeed Khan, Ahmed Khan and three sons of his deceased brother namely Siddique Khan, Rana Muhammad Hanif Khan and Aziz-ur-Rehman. The shares of the beneficiaries as determined in the Trust were 1/3rd to each brother and 1/9th to each nephew of the deceased Kalu Khan. 3. On 13.08.1962 the Trustee (Muhammad Fazal terminated the Trust in consequence of which the nephews jointly inherited 180 acres apart from the Farm machinery According to the contents of the plaint, in early March 1958, the predecessor of the Appellant and his brothers agreed that being a citizen of the USA, the Respondent should manage the share of the two brothers (nephew of Kalu Khan) in the property of Kalu Khan (deceased) inherited by them from Kalu Khan in the United States. He would perform the said duties without any salary. It was averred in the plaint that; in return it was agreed that the Appellant would manage the properties of the deceased in Pakistan. In order to implement this arrangement, a power of attorney was duly executed. The record indicates that the Appellants revoked their power of attorney on 03.11.1973 and appointed Nasim-ur-Rehman as their attorney. They also demanded their past share in the income of the property. It was alleged in the plaint that a sum of US $ 88,599 was recoverable from the Respondent(s). The suit filed by the Appellants was decreed by the Civil Court of Ciui! Appeal No. 997 of 2010 3 Sahiwal vide judgment and decree dated 21.11.2003. The Respondent(s) appealed the said judgment and decree. This appeal was allowed through the impugned judgment dated 15.09.20 10 by the Lahore High Court. Hence this appeal. 4. The learned counsel for the Appellants submits that the High Court erred in law in overturning the judgment of the Trial Court which was based upon valid reasons. He states that all relevant issues had properly been decided in accordance with law. He further submits that the findings recorded by the High Court in relation to the question of limitation as well as jurisdiction of the Civil Courts are patently erroneous. It is further argued that the findings of the High Court to the effect that the claim of the Appellants was barred by time was neither supported by the record nor by the law. He finally maintains that the suit in question sought a decree in personam. Admittedly, although permanent residents of the United States, the Respondents occasionally visited Sahiwal as mentioned in the plaint. As such, the Civil Courts of Sahiwal had jurisdiction on their person and could have passed an executable decree against them. 5. Respondent No.2 has already been proceeded against ex parte. No one has entered appearance on behalf of Respondent No. 1. 6. We have heard the learned counsel for the Appellants and gone through the record. Civil Appeal No. 997 of 2010. 4 7. It is clear and obvious to us from a plain reading of the plaint and Sections 16 and 20 of the Code of Civil Procedure, 1908 ("CPC") that the Civil Courts of Pakistan had no jurisdiction in the matter in light of the averments made in para 20 (i), (ii) & (iii) as well as paragraphs 22 and 23 read with the prayer made in the plaint. For ease of reference, Section 16 and Section 20 of the CPC are reproduced as under: - "16. Subject to the pecuniary or other limitations prescribed by any law, suits; (a) for the recovery of immovable property- with or without rent or profits; (b) for the partition of Immovable property; (c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or Interest in immovable property; (e) for compensation for wrong to immovable property, (9 for the recovery of movable property actually under distraint or attachment; shall be instituted inthe Court within the local limits of whose jurisdiction the property is situated, or, in the case of suits referred to in clause (c), at the place where the cause of action his wholly or partly arisen: - Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation. - In this section 'property" means property situate in Pakistan. "20. Subject to the limitations aforesaid, every suit shall be in a Court within the local limits of whose jurisdiction. (a) the defendant-, or each of the defendants where there are more Ihan one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either of the Court is given, or the defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part arises. Explanation I. - Where a person has- a one place and also a temporary residence shall be deemed to reside at both places in action arising at the place where he residence." (Underlining is ours) Civil Appeal No.997 of 2010. 5 It is clear and obvious from the record that the subject matter of the suit was situated in USA. This is fact admitted in the plaint of the Appellants that the property in respect of which the suit for rendition of accounts and recovery was filed,, is situated in the County of Glenn, California. Section 16 of the CPC clearly stipulates that all suits in respect of immovable property shall be filed in the Court within the local limits of whose jurisdiction the property in question is situated. The only exception to this rule is suits filed under Section 16(c). There is nothing on the record to establish that the suit in question was related to redemption of a mortgage or charge regarding the property in question. We are therefore in no manner of doubt that the even according to the averments made in the plaint the suit of the Appellants did not fall within the parameters of Section 10 of the CPC. 8. Section 20 of the CPC clearly provides that every suit shall be filed in a Court within the local limits of whose jurisdiction the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. It is a fact stated by the Appellants in Para 5(a) of the plaint that the Respondent was permanently residing in the US. It is for this reason that an agreement was reached between the brothers to the effect that the Respondent would manage the property inherited by the Appellants, situated in USA. The fact that the Respondent was a US citizen is further admitted at Para 20(iii) of the plaint which states that the Respohdent acquired US Civil Appeal No, 997 of 2010. 6 citizenship somewhere during the 1950s. It is the case of the Appellants that the Respondent neither permanently resides nor works for gain anywhere within the jurisdiction of the Civil Courts of Sahiwal. However, in an attempt to create jurisdiction it has been stated in the plaint that Civil Courts of Pakistan have jurisdiction since the suit does not involve any question regarding immovable property and involves rendition of accounts and recovery of money. The argument has been repeated by the learned ASC for the Appellants before us. With all due respect, we find the argument to be erroneous and misconceived. We are therefore unable to agree with this assertion since the amount claimed is income generated from the land in question is inextricably related to the property inherited by the Appellants, which is situated in USA. The language of Section 16(d) clearly provides that, for the determination of any right or interest in respect of immovable property, a suit must be filed in a Court within the territorial jurisdiction of which the property situated. 9. We are therefore in no manner of doubt that even if the averments made in the plaint are taken on their face value the Civil Courts of Sahiwal lacked jurisdiction in the matter. The learned High Court has therefore correctly come to the conclusion that in light of the averments made in the plaint read with the requirements of Sections 16 and 20 of CPC, the Civil Courts of Sahiwal lacked personal and subject matter jurisdiction in the matter. There is nothing on the record which shows that the Respondent was actually and voluntarily residing in Pakistan when the suit in question was Civil Appeal No. 997 of 2010. 7 filed. On the contrary, it has been admitted that the Respondent is a permanently resides in the US and is a US citizen and visits Pakistani Sahiwal occasionally. The understanding with the Respondent was also in respect of the property inherited by the Appellants, situated in the United States. The alleged breach of the agreement was purportedly on part of the Respondent who at all relevant times resided in the USA. Thus, the alleged cause of action also arose in the USA when the Appellants found out about the money which the Appellants claim is owed to them by the Respondent. Even otherwise, presence of a Respondent within the territorial jurisdiction of Pakistan does not ipso facto grant jurisdiction to Pakistani Courts on the touchstone of Sections 16 or 20 of the CPC when the property in question is situated outside Pakistan. Reliance in this regard is placed on Muhammad Ramzan (deceased) v. Nasreen Firdous (2016 PLD 174 Supreme Court). 10. We also find that admittedly the Appellants came to know about the alleged income on which they lay claim, in early 1990 during Siddique's divorce proceedings. They did riot file such claim by way of a suit if at all was legally possible till the 04.09.2001 before a competent forum. Further, the High Court has correctly come to the conclusion that the record indicates that a settlement was reached between the parties in the US which had been filed in the US Courts and incorporated in judicial verdicts. We also find that the suit in question was filed on the basis of two documents I which were allegedly discovered by a person namely 1 St Chit! Appeal No. 99? of2010. 3 Zafayullah who handed over the same to Naseem Ahmed which constituted the basis for filing of the suit. Despite making an effort to establish the fact that in the facts and circumstances of the matter and the claim made in the plaint furnished sufficient basis for conferring jurisdiction on Pakistani Courts, The learned ASC for the Appellant has been unable to point to any provision of law that may vest jurisdiction of Pakistani Courts. Admittedly, there existed a financial relationship between the three brothers which came to an end in 1973. Thereafter, a financial settlement appears F to have taken place and the relevant financial issues were settled between the parties as is evident from Exh.D-93 which was produced before the Trial Court and the said document has not been denied by any of the parties. In consequence of which, if at all, it could be raised before a Pakistani Court. Such claim could only have been raised within the prescribed period of limitation. It is clear and obvious from the record that the suit has been filed at least 28 years thereafter for which no valid reason or justification has been furnished nor has the learned counsel for the Appellants been able to convince us that there was any lawful basis to do so. ii. We have carefully examined the record, gone through the documents produced before the Trial Court as well as the all legal and factual aspects examined by the High Court and the reasons assigned by the High Court in support of its conclusions. We have not found any legal, procedural or jurisdictional defect, en-or or flaw in the impugned judgment that . may furnish basis or justification to overturn the ' -. .1 Appeal NO-9917 OJ 2010 9 impugned judgment of the High Court. Further, we find ourselves in agreement with the reasoning adopted by the High Court and the conclusions drawn are duly supported by the record as well as the evidence produced by the parties. Consequentiy, we do not find an y merit in this appeal. It is accordingly dismissed. H. ISLAMABAD 14.02.2022 ZR/ ,)(4APnrovea Foc\eportinc, H H

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry,HCJ Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan C.M.A. 1145-K/2013 IN S.M.C. 16/2011. (Suo Moto Action on the news clippings published on 04.03.2013 in Daily “The News”, Dawn and “The Nation” Islamabad, regarding incident of Abbas Town at Karachi on 03-03-2013) In attendance: Mr. Abdul Fatah Malik, AG. Sindh. Mr. Adnan Karim Memon, A.A.G. Sindh. Mr. Shah Khawar, ASC on behalf of I.G. Police. Mr. Fayyaz Ahmed Leghari, I.G. Sindh. Mr. Ghulam Shabbir Shaikh, Addl. I.G. CID. Mr. Abdul Aleem Jafri, DIG East. Mr. Jawed Odho, DIG West. Mr. Naeem Ahmed Shaikh, AIG Operation. Mr. Ali Sher Jakhrani, AIG Legal. Rao Anwar Ahmed, SSP Malir. Mr. Farooq Awan, SSP SIU. Mr. Niaz Khoso, SSP AVCC. Mr. Shiraz Nazeer, SSP Investigation Malir. Mr. Qamar Ahmed, DSP, Sohrab Goth. Mr. Azhar Iqbal, SHO Sohrab Goth. Mr. Anwar Mansoor Khan, ASC On behalf of Province of Sindh. Mr Rizwan Akhtar, DG Rangers, Major Ashfaq Ahmed Baloch, DAJAG. Allama Abbas Kumeli. Syed Mehmood Akhtar Naqvi. Date of hearing: 06-03-2013. ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.-When we were hearing the instant case, it was informed by Major Ashfaq Ahmed Baloch, DAJAG Pakistan Rangers that vide notification 2 dated 25th August 2011, Ranger is also authorized to exercise powers under Section 5 of the Anti Terrorism Act, 1997 etc. He has read the contents of the notification, which indicates that to combat terrorism Ranger has been given powers especially for the Karachi City. Prima facie, it seems that Ranger is equally responsible if any incident takes place. However we direct the officer who appeared before us that he should place on record copies of the notifications extended from time to time and also ensure that Major General Rizwan Akhtar DG Rangers attends the court at 11.30 a.m. 2. Major General Rizwan Akhtar appeared and stated that under Section 5 of the Anti Terrorism Act 1997 his force is required to prevent commission of terrorist acts or scheduled offences. It is to be noted that in the Province of Sindh Rangers is deployed from 1995 to onward to perform their duties. Whereas, w.e.f. 25th August 2011 powers of police have also been conferred upon it so that they may cause arrest etc. of the accused persons. He also informed that at present 11000 troops of Rangers have been deployed in Karachi City and efforts are being made to prevent the terrorism. It is to be noted that in presence of considerable good number of troops of Rangers crime of terrorism and other offences referred to in the Schedule of the Act 1997 have not been controlled or prevented despite of the fact that the Rangers has got its own system, though at a small scale, to gather secret informations about the commission of the terrorism etc. He also admitted that regarding incident of Abbas Town dated 03.03.2013 no secret information was received by his force, except that there was generalized 3 information about the happening of the incident. On our query, he stated that the troops deployed near the place of incident could not reach for the assistance of the victims on account of protest launched by the inhabitants of the area and other persons who had gathered there in the meanwhile. When we enquired from him as to whether any detail of the report has been transmitted to the Secretary Interior, Government of Pakistan, he replied in affirmative and promised to place on record the report on the next date. Similarly when we enquired from him as to whether any action has been taken against the officials/officers failing in preventing the terrorism in Abbas Town, he stated that no such action was required to be taken because the officers, who were posted there, had been performing well in the past. 3. Be that as it may, this aspect of the case would be considered later on as prima facie it seems that despite of failing to prevent the commission of terrorism no effective step by initiating action against the persons posted over there had been taken by him. He is directed to submit a detailed reply about the incident of Abbas Town, dated 03.03.2013, and also explain that as to why in presence of the notification under Section 5 of the Act 1997, Rangers had failed to prevent the commission of terrorism and other offences mentioned in the schedule, particularly when the police powers had also been conferred upon the Force for the purpose of arresting and conducing raids to cause the arrest of the accused persons, on the next date of hearing. 4 4. Mr. Anwar Mansoor Khan, learned Sr. ASC appeared on behalf of the Provincial Government and stated that after hearing of the case, he has contacted to the Chief Minister Sindh who has communicated to him that on account of the fact that the Inspector General Police is a Grade-22 Officer, therefore, he has been surrendered to the Federal Government, similar is the situation with the DIG and the SSP will be transferred to the Headquarters and appropriate action will be taken. The learned counsel may produce the notification of the surrender of both these officers, i.e. IGP (Fiaz Leghari) and DIG East (Aleem Jafri) to the Federal Government during the course of the day by supplying a copy to the Incharge Branch Registry for our perusal in Chamber. 5. It is to be noted that this Court in the case of Watan Party & another v. Federation of Pakistan and others (PLD 2011 SC 997), which is generally known as Karachi Killing and Law and Orders Case, delivered judgment on 06.10.2011, and, inter alia, observed as under: “55. It is to be noted that, primarily it is the duty of the Province through its executive authorities to control the law and order situation and ensure implementation of Fundamental Rights of citizens. But prima facie it seems that the Provincial Authorities have not fulfilled their constitutional duty. Under the Constitution, equally it is the obligation of the Federation to protect every Province against internal disturbances as well as external aggression and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.” 6. It is a matter of great concern that despite of categorical observation made hereinabove, situation of law and 5 order has not been improved in Karachi, for which no one else except the Provincial Government/Executives are responsible. The citizens/general public of Karachi constantly are being denied their fundamental rights of life and security in terms of Article 9 of the Constitution. We were hopeful that in view of the above observations situation of law and order would have been improved but here the position is altogether different. The target killings, kidnapping for ransom, Bhatta and terrorism have increased day by day. It is unfortunate that despite of happening of the instant incident and all the incidents which had been taken place earlier, no action against the responsible police officers and Rangers had been taken, may be for the reason known to the Provincial Government/high-ups of the Rangers. 7. Any way we have prima facie noticed that during the happening of the incident of Abbas Town no one from the position of the constable to I.G.P. Sindh and Rangers reached at the place of incident immediately, whereas the material/report which has been made available by the Media the inhabitants of the area on their own had been helping to each other. Primarily, it was the duty of the Law Enforcing Agencies, both Police as well as Rangers, to prevent the commission of happening of such offences and if at all on account of their negligence the incident had taken place, they could have at least extended helping hand to the victims but they have failed to do so. Admittedly, 50 persons had lost their lives and a good number of flats and shops both situated in Iqra City and Rabia Flower Plaza have been destroyed, peoples of the area are lying under the open 6 sky but so far administration has not moved at all in any manner as no action against any police officers or rangers had taken. We are reluctant to hold that the manner in which the incident had taken place and subsequent thereto as the Executive behaved with the victims etc. is highly unconstitutional, unlawful and illegal. Action was required to be taken immediately against the Incharge Police officers right starting from I.G.P. to SHO inasmuch as, SSP, DSP, etc. had not been proceeded against so far. 8. 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. They also be directed to join interrogation on account of their criminal negligence in not providing the assistance to the inhabitants. The notification should be also sent for our perusal in Chamber. 9. We have been told that Mr. Iqbal Mehmood, CCPO, Karachi was also not present there and Mr. Shabbir Shaikh, Addl. IGP was holding the charge. The Chief Secretary is directed to look into his conduct as well with reference to instant case and send report to us on the next date of hearing. If need be, we would also pass appropriate order in his case as well. 10. As DG Rangers requires time to file the reply/explanation, therefore, this case is fixed for 08.03.2013. In the meanwhile, we would direct the Federal Government through Secretary Interior as well as ISI, M.I. and I.B. to put up their reports through their counsel about happening of the 7 incident particularly pointing out as to whether before the incident any information was communicated to the police, Rangers and if so, then we have to examine this aspect of the case as well. However, if need be some authorized officers may also be deputed for purpose of providing assistance to the Court.. CHIEF JUSTICE JUDGE Karachi, the 06th March, 2013. JUDGE                         CMA 1145-K/2013 in SMC 16/2011               04-03-2013                                                                                                                          1                  06-03-2013                       2011   25                 5   1997                                                                                               2                    1997    1995                    2011   25                                        1997                                     2                                  3-3-2013                                                                                                                                 3                                                               3-3-2013    5  1997                                                                 4                                    3                                                                    5         (PLD 2011 SC 997)              6-10-2011                    55                                                                                                                      6      /                    9                                                                               4                   7                                                                                                                                                                                        8                                                            9                                             5               /       10               8-3-2013                                                                          2013   6th           6

{'id': 'C.M.A.1145-K_2013.pdf', 'url': ''}

{'id': 'C.M.A.1145-K_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Maqbool Baqar Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan CIVIL REVIEW PETITION NO.296 of 2020 a/w Civil Misc. Application No.1243 of 2021 & CIVIL REVIEW PETITION NO.297 of 2020 & CIVIL REVIEW PETITION NO.298 of 2020 & CIVIL REVIEW PETITION NO.299 of 2020 & CIVIL REVIEW PETITION NO.300 of 2020 & CIVIL REVIEW PETITION NO.301 of 2020 & C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 & CIVIL REVIEW PETITION NO.308 of 2020 & CIVIL REVIEW PETITION NO.309 of 2020 & CIVIL REVIEW PETITION NO.509 of 2020. Justice Qazi Faez Isa … Petitioner(s) (in CRP No.296/2020) Sindh High Court Bar Association … Petitioner(s) (in CRP No.297/2020) Mrs. Sarina Isa … Petitioner(s) (in CRP No.298/2020) Supreme Court Bar Association … Petitioner(s) (in CRP No.299/2020) CRP.296 of 2020, etc. 2 Muhammad Asif Reki President Quetta Bar Association … Petitioner(s) (in CRP No.300/2020) Shahnawaz Ismail, VC Punjab Bar Council … Petitioner(s) (in CRP No.301/2020) Balochistan Bar Council … Petitioner(s) (in CRP No.308/2020) Pakistan Federal Union of Journalists … Petitioner(s) (in CRP No.309/2020) Abid Hassan Minto … Applicant(s) (in CMA No.4533/2020 in CRP No.Nil of 2020) Pakistan Bar Council thr. VC … Applicant(s) (in CRP.509 of 2020) VERSUS The President of Pakistan and others …Respondent(s) (in CRP.296-301& 308-309 & CRP.509 of 2020) The Supreme Judicial Council thr. its Secretary and others … Respondent(s) (in CMA No.4533 of 2020) For the petitioner(s) : Mr. Justice Qazi Faez Isa (in-person) (in CRP.296/2020) Mr. Rasheed A. Rizvi, Sr. ASC. (through Video Link from Karachi). (in CRP.297 & 309/2020) Mrs. Sarina Faez Isa (In-person) (in CRP.298/2020) Mr. Hamid Khan, Sr. ASC. Syed Rifaqat Hussain Shah, AOR. (in CRP.299, 300, 301 & 308/2020) Nemo. (in CMA.4533/2020) Nemo. (in CRP.509/2020) For Federation of Pak. : Ch. Aamir Rehman, Addl. AGP. For President, PM & AGP. : Mr. Sohail Mahmood, Addl. AGP. Dates of hearing : 02.03.2021; 03.03.2021; 08.03.2021; 17.03.2021 & 18.03.2021. * * * * * * CRP.296 of 2020, etc. 3 O R D E R Umar Ata Bandial, J. Civil Misc. Application No.1243 of 2021. For reasons to be recorded later, this Misc. Application is dismissed. However, the right of the people to have access to information in matters of public importance under Article 19-A of the Constitution is recognized, the details and modalities of which are to be decided by the Full Court on the administrative side. Sd/- JUDGE I have given my separate note. Sd/- JUDGE Sd/- JUDGE I have attached my separate note. Sd/- JUDGE Sd/- JUDGE I have appended separate note. Sd/- JUDGE Sd/- JUDGE I have appended my reasons for the dismissal. Sd/- JUDGE Sd/- JUDGE Announced in Court on 13th April, 2021. J(2). Sd/- JUDGE NOT APPROVED FOR REPORTING. CRP.296 of 2020, etc. 4 Yahya Afridi, J. For the reasons already recorded in my judgment delivered in Constitution Petition No.17 of 2019, the present Civil Miscellaneous Application No.1243 of 2021 is dismissed, as the relief sought by the petitioner would “negate the very spirit of the oath taken by the petitioning Judge”. 2. However, for the reasons to be recorded later, I find the right of the public to have access to live-streaming or audio-video recording, written transcript or any other medium, of the court hearings in the proceedings of public importance, including those under Articles 184(3) and 186 of the Constitution, is their fundamental right under Article 19A of the Constitution. The Registrar of this Court is, therefore, directed to place the matter before the Full Court for appropriate steps as it deems fit, under Article 191 of the Constitution, to effectuate this fundamental right of the public. Sd/- Judge CRP.296 of 2020, etc. 5 Short Order For the reasons to be recorded later, we dispose of the miscellaneous application (CMA No.1243/2021) filed by the Petitioner in review petition (CRP No.296/2020) in the following terms: (i) Article 19-A of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) creates an obligation on State institutions, including the Judiciary, to take the necessary measures to ensure realization of the fundamental right of citizens to have access to information in matters of public importance. Cases under Article 184(3) of the Constitution, including review petitions and other matters arising therein, are matters of public importance, and the public has a right to know and see how proceedings in these cases are conducted and concluded by the Court. We, therefore, hold that Live Streaming (audio and video) of court hearings of these cases should be made available for information of the public through a link on the official website of this Court, and for this purpose the Registrar of this Court should take steps to provide for the requisite technological infrastructure and make arrangements for necessary amendments in the Rules under Article 191 of the Constitution to regulate its practice and procedure in this regard; (ii) Keeping in view the current state of technological infrastructure available in this Court and the fact that the review petitions filed in the case are fixed for hearing, we direct the audio recording of the proceedings of the court hearings of the said review petitions to be made available to the public through a link on the official website of this Court. The Registrar of this Court shall ensure that the un-edited audio recording of the proceedings of the court hearing of the review petitions is made available to the public on the official website of the Court on the same day soon after the hearing and before the close of the working hours. Announced. Islamabad, the 13th April, 2021. Sd/- (Maqbool Baqar, J.) Sd/- (Manzoor Ahmad Malik, J.) Sd/- (Mazhar Alam Khan Miankhel, J.) Sd/- (Syed Mansoor Ali Shah, J.) CRP.296 of 2020, etc. 6 ORDER OF THE BENCH: By majority of 6 to 4 (Maqbool Baqar, J; Manzoor Ahmad Malik, J; Mazhar Alam Khan Miankhel, J and Syed Mansoor Ali Shah, J dissenting), Civil Misc. Application No.1243 of 2021 is dismissed. Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Announced in Court on 13th April, 2021. Sd/- J(2). Sd/- JUDGE APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez CMA No.1362 of 2012 AND Civil Petition No.357 of 2012 Regional Director, Anti Narcotics Force Petitioner VERSUS Rizwan Ahmed Khan & others Respondents For the Petitioner : Mr. Muhammad Akram Sheikh, Sr.ASC Brig. Fahim Ahmed Khan, Force Commander Abid Zulfiqar, Dy. Director/IO, ANF For the respondents : N.R. Date of Hearing : 10.04.2012 ORDER This application (CMA No.1362 of 2012) has been moved by Mr. Muhammad Akram Sheikh, learned Sr.ASC, on behalf of ANF, in a case, which is already pending before this Court bearing Civil Petition No.357 of 2012. The case relates to FIR No.40 of 2011, dated 10.10.2011, under Sections 9(c), 14, 15 & 16 of Control of Narcotic Substances Act, 1997 registered with Police Station ANF, District Rawalpindi. 2. The facts as mentioned in the FIR as well as noted in the memo of Civil Petition for Leave to Appeal, are reproduced hereinbelow:- “Today on 10.10.2011, I assistant director enforcement section ANF RD was present at Rawalpindi, Assistant Atif Hayat brought a letter No.9-9/10 police/I dated 19.09.2011 in Civil Petition No.357 of 2012 2 reference of letter No.13(302)ANF/LAH/2011 dated 18.08.2011 for registration of a case upon the direction Secretary, Ministry of Narcotics Control issued from Muhammad Hayat Section Officer. According to this letter, on 03.02.2011 during 28th Session of National Assembly in Narcotics Session the Federal Health Minister had stated on the floor that two companies who got illegal permission to export Ephedrine and letter on this Ephedrine was sold out to manufacturers including unknown persons, we have ordered for collection of their registration, issuance of show cause notice for production of all relevant documents and their subsequent seizure. M/s Berlex Lab international Multan had obtained permit on 25.03.2010 for 6000 kg Ephedrine and on 22.09.2010 500 kg Ephedrine for the Ministry of Health and this allocation was for export purpose. Whereas M/s DANAS Pharmaceutical Islamabad has obtained allocation of 1500 kilogram on 15.04.2010 for export purpose Iftikhar Ahmed Khan Babar Chief Executive of M/s Berlex Lab International Multan and Ansar Farooq Ch. Chief Executive of Danas Pharmaceuticals (Pvt) Ltd. Lahooti Group Islamabad had obtained these export allocations for Controlled Chemical Ephedrine by using the influence of high officers. Later on the Ephedrine was sold out to local manufactures and unknown persons in violation of law for ulterior motives. Both these companies/firms had committed offence of criminal negligence/illegal acts using the powers of high officers. In this illegal act and criminal negligence, the then Director General Health of Ministry of Health and other officers of Ministries of Health Government of Pakistan had acted in connivance with them and they allocated the extra ordinary quota for Ephedrine to these firm/companies in abuse of their official position. Therefore, the record was collected for the purpose of registration of a case and sent to Police Station ANF, Rawalpindi through Constable Ghulam Shabbir. Case may be registered and number may be sent. I am busy in investigation. From office of the enforcement Section RD ANF Rawalpindi at 1.30 p.m. and on 10.10.2011. Signed in English by Riaz Ali, Assistant Director Incharge Police Station ANF Rawalpindi. The case has been registered without any delay. The copies of the FIR are distributed according to rule the copy of FIR is attached. That the proper investigation was conduced by Investigation Team who recorded statements of 70 witnesses, beside other documentary evidence was also taken in custody. Involvement of Pharmaceutical Company’s administration and the staff of Ministry of Health in the commission of offences were taken on record. Interim challan has been submitted on 18.02.2012 in CNS Court, Rawalpindi. Some of the accused are hiding and escaped their arrest. Investigation qua highly influential figures of the Country is in progress. Their involvement is mentioned in the statements of co-accused which is being verified by the Investigation Team which is also corroborated by the other evidence collected by Investigation Team.” 3. After the registration of FIR, one Rizwan Ahmed Khan S/o Muhammad Khan, who is stated to be the Director of Denas Pharmaceuticals Private Limited, Islamabad, instituted a petition for quashment of the FIR, which was dismissed on Civil Petition No.357 of 2012 3 26.01.2012 with the observation that “Secretary, Ministry of Narcotics Control, is under an obligation to decide the same within a reasonable time”. Against this observation of the High Court, a Civil Petition for Leave to Appeal has been filed by Regional Director, ANF, which is pending decision before this Court. On the last date of hearing i.e. 29.03.2012, a request was made on behalf of the petitioner to withdraw the petition, which was declined for the reasons, mentioned in para 2 of the said order, which read as under :- “2. In the normal course, such a request is entertained and allowed, but in this case the Registrar of this Court has received a letter through fax. Attention of the learned counsel has been drawn towards the contents of the said letter and is ordered to be kept on record. Although whereabouts of the person, who sent this letter to the Registrar have not been mentioned, but when we have enquired from Brigadier Faheem, Force Commander, Rawalpindi, to highlight about the instant case, he stated that this matter pertains to the grant of quota of Ephedrine to two Companies namely M/s Berlex Lab International, Multan and Danas Pharmaceuticals Private Limited against the rules as both the companies got allotted 6500 KGs and 2500 KGs Ephedrine, respectively, whereas under the rules a quota more than 500 KGs Ephedrine cannot be allocated. Further it has been pointed out that quota can be allotted to those Pharmaceuticals Companies, who are manufacturing the medicines in which Ephedrine as one of ingredients is to be used, but the aforesaid Companies instead have sold Ephedrine, which is also known as poorman Cocaine, to the local manufacturers and unknown persons and earned profit. It has been added that investigation was conducted and case has been challaned against 10 persons namely M/s Iftikhar Ahmed Khan Babar; Rashid Jumma; Rizwan Ullah Khan; Ehsan-ur-Rehman; Tanvir Hassan Sherazi; Chaudhry Abdul Waheed; Ansar Farooq Chaudhry; Col.(R) Tahir-ul-Wadood Lahoti; Muhammad Hashim Khan; and Tauqir Ali Khan.” 4. In view of the facts and circumstances stated before this Court, it was further observed as under:- “3. According to the Force Commander, there are few other persons, some of them succeeded in getting bail before arrest. It has also been also informed that Civil Petition No.357 of 2012 4 in the month of January, 2011 a question in this regard was raised in National Assembly and Makhdoom Shahabuddin, Federal Minister for Health, made a statement for conducting investigation/inquiry and accordingly a committee was constituted, which had submitted its report, but this report has not so far been brought on record of the National Assembly. Meanwhile, Secretary, Narcotics Control, vide letter dated 14.02.2012, concluded that no direct evidence about the misuse of quota by the said Firms have been established/found in the above mentioned reports, which reports according to the Force Commander were fictitious and got prepared by the Health Department, therefore, he did not agree with the same and resisted by sending a letter to the Secretary on 22.02.2012. The Secretary on having seen the reaction from the Force Commander ultimately wrote a letter on 22.03.2012 stating therein that evidence, if any, against the applicant (Tauqir Ali Khan son of Shaukat Ali Khan) or the political figure in the subject matter may be brought into the notice of the Secretary and prior approval of the Secretary may be obtained for further prosecution of the applicant and said political figure. 4. It is to be noted that the Investigating Officer Abid Zulfiqar, Deputy Director, ANF, issued a notice to Ali Musa Gillani on 12.03.2012 for recording of his evidence, as according to him, material has come on record that Touqeer Ali Khan used to claim himself to be the Private Secretary of Ali Musa Gillani. We are of the opinion that reference of the political figure in the letter of the Secretary is of Ali Musa Gillani. However, on having taken into consideration the importance of the case, we are not inclined to grant permission to the learned counsel to withdraw the petition and the petitioner-department is directed to place on record all the relevant documents i.e. copies of the inquiry conducted by a team constituted by the Health Minister; copies of the reports, which were got prepared by the Secretary of Narcotics Control; copies of the challans and FIR as well as summons issued; and copies of the letters of the Secretary, dated 14.02.2012; 22.02.2012; and 22.03.2012. The Force Commander, Rawalpindi, is also required to place on record complete history of the case alongwith supporting documents on the next date of hearing. Meanwhile, without prejudice to the petition which has been filed by the ANF, the investigation as well as trial of the accused persons shall continue independently.” However, it seems that as in view of the fact that some influential personalities were being involved in the proceedings, particularly, one Touqeer Ali Khan, who claims himself to be Personal Secretary to Mr. Ali Musa Gillani S/o Syed Yousaf Raza Gillani (Prime Minister of Pakistan) and Mr. Civil Petition No.357 of 2012 5 Khushnood Akhtar Lashari, the then Secretary, Ministry of Health, who is presently posted as Principal Secretary to Prime Minister of Pakistan, therefore, notices were issued to both of them to join the investigation, as also evident from the contents of the paras reproduced hereinabove. 5. It is to be noted that under Anti Narcotics Force Act, 1997, since its promulgation, the posts of Director General and Field Directors are normally held by the serving Defence Personnel of the ranks of Major General and Brigadiers, respectively, but surprisingly Establishment Division, Cabinet Secretariat, Government of Pakistan, Islamabad, by means of notifications dated 06.04.2012 repatriated Major General Syed Shakeel Hussain, the then Director General, ANF and in his place allowed Mr. Zafar Abbas, Acting Secretary, Ministry of Narcotics Control, (BS-21) to hold the additional charge of the post of Director General, ANF. The said notifications read as under:- NOTIFICATION The Secondment of Major General Syed Shakeel Hussain – PA-17141, presently serving as Director General, Anti-Narcotics Force (ANF), under Ministry of Narcotics Control, is repatriated to Pakistan Army with immediate effect. Sd/- (Abdul Latif) Deputy Secretary to the Government of Pakistan” …………….. NOTIFICATION Mr. Zafar Abbas, a BS-21 officer of Police Service of Pakistan, presently posted as Acting Secretary, Ministry of Narcotics Control is allowed to hold the additional charge of the post of Director General, Anti-Narcotics Control (ANF), in addition Civil Petition No.357 of 2012 6 to his own duties, with immediate effect and until further orders. Sd/- (Abdul Latif) Deputy Secretary to the Government of Pakistan” 6. As it has been noted in order of this Court dated 29.03.2012 that in pursuance of a question raised in the National Assembly, the then Federal Minister for Health Makhdoom Shahabuddin ordered for an inquiry and thereafter the then Secretary ANF, Mr. Sohail Ahmed, vide his letter dated 19.09.2011, addressed to the Director General, ANF, Rawalpindi, advised the ANF to proceed with the investigation in the subject case by exercising the powers as mandated/provided to the ANF by CNS Act, 1997. However, after the registration of the case reportedly Mr. Sohail Ahmed was transferred and acting charge was given to Mr. Zafar Abbas, inasmuch as, it has been pointed out that after passing of order by this Court, dated 29.03.2012, when the directions were given to the ANF to proceed with the matter SRO No.282(1)/2012 was issued with back date i.e. 21.03.2012 in pursuance whereof an amendment was made in earlier notification No.SRO.594(1)/1997 dated 07.07.1997 to the effect that in place of “Director General, Anti Narcotics” the words and comma “Secretary, Narcotics Control Division” shall be substituted. Prima facie, it requires to be noted that under Section 3 read with Section 4 of ANF Act, 1997 the force is to be headed by the Director General and not the Secretary. 7. Be that as it may, at this stage, it is not necessary to discuss this issue because so far we have not issued notice of this Civil Petition No.357 of 2012 7 application and the facts are being noted herein just to understand the controversy between the parties. 8. It seems that after passing the order dated 29.03.2012, transfer order of Major General Syed Shakeel Hussain has been issued, for which listed CMA has been moved and despite it the ANF authorities continued probing into the matter and issued summons in the name of Mr. Khushnood Akhtar Lashari, Principal Secretary to Prime Minister of Pakistan as well as for Mr. Ali Musa Gillani, enabling them to appear for recording of their statements. 9. Brig. Fahim Ahmed Khan has stated that he was called by the Principal Secretary, who persuaded him to have a one-on-one meeting in his office, which according to him, he reluctantly accepted and during this meeting the investigation of the case was discussed and Mr. Khushnood Akhtar Lashari conveyed him six concerns but he has not agreed to any of the same, as a result whereof, he was also transferred on 09.04.2012 alongwith Deputy Director Mr. Abid Zulfiqar, vide notification of even date, which are reproduced hereinbelow. “Following posting/transfer are made with immediate effect and until further orders:- S.No. Name of officer From To 1. Brig. Fahim Ahmad Khan RD ANF Rawalpindi Director (DAPRC) ANF HQ Rwp. Mr. Abid Zulfiqar, Deputy Director, RD ANF Rawalpindi, is directed to report to ANF Hqs for further posting. Note: Previous orders may please be treated as cancelled. Sd/- Zafar Abbas, PSP Civil Petition No.357 of 2012 8 Director General, ANF 09.04.2012 Director (Hq) ANF” Mr. Khushnood Akhtar Lashari had a conversation with Brig. Fahim Ahmed Khan and what has been discussed and transpired between them, the latter has reduced the same into an affidavit, which under his own signatures and duly attested has been placed on record; contents whereof are reproduced hereinbelow:- “AFFIDAVIT I, Brigadier Fahim Ahmed Khan S/O Muhammad Yasin Khan Sherwani, force Commander, Anti Narcotics Force, Regional Directorate, Rawalpindi, do hereby solemnly affirm on oath that; 1. ANF has registered FIR No. 40/2011 dated 10.10.2011 in PS ANF Rawalpindi. 2. IO of the afore-mentioned case has sent notices and letters to Mr. Khushnood Akhtar Lashari (Ex Secretary Health) presently working as Principal Secretary to Prime Minister Mr. Yousaf Raza Gillani/Secretary Establishment Division, for recording of his statement. 3. In response to the afore-mentioned notices, I along with Lt. Col Syed Touqir Abbas Zaidi (Joint Director ANF) and IO Abid Zulfiqar (Deputy Director ANF) went to the office of Mr. Khushnood Akhtar Lashari, in PM House on 24th March, 2010 and, on the desire of Mr. Khushnood Akhtar Lashari and his assurance to bring the real facts to light, I had a separate meeting with him in his office, where he discussed/conveyed the following to me in a maligning and threatening manner, because he being one of the Prime (abettor/associate/facilitator) in the case wanted to make full use of his present appointment/office to suppress/distort/misdirect investigation against himself and Ali Musa Gillani:-  Mr. Khushnood Akhtar Lashari said that father of Ali Musa Gillani is very upset and worried due to the summon issued to him.  He said that if ANF focuses on two Pharmaceutical companies only and spare others, ANF will be fully supported; Both companies will be ruined and State Machinery will be with you………  He said that, you know, civil military relates have recently improved………  H said that all depends on you (Brigadier Fahim) you can only save from chaos and upheavals…….  He further said in a sarcastic manner and meaningful expression that ANF is being commanded and controlled by army officers…….. Civil Petition No.357 of 2012 9  He asked to spare Ali Musa Gillani, his ( ) will be done. This is a matte of National Interest. 4. In this regard, since then, may prejudiced, unfair and unwarranted actions have been taken by different state departments which confirms the practical manifestation of above mentioned threats and his heinous/malicious design to sabotage the investigation by one way or the other. Whatever I have stated above is true to the best of my knowledge and belief and nothing has been concealed therein. Sd/- Deponent Brigadier Fahim Ahmed Khan 09.4.2012” We would not like to comment in depth on the conduct and reaction either of the personalities or functionaries unless they are not heard except observing that commission of the crime, as it has been disclosed in the FIR, is of serious nature notwithstanding that whosoever is involved and what is his status, however, prima facie it has got its own repercussions independent with criminal proceedings and also in respect of the alleged favour by Ministry of Health, particularly, to Berlex Lab International, Multan and Danas Pharmaceuticals Private Limited by extending them quotas of Ephedrine, which is a chemical used in methamphetamine and the same is also used for the purpose of addiction, may be within the country and outside the country. Detail discussion, however, shall be made subsequently, but we may observe that if the allegation as leveled is there, the concerned authorities should have allowed a transparent inquiry and investigation instead of causing obstructions and hampering the same for one or the other reason. Civil Petition No.357 of 2012 10 10. At this stage, we are not concerned as to whether what should be the punishment and what should be the result because interim challan has already been submitted and the matter is under probe and some of the accused persons have approached Islamabad High Court, Islamabad, for grant of bail, and their cases are also pending, which are required to be decided in accordance with law, but after having taken into consideration the above facts and circumstances of the case, prima facie we are of the opinion that transfer/posting of Major General Syed Shakeel Hussain, Director General, ANF; Brigadier Fahim Ahmed Khan, Regional Director, ANF; and Mr. Abid Zulfiqar, Deputy Director, ANF, in colorable exercise of powers, is not free from extraneous consideration. 11. Be that as it may, we direct that notice of this application be issued by names to the Acting Secretary, Ministry of Narcotics Control; Major General Syed Shakeel Hussain; Brigadier Fahim Ahmed Khan; Mr. Ali Musa Gillani; the present Secretary, Ministry of Health; and the Directors of the aforementioned Companies. Meanwhile, the Regional Director Brig. Fahim Ahmed Khan and Deputy Director Abid Zulfiqar are directed not to relinquish the charge and should continue with the investigation of the case without being influenced in any manner from any one. However, if in the meantime Mr. Khushnood Akhtar Lashari, Principal Secretary to the Prime Minister and Mr. Ali Musa Gillani or anybody else appears to Civil Petition No.357 of 2012 11 record his statement, he should be examined by providing fair opportunity and in accordance with law. 12. The case is adjourned to 20.04.2012. Meanwhile, anti status-quo shall be maintained and no order shall be passed without the concurrence of the Court pending decision of the case. Notice to the learned Attorney General for Pakistan be also issued for the next date of hearing. Chief Justice Judge Judge ISLAMABAD 10.04.2012 Zubair

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IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED MR. JUSTICE MUHAMMAD ATHER SAEED CMA NO. 1427 OF 2011 IN CIVIL REVIEW PETITION NO.129/2010 IN CONST. P. 76/2007 [Reply to Show Cause Notice dated 18.04.201 issued to Syed Nasir Ali Shah, Solicitor General, Ministry of Law and Justice, Islamabad] Federation of Pakistan through Secretary M/o Law, Justice and Parliamentary Affairs, Islamabad vs. Dr. Mubashir Hassan, etc. Syed Nasir Ali Shah: In person On Court notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan Date of hearing: 25.11.2011 … O R D E R Syed Nasir Ali Shah, former Solicitor General appeared in response to notice communicated to him through the learned Attorney General for Pakistan and stated that he is no more in the service and has been retired. He has full respect for the Court and by tendering unconditional apology throws himself at the mercy of the Court. As we have already granted pardon to Raja Abdul Ghafoor, AOR and also taking into consideration the sincere statement made by Syed Nasir Ali Shah as well as keeping in view that he has been retired from service, we accept his apology and discharge the notice. Islamabad, the 25th November, 2011

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed CMA NOS.1535 & 1536 OF 2013 IN CA NOS.191-L & 409 OF 2010 (Implementation proceedings of directions of this Court passed in CA No.191-L of 2010 and CA No.409/2010 regarding initiation of action against those who were involved in corrupt practice of submitting bogus degrees at the time of getting of their nomination papers during the election of 2008) 1. Mian Najeeb-ud-Din Owaisi 2. Muhammad Rizwan Gill Appellants VERSUS 1. Amir Yar Waran etc 2. Nadia Aziz etc Respondent (s) For the appellants : Nemo For the respondents : Nemo On Court Notice: Mr. Ishtiaq Ahmed Khan, Secretary, ECP Mr. Abdur Rehman Khan, Addl. D.G (L) Date of Hearing : 26.03.2013. ORDER In response to order of this Court, dated 25.03.2013, the Secretary, Election Commission of Pakistan has appeared and filed a comprehensive report (CMA No.1557 of 2013) and stated that the CMA No.1535-2013 etc - 2 - Election Commission of Pakistan (hereinafter referred to as “the ECP”) has already undertaken an exercise to verify the Educational Testimonials of 1170 elected Representatives i.e. Members of the National and Provincial Assemblies as well as the Senate, who participated in the General Elections in the year 2008 and the Election of the Senate subsequent thereto. Except in 69 cases the Educational Testimonials of all of them were authenticated to be correct by the Higher Education Commission. He further stated that the ECP itself examined the cases which were not authenticated and concluded that the Educational Testimonials of 27 of such Representatives suffer from no deficiency. However, out of the remaining 34 cases, references were made to the respective DPOs and the Courts and except for two cases, one by the Sessions Judge at Dera Alllahyar and the other by the Sessions Judge Dera Ismail Khan, rest of the cases have not been decided and he needs some time to collect information about the progress in the remaining cases, which shall be done within a period of two days. Request so made by him is allowed. In the meanwhile, a letter be sent to all the Registrars of the respective Provincial High Courts and the Islamabad High Court, to collect and furnish details from the Sessions Judges about pendency of such cases with reasons as to why the same have not been disposed of so far. 2. The Secretary, ECP further stated that for the current process of the General Elections, which has been scheduled for CMA No.1535-2013 etc - 3 - 11.5.2013, the Higher Education Commission has also been involved to attest the Educational Testimonials of the candidates to ensure that no candidate who on his own has disclosed his educational qualification may rely on Educational Testimonials, which are fake because it is the duty of the ECP under the command of the Constitution in terms of Article 218 (3) to organize/conduct honest, free and fair elections. We have pointed out to him that it is not necessary that all the prospective candidates intending to participate in the General Elections are holders of the Degrees from the Universities because there would be candidates, who claim to be holder of a Sanad of Deeni Madaras, such Sanads have to be verified by the Institution known as Wafaq- Tanzeem-ul-Madaras, which grants recognition to Deeni Madrissas and as far as Matriculation or Intermediate Certificates are concerned, the Government of Pakistan under Section 3 of the Federal Supervision of the Curricula Textbooks and Maintenance of Standards of Education Act, 1976 read with Notification No.D.773/76-JEA,(CW), dated 04.12.1976, has constituted the Inter Board Committee of Chairman (IBCC), which is the Competent Authority for determining of equivalence of the Certificates/Diplomas upto Higher Secondary level and as far as the Matriculate or Intermediate Certificates are concerned, those are to be attested by the respective Boards functioning in the Provinces and Federation respectively. 3. Needless to observe that as far as the Higher Education Commission (HEC) is concerned, it would be its duty to verify or attest CMA No.1535-2013 etc - 4 - the Educational Testimonials of the Universities and all institutions of Higher Education. However, it would be appreciated if a mechanism is adopted by the ECP, enabling the HEC to supervise the scrutiny/examination of the Educational Testimonials of the candidates without wasting time and making reference to different institutions, the HEC may adopt an effective procedure on the basis of which, the ECP without loss of time may get correct information about the authenticity of the Educational Testimonials. 4. It is to be noted that under Section 14 of the Representation of the People Act, 1976, an elector has also right to raise objections to the nomination of a candidate, relevant provision therefrom are reproduced herein below: 14(1) The candidates, their election agents, [the proposers and seconders and one other person authorized in this behalf by each candidate][and an elector who has filed an objection to the nomination of a candidate,]may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12. [Provided that an elector who has filed an objection to the nomination of candidate shall only attend the scrutiny of the nomination paper of that candidate.] ………………………………………………………………….. …………………………………………………………………. …………………………………………………………………. “14(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor CMA No.1535-2013 etc - 5 - more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any other passed thereon shall be final. 14(5A) If on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from another disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers.” ………………………………………………………... …………………………………………………………” 5. Undoubtedly, a citizen, who is also an elector or voter, has a right to have access to the information in all manners with reference to credentials, antecedents etc of a candidate for whom he is going to vote for electing him as his representative, therefore, in terms of Article 19-A of the Constitution of the Islamic Republic of Pakistan, 1973, it is the Fundamental Right of a citizen to have access to information about the candidate for whom elector/voter may cast his vote. When we inquired from the Secretary, ECP, he stated that it has been decided to place the nomination papers on the web-site, enabling the electors or the voters to obtain information and file objections in terms of the CMA No.1535-2013 etc - 6 - above provisions of the law, which is to be read along with Article 19- A of the Constitution but we have also asked him that besides making available the nomination papers on the web-site, a simple procedure should also be adopted, enabling the electors/voters, who intend to raise objections to obtain a copy of the nomination paper by making a request subject to payment of prescribed fee, etc. On this, he stated that in this behalf a mechanism and SOP shall be issued because the object and the purpose of the ECP is to adhere strictly to the legal provisions refereed to herein before and as well as Article 218(3) of the Constitution. 6. Let the case be adjourned for 28.03.2013. Chief Justice Islamabad Judge 26.03.2013 Judge                         CMA Nos. 1535 & 1536 of 2013 IN CA Nos. 191-L & 409 of 2010           2008        CA  CA No. 191-L of 2010             No. 409/2010      1         2       1        2                                   2013   26                   25-03-2013       1170      (CMA 1557/13)                   2008             69                                     34       27                                                                 11-05-13          2                                             218(3)                                            Federal Supervision of the Curricula              Textbooks and Maintenance of Standards of Education Act, 1976   D.773/76-JEA,(CW), dated 04.12.1976           3              (IBCC)                                                              3                                                                 Representation of the People Act, 1976       4                         14(1)                                        12                                                     14(5)                                                           14(5A)                  5                                                                                                       5                             19-A  1973                               19-A                                                                  SOP     218(3)        2013   28   6       2013   26

{'id': 'C.M.A.1535_2013.pdf', 'url': ''}

{'id': 'C.M.A.1535_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan CMA No.1652/2013 in SMC No.16 of 2011 On Court’s Notice: Mr. Qasim Mir Jat, Addl. A.G. Sindh Mr. Zafar Abbas Bokhari, DIG (West), Karachi Mr. Amir Farooqi, SSP (Central), Karachi. Date of Hearing: 29.03.2013 ORDER Iftikhar Muhammad Chaudhry, CJ. The Daily EXPRESS TRIBUNE published a story on March, 23rd, 2013 under caption “WHERE LAW ENFORCERS FEAR TO TREAD: THE ENTRY FEE FOR THESE SPOTS OF KARACHI MAY BE YOUR LIFE”. The publisher had also appended a sketch; contents whereof have shown “NO-GO AREAS ONLY FOR A PARTICULAR ETHNICITY IN TIMES OF ETHNIC VIOLENCE” AND “COMPLETE NO-GO AREAS BECAUSE OF THE PRESENCE OF MILITANTS OR GANGSTERS”. The report and the sketch are hereby made part of the instant proceedings and instead of making reference of its contents it is considered appropriate to reproduce the same in extenso. “Shortly after the armed forces launched the Kalosha II operation in South Waziristan back in 2004, the crocodiles lazing in the murky natural pond in Manghopir got new neighbours. Suddenly, they weren’t the most dangerous residents of the area. Embedded in the increased influx of Mehsud tribesmen coming to Karachi were militants who settled in Pakhtun-dominated areas of the city, attempting to blend in unnoticed. They would soon go on to disrupt the life of the city’s residents – including the crocodiles at Hazrat Khawaja Hassan’s shrine, which was closed for over a month following the bomb attack in 2010 on Abdullah Shah Ghazi’s shrine. “First, the hunters – the law enforcers – used to only get hurt when they dared to put their hands in the den of the lions, the militants. Now it seems as if the lions have come out of the den and are stalking the hunters themselves,” DSP Qamar Ahmed told The Express Tribune. The militants, including Tehreek-e-Taliban Pakistan (TTP) members, now have an iron grip over parts of the city, including Sohrab Goth, Manghopir and Ittehad Town. Over the years, they made increasingly brazen attacks, including one on Sohrab Goth police station on January 29 this year First, the hunters – the law enforcers – used to only get hurt when they dared to put their hands in the den of the lions, the militants. Now it seems as if the lions have 2 come out of the den and are stalking the hunters themselves DSP Qamar Ahmed SHO Ashfaq Baloch of the Manghopir police station admits that it is difficult to impose the writ of the state in his jurisdiction and that standard operating procedures followed by law enforcers elsewhere in the city have to be bent – very drastically. “When a killing occurs somewhere else in the city, a lone constable usually hops onto a motorcycle and speeds off to the scene of the crime. Here, we can’t think of doing that unless we have a death wish,” he said. “We have to make sure our weapons are loaded. Then an entire team, headed by me, gets into a police mobile. Only when we pacify the criminals that we haven’t come to apprehend them can we advance safely to retrieve the body.” SHO Baloch added that he prefers not to send the officers on duty to pick up a body. “We often wait for a body to turn up at one of the hospitals and then head there to question the family and any eyewitnesses.” What about raids and patrols in the area? SHO Baloch shakes his head. DSP Ahmed’s statement seems to suggest that no-go areas in the city will grow organically like cancer. Should we fear that criminals want all-out anarchy where the law of the jungle is followed all over the city? SSP Amir Farooqi, who heads the police’s Orangi division, doesn’t think so. “They don’t want to turn Karachi into a war zone. “They’re here to recruit people and generate funds to send back to their comrades along the tribal belt. Setting the economic hot spot of Pakistan ablaze wouldn’t exactly be conducive for this purpose.” No-go areas only for a particular ethnicity in times of ethnic violence (Orange) 1. Safoora Goth 2. Area near Micassa apartment 3. Area around Old Sabzi Mandi 4. Shireen Jinnah Colony 5. Shah Rasool Colony 6. Hijrat Colony and Sultanabad 7. Memon Goth 8. Sharifabad 9. Kati Pahari 10. Quaidabad 11. Bilawal Shah Noorani Goth 12. Pehlwan Goth 13. Hazara Goth 14. Sherpao Basti 15. Natha Khan Goth 16. Bizerta Lines 17. Delhi Colony 18. Chanesar Goth 19. Ilyas Goth 20. PIB Colony 21. Parts of New Karachi 22. Azizabad 23. Jamali Goth 3 24. Areas along Drigh Road 25. Jackson and docks 26. Khokrapar 27. Mehran Town 28. Parts of Landhi 29. Shershah Complete no-go areas because of the presence of militants or gangsters (Red) A. Pakhtunabad B. Sultanabad C. Ittehad Town D. New Mianwali Colony E. Parts of Lyari F. Macchar Colony G. Settlements in Sohrab Goth H. Shanti Nagar & Dalmia I. Qayyummabad J. Afghan Basti K. Kunwari Colony L. Chota Plaza M. Supermarket area of Sohrab Goth Published in The Express Tribune, March 23rd, 2013”. 4 2. We have issued notice to the Advocate General. In response thereto, Mr. Zafar Abbas Bokhari, DIG (West) Karachi and Amir Farooq, SSP (Central) have entered appearance. Mr. Zafar Abbas, DIG on his own downloaded some maps from the Google Earth. He has handed over the same to the office. In his presence, we have witnessed the different areas shown in the sketch/map as no-go areas for a particular ethnicity and the complete no-go areas. The object of holding the hearing before the date, which has already been fixed i.e. 4th April, 2013 at Karachi, is to judicially bring into the notice to all the law enforcing agencies namely, Rangers, Police, etc. that the lives of the citizens of Karachi are not protected as a consequence of the greater influence of the criminals in the different areas which now is known as partially no-go and complete no-go areas. During the previous hearings held by us at Karachi we were persuaded to hold that there is no no-go area particularly in Lyari. Such statement has been brought on record in writing by a person not less than a D.G. as well as Acting Inspector General of Police. Immediately their stand was contradicted by police officers namely, Najmud DinTareen and Niaz Muhammad Khoso which has been noted in our previous orders. However, in presence of the documentary evidence which either is to be rejected or accepted to hold that there is indeed no-go areas or otherwise and if it is so, then the claim of the citizens of Karachi about their non-protection of lives and properties cannot be denied. However, in view of the response and the prevailing law and order situation, a preliminary purpose and object of the law enforcing agencies is to protect the lives of citizens. 3. Therefore, we direct to the Additional Advocate General to hand over copy of this order alongwith story published in the Express Tribune dated 23rd March, 2013 for its onward circulation to the DG Rangers as well the Inspector General of Sindh Police. It is the duty of the Police to provide protection to the citizens and take them out of the fearful influence of the criminals in the different pockets of the Karachi. Therefore, we direct the I.G. Police that to testify firstly the SHO, DSP and SP of each police station even DSP or SP, who are supervising more than one police station, the contents of the news items or otherwise. If they accept the same, then shall explain as to why this dismal state of affairs exists and also to disclose that why the police force is not controlling the law and order 5 situation. The Additional Advocate General would also hand over copy of his order and appended news items to the DG, Rangers so that he may also make a categorical statement in respect of the partial or complete existence of ‘no-go areas’. The learned Additional Advocate General would also remind him that earlier he had emphatically taken a stance that there is no ‘no-go’ area in Lyari, whereas not only such areas exists in Lyari but also in other parts of the Karachi which correspond with the sketch appended above. The D.G. Rangers shall explain that despite availability of resources and command as to why the law and order situation is not improved not only in Lyari but also in the rest of the areas of Karachi for the last so many years. In the meanwhile, both the Agencies if desired, may take necessary steps to abolish all ‘no-go’ areas for which purpose we have already given two weeks’ time to the concerned agencies. The learned Additional A.G. shall hand over copy of this order to the incumbent Chief Secretary Sindh. To come up on 4th April, 2013 as already announced at Karachi. Chief Justice Judge Judge Judge Judge ISLAMABAD 29.03.2013 M. Azhar Malik

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{'id': 'C.M.A.1652_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Dost Muhammad Khan CMA No.1656 of 2015 in Civil Petition No.2133 of 2014 (Application of Asad Kharal against NAB) Applicant: In person. For the Federation: Mr. Aamir Rehman, Addl. AGP For NAB: Mr. Waqas Qadeer Dar. PG Mr. Akbar Tarar, Addl. PG Mr. Fauzi Zafar, DPG Date of hearing: 22.07.2015 ORDER Jawwad S. Khawaja, J.- We have given a lengthy hearing to this matter today. At the very outset the learned Additional Prosecutor General, NAB acknowledged that 29 major scams (details of which have been mentioned in CMA-4619/15) involving an amount of approximately rupees 500 billion were not reported to the Court earlier. The learned Additional Prosecutor General states that through a letter No.108/Cn. Misc./14/2015/01 dated 27.07.2015 the competent authority in the NAB Headquarters has taken a serious view of the lapse on the part of the four senior functionaries of NAB and has sought a report within seven days. In view of the importance of this letter, the same is reproduced as under:- “Subject: Submission of List of 150 Mega Corruption Cases in Supreme Court of Pakistan The subject list was submitted in the SCP vide CMA No.4366 dated 10th July, 2015. The list was prepared from the cases provided by the Regional NABs who are the custodians of the cases in their respective jurisdictions. A detailed scrutiny of the list indicated that some major cases in the categories of Financial Scams. Land grab & Misuse of Authority were not reported. Conversely some cases of insignificant values have been provided. A supplementary CMA had to be submitted to give a fuller picture in the honourable Court. 2. The competent authority in the NAB HQ has taken a serious view of the lapse on your part. An inquiry be carried out regarding the omission at your end. 3. Report be submitted in 7 days for information of Competent Authority CMA-1656/15 in CP-2133/14 2 -Sd- (Syed Khalid Iqbal), Director General (Operations) 1. Col. (R) Siraj ul Naeem Director General, RNAB, (Karachi) 2. Syed Burhan Ali, Director General, RNAB (Lahore) 3. Major (R) Tariq Mehmood Malik, Director General, RNAB (Balochistan) 4. Mr. Zahid Shah, Director General, RNAB (Rawalpindi)” 2. The federal government was asked previously as to the action, if any, it proposes to take and also to state if the government has knowledge/information about the workings of NAB. Mr. Aamir Rehman, the learned Additional Attorney General for Pakistan has firstly stated that the federal government was unaware of any shortcomings or absence of due diligence within NAB. The reason given by him was that NAB is an independent statutory body and is not required to report to the federal government. We have found this submission to be strange. Firstly, it is to be noted that NAB has been created through legislation called the National Accountability Ordinance, 1999. Section 6(b)(i) of the same stipulates that “there shall be a Chairman NAB to be appointed by the President in consultation with the Leaders of the House and the Leader of the Opposition in the National Assembly…”. 3. What we understand from the submissions of the learned Additional Attorney General is that after making the appointment of Chairman NAB it is not for the government to keep a tab on the workings of NAB. The learned Law Officer, however, stated that it is the Parliament which could take action. The Parliament we note can amend and if thought appropriate, even repeal the statute so we are not impressed by this submission made by the learned Law Officer. We may add that the leader of the House and the leader of the Opposition are heading the treasury and opposition in Parliament, and it is for them to firstly ascertain if NAB is performing its functions in accordance with the statute and if considered appropriate take further action including, where necessary, or propose an amendment in the statute. 4. Secondly, it became evident from the submission of the learned Additional Attorney General that in the government there was no feeling that it was necessary to gather information about the workings of NAB. At this point, the learned Law Officer stated that it was for the people to take action against NAB and they can do so through their chosen CMA-1656/15 in CP-2133/14 3 representatives. We may add that the chosen representatives of the people are members of the two Houses and the consultees of the President in the matter of appointment of Chairman NAB which are the leaders of the House and of the Opposition in the National Assembly. The learned Law Officer acknowledged that the said leaders were also the chosen representatives of the people who could initiate such action. 5. Thirdly, after hearing the learned Additional Attorney General and the learned Additional Prosecutor General NAB, we gather that there appears to be satisfaction on the part of the federation that nothing further is to be done including possible amendment in the National Accountability Ordinance (NAO). He should confirm if this indeed is the case and file a report on the basis of instructions from the government and its senior most/responsible functionaries. 6. Fourthly, we may mention that we had asked NAB to provide a breakdown of the amount of rupees 262 billion which had been statedly recovered by NAB on the basis of voluntary return (VR) or plea bargain (PB). We have been informed by the learned Addl. PG NAB that these details for the cases relating to the year 2008 till date have been uploaded on the website of NAB during the preceding night. We, however, have pointed out to the learned Additional PG that there should be two further columns in the given chart; one mentioning the total amount given in the complaint and the other column indicating the amount determined after investigation. The learned Addl. PG stated that this also shall be done if some time is allowed. 7. The applicant Mr. Asad Kharal drew the attention of the Court to NLC Scam of rupees four billion which is pending with NAB since 2011. The learned Additional Prosecutor General states that he shall submit a separate comprehensive report on this scam and other scams before the next date of hearing. 8. Re-list on 10.08.2015. Judge Judge Islamabad, The 29th July, 2015 M. Azhar Malik/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain CMA No. 1674/13 in Constitution Petition No. 105/2012 and Const. P. 104/12 and CMA 3464/12 AND Constitution Petition No. 105/12 alongwith CMAs 3795 & 3798 of 2012, HRC No. 23957-S/12 and Const. P. 53/2012 AND Constitution Petition No. 117/12. Mir Hamid and another. … Petitioner(s) Versus Federation of Pakistan etc. … Respondent(s) For the petitioner(s): Hamid Mir, & Absar Alam (both inperson) For the petitioner(s): Mr. Muhammad Akram Sheikh Sr. ASC & (In Const.P.53/12) Dr. Tariq Hassan, ASC Syed Safdar Hussain, AOR For the petitioner(s): Nemo (In Const.P.104/12) For the petitioner(s): Nemo (In Const.P.117/12) For the respondent-1: Mr. Nasir Jamal, DG & Rashid Ahmed (Secy.) Muhammad Azam (Press Information Officer) For the respondents, 2-3: Mr. Hasnain Ibrahim Kazmi, ASC For the respondent, 4: Syed Zahid Hussain Bukhari, ASC For the respondent, 5: Ch. M. Hanif Khatana, Addl. A.G. Pb. For the respondent, 6: Nemo. For the respondent, 7: Mr. Naveed Ihsan & Mr. Asif Hussain. For the respondent, 8: Nemo For the Province of KPK: Syed Arshad Hussain Shah, Addl. A.G. For the Federation: Mr. Dil Muhammad Khan Alizai, DAG For USF: Raja Aamir Abbas, ASC For the respondent-11 & Mr. Yasin Azad, ASC Value TV: Raja Muqsat Nawaz, ASC Mr. Arshad Sharif, Bureau Chief, DUNYA TV. Mr. Ghulam Nabi, President, Press Association SC. Mr. M. Hanif Awan, in person (CMA 3464/12) Nemo (HRC 23957-S/12) For ECP Mr. Ishtiaq Ahmed Khan, Secretary Const. P. 105 of 2012 etc. 2 For M/s Vision Network: Mr. Adnan Iqbal Chaudhry, ASC For M/s AURORA: Mr. Munir A. Malik, Sr. ASC For Express TV: Nemo. For VIVE TV: Nemo For PTV: Mr. Shahid Mehmood Khokhar, ASC For Punjab TV: Nemo. For PEMRA: Hafiz S.A. Rehman, Sr. ASC (In Const.P.104/12) For Airways Media: Nemo. For ARY: Nemo. For Cable Operators: Dr. Amjad Hussain Bukhari, ASC For Pakistan Broadcasters: Nemo. (In CMA 3464/12) Mr. M. S. Khattak, AOR For Indus Television: Tariq Ismail. Date of hearing: 02.04.2013 O R D E R. Jawwad S. Khawaja, J. On 28.3.2013, we had passed an order wherein it had been noted that the two-Member Commission appointed by the Court had submitted its report on ToR No. F. This ToR mandated the Commission “to enquire into allegations of media related corruption and suggest steps to ensure impartial and independent media for the upcoming elections”. The report on ToR No.F is dated 21.3.2013. Notice was issued to the Election Commission of Pakistan. Mr. Ishtiaq Ahmad Khan, Secretary ECP has appeared. He states that the ECP is already seized of the matter relating to the media Code of Conduct particularly in the context of the forthcoming elections. A draft Code of Conduct has been prepared by the ECP whereas another draft has been proposed by the media bodies and personnel. The ECP is considering these two draft Codes of Conduct. The report on ToR No. F, which has been filed in Court by the worthy Commission, shall also be handed over to the ECP and the parties in these proceedings. The ECP shall, therefore, take into consideration, in its deliberations, the report/recommendations of the Commission while finalizing the Code of Conduct for the media. Since the activities in relation to the elections have already commenced wherein political parties and others are actively engaged, it is our expectation that the ECP shall revise and issue its Code of Conduct. According to the Secretary, ECP, this exercise shall be completed within one week from today. Order accordingly. Const. P. 105 of 2012 etc. 3 2. Vide order dated 20.12.2012, we had directed that the Ministry of Information and Broadcasting shall submit details of the secret funds in Court. We had also observed that, if at all, the Ministry claimed privilege against disclosure of information, it shall disclose the basis for claiming such privilege. Para 13 of our order dated 20.12.2012 was passed in the following terms:- “Prima facie, while the Ministry may claim privilege from making public disclosure of certain parts of its budget, such privilege is not automatically available to the Government. It must be claimed from the Court. Information for which secrecy is sought must be clearly marked and the reasons for seeking secrecy must also be clearly stated. The Court can then make a determination on this point in line with the law and the Constitution”. The Ministry shall do the needful before the next date of hearing. 3. Other Ministries also statedly were utilizing funds without disclosure. We have also received an application (H.R.C No.12076-S/2013) wherein it has been alleged that a summary has been approved for making payment of very heavy amounts for the purpose of advertisements in a media campaign. It is also alleged that these funds are likely to be disbursed in violation of rules. It has been further alleged that the summaries in respect of disbursement of substantial amounts was approved after the expiry of the term of the previous government. The learned DAG shall ascertain the correct factual position and submit a report before the next date of hearing. Until the next date of hearing, disbursement to any advertising agent/media house shall not be made. The learned DAG shall provide particulars of any such summaries which may have been approved starting from 10.3.2013. 4. To come up on 8.4.2013. Judge Judge Islamabad, 2nd April,2013 A.Rehman

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{'id': 'C.M.A.1674_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE SYED MANSOOR ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 (CMAs have been filed seeking permission to file and argue the civil petitions) (On appeal against the judgment dated 12.02.2021 passed by the High Court of Sindh, Karachi in Constitutional Petition Nos. D-7382/2019, D-7625/2019, D-7809/2019, D-4704/2020 & D- 5755/2020) Ghayasuddin Shahani etc (In CMA 1824/2021) Abdul Ghani etc (In CMA 2357/2021) Mohammad Yaseen etc (In CMA 2358/2021) Mukhtiar Ahmed etc (In CP 802/2021) Rahamdil etc (In CP 979/2021) …Applicants/Petitioners VERSUS Akhtar Hussain etc (In CMA 1824/2021) Qadir Bux etc (In CMA 2357/2021) Abdul Majeed etc (In CMA 2358/2021) Province of Sindh through Chief Secretary etc (In CP 802/2021) Shah Murad etc (In CP 979/2021) …Respondent(s) For the Applicants / Petitioners: Mr. M.M. Aqil Awan, Sr. ASC (In CMAs 1824, 2357 & 2358/2021 & CP 979/2021) For the Petitioners: Mr. Mukhtiar Ahmed, petitioner No. 1 in person For Respondent (1-8): Mr. Javed A. Khan, ASC (In CMA 1824/2021) For other Respondents: N.R. Date of Hearing: 19.05.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358/ 2021 IN CIVIL PETITION NOs. NIL/2021 1. Subject to all just exceptions, these CMAs are allowed. Let the petitions be numbered and fixed today. CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 -: 2 :- CIVIL PETITION NOs. 3111, 3112, 3113, 802 & 979/2021 2. Through these petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the legality of the judgment of the High Court of Sindh dated 12.02.2021 whereby the Constitutional Petitions filed by the respondents were ‘disposed off’ while directing the Health Department, Government of Sindh to follow the instructions issued therein strictly in accordance with law in the interest of safe dispensation of justice. 3. Briefly stated the facts of the matter are that an advertisement was published in the newspapers on 22.03.2018 wherein 1733 vacancies of Vaccinators (BPS-6) were announced by the Health Department, Government of Sindh in order to expand the program on ‘immunization’ in Sindh and as such applications were invited from the residents of the union councils where the posts exist. As per the contents of the advertisement, the basic qualification for induction as Vaccinator was matric or equivalent, however, preference was to be given to the candidates seized with vaccination certificate from a recognized institute. The passing marks were prescribed as 60. However, during the process, only 1611 candidates could meet the criterion of obtaining 60 or higher marks. In order to fill the remaining vacancies, the Health Department under the directions of Minister for Health, Government of Sindh relaxed the criterion of 60 marks to 55 marks and thereby the number of qualified persons arose to 3245. Thereafter, a Selection Committee headed by the Additional Chief Secretary (Health), Additional Secretary (Services), SGA&CD and Project Director EPI was constituted vide notification dated 19.12.2018. It is noteworthy that during the process, the Additional Secretary (Services), SGA&CD did not participate in the selection process by absenting himself from interviews of the candidates. The final selection was made on the recommendation of the two members’ committee, as a consequence of which, a list was prepared and finally 1733 candidates including the petitioners were appointed. Some of the candidates who could not succeed during selection, being aggrieved, challenged the selection process before the High Court of Sindh by filing the Constitutional Petitions, which have been disposed of vide impugned judgment with following observations/directions:- a) All the successful candidates who obtained 60 marks and above in the written test conducted by NTS (1611 CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 -: 3 :- candidates) are required to undergo a fresh interview by the committee constituted by the competent authority vide notification dated 07.08.2019; and, the rest of posts shall be re-advertised in accordance with the recruitment rules. AND b) The appointment of successful candidates in the interview is subject to Union wise seats as outlined in the terms of advertisement published in daily newspapers dated 33.2.2018. AND c) The competent authority is directed to establish an Institute for training of Vaccinators within three (03) months. In the meanwhile, the successful candidates of the interview are required to undergo training of Vaccinator for the post within a reasonable time from any recognized institute of Nursing and/or Government Hospital before administering the subject vaccine to the public at large. d) The petitioners who obtained less than 60 marks have to participate in fresh recruitment process, thus their petition(s) stand dismissed.” 4. The petitioners being not satisfied with the outcome of the Constitutional Petitions have challenged the same before this Court by filing the present civil petitions for leave of the court. 5. At the very outset, learned counsel for the petitioners contended inter alia that the petitioners were appointed as Vaccinators after due process of appointment but they were neither arrayed as respondents before the High Court of Sindh nor provided an opportunity of hearing and were condemned unheard; that the impugned judgment is not sustainable in the eyes of law as the same is devoid of due process and has violated the salutary principle of natural justice; that since there was no such institute in existence, which could give training for vaccination and issue certificate, the condition precedent in the advertisement to this effect was unjustified and as such the same cannot be made basis for discarding the credentials of the candidates; that the selection of candidates union wise is uncalled for as this has to be on a larger canvas i.e. district wise or provincial level. He lastly prayed for interference by this Court by setting aside the judgment impugned before us. 6. Mr. Mukhtiar Ahmed, petitioner, who appeared in person adopted the arguments advanced by Mr. M.M. Aqil Awan, learned counsel for the petitioners. He added that he has been discriminated on flimsy grounds, which are not sustainable and as such he has a right to be retained in service. He lastly stated that till the finalization of the CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 -: 4 :- process of selection in pursuance of the observations/directions of the High Court, no adverse order may be passed against him. 7. We have heard learned counsel for the petitioners and petitioner in person at some length and have gone through the available record. 8. The moot points for consideration of this Court are as under:- (i) whether the process of appointment was according to the criterion set out in the advertisement; (ii) whether the process of appointment was transparent and all codal formalities justiciable under the law were followed; (iii) whether the observations/directions issued by the High Court have encroached upon the ‘legal rights’ of the petitioners without providing them an opportunity of hearing; and (iv) whether the observations/directions issued by the High Court would actually sensitize the appointment process with transparency/clarity of process for the entire satisfaction of the candidates. 9. As far as the basic qualification for induction as vaccinator is concerned, it is not disputed. There are certain reservations qua possessing of the vaccination certificate as it is an admitted fact that till finalization of appointment process there was no institute available in Province of Sindh exclusively for this purpose. However, there are other quarters working under the Health Department i.e. DHO Office with the collaboration of District Headquarter Hospital where this training process is available as such it cannot be denied straightaway that there is no such arrangement to get vaccination training to meet the requirement as disclosed in the advertisement. The learned High Court took notice of a summary dated 03.05.2019 moved to the Chief Minister Sindh by Secretary Health wherein certain observations of the Services Wing on the process of recruitment were mentioned i.e. (i) the recruitment rules for the post of Vaccinator require qualification of matric together with certificate in vaccination from a recognized institute CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 -: 5 :- whereas in the advertisement the certificate in vaccination has been published as preference instead of mandatory, (ii) the threshold of minimum marks has been reduced from 60 marks to 55 marks without any approval/justification, (iii) a number of candidates have been declared ‘failed’ or not selected despite having secured more marks in the recruitment test than the candidates declared as selected by the Selection Committee, and (iv) few candidates who secured passing or more than passing marks have been declared as “does not read/write”. Upon these discrepancies found in the recruitment process, the Selection Committee was reconstituted by the competent authority and it was decided that the threshold of minimum marks as 60 shall be adhered to and no relaxation in this regard will be allowed and the condition of certificate in vaccination from recognized institute shall be compulsory and not relaxable as the same is requirement of Rules for the post of vaccinator. However, no re-interview was done by the department and the selection process was completed as was undertaken by the earlier Selection Committee. We have noticed that the learned High Court after detailed scrutiny and inquiry has only identified certain flaws in the recruitment process and directed for removal of those flaws. The impugned judgment is not against the petitioners rather it only bounds the department to strictly follow the criterion laid down in the advertisement for the appointment of vaccinators. The High Court has addressed to all the issues those were brought forth in the recruitment process. The recommendations made by the High Court are in furtherance of clarity in the process and certainly would defeat any chance of nepotism, favourtism and undue enrichment of individuals. The learned High Court has also directed to establish an institute for training of vaccinators and in the meanwhile, the successful candidates of the interview have been required to undergo training of vaccinator. This direction of High Court was specifically very timely and beneficial to public at large when these vaccinators are primarily to deal with infants and young generation. As far as other limb of queries is concerned, those are interconnected, hence are pondered upon conjointly. The learned High Court was seized with the extraordinary power under Article 199 of the Constitution of Islamic Republic of Pakistan to entertain any matter if it is brought into notice that any act done by the public functionaries has encroached upon the basic rights of the people as enshrined in the Constitution of Islamic Republic of CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF 2021 -: 6 :- Pakistan. No fundamental right of the petitioners has been infringed because the recruitment process was initiated through advertisement with certain terms and conditions and only those who fulfill those conditions are eligible to be appointed. So far as the argument of learned counsel for the petitioners that the appointment cannot be made according to union council basis is concerned, the basic purpose of Expanded Program on Immunization (EPI) was to control the spread of Vaccine Preventable Diseases among infants/children and this target cannot be achieved unless it goes to grass roots level, which means that it needs to be spread over the union council level by making appointments of the vaccinators from the concerned union councils enabling the public at large to be benefited from it. Secondly, it was specifically mentioned in the advertisement that applicant must be resident of the same union council and it has time and again been held by this Court that whatever the terms of the advertisement are the appointments must follow the criterion as disclosed therein without any departure so that no one can raise any objection regarding its transparency. 10. For what has been discussed above, we are of the considered view that the learned High Court has passed a well reasoned judgment to which no exception can be taken. These petitions having no merit are accordingly dismissed and leave to appeal is refused. 11. The above are the detailed reasons of our short order of even date. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 19th of May, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain CMA No. 19002/2012 in CONSTITUTION PETITION No. 77 OF 2010. President Balochistan High Court Bar Association … PETITIONER VERSUS Federation of Pakistan, etc. … RESPONDENTS For the petitioner(s) Malik Zahoor Shahwani, Advocate/President Balochistan High Court Bar. Mr. Sajid Tareen, Advocate/Vice President Sardar Akhtar Jan Mengal For the applicants: Mr. Nasarullah Baloch (CMA 178-Q/2012) Mr. Mahmood A. Sheikh, AOR Ms. Tehniat Zahra, Adv./Member PIHRO (CMA 3966/2012) For SCBAP: For Fed. of Pakistan: Mr. Irfan Qadir, Attorney General for Pakistan For M/o Defence: Commander Hussain Shahbaz, Dir(L) For M/o Interior: Mr. Munir Piracha, ASC Mr. Masoodur Rehman Tanoli, Dir. NCMC For Govt. of Balochistan: Mr. Amanulah Kanrani, A.G. Mr. Azam Khatak, A.A.G. Mr. Babar Yaqoob Fateh Muhammad, Chief Secy. For IG FC: Raja Muhammad Irshad, Sr. ASC For FBR: Rana M. Shamim, ASC Date of hearing : 27.09.2012 Cont Pet 77-2010 2 O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. Sardar Akhtar Jan Mengal, former Chief Minister and Head of Balochistan National party, in pursuance of direction of this Court dated 20.09.2012 appeared to assist the Court to resolve the issue of missing persons and target killings of the citizens in the Province of Balochistan. He briefed the Court by making oral submissions and also placed on record extract from the book titled Zulfiqar Ali Bhutto – Afwah aur Haqiqat composed by Altaf Ahmad Qureshi. He has suggested different ways and means to resolve the issues, which are being faced by the residents of the Province. He has also placed on record a statement in writing under his signature, one of the Paras along with suggestions thereof reads as under: - “Before initiating a meaningful process of conflict resolution it is imperative that the Government of Pakistan should take and practically implement some measures which are must to build a conducive atmosphere for Baloch reconciliation process: - (1) All covert and overt military operations against the Baloch should immediately be suspended. (2) All missing persons should be procured before a court of law. (3) All proxy death squads operating under the supervision of Inter Services Intelligence (ISI) and Military Intelligence (MI) should be disbanded. (4) Baloch political parties should be allowed to function and resume their political activities without any interference from intelligence agencies. Cont Pet 77-2010 3 (5) Persons responsible for inhuman torture, killing and dumping of dead bodies of the Baloch political leaders and activists should be brought to justice. (6) Measures should be taken for the rehabilitation of thousands of displaced Baloch living in appalling condition. After taking the above mentioned confidence building measures, a meaningful negotiation between the recognized and genuine representatives of the Baloch and military establishment could take place to decide the future relationship of Balochistan.” 2. On 19.09.2012, we had asked the Chief Secretary, Government of Balochistan to bring the issues highlighted therein into notice of the Prime Minister (Chief Executive), Governor, Chief Minister of Balochistan as well as the heads of the agencies. Although he had meetings with the said functionaries, but it seems that so far no fruitful results have come out. Be that as it may, as the matter is pending, and is now likely to be concluded, therefore, we direct him that he should bring the above suggestions of Sardar Akhtar Jan Mengal into the notice of the concerned authorities, including, Prime Minister, Heads of ISI, MI, IB, etc. As the Chief Secretary along with Inspector General of Police has traveled all the way from Quetta and realizing the importance of the issues and the hearing of the case before this Court, he may discuss the issue as already directed by this Court vide order referred to above, and the suggestions which Sardar Akhtar Jan Mengal has made today in Court keeping in view the previous general situation in the Province of Balochistan, and give us the reaction in black and white of all those functionaries on 28.09.2012. Cont Pet 77-2010 4 3. We place on record our thanks and appreciation for Sardar Akhtar Jan Mengal who has come forward to provide assistance to this Court for the purpose of resolving the issues raised in the petition moved by the High Court Bar Association. CHIEF JUSTICE JUDGE JUDGE Islamabad, 27th September, 2012

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In the Supreme Court of Pakistan (Appellate Jurisdiction) Order Sheet Civil Misc. Appeal No.193 of 2013 in Civil Review Petition No. Nil of 2013 in Constitution Petition No.8 of 2009 General (R) Pervaiz Mushrraf Appellant Versus Nadeem Ahmed (Advocate) & others Respondents Prayer: “that this appeal may kindly be allowed and the Review Petition may kindly be ordered to be entertained.” 8.1.2014 Syed Sharifuddin Pirzada, Sr. ASC Raja Muhammad Ibrahim Satti, Sr. ASC Order While examining this review petition on behalf of General (Retd) Pervaiz Mushrraf against the judgment dated 31.7.2009, passed in Constitution Petition No.8 of 2009, the office has raised following objections with regard to its maintainability:- i. Scandalous language has been used against the Hon’ble Judges of this Court at so many places in this Review Petition, therefore it cannot be entertained under Order XVII, Rule 5 of the Supreme Court Rules, 1980. ii. As per certificate of the AOR this is second Review Petition against the order under Review dated 31.07.2009 passed in Constitution Petition No.08/2009, first Review Petition was dismissed vide judgment reported as PLD 2010 SC 483. Therefore, it is not entertainable under Order XXVI Rule 9 of Supreme Court Rules, 1980. iii. It is mentioned in this Review Petition that it has been drawn by Syed Sharif ud Din Pirzada, Sr.ASC, Raja Muhammad Ibrahim Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC, Sahibzada Ahmed Raza Civil Misc. Appeal No.193 of 2013 2 Khan Qasuri, Sr.ASC, Barrister Dr. Muhammad Ali Saif, ASC and Rana Ijaz Ahmad, ASC, however, it has not been signed by Syed Sharif ud Din Pirzada, Sr.ASC. iv. Certificate of fitness of Review Petition has only been signed by Raja Muhammad Ibrahim Satti, Sr.ASC instead of having been signed by all the counsel who have drawn this Review Petition which is essentially required under Order under Order XXVI Rule 4 of Supreme Court Rules, 1980. v. An application for exemption to the requirements of Order XXVI Rule 6 has been filed. In this Review Petition and permission has been sought that petitioner may be allowed to engage Raja Muhammad Ibrahim Satti, Sr.ASC in this Review Petition. However, this Review Petition has been mentioned to have been drawn by Syed Sharif ud Din Pirzada, Sr.ASC, Raja Muhammad Ibrahim Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC, Sahibzada Ahmed Raza Khan Qasuri, Sr.ASC, Barrister Dr. Muhammad Ali Saif, ASC and Rana Ijaz Ahmad, ASC. vi. It has been mentioned in this Review Petition that Petitioner was not party in Constitution Petition No.08/2009 order passed in which is sought to be reviewed through this Review Petition and no application for permission to the petitioner to file this Review Petition has been filed. vii. Party names cannot be verified as paper books of Constitution Petition No.08/2009 have not been filed. viii. Misc. Application for staying the proceedings of High Treason Trial before the Special Court is misconceived in this Review Petition. ix. Instead of 14 Paper books only four paper books of Review Petition have been filed. 2. I have heard the arguments of Raja Muhammad Ibrahim Satti, learned Sr. ASC on behalf of the appellant. He candidly stated that so far as the office objections No.iii, v, vi, vii & ix are concerned, their compliance will be made by the appellant’s AOR within two days time; so far as office objections No.i, ii & viii are concerned, those are of the nature which are to be considered and decided by the Court while hearing the case, and so far as office objection No.iv is concerned, due to filing of certificate of fitness of the review petition by him under Order XXVI Rule 4 of the Supreme Court Rules 1980, such objection is not maintainable and liable to be overruled. Civil Misc. Appeal No.193 of 2013 3 3. After careful examination of the case record, particularly, the reply to these objections contained in the memos of appeal, I find submissions of the learned Sr. ASC quite fair, just and equitable. Accordingly, office objection No.iv is overruled; two days’ time is allowed for compliance of office objections No.iii, v, vi, vii & ix, while the office objections No.i, ii & viii are ordered to be placed before the Court at the time of hearing of review petition. Title appeal against the order of the Registrar is accordingly disposed of. (Anwar Zaheer Jamali) Judge In the Supreme Court of Pakistan (Appellate Jurisdiction) Order Sheet Civil Misc. Appeal No.194 of 2013 in Civil Review Petition No. Nil of 2013 in Constitution Petition No.9 of 2009 General (R) Pervaiz Mushrraf Appellant Versus Sindh High Court Bar Association and others Respondents Prayer: “that this appeal may kindly be allowed and the Review Petition may kindly be ordered to be entertained.” 8.1.2014 Syed Sharifuddin Pirzada, Sr. ASC Raja Muhammad Ibrahim Satti, Sr. ASC Order While examining this review petition on behalf of General (Retd) Pervaiz Mushrraf, against the judgment dated 31.7.2009 passed in Constitution Petition No.9 of 2009, the office has raised following objections with regard to its maintainability:- i. Scandalous language has been used against the Hon’ble Judges of this Court at so many places in this case, therefore it cannot be entertained under Order XVII, Rule 5 of the Supreme Court Rules,1980. ii. As per certificate of the AOR this is second Review Petition against the order under Review dated 31.07.2009 passed in Constitution Petition No.09/2009, first Review Petition was dismissed vide judgment reported as PLD 2010 SC 483. Therefore, it is not entertainable under Order XXVI Rule 9 of Supreme Court Rules, 1980. iii. It is mentioned in this Review Petition that it has been drawn by Syed Sharif ud Din Pirzada, Sr.ASC, Civil Misc. Appeal No.194 of 2013 2 Raja Muhammad Ibrahim Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC and Barrister Dr. Muhammad Ali Saif, ASC however, it has not been signed by Syed Sharif ud Din Pirzada, Sr.ASC. iv. Certificate of fitness of Review Petition has only been signed by Raja Muhammad Ibrahim Satti, Sr.ASC instead of having been signed by all the counsels who have drawn this Review Petition which is essentially required under Order under Order XXVI Rule 4 of Supreme Court Rules, 1980. v. An application for exemption to the requirements of Order XXVI Rule 6 has been filed, in this Review Petition and permission has been sought that petitioner may be allowed to engage Raja Muhammad Ibrahim Satti, Sr.ASC in this Review Petition. However, this Review Petition has been mentioned to have been drawn by Syed Sharif ud Din Pirzada, Sr.ASC, Raja Muhammad Ibrahim Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC and Barrister Dr. Muhammad Ali Saif, ASC. vi. Petitioner was not party in Constitution Petition No.09/2009 order passed in which is sought to be reviewed through this Review Petition and no application for permission to the petitioner to file this Review Petition has been filed. vii. Misc. Application for staying the proceedings of High Treason Trial before the Special Court is misconceived in this Review Petition. viii. Instead of 14 Paper books only four paper books of Review Petition have been filed.” 2. I have heard the arguments of Raja Muhammad Ibrahim Satti, learned Sr. ASC on behalf of the appellant. He candidly stated that so far as office objections No.iii, v, vi & viii are concerned, their compliance will be made by the appellant’s AOR within two days time; so far as office objections No.i, ii & vii are concerned, those are of the nature which are to be considered and decided by the Court while hearing the case, and so far as office objection No.iv is concerned, due to filing of such certificate of fitness for review petition under Order XXVI Rule 4 of the Supreme Court Rules 1980 by him, such objection is misconceived and liable to be overruled. Civil Misc. Appeal No.194 of 2013 3 3. After careful examination of the case record, particularly, the reply to various objections contained in the memo of appeal, I find the submissions of the learned Sr. ASC quite fair, just and equitable. Accordingly, office objection No.iv is overruled; two days’ time is allowed for compliance of office objections No.iii, v, vi & viii, while the office objections No.i, ii & vii are ordered to be placed before the Court alongwith the review petition. Title appeal against the order of the Registrar is accordingly disposed of. (Anwar Zaheer Jamali) Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ (in Chambers) C.M.A. 2012 OF 2023 IN C.M. APPEAL NO. 81 OF 2021 The President of Pakistan and others Versus Justice Qazi Faez Isa C.M. APPEAL 81 OF 2021 IN C.R.P. NO. 296 OF 2020 IN CONST. P. 17 OF 2019 The President of Pakistan and others Versus Justice Qazi Faez Isa C.M.A. 2013 OF 2023 IN C.M. APPEAL NO. 82 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Sindh High Court Bar Association through its President C.M. APPEAL 82 OF 2021 IN C.R.P. NO. 297 OF 2020 IN CONST. P. 24 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Sindh High Court Bar Association through its President C.M.A. 2014 OF 2023 IN C.M. APPEAL NO. 83 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Mrs. Sarina Isa Wife of Qazi Faez Isa CMA NO. 2012 OF 2023 ETC. 2 C.M. APPEAL 83 OF 2021 IN C.R.P. NO. 298 OF 2020 IN CONST. P. 17 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Mrs. Sarina Isa wife of Qazi Faez Isa C.M.A. 2015 OF 2023 IN C.M. APPEAL NO. 84 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Supreme Court Bar Association, Islamabad through its President and another C.M. APPEAL 84 OF 2021 IN C.R.P. NO. 299 OF 2020 IN CONST. P. 19 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Supreme Court Bar Association, Islamabad through its President and another C.M.A. 2016 OF 2023 IN C.M. APPEAL NO. 85 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Muhammad Asif Reki, President Quetta Bar Association, Quetta and another C.M. APPEAL 85 OF 2021 IN C.R.P. NO. 300 OF 2020 IN CONST. P. 23 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Muhammad Asif Reki, President Quetta Bar Association, Quetta and another CMA NO. 2012 OF 2023 ETC. 3 C.M.A. 2017 OF 2023 IN C.M. APPEAL NO. 86 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Shahnawaz Ismail, Vice Chairman, Punjab Bar Council, Lahore and another C.M. APPEAL 86 OF 2021 IN C.R.P. NO. 301 OF 2020 IN CONST. P. 32 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Shahnawaz Ismail, Vice Chairman, Punjab Bar Council, Lahore and another C.M.A. 2018 OF 2023 IN C.M. APPEAL NO. 87 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Balochistan Bar Council, through Vice Chairman Balochistan High Court, Quetta and others C.M. APPEAL 87 OF 2021 IN C.R.P. NO. 308 OF 2020 IN CONST. P. 25 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Balochistan Bar Council, through Vice Chairman, Balochistan High Court, Quetta and others C.M.A. 2019 OF 2023 IN C.M. APPEAL NO. 88 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Pakistan Federal Union of Journalists (PFUJ) through its Secretary General, Islamabad and others CMA NO. 2012 OF 2023 ETC. 4 C.M. APPEAL 88 OF 2021 IN C.R.P. NO. 309 OF 2020 IN CONST. P. 34 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Pakistan Federal Union of Journalists (PFUJ) through its Secretary General, Islamabad and others C.M.A. 2020 OF 2023 IN C.M. APPEAL NO. 89 OF 2021 The President of Pakistan through Secretary to the President, Islamabad and others Versus Pakistan Bar Council through its Vice Chairman, Islamabad and others C.M. APPEAL 89 OF 2021 IN C.R.P. NO. 509 OF 2020 IN CONST. P. 21 OF 2019 The President of Pakistan through Secretary to the President, Islamabad and others Versus Pakistan Bar Council through its Vice Chairman, Islamabad and others C.M.A. 2021 OF 2023 IN C.M. APPEAL NO. 90 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Justice Qazi Faez Isa and others C.M. APPEAL 90 OF 2021 IN C.R.P. NO. 296 OF 2020 IN CONST. P. 17 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Justice Qazi Faez Isa and others CMA NO. 2012 OF 2023 ETC. 5 C.M.A. 2022 OF 2023 IN C.M. APPEAL NO. 91 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Sindh High Court Bar Association through its President C.M. APPEAL 91 OF 2021 IN C.R.P. NO. 297 OF 2020 IN CONST. P. 24 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Sindh High Court Bar Association through its President C.M.A. 2023 OF 2023 IN C.M. APPEAL NO. 92 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Mrs. Sarina Isa wife of Qazi Faez Isa and others C.M. APPEAL 92 OF 2021 IN C.R.P. NO. 298 OF 2020 IN CONST. P. 17 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Mrs. Sarina Isa wife of Qazi Faez Isa and others C.M.A. 2024 OF 2023 IN C.M. APPEAL NO. 93 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Supreme Court Bar Association, Islamabad through its President and others C.M. APPEAL 93 OF 2021 IN C.R.P. NO. 299 OF 2020 IN CONST. P. 19 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Supreme Court Bar Association, Islamabad through its President and others CMA NO. 2012 OF 2023 ETC. 6 C.M.A. 2025 OF 2023 IN C.M. APPEAL NO. 94 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Muhammad Asif Reki President Quetta Bar Association and others C.M. APPEAL 94 OF 2021 IN C.R.P. NO. 300 OF 2020 IN CONST. P. 23 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Muhammad Asif Reki President Quetta Bar Association and others C.M.A. 2026 OF 2023 IN C.M. APPEAL NO. 95 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Shahnawaz Ismail Vice Chairman, Punjab Bar Council, Lahore and others C.M. APPEAL 95 OF 2021 IN C.R.P. NO. 301 OF 2020 IN CONST. P. 32 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Shahnawaz Ismail Vice Chairman, Punjab Bar Council, Lahore and others C.M.A. 2027 OF 2023 IN C.M. APPEAL NO. 96 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Balochistan Bar Council through its Chairman, Quetta and others C.M. APPEAL 96 OF 2021 IN C.R.P. NO. 308 OF 2020 IN CONST. P. 25 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Balochistan Bar Council through its Vice Chairman, Quetta and others CMA NO. 2012 OF 2023 ETC. 7 C.M.A. 2028 OF 2023 IN C.M. APPEAL NO. 97 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Pakistan Federal Union of Journalists (PFUJ) through its Secretary General, Islamabad and others C.M. APPEAL 97 OF 2021 IN C.R.P. NO. 309 OF 2020 IN CONST. P. 34 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Pakistan Federal Union of Journalists (PFUJ) through its Secretary General, Islamabad and others C.M.A. 2029 OF 2023 IN C.M. APPEAL NO. 98 OF 2021 Federal Board of Revenue, Islamabad through it Chairman Versus Pakistan Bar Council through its Vice Chairman and Chairman Executive, Islamabad and others C.M. APPEAL 98 OF 2021 IN C.R.P. NO. 509 OF 2020 IN CONST. P. 21 OF 2019 Federal Board of Revenue, Islamabad through its Chairman Versus Pakistan Bar Council through its Vice Chairman and Chairman Executive, Islamabad and others PRAYER :- “that CMAs may kindly be accepted and the appellants may be allowed to withdraw the C.M. Appeals and Curative Review, in the interest of justice.” CMA NO. 2012 OF 2023 ETC. 8 DATE OF HEARING ORDER OF HON’BLE CHIEF JUSTICE 10.04.2023 For the applicant(s)/appellant(s) Mr. Mansoor Usman Awan, Attorney General for Pakistan Ch. Aamir Rehman, Addl. AG . . . . . . . . Through these 18 Civil Misc. Applications the appellants seek the withdrawal of their curative review petitions filed against the Supreme Court’s (“the Court”) decision dated 26.04.2021 given in its review jurisdiction in Justice Qazi Faez Isa Vs. President of Pakistan (PLD 2022 SC 119) (“Subject Judgment”). 2. The facts giving rise to the present withdrawal applications are that by a majority of 6-4 the Court vide the Subject Judgment allowed the review petitions filed by Mr. Justice Qazi Faez Isa and other parties against the decision of the Court dated 19.06.2020 delivered in Justice Qazi Faez Isa Vs. President of Pakistan (PLD 2021 SC 1) (“original judgment”). As a result, certain directions issued to the Federal Board of Revenue and the Supreme Judicial Council by the original judgment were recalled. Aggrieved by the Subject Judgment, the appellants preferred curative review petitions before the Court on 25.05.2021. 3. The Institution Officer raised certain objections on the filing of the curative review petitions. The main objection urged was that the purpose behind seeking a curative review is to avail a second review which is not entertainable under Order XXVI, Rule 9 of the Supreme Court Rules, 1980 (“1980 Rules”). In response to the objections, the appellants filed chamber appeals under Order V, Rule 3 of the 1980 Rules. During the pendency of these appeals on 31.03.2023 the President, whilst acting on the advice of the Prime Minister, granted his authorisation to the concerned CMA NO. 2012 OF 2023 ETC. 9 ASC/AOR for the withdrawal of the curative review petitions filed by the appellants. These withdrawal applications are fixed for decision in Chambers today. 4. The learned Attorney General for Pakistan and the learned Additional Attorney General for Pakistan entered appearance on behalf of the appellants. The rationale behind withdrawing the curative review petitions is reflected in the Federal Cabinet’s decision dated 27.07.2022. Essentially the legal points pressed are: i. That the 1980 Rules prohibit the filing of a second review petition after the final disposal of the first review petition; and ii. That the curative review petitions have been filed on the strength of a judgment delivered by the Indian Supreme Court (“SCI”) in Rupa Ashok Hurra Vs. Ashok Hurra (AIR 2002 SC 1771) wherein the SCI had explicitly recognised its right to ‘re-consider its judgments in exercise of its inherent power.’ However, no pronouncement to such effect has been made by the Court. Hence, the concept of a curative review petition is alien to the laws and jurisprudence of Pakistan and therefore these petitions being not maintainable are liable to be withdrawn. 5. I have heard the learned Attorney General and have also perused the record. The bar on filing a second review petition is declared in the 1980 Rules in the following words: “ORDER XXVI REVIEW ... 9. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.” This bar has also been affirmed by a 5 Member Bench of the Court in Khalid Iqbal Vs. Mirza Khan (PLD 2015 SC 50) at para 12. Therefore, under the current scheme of the law the appellants appear to be precluded from filing a review against the Subject Judgment because it has finally CMA NO. 2012 OF 2023 ETC. 10 disposed of the review petitions filed against the original judgment. 6. Be that as it may, the Court in the past has of its own motion corrected its decisions wherein wrong principles of law have been laid down. In this regard the dictum of the Court in the case of Khalid Iqbal (supra) is illustrative: “13. This, however, does not mean that the jurisdiction of this Court is barred by any restriction placed by the Constitution; there is no Article in the Constitution which imposes any restriction or bar on this Court to revisit its earlier decision or even to depart from them, nor the doctrine of stare decisis will come in its way so long as revisiting of the judgment is warranted, in view of the significant impact on the fundamental rights of citizens or in the interest of public good. This issue was fully comprehended and answered in the case titled Regarding pensionary benefits of the Judges of Superior Courts from the Date of their respective retirements, irrespective of their length of service as such Judges (PLD 2013 SC 829 at page 993). The relevant portions are reproduced herein below:--… 4. … Therefore, if any law which has been invalidly pronounced and declared by this Court, which in particular is based upon ignorance of any provisions of the Constitution, and/or is founded on gross and grave misinterpretation thereof; the provisions of the relevant law have been ignored, misread and misapplied; the law already enunciated and settled by this Court on a specific subject, has not been taken into account, all this, inter alia, shall constitute a given judgment(s) as per incuriam… Therefore, if a judgment or a decision of this Court which is found to be per incuriam… it shall be the duty of this Court to correct such wrong verdict and to set the law right. And the Court should not shun from such a duty… On perusal of the paragraphs referred to hereinabove, we can safely reach a conclusion that this Court has absolute powers to re-visit, to review and or to set aside its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. The Powers of this Court to exercise its inherent jurisdiction under the above referred Articles of the Constitution are not depend[e]nt upon an application of a party.” (emphasis supplied) What becomes apparent from the above-quoted passages is that our jurisprudence recognises the Court’s Suo Motu jurisdiction under Article 184(3) and Article 188 read with Article 187 of the Constitution to re-visit, review or set aside CMA NO. 2012 OF 2023 ETC. 11 its judgments/orders that have finally disposed of the first review petitions. However, such jurisdiction has so far not been invoked by the Court in the present matter. 7. Insofar, as the principle of curative review petitions is concerned, it is not disputed by the appellants that the existence of this jurisdiction has hitherto not been considered by the Court. In fact, all the judgments cited by them in support of their curative review petitions reiterate what has been held above: that a second review is barred by law and that the Court alone is empowered, if so inclined, to re-visit, review or set aside any of its previous judgments/orders. 8. Further a study of the Indian law on curative review reveals that it is a remedy altogether distinct from the Suo Motu exercise of jurisdiction by the Court. Whereas curative review has no standing in our jurisprudence the availability of Suo Motu review has long been accepted by the Court, albeit in the limited circumstances of doing complete justice under Article 184(3) and/or Article 188 read with Article 187 of the Constitution. It is of course clear that both types of judicial interventions, curative review and Suo Motu review, possess a similar purpose i.e., to correct a fundamental error in a previous judgment/order. However, the key difference, inter alia, between the two jurisdictions lies mainly in their mode and manner of invocation. Order XLVIII, Rule 2 of the Supreme Court Rules, 2013 mandates that curative review must be invoked by a party: “Order XLVIII CURATIVE PETITION … 2. (1) The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the Review Petition and that it was dismissed by circulation.” (emphasis supplied) CMA NO. 2012 OF 2023 ETC. 12 On the other hand, Suo Motu review can only be invoked by the Court in its discretion, including on the information received from an aggrieved or concerned party. Therefore, the lack of the proceedings being initiated by a party is inconsequential to the Court’s exercise of Suo Motu jurisdiction. That does not appear to be the case for curative review petitions filed in the SCI. 9. In the present case no Hon’ble Member of the Bench that delivered the Subject Judgment (nor any other Judge of the Court) has so far considered it necessary to re-visit, review or set aside that judgment on the ground that it has had a significant impact on the Fundamental Rights of citizens; or that it is in the interest of the public good; or that it is per incuriam. Consequently, in the absence of such a judicial view and the lack of an enabling jurisdiction that allows an aggrieved or concerned party to file a second review, the appellants curative review petitions appear to be not maintainable. 10. In the above circumstances the ordinary course of action would have been to refer the matter to the Court for a conclusive determination on its maintainability. However, the appellants are now seeking the withdrawal of their curative review petitions. This right of the appellants to withdraw their curative review petitions (and generally of parties to withdraw their cases) is acknowledged by the law [ref: Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh (PLD 2013 SC 1024]. Exceptions to the said rule exist for instance public interest litigation filed under Article 184(3) of the Constitution cannot be withdrawn except with the permission of the Court [ref: Jurists Foundation Vs. Federal Government (PLD 2020 SC 1) at para 6]. But that exception is not applicable to the instant case because it is not litigation in the public interest. Rather the present CMA NO. 2012 OF 2023 ETC. 13 matter emanates from Article 209 of the Constitution which grants the Supreme Judicial Council, and not the Court, the exclusive power to inquire into the misconduct of a Superior Court Judge. Therefore, the appellants retain the unconditional right to withdraw their curative review petitions filed against the Subject Judgment. This result is, however, without prejudice to what has been noted above, namely, that the pendency of proceedings or the presence of a party is not necessary for the Court to exercise Suo Motu jurisdiction. All that is required for the Court to act is cognizable information. 11. The instant Civil Misc. Applications filed by the appellants are accordingly allowed and their curative review petitions are dismissed as withdrawn. Sd/- Umar Ata Bandial Chief Justice APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN ( Review Jurisdiction ) Present: Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel CMAs NO.204 AND 233 OF 2017 IN C.R.P. NO.474 OF 2016. (Review arising out of the judgment dated 26.09.2016 passed by this Court in Const. Petition No.3 of 2014) Shahzada Aslam and others. … Applicants(s) (in both Applications) VERSUS Ch. Muhammad Akram and others (in both Applications)… Respondents For the Applicants : Syed Iftikhar Hussain Gillani, Sr. ASC Mr. Mehmood A. Sheikh, AOR (Absent) For Respondents : Not represented. Date of hearing : 20-01-2017. O R D E R AMIR HANI MUSLIM, J. - CMA 204/2017 in C.R.P 474/2016 in Const. P. 3/2014 Syed Iftikhar Hussain Gillani, learned Sr. ASC has, inter alia contended that if the impugned judgment remains in the field, no Superior Court including this Court, would be able to dispense justice without fear and anxiety. He next contended that the superior judiciary has a special place and immunity under the Constitution of Pakistan and the judiciary is protected from ridicule even in the Parliament of Pakistan but the impugned judgment is being used to malign the Hon’ble Judges at various forums and that the two judgments i.e Muhammad Iqbal and others vs Lahore High Court (2010 SCMR 632) and Asif Saeed vs Registrar Lahore High Court (PLD 1999 Lahore 350), were wrongly overruled by holding them to be per C.M.A.No.233/2017 2 incurim. He prays for the constitution of a larger Bench to examine the points raised by him. 2. We have heard the learned Senior ASC and we are of the considered view that the request for the constitution of a larger Bench will be covered by Order XI of the Supreme Court Rules, 1980 which clearly provides that the constitution of Benches is the domain of the Chief Justice and no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice. We are in agreement with the view taken in the case of In re: M.A. No. 657 of 1996 in Reference Nos. 1 and 2 of 1996 (PLD 1997 SC 80), wherein the request for the constitution of a Full Court Bench was considered and turned down. While dismissing the application, it was observed that this is the exclusive jurisdiction of the Chief Justice to constitute Bench of any number of Judges and it is not at all mandatory or necessary for him to constitute Full Court Bench for hearing of the References. CMA 233/2017 in C.R.P 474/2016 in Const. P. 3/2014 3. On 02.12.2016, when this matter was fixed before a Bench of which the author Judge of the impugned judgment was a Member, Syed Iftikhar Hussain Gillani, learned Sr. ASC contended that in terms of Order XXVI, Rule 8 of the Supreme Court Rules, 1980, this matter is to be placed before the same Bench, which had passed the judgment under review. Therefore, this Court passed the following order on 02.12.2016: “Syed Iftikhar Hussain Gillani, learned Sr. ASC for the review petitioners, submits that in terms of Order XXVI Rule 8 of the Supreme Court Rules, 1980, this matter may be placed before C.M.A.No.233/2017 3 the same Bench, which has passed the judgment under review, as both the other learned Members of the Bench are available. Office to examine and put up the case before the same Bench, subject to its availability.” 4. In pursuance of these directions the office examined the case and a note was put up before the Hon’ble Chief Justice of Pakistan by referring to the Supreme Court Rules. The “Constitution of Benches” of this Court is the sole privilege and prerogative of the Hon’ble Chief Justice of Pakistan envisaged under Order XI of the Supreme Court Rules, 1980. After perusal of the note, the Hon’ble Chief Justice of Pakistan was pleased to direct the office to fix the case before a three Member Bench of which the author judge is a Member. Thereafter, on 09.01.2017 when this case was again fixed for hearing, the following order was passed: “Syed Iftikhar Hussain Gillani, learned Sr. ASC requests time to file objections to the order dated 9.1.2017, passed by the Hon’ble Chief Justice in C.R.P No. 474/2016, whereby he has directed the office to fix the matter before the three member Bench of which the author Judge is a Member. This matter is adjourned to next week; meanwhile, the learned Counsel shall collect the order dated 9.1.2017, from the office.” 5. Now the matter is fixed today for hearing and the learned Counsel has filed CMA No. 233/2017 and has contended that the review Petition can only be heard by the same Bench. In this regard he has referred to the case of Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161). He further contended that the order passed by the Court to fix the matter before the same Bench was a judicial order and it could not be substituted by an administrative order of the Hon’ble Chief Justice of Pakistan. C.M.A.No.233/2017 4 6. We have heard the learned Counsel at length on this point. We are of the considered view that the constitution of Benches is the privilege and prerogative of the Hon’ble Chief Justice of Pakistan. The same was done in accordance with the Rules and even the order of this Court dated 02.12.2016 was subject to examination by the Office of this Court and availability of the same Bench. 7. Before answering the contentions of the learned Counsel for the Petitioners, we would like to reproduce the language of Rule 8 of Order XXVI of the Supreme Court Rules:- “8. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.” 8. The contention of the learned Counsel for the Petitioners that this Rule has been interpreted in the case of Asad Ali vs. Federation of Pakistan (PLD 1998 SC 161) (at page 253) and this Court has held that “a matter is to be heard as far as possible by the same Bench”, is misconceived. Even this judgment, in no way, extends any help to the learned Counsel for the Petitioners, whereas the language of the said Rule and the interpretation given by this Court in the aforesaid case are very much clear and does not mandate that the same Bench should hear the Review Petition. In fact, it states that the same Bench that delivered the judgment needs to hear the matter, but subject to the availability and practicability of the Bench, which in other words suggests that the Review Petition needs to be assigned by the Chief Justice or the office at least before a Bench of which the author Judge is a Member. If the contention of the learned Counsel is accepted, it would lead to anomalous consequences, because C.M.A.No.233/2017 5 hundreds of review petitions are filed and the practice of the nature will deprive the Hon’ble Chief Justice from exercising powers under Order XI, besides it would cause inconvenience to the lawyers and the office. Even the plain reading of Rule 8 of Order XXVI itself does not suggest so. 9. Moreover, Order XXXIII Rule 7 of the Supreme Court Rules provides that “where at any stage of the proceedings in the Court, there has been a failure to comply with these rules, the failure shall be treated as an irregularity and shall not nullify the proceedings or the judgment.” The Rules are procedural in nature and do not confer any right on a party to object the formation of a Bench. We are also fortified by the judgment of this Court in the case of Federation of Pakistan Vs. Muhammad Shahbaz Sharif (PLD 2009 SC 391) wherein this Court was pleased to observe that: “4. The expression “by the same Bench” appearing in the aforereferred provision is qualified by “As far as practicable”. The rotationale for this may not be difficult to discern because the number of applications for review coming up before this Court may be frequent being the apex Court and the remedies of appeal and revision not being available. Since the hearings of this Court are held at the four Branch Registries as well i.e. at Lahore, Karachi, Peshawar and Quetta, it may not be practicable for Member of the same Bench to be available at a Bench in a given time. Perhaps a strict adherence to provisions of “hearing by the same Bench” could seriously affect the functioning of different Benches of this Court. Moreover, the well settled practice and convention of this Court is that an application for review is ordinarily placed before the Bench of which the author Judge or in case of unavailability any other member of the earlier Bench is a Member, so as to ensure that working of that Bench is not interrupted. The Office Order No.P.Reg.99/90 (14)/SCA dated 3-3- 1990 of this Court is reflective of this convention. Since two out of the three Hon’ble Judges of the Bench which passed the judgment under review are part of this Bench and as both of them are authors C.M.A.No.233/2017 6 of the same, the mandate of Order XXVI, Rule 8 of the Supreme Court Rules, 1980, stands substantially complied with. The applications devoid of any merit are accordingly dismissed in limine.” 10. Furthermore, two out of the three Hon’ble Judges of the Bench who had heard the Constitutional Petition and delivered the impugned judgment are on the Bench today. In the case of Government of Punjab Vs. Aamir Zahoor-ul-Haq (PLD 2016 SC 421), the issue of the nature came up before this Court and it was observed that: 17. …..First we will address the objection raised by Mr. Kamran Murtaza, learned ASC for the respondent on the formation of the Bench Rule 8 of Order XXVI of Supreme Court Rules, 1980 stipulates that as far as practical the review will be heard by the same Bench. The Rule provides a flexibility in constitution of the Bench, and rightly so, as there may be situation where the constitution of the same Bench may be impossible for the reason beyond the control of anyone, as in case of retirement of a judge or his indisposition on account of failing health. The objection therefore, is misconceived and accordingly repelled.” 11. The above are the reasons for our short order of even date which reads as under:- “For reasons to be recorded later, the Review Petitions alongwith Civil Misc. Applications No.204/2017 and 233/2017, are dismissed.” Judge Judge Judge Islamabad the, 20th January, 2017. Not approved for reporting. Sohail/**

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{'id': 'C.M.A.204_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Amir Hani Muslim Mr. Justice Khilji Arif Hussain CMA No.209-K of 2014 in C.P. No.152-K of 2011 and CMAs No.657 to 660-K of 2015 and CMA No.869-K of 2015 in CMA No.209- K of 2014. (Report of Karachi Cantonment Board regarding Hoardings and signboards installed with permission and without permission) In attendance: Mr. Salman Talibuddin, Additional Attorney General, Pakistan Mr. Nisar Ahmed Durrani, Advocate General, Sindh Mr. Adnan Karim, Additional Advocate General, Sindh Mr. Mukesh Kumar Karara, Additional Advocate General, Sindh Mr. Yasin Azad, ASC for Karachi Cantonment Board (CMA No.869-K of 2015) Syed Jamil Ahmed, ASC and Mr. Khaleeq Ahmed, ASC for KMC Mr. Nazar Hussain Dhoon, ASC for Defence Housing Authority Mr. Sanaullah Noor Ghouri, ASC for Civil Aviation Authority Mr. Sohail H.K. Rana, ASC for CEO, Karachi Cantonment Rana Manzoor, CEO, Karachi Cantonment Mr. Arfin Zubair Chaudhry, Additional CEO, Clifton, Karachi Mr. Rabnawaz, CEO, Korangi, Karachi Mr. Asif Ameer Khan, CEO Ms. Ayesha Abro, Administrator, DMC Lieutenant Colonel Khadim Hussain Changezi from Station Head Quarter, 5 Core Lieutenant Imranul Haq, Senior Staff Officer, Legal to Commander Karachi Lieutenant Shafiq-ur-Rehman, Assistant Director Legal Services, Naval Mr. Muhammad Aslam Chaudhry, Legal Advisor, Karachi Cantonment CMA 209-K/14 etc. - 2 - 2 Syed Zahid Hussain, Officer Incharge, Control Room Amicus curiae: Mr. Abdul Rehman, Advocate Date of Hearing: 05.5.2016 ORDER Amir Hani Muslim, J. In compliance with the Orders of this Court passed on 10.3.2016, the learned Additional Attorney General for Pakistan has placed before us an interim report reflecting that the meetings held in the Office of the Commissioner Karachi with the object to achieve city-wide uniformity for installation of Billboards and Hoardings. The interim report further reflects that all the stakeholders, who attended the meetings, proposed the amendments in the respective by-laws. The proposed amendments on the subject, annexed with the interim report, read as follows:-  “There are following types of advertisement: 1. Bill Boards/Hoardings : 45‟ x 15‟ (Max. Height 30 feet) 10’ x 20‟ (Max. Height 20 feet) 60’ x 20‟ (Max. Height 60 feet) The total height of hoarding including board should not exceed 80 feet from ground. 2. Pylons / Canopi : 6‟ x 12‟ 3. Bridge Panel : Length as per Bridge & Height not exceeding 10 feet. 4. Panel / Wall Panel : Length as per Area & Width 20 feet 5. LED Screens : Maximum 1200 sq. feet. No other Board within 500 feet.  The Bill Boards / Hoardings on Roof Top and Over Handing on Footpath, Roads and Triangles are not allowed.  Distance of 400 feet between the two bill boards must be maintained.  High marks are not allowed. CMA 209-K/14 etc. - 3 - 3  Apart from Pole Sign, no other type of hoarding should be allowed on Central Median / Triangle / Square and Roundabouts.  Responsible organizations to ensure aesthetic beauty of the city & public safety.  On boundaries of lands, 100 feet be left by each organization on either side.  For pedestrian bridge minimum 3 feet space from walking track be left open for ventilation / security of pedestrian.  Maximum allowed angle is upto 45 Degrees to the road.  Every Contractor shall provide structural plane, stability certificate duly vetted by another Engineer registered with PEC.  Third party insurance shall be carried out by Contractor for each board”. 2. We have inquired from the learned Advocate General Sindh, present in Court, the view point of the Sindh Government on the issue of installation of Billboards and Hoardings on public properties. He has made a statement on behalf of the Sindh Government that no Billboards or Hoardings of any nature can be allowed to be installed on public properties. The learned Additional Attorney General was also of the view that Billboards and Hoardings cannot be installed on the public properties. 3. The term ‘public property’ has wide meaning and, therefore, we would like to clarify it in the order to avoid any ambiguity. The term ‘public property’ shall include the following places: “(i) Roads. (ii) Sidewalks. (iii) Islands in the centre of a road/service lane – including but not limited to „Sponsored Islands‟ whereby the entire Island is maintained by a private person who displays his name and products on the traffic signs. (iv) Overhead Bridges and Underpasses. (v) Overhead pedestrian walkways/bridges. CMA 209-K/14 etc. - 4 - 4 (vi) Roundabouts – including but not limited to „Sponsored Roundabouts‟ whereby the entire Roundabout is maintained by a private person/or any organization who displays his or their name and products on the traffic signs. (vii) Green Belts/Dividers between a road. (viii) Pedestrian lanes. (ix) Nullahs (Storm Water Drains) and the banks of Nullahs (Storm Water Drains) which abut roads. Notes: (i) Traffic signs i.e. signs set up by the Traffic Department providing directions are permissible on these locations but should not be „Sponsored Traffic Signs‟ i.e. Traffic Signs that are sponsored by private persons and display their name and products on the traffic signs. (ii) Signboards located within a plot not listed above but which in any manner “overhang” any of the areas listed above”. 4. We have heard Mr. Abdul Rehman Advocate as amicus, the learned Additional Attorney General for Pakistan, Advocate General Sindh and Administrators of District Town Committees. There is no law which permits K.M.C., D.M.C., Cantonment Boards or any other agency in Karachi to install Billboards or Hoardings on a public property. Such an act on the part of permission granting agency is against the civil rights of the citizens. The civil rights of the citizens cannot be hampered with by erecting the Billboards or Hoardings on the civic amenity meant for the use and benefit of public at large besides such an act would endanger the life and property of the common man. 5. As a first step, we are of the considered view that no Billboard or Hoarding can be permitted to be installed on any public property as defined in the preceding paragraph by any authority under the garb of by- laws which militate the civil rights of the public at large. Therefore, all the CMA 209-K/14 etc. - 5 - 5 concerned authorities are directed to immediately remove all the Billboards/Hoardings installed without permission within their jurisdiction within 15 days from today and report compliance. 6. The Billboards/Hoardings which have been installed in the public properties under any license or lease shall be uprooted by 30th June, 2016 by the concerned advertising agencies which own that poles or displaying materials or by the contractors if they own such material or by the authorities with whose permission the Billboards or Hoardings have been installed. In the intervening period, no permission shall be granted by any of the authority in Karachi to install the Billboard/Hoarding on any portion of public place/property as clarified hereinabove. 7. The learned Additional Attorney General is further directed to hold meetings, within a month, with all the stakeholders who grant permission for installation of such Billboards/Hoardings in Karachi to finalize the amendments in the proposed by-laws applicable beyond the public properties so that city-wide uniformity could be achieved on the one hand and safety measures of the citizens of Karachi shall be ensured on the other hand. The proposed meetings shall be attended by the Advocate General Sindh, as well. The learned Additional Attorney General shall submit report within one month. 8. Copy of this Order be faxed and sent to the Registrar, Sindh High Court for placing it before the learned Chief Justice and all the learned Judges for their information. Office shall also send copies to the learned Amicus Curiae, the learned Additional Attorney General and the learned Advocate General Sindh. CMA 209-K/14 etc. - 6 - 6 9. Office is directed to re-list this matter after 30th June, 2016. All the authorities concerned shall submit their compliance reports in the light of above referred directions. Judge Judge Judge Karachi, the 5th May, 2016

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED CIVIL MISC. APPLICATIONS NO.2134, 2148, 2165 & 2249 OF 2007 & SMC NO.9 OF 2007 AND CONSTITUTION PETITION NO.54 OF 2007 AND HRC NO.3564 OF 2007 AND CRIMINAL ORIGINAL PETITION NO.40 OF 2008 IN CONSTITUTION PETITION NO.56 OF 2007. CMAs No.2134/2007, etc. Prevention from Extra Judicial Killings of Innocent Persons in the Premises of Lal Masjid and Jamia Hafsa. Const.P.No.54/2007. Dr. Akmal Saleemi Vs. Federal Government and others. HRC No.3564/2007. Anonymous Cr.Orig.P.No.40/2008 in Const.P.No.56/2007. Dr. Akmal Saleemi Vs. Kamal Shah and others. For the petitioner: Mr. Tariq Asad, ASC For the Federation: Mr. Zafar Mehmood Mughal, DAG Mr. Tahir Alam, AIG Police, Islamabad For CDA: Raja Abdul Ghafoor, AOR Date of hearing: 04.12.2012. ORDER These matters are pending before this Court since long. We had been issuing directions from time to time to the Police Department to probe into the matter but so far no satisfactory action has been taken. We understand that in the unfortunate incident of Lal Masjid/Jamia Hafsa reportedly a large number of people had lost their lives and the property of the Jamia Hafsa had also been SMC.9/2007, etc. - 2 - damaged. There are allegations and counter-allegations by the police and the complainant, victims and their relatives but in the absence of any concrete evidence and findings, we are of the opinion that it would not be possible to finally conclude this matter. 2. Therefore, it is decided to appoint a Commission, who shall probe into the matter in accordance with the following terms of references:- (i) What were the causes of the incident, which took place at Lal Masjid-Jamia Hafsa in between 2nd July 2007 to 12th July 2007? (ii) How many persons, if any, male or female, civilian or law enforcement agencies personnel lost their lives? (iii) Whether the dead bodies of all the persons, who had lost their lives during the incident, were identified and were handed over to the legal heirs, after observing the codal formalities? (iv) Whether any compensation has been paid to the legal heirs of the victims by the State? (v) Whether any action has been taken under the law against the persons, who were found responsible by the police and if so to what effect? (vi) Whether on the basis of the material collected, it is possible at this stage to fix the responsibility upon the personnel of security agencies or other individuals responsible for the incident? (vii) Is there any person(s), male or female, who was reportedly missing during the incident? SMC.9/2007, etc. - 3 - (viii) Any recommendations other than the points noted herein above? 3. Mr. Justice Shahzado Sheikh, Senior Pusine Judge of the Federal Shariat Court is appointed as Commission. He may follow the procedure laid down in the Order XXXII of the Supreme Court Rules, 1980 and submit a report as far as possible within 45 days, after receipt of the above order. 4. The office is directed to send the photo-state copies of the record of these cases to the learned Commission to facilitate it in submitting the report. Chief Justice Judge Judge                     2249  2165, 2148, 2134                 2134/2002                    54/2007        3564/2007     40/2008              56/2007                                                  2012  4                                                                                                                          2          12-07-2012  02-07-2007      (i)                      (ii)                 (iii)                         (iv)            (v)                          (vi)                          (vii)           (viii)                   3     (XXXII) 32  1980                45               4             

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{'id': 'C.M.A.2134_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED CMA NO.2243 & 3683 OF 2012 IN SMC NO.16-2010 On Court notice: For FBR: Dr. Rana Muhammad Shamim, ASC Date of hearing: 4.3.2013 ORDER The report (CMA No.1112 of 2013) has been submitted on behalf of the Federal Board of Revenue, which has been examined with the assistance of the learned counsel for the FBR. 2. The proceedings in the instant Suo Moto Case pertaining to the ISAF Container Scam commenced in the year 2010. During the course of the proceedings, allegations surfaced, which prima facie, constituted “mal-administration”, as defined by Section 2(3) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000, (hereinafter referred to as “the Ordinance”). Consequently, vide order dated 30.9.2010, a Reference in terms of Section 9 of the Ordinance, sent to the Federal Tax Ombudsman. In the said order, 14 specific questions were framed. CMA No.2243-2010 - 2 - 3. The Federal Tax Ombudsman submitted its report, giving the following Findings and following making Recommendations:- FINDINGS: (i) The quality of data held by PRAL was found to be highly unreliable. The available cross-checks within FBR were also found to be highly vulnerable to fraud and corrupt practices of various actors involved in Afghan transit trade. (ii) It was soon realized that the abuse was massive, though difficult to quantify with a high degree of precision. (iii) It was estimated that at least 7,922 transit containers were pilfered within Pakistan during the last almost four years. However, this could be just a tip of the iceberg. (iv) The estimated loss to national exchequer during 2007-June 2010, based on 7,922 containers, was worked out at Rs.19 billion. (v) It was gathered that the Customs procedural framework being highly porous suffered from serious vulnerabilities. (vi) While responsibility in general terms has been fixed, the individuals involved in various mega scams of recent years are to be indentified through criminal investigation for which a mechanism is provided under Section 17 of the FTO Ordinance. (vi) One-Customs manual clearance system was found particularly prone to huge transit scams. CMA No.2243-2010 - 3 - (viii) The senior management of Customs failed to take necessary steps to put in place appropriate countermeasures against repeatedly occurring scams. (ix) The Investigation of four mega scams of containers in past few years indicates a clear pattern. The phenomena of pilferage is not new, neither are the glossing over efforts by senior officers to provide cover up through creating hindrances in investigations, manipulation of record and data, diverting focus by ‘fact finding committee.’ Deliberate attempts to diffuse focus of investigation against corrupt and influential officials through ‘fact finding committee’ were clearly discerned. (x) In Lunar case the Collector who had failed to prevent wrong clearance of 52 containers laden with liquor was made part of the ‘fact finding committee’. To frustrate the course of investigation by Director General (Intelligence and Investigation). (xi) The leadership of Customs rather than initiating appropriate disciplinary/criminal proceedings against the real culprits repeatedly tried to put a different gloss on these scams. (xii) The modus operandi in these mega scams remains the same; fake/forged documents, primitive and manual clearance and processing systems, wide discretion in the hands of unscrupulous customs officials, lack of transparency and effective accountability, involvement of seniors otherwise responsible for oversight. (xiii) The picture that emerges is of gross inefficiency, maladministration and corruption in an organization CMA No.2243-2010 - 4 - that is geared to further principally individual and communal self interest of a few individuals at the cost of Pakistan and her people. (xiv) This report is an exploratory start-up to. Although it provides some answers, it raises many more questions. The report indentifies the work that needs to be done in future and provides a good roadmap for the way forward. RECOMMENDATIONS: (i) Customs clearance and cross border certification and reconciliation procedures need massive improvement, consolidation and rationalisation. (ii) Cross checks need to upgraded, diversified and externalized. (iii) Transport system used for ATT needs to be organized on competitive basis, and transporters given a level- playing field. (iv) Only bonded carries should be allowed to transport ATT cargo. The vehicle fleet used for the purpose must be upgraded in terms of technology input for safe transpiration of transit cargo. (v) Security of cargo needs immediate enhancement through RFID seals, and live monitoring through GPS. (vi) ATT cargo should bear bar code embeddings for ease of detection, and to minimise the chances of its smuggling back into Pakistan. CMA No.2243-2010 - 5 - (vii) ISAF/UN/NATO should adopt the same technology and transport precautions as are being used by US Forces (e.g. RFID seals and effective tracking/ monitoring though GPS) (viii) Collusion by and corruption of Customs Officials be effectively discouraged and deterred in a sustainable manner. (ix) A specialized and dedicated Collectorate needs to be created to deal exclusive with the entire cargo in transit to Afghanistan. (x) The definition of smuggling should be broadened to include in its purview any enroute pilferages of transit goods. (xi) The Directorate General (Intelligence and Investigation) needs to be suitably upgraded to act as an effective deterrent against actual and potential tax evaders and their accomplices within the Customs Department. (xii) For better administration, FBR should be split into two Boards, one dealing exclusively with Customs matters and the other dealing with taxes like income tax, sales tax and federal excise duty. If that is not found appropriate at this stage, a competent and honest senior officer of Pakistan Customs Service may be appointed as deputy chairman FBR. The measure will provide better focus on matters relating to management of Customs.” 4. The said report inter alia indicated the quantum of the loss caused to the Public Exchequer. Such loss in fact is approximately CMA No.2243-2010 - 6 - Rs.55 billion as was disclosed by Mr. Suleman Siddique, the then Chairman, FBR, which fact was incorporated in our order dated 22.11.2011. The report now filed by the FBR, indicates that to-date the amount recovered is only Rs.5,602,754/- which for all intents and purposes is insignificant, when examined in juxta position, with the loss to the Public Exchequer admittedly occasioned, as has been admitted by the FBR. 5. The performance of the FBR, as indicated by the report, now submitted is far from satisfactory. Despite elapse of almost one and a half year since the Report was compiled by the Federal Tax Ombudsman, no progress worth mentioning has been made for the recovery of the loss identified, which is regrettable. 6. It has also not been brought on record as to how far the Recommendations made by the FTO in his above mentioned report have been implemented despite the fact that a time frame in this behalf, having specifically been mentioned in Section 11(1) of the Ordinance. 7. Consequently, let the report be obtained from the Federal Tax Ombudsman as well as Chairman, FBR as to the extent of the implementation of the Recommendations of the FTO by the Department and further such reports shall also identify the modus operandi proposed and required to be undertaken to efficiently and expeditiously effect the recovery of the loss caused to the Public Exchequer. Such report should be filed within two weeks. CMA No.2243-2010 - 7 - 8. The Chairman, FBR, is directed to appear in person, on the next date of hearing. Re-list after two weeks. Chief Justice Judge Judge Announced on _______________ at Islamabad Judge

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{'id': 'C.M.A.2243_2012.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL MISC. APPLICATION NO.230 OF 2019 IN SUO MOTU CASE NO.26 OF 2018 AND CIVIL MISC. APPLICATIONS NO.4479, 4955 AND 4956 OF 2019 IN CIVIL MISC. APPLICATION NO.230 OF 2019 IN SUO MOTU CASE NO.26 OF 2018 AND CIVIL REVIEW PETITIONS NO.109, 150 TO 153, 165, 214 TO 226 OF 2019 IN SUO MOTU CASE NO.26 OF 2018 AND CIVIL MISC. APPLICATION NO.2072 OF 2019 IN CIVIL REVIEW PETITION NO.NIL OF 2019 IN SUO MOTU CASE NO.26 OF 2018 (Regarding selling of Bottled Water extracted from the ground without any charge and its fitness for Human Consumption) AND CIVIL PETITIONS NO.1195, 1196, 1197 AND 1322 OF 2019 Water and Sanitation Agency, Lahore through its Managing Director …Petitioner(s) (In all cases) VERSUS Lotte Akhtar Beverages (Pvt.) Ltd., Lahore etc. In C.P.1195/2019 Shezan International Ltd., Lahore etc. In C.P.1195/2019 Coca Cola Beverages Pakistan Ltd., Lahore etc. In C.P.1195/2019 Nestle Pakistan Ltd., Lahore etc. In C.P.1195/2019 …Respondent(s) In attendance: Mr. Sajid Ilyas Bhatti, Addl.A.G.P. Mr. Tariq Mehmood Jehangiri, A.G. Islamabad Mr. Qasim Chohan, Addl.A.G. Punjab Barrister Qasim Wadood, Addl.A.G. KPK Mr. Ayaz Swati, Addl.A.G. Balochistan Mr. Zahid Nawaz Cheema, ASC C.M.A.No.230/2019 etc. -: 2 :- Mian Abdul Rauf, ASC Mian Irfan Akram, ASC Mr. Khalid Javed Khan, ASC Mr. Qasim Mirjat, AOR Mr. Suleman Akram Raja, ASC Mr. M. Munir Paracha, ASC Mr. Hassan Irfan Khan, ASC Mr. Munawar-us-Salam, ASC Mr. Iftikhar Ahmed Mian, ASC Mr. Farooq Amjad Meer, ASC Mr. Gulzar Begum, ASC Mr. Sikandar Bashir Mohmand, ASC Mr. Gohar Ali Khan, ASC Dr. M. Ahsan Siddiqui, Head of Committee Mr. Ashiq Ali, Director SEPA Mr. Shahbaz Ahmed Sheikh, Law Officer Finance Punjab Mr. M. Ramzan, A.D. Legal EPA Dr. Zubair Khan, in person Syed Zahid Aziz, M.D. WASA Lahore Mr. Aamir Latif, Secy. Industry KPK Mr. Rahim Ullah, S.O Local Govt. KPK Mr. Wajhat A. Qureshi, Executive Vice President, NBP Mr. M. Ali Bator, Acting Dir. EPA Balochistan Date of hearing: 02.07.2019 ORDER We have heard the learned Additional Attorney General, the Advocate General ICT and the Additional Advocate General Balochistan, KP and Punjab, Dr. M. Ahsan Siddiqui, Chairman of the Coordination Committee constituted by this Court and M.D, WASA, Lahore. The following observations are made about the proceedings at the hearing. 2. The Additional Attorney General informs that the Law Officers of the Federation, ICT and the Provinces have discussed draft legislation for uniform C.M.A.No.230/2019 etc. -: 3 :- implementation of the water cess through legislative measures. It is clarified that the uniform law is intended to cater not just ground water but also surface water usage. Whereas water has several categories of consumers, inter alia, agricultural, domestic, commercial and industrial users, nevertheless presently the focus of the proposed legislation for the charge and collection of water cess shall be the industrial users. The ambit of the proposed regulatory law for water conservation shall be extended gradually to other categories of consumers. The learned Attorney General and the Provincial and ICT Law Officers have assured the Court that a consensually proposed Model Law shall be filed in the Court within one month. 3. The Court has earlier directed the installation of flow meters at the industrial units where bottled drinking water or other beverages are prepared for measuring the volume of water that is consumed, utilized and wasted. The Government of Punjab has sought three weeks time to install flow meters along with CCTV cameras and monitors at all units in the Province. The other Provinces have also made progress in this regard but are not equipped with data. Accordingly, six weeks time is granted to the Provinces and ICT for installing the requisite flow meters, the specifications and data about C.M.A.No.230/2019 etc. -: 4 :- which shall be shared by them with the Coordination Committee. 4. This Court has previously directed the water cess funds to be invested in the National Bank of Pakistan (“NBP”). Such funds have been deposited by all the Provincial Governments and ICT in accounts established with the NBP which has filed CMA No. 6617 of 2019 to seek directions regarding the deposited funds. At this stage, whilst the water cess collection mechanism is under finalization, it is directed that all funds of the water cess shall be deposited by the Provincial and ICT governments in the NBP account established by them under the title “Water Conservation Account” in one of the authorized branches of the NBP. Upon deposit the NBP shall forthwith transfer such funds from its respective branches to the Head Office Account bearing the title Principal Water Conservation Account (“Principal Account”). All funds credited to the Principal Account shall be invested immediately in the best available NBP investment scheme on a daily balance basis for onward recurring investment in 03 months treasury bills at the first available biweekly auction by the State Bank of Pakistan. The funds deposited with the NBP shall be reported to the Court through monthly statements providing the details of the depositor agencies, the amount of deposit, date thereof C.M.A.No.230/2019 etc. -: 5 :- and profit accrued on daily basis; the date of transfer to Principal Account, its investment and maturity value in Treasury Bills and the dates thereof. It may be noted at this juncture that Government of Punjab has already deposited an amount of Rs.380/- million in the Principal Account, the Government of KP has deposited Rs.15.5/- million and the Government of Balochistan has deposited Rs.2.7/- million in the said account. The Government of Sindh is not represented today as also on the last date of hearing. It is directed that on the next date of hearing, the Advocate General, Sindh shall personally assist the Court duly prepared in respect of the matters in issue otherwise the Chief Secretary, Government of Sindh shall be in attendance to assist the Court. 5. Be that as it may, Dr. M. Ahsan Siddiqui, Chairman of the Coordination Committee has informed that roughly an amount of Rs.70-75/- million has been deposited by the Government of Sindh in the NBP under the heading of water cess. It is directed that the respective Governments of the Provinces and the ICT shall convert or open accounts under the afore-mentioned title “Water Conservation Account” in the concerned NBP branches from where such funds shall forthwith be transferred to the Principal Account for investment in the terms directed by the Court. The charging of, transfer, disbursement and C.M.A.No.230/2019 etc. -: 6 :- use of such funds shall be subject to orders of this Court. The compliance reports by each of the Provinces and the ICT with respect to the foregoing discussion shall be filed before the next date of hearing. 6. Dr. M. Ahsan Siddiqui has expressed admiration for the Faisalabad plant which filters and cleanses canal water to supply pure drinking water. The Provincial Governments shall apprise whether they have received offers of foreign assistance for establishing such plants and if so, their responses thereto. The details of the Faisalabad project are available in CMA No.5588/2019. Further technical and financial details about the said project as well as its smaller variants shall be filed by the Punjab Government with disclosure of the foreign sponsor and its terms of assistance. Comment shall also be made on the feasibility of such smaller projects. This information may be helpful for the other Governments in understanding and for adopting, the concept and technology enabling the project. The Court is inclined that in the first place the available funds be deployed in areas that are severely deficient in clean drinking water, for example desert lands in District Tharparkar e.g Mithi and such like areas in Balochistan Province where canal water may be procured for supply to drinking water treatment plants installed for public consumption. The Law Officers C.M.A.No.230/2019 etc. -: 7 :- of Balochistan and Sindh Provinces shall apprise the Court about the areas where unavailability of drinking water may be redressed by such water treatment plants. 7. The concerned urban water supply agencies throughout the country shall consider the framing of regulations and or executive directions that mandate the installation of push-button faucets at water supply points in all public and commercial premises. The proposed means, mechanism, incentives based on locally manufactured equipment and penalties for enforcing the regulatory measures shall be presented in writing to this Court before the next date of hearing. 8. Finally, the Provinces and ICT shall share their experiences and knowledge about simple, cost efficient methods for rain harvesting and for recycling used water. These shall also be brought to the notice of the Court on the next date of hearing. Relist on 26.08.2019. Judge Judge Islamabad Judge 02.7.2019 Naseer

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain CMA No.2371 of 2012 in Constitution Petition No.24 of 2012 (Action taken on a news item dated 4.6.2012 published in daily “the News” regarding murders of five women in Kohistan Division) On Court Notice: Mr. Irfan Qadir, AGP Mr. Asad-ullah Chamkani, A.G. KPK Syed Arshad Hussain Shah, Addl. A.G, KPK Mr. Navid Akhtar, Addl. A.G. KPK Mr. Ghulam Dastgir, Chief Secy. KPK Mr. Muhammad Azam Khan, Secy. Home Mr. Khalid Khan Umerzai, Commissioner Dr. Naeem Khan, DIG Hazara Mr. Majeed Afridi, DPO Mr. Aqal Badsha, DCO With Afzal, brother of Bin Yasir Voluntarily appeared: Ms. Kashmala Tariq, MNA Dr. Farzana Bari, Ms. Riffat Inam Butt Adv. Dr. Fauzia Saeed and Ms. Shabina Ayaz. Date of hearing: 07.6.2012 O R D E R In pursuance of earlier order, the Federal Government of Pakistan and Provincial Government of KPK made adequate arrangements for visit of a delegation comprising Dr. Farzana Bari, Ms. Riffat Inam Butt, Dr. Fauzia Saeed and Ms. Shabina Ayaz. Although it is the hilly terrain and it was difficult to travel but courtesy the Federal Government, which arranged three helicopters for their travelling. CMA 2371/12 Kohistan incident 2 2. We may note that news has spread by some sections of Media that five women/girls have been killed as a punishment because they were clapping while two boys were dancing. Naturally these news cast sensitization, not only within but also outside Pakistan. All efforts were being made by this Court as well as by both the Governments to find out the truth because KPK Government had denied the happening of incident whereas the boys, one of them, namely, Afzal, present in Court and two others, namely, Bin Yasir and Gul Nazar, now in police custody, were supporting their version about the killing of these ladies. 3. In that situation when such news was communicated, a large number of people started feeling disturbed as everyone by the time realized about the human rights. Therefore, the respected ladies including Ms Kashmala Tariq, MNA shown their keen interest and when the matter was initiated in exercise of jurisdiction under Article 184(3) of the Constitution as the matter involved violation of fundamental rights and apparently it was a matter of public importance, they offered their services to visit the area to meet with those girls. 4. It is to be noted that despite of rought weather in the area the object has been accomplished after exercise of 48 hours and it has been reported by the delegation that they had to undergo lot of difficulties because at some places there were climbing mountains and they had no other means to reach those girls, however, they succeeded in meeting with Amna and Shaheena out of five girls. They have expressed that the news of their killing has been found false. As far as remaining three girls namely Begum Jan, Bazigha and Sareen Jan are concerned, they are stated to be present in the same district and it has been pointed out by the delegation that there was no such report of their killing and the video, which has been supplied to the Media has not been prepared recently but it pertains to another function, which was some family gathering taken place about a year before. 5. Learned Attorney General for Pakistan and learned Advocate General, KPK, under instructions from their respective Governments have stated that if some time is given, arrangements possibly would be made for visiting to remaining three girls in the CMA 2371/12 Kohistan incident 3 same district. On this Ms. Kashmala Tariq has stated that as proceedings have commenced, therefore, it would be appropriate if arrangements are made for a delegation to visit Kohistan to meet with the girls, whose names are noted above, because she is of the opinion that the impression of killing the ladies in the manner as it has been quoted in the media, should be dispelled once for all. 6. Thus, we adjourn this case for 20th June, 2012. In the meanwhile learned Attorney General and Advocate General shall communicate with Federal as well as Provincial Governments and Ms. Kashmala Tariq, MNA for making adequate arrangements for the visit of the delegation to Kohistan. We would appreciate if the delegation is accompanied by some Judicial Officer. The Registrar may communicate with the Registrar of the Peshawar High Court to spare Ms. Munira Abbas, Additional Sessions Judge, who had been attending the course in the Federal Judicial Academy, to accompany the delegation so their presence may also be authenticated judicially. 7. We place our thanks/appreciation to Ms. Kashmala Tariq MNA, Dr. Farzana Bari, Ms. Riffat Inam Butt, Dr. Fauzia Saeed and Ms. Shabina Ayaz as well as to the Learned Attorney General, Advocate General, Administration of the Federal and Provincial Governments for making it convenient to implement the order of this Court as a result whereof the impression which was being carried out about killing of five girls for a petty matter has mostly been dispelled. Chief Justice Judge Judge Islamabad 7th June, 2012 Nisar/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate/Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Mr. Justice Ejaz Afzal Khan CMA NO.2376/2013, etc. IN CONST. P. NO.105/2012 Hamid Mir & another vs. Federation of Pakistan, etc. For the applicant : Mr. Tariq Mehmood, ASC (in CMA No.2383/13) (in CMA No.2376, 2381-2385/13 (applicants in-person) For the petitioner (s) : Mr. Absar Alam & Mr. Asad Kharral. (in Const.P.105/2012) On Court Notice : Mr. Irfan Qadir, Attorney General for Pak. Mr. Dil Muhammad Khan Alizai, DAG. Mr. Jamal Nasir, DG Information. Mr. Tahir Hassan, Director Information. Mr. Azam Khan, Director (Law) FIA. Raja Amir Abbas, ASC for M/o Information. Date of hearing : 07.05.2013 O R D E R Jawwad S. Khawaja, J. – Constitution Petition No.105 of 2012 was filed by two journalists namely, Hamid Mir and Absar Alam Haider. They were later joined by other journalists. A number of issues have been raised in this Constitution Petition. Vide order passed by us on 15.01.2013, a two-Member Commission has been appointed by the Court for the purpose of preparing a report on nine Terms of References (ToRs) numbered A to I, which have been set out in our order dated 15.01.2013. The Commission has already submitted a report in respect of ToR No.F and is due to finalize its report on the remaining ToRs by 31.05.2013. 2. While the Commission is engaged in finalizing its report, the issue of establishing and maintenance of accounts by the Government (respondent No.1) which have not been subjected to audit has come to the fore. Over the last few hearings of this petition, we have been informed that substantial sums of money have been spent by the Ministry of Information and Broadcasting. Details of these expenditures have neither been disclosed nor audited by the office of the Auditor General. This has raised constitutional issues. The Const.P.105/2012 2 petitioners have also highlighted the need for openness and transparency in spending funds from the public exchequer which have been collected by the government by way of taxes, fiscal levies and impositions. It has also been submitted by the petitioners that substantial amounts have been allocated to various ministries/departments which have not been audited. 3. There is a fundamental premise, relating to disclosure/audit, on which allocation of such funds and their spending is to be judged. Article 19A of the Constitution stipulates in very clear terms that “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”. Article 19 of the Constitution, inter alia, guarantees “freedom of the press, subject to any reasonable restrictions imposed by law”. Such reasonable restriction can only relate to and be imposed “in the interest of the glory of Islam or the integrity, security or defence of Pakistan or friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, [commission of] or incitement to an offence”. The fundamental premise to be kept in mind, is that all funds in the State exchequer are funds which have come out of the pockets of the people of Pakistan. These funds are the product of the toil, sweat, tears and blood of the people. The Government is at most a trustee and custodian of these funds and is accountable for the expenditure of these funds in a fiduciary capacity as envisioned in the Constitution. The only exception against public disclosure is given in Articles 19 and 19A of the Constitution referred to above. Even where the government or the legislature choose to regulate or impose restrictions upon disclosure of disbursement of funds, such restrictions cannot be arbitrary but have to be reasonable. As to what is or what is not reasonable is a matter of which the government is not the sole arbiter. It is constrained by the Constitution and by law. Any restriction on disclosure of expenses made from the exchequer, which the government imposes, or the legislature provides for, would be justiceable on the touchstone of Articles 19 and 19A of the Constitution. 4. It is in this context that at least since September, 2012, we have repeatedly been asking the Government to state its basis to justify non-disclosure of expenses from the public exchequer; but, it is most unfortunate that despite our repeated directions and Const.P.105/2012 3 orders nothing material has been done. In our order dated 13.9.2012, we had directed the respondent Ministry to “set out in detail the budget allocation for the financial years ending 30.6.2010, 30.6.2011, 30.6.2012 and 30.6.2013 alongwith supplementary grants”. We had further required the Ministry to furnish details of the budget allocation and supplementary grants for these years alongwith the report of the Auditor General of Pakistan in respect of the said budget allocations. Although this was required to be done before 17.9.2012, we note that our order has not been complied with. Instead, on 17.10.2012, learned counsel representing the respondent Ministry stated that there were only three heads of account in respect of which a privilege against disclosure was being claimed namely, (a) Special Publicity Fund, (b) Secret Service Expenditure and (c) the Institute of Regional Studies. A relatively small amount totaling Rs.14,00,00,000/- (rupees fourteen crores) approximately was mentioned as the sum expended from these accounts. The order which was then passed by us on 20.12.2012 is of relevance to the question presently being considered by us. The issue is as to whether “the federal budgets have allocated from time to time to the federal Ministry of Information and Broadcasting any funds that may be spent in its discretion or that may be spent in secrecy without disclosing the purpose of the disbursements or the identity of its recipients? If so did the said Ministry have a constitutional basis for such disbursements?” It was clarified by us that in line with the provisions of Articles 19A and 19 of the Constitution, we were not inclined to accept the contention of the Ministry that use and expenditure of these funds could be kept secret. We also observed and recorded as under: “Prima facie, while the Ministry may claim privilege from making public disclosure of certain parts of its budget, such privilege is not automatically available to the Government. It must be claimed from the Court. Information for which secrecy is sought must be clearly marked and the reasons for seeking secrecy must also be clearly stated. The Court can then make a determination on this point in line with the law and the Constitution”. 5. In the same order we noted the submissions of Mr. Asad Kharal, a journalist, who has been impleaded as a petitioner, that “the budgets of 27 other Ministries also contain secret funds similar to the ones which are in place in the Ministry of Information”. If correct, this would be a disturbing matter since secret funds can potentially be a tool for undermining Const.P.105/2012 4 the rights of citizens protected under Articles 19 and 19A of the Constitution and may encourage waste and corruption. It has consistently been stated by this Court that all public authorities and functionaries are fiduciaries of the public and receive their perquisites, positions and funding from the public. The Auditor General is constitutionally empowered to have access to information relating to budgeted expenditures and supplementary grants in order to ensure that there is no misuse of money spent from the public exchequer and the possibility of corrupt practices is eliminated. It may also usefully be noted that in our three immediate preceding orders dated 25.04.2013, 02.05.2013 & 06.05.2013, we have again and again emphasized to the Government that without a lawful justification, there cannot be a denial of disclosure or withholding of accounts from audit by the Auditor General. Numerous opportunities were given to the learned Attorney General but as noted, he has not been able to render any assistance whatsoever or to give any meaningful response to the simple question raised by us. 6. Today, the Attorney General started his submissions by referring to Article 241 of the Constitution, in support of the Government’s plea that some funds identified by the Government itself, are not subject to audit by the Auditor General. We have gone through Article 241 of the Constitution and note that it is wholly irrelevant and has no nexus whatsoever with the question of audit of accounts. Article 241 ibid relates to service matters and deals with the “appointment to and conditions of service of persons in the service of Pakistan”. We are, therefore, quite surprised that this Article was referred to in the context of expenditure from the exchequer referred to above. 7. When this was pointed out to the Attorney General, he readily conceded that Article 241 of the Constitution had no relevance in the present matter. We, therefore, are constrained to record the lack of preparation and seriousness on the part of the Attorney General in this important Constitutional case. The Attorney General then stated that Para- 130, Appendix-VIII of the General Financial Rules, 1973 (hereinafter referred to as the ‘GFR’) provided complete justification against disclosure/audit of expenses which the government itself designates as being not subject to audit or disclosure. When we asked the learned Attorney General to give us the legal sanction, under which the GFR were Const.P.105/2012 5 made or adapted in Pakistan, he was unable to do so; instead he referred to Section 124 of the Government of India Act, Article 224 of the Constitution of 1956, Article 241 of the Constitution of 1962 and Article 268 of the Constitution of 1973. Article 268 of the Constitution, inter alia, provides that “except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature”. In the light of this Article the obvious question which arose and which was put to the Attorney General was to show as to how the GFR can be treated as existing law. We were given no justification from the government in support of a plea that GFR can be treated as ‘existing law’. At this point, we may add that there has been no adaptation of the GFR in Pakistan and none was shown to us by the learned Attorney General. In India, however, we have tentatively ascertained that some adaptation was made after 1947. We are also quite amazed that nobody in government seems to be aware of the legal sanction behind the GFR and yet the same are being accepted (contrary to the Constitution and law) as having legal backing. Surprisingly, this absence of relevant statutory backing is reflected in confusing and misleading replies given in the CMAs filed by the Government. It is the Government’s case in CMA No.3827 of 2012 that “transaction/operation under the head of account “Secret Service Expenditure” is not auditable. A certificate is recorded by the Controlling Officer as required vide S.No.37 of General Financial Rules Vol. II”. In CMA No. 3827 of 2012, no indication whatsoever is given as to the source of legitimacy of the GFR. Sub-Rule (5) of Rule 37 stipulates that “the accounts of secret service expenditure will not be subjected to scrutiny by the Audit authority”. CMA No. 446 of 2012 filed by the Government makes the averment, inter alia, that “the details of spending of amounts specified as secret funds in the budget cannot be divulged to the petitioners as the same are different from other public funds which are open to scrutiny and audit”. While no basis has been given for this averment made in the CMA a brief has been appended with the said application. For ease of reference and in view of its significance, the brief is reproduced in its entirety as under:- “BRIEF : 1. “Secret Service Fund is an allocation made under the Annual Budget Book (now CFY:2012-13) titled under “DEMAND NO.058: Head of Account ID 1358: Secret Service Expenditure” (Rs. 1,20,00,000/-) which is similar in nature to Secret Fund provided to other GOP organizations. Besides, regular annual allocation in this Head of Account, special Const.P.105/2012 6 allocations are made by the Prime Minister for various specific assignments and projects given to this Ministry from time to time. The expenditure for such allocations are maintained separately as per law. 2. ”The Secret Service Fund is judiciously utilized by the Secretary of Information & Broadcasting as Principal Accounting Officer (PAO) to supplement and support the publicity and projection efforts of the Government’s development policies/action plan, and to counter negative propaganda which is against national interest, both within and outside the country. Since the expenditure incurred on such sensitive assignments cannot be met out of regular auditable budgetary allocation, all the previous governments in the past have been placing these funds at the disposal of this Ministry which is strictly utilized in accordance with the rules and regulations governing “Secret Service Expenditure” issued by the Finance Division from time to time. The fund has always been audited by various Finance Secretaries in the past as and when required as per regulations”. 3. “The Secret Service Fund was established since long most probably in the 70s. The allocation for specific assignments/projects was initiated sometimes in the 80s. Logically, it would not be possible to trace the record of last 30 years in order to find out as to when the fund was formally established. However, one of the documents traced indicate that the Bank Account was shifted from Muslim Commercial Bank, Civic Centre, Islamabad to National Bank of Pakistan, Model Branch, Islamabad in 1997. At present the Accounts are being maintained in the National Bank of Pakistan as per law.” 5. “The annual budget documents of the Finance Division titled Demands for Grant and Appropriations provides details of budget allocation out of FEDERAL GOVERNMENT’S CONSOLIDATED FUND to each Ministry/Division/Department/Organization. The Finance Act 2012-13 which extends to whole of Pakistan in terms of Federal Government financial proposals gives legal effect to this authorized budget and its components including allocations under classified head of Secret Service Fund (SSF) of M/o I&B. The said Act passed by the Parliament is duly assented by the President, authorizing each Minister/Division including I&B to incur expenditure as per allocation. Historically this fund has existed since 1947-50 onwards when the Federal Capital was located in Karachi. It has time tested authenticity and utility.” 6(a). “The AGPR’s quarterly release of SSF to I&B Division is always preceded by provision of Certificate of Expenditure for the earlier quarter, a copy of which is invariably sent to Directorate General of Audit in terms of Para- 37 of Appendix –8 of GFR Vol-II, for its record and reference.” 8. The salient aspects of the above brief, which represents the case of the Federation, can now be noted. It is not disputed that the Secret Service Fund is an allocation made under the Annual Budget Book titled Demand No.058. A self serving statement has been made that the Secret Service Fund is judiciously utilized by the Secretary of Information & Broadcasting as Principal Accounting Officer. It has also been stated in the brief that the annual budget document of the Finance Division titled “Demands for Grant of Appropriations” provides details of budget allocations out of the Federal Government’s Consolidated Fund to each Ministry/Division/Department/ Organization and these amounts including allocations are classified as Secret Service Fund. From this, it is Const.P.105/2012 7 evident that the government has allocated funds to various Ministries, which funds or expenses therefrom are neither disclosed nor audited. One of the petitioners namely, Mr. Asad Kharal has stated in his CMA No. 5226 of 2013 that there are 27 Ministries to which funds have been allocated but which are neither audited nor disclosed to the public on the untenable plea that the same are secret. 9. What we also find surprising is that in the above referred brief, it is stated that “the Secret Service Fund was established since long, most probably in the 70s” (emphasis provided). At another point in the brief, it has been stated contrary to this averment, that the “Secret Service Fund is existing since 1947-50 onwards”. When the above submissions are analyzed, it becomes evident that without any statutory or constitutional backing, Rule 37(5) of GFR cannot be legally sustained. If indeed, the Federal Government is seeking protection under the aforesaid Rule, this is not legally permissible because no justification or basis or source of Rule 37(5) of the GFR has been shown to us. Under the Constitution, in Articles 78 to 86 the financial procedure for the Federation’s accounts has been clearly spelt out. The entire revenues of the Federation are either part of the Federal Consolidated Fund or the same are part of the Public Accounts of the Federation. There is no third account of the Federation. No part of the Consolidated Fund and the Public Accounts of the Federation, is exempted from audit under the Constitution. 10. We can now advert to two Statutes, which are of direct relevance to the issue before us; these are the Auditor General’s (Functions, Powers and Terms & Conditions of Service) Ordinance, 2001 and the Controller General of Accounts (Appointment, Functions & Powers) Ordinance, 2001. It is quite clear from the submissions made by the learned Attorney General in Court today, that the provisions of Article 169 and 170 of the Constitution have not been taken note of by him nor is he aware of the existence of these statutes as is evident from his misguided reliance on Article 268 of the Constitution, noted above. Article 170 of the Constitution, it may be noted, was materially amended in 2010 through the 18th Amendment. The original Article was renumbered as sub-Article (1) and a new sub-Article (2) was added. The same being directly relevant is reproduced as under:- Const.P.105/2012 8 “(2) The audit of the accounts of the Federal and of the Provincial Governments and the accounts of any authority or body established by, or under the control of, the Federal or Provincial Government shall be conducted by the Auditor-General, who shall determine the extent and nature of such audit”. (underlining for emphasis is ours) 11. By virtue of the amended Article, the audit of accounts of the Federal and the Provincial Governments must be conducted by the Auditor General, who is also to determine the extent and nature of the said audit. The Constitution does not recognize any exception to the provisions of Article 170(2) ibid. In this view of the matter the Consolidated Fund and Public Accounts cannot remain unaudited. The provisions of the two statutes of 2001, which are relevant in this case, can now be examined. The terms of appointment in service of the Auditor General have been given in Section 4 of the Auditor General’s (Functions, Powers and Terms & Conditions of Service) Ordinance, 2001. It has also been expressly stipulated in section 7 of the statute that “the Auditor-General shall on the basis of such audit as he may consider appropriate and necessary, certify the accounts, compiled and prepared by Controller-General of Account …”. Section 8 of the statute is also extremely relevant. It directs and mandates the Auditor General to “audit all expenditure from the Consolidated Fund of the Federation … and to ascertain whether the moneys shown in the accounts as having been disbursed were legally available for, and applicable to, the service or purpose to which they have been applied or charged and whether the expenditure conforms to the authority which governs it….”(emphasis provided). Section 8(b) of the statute requires the Auditor- General to “audit all transactions of the Federation and of the Provinces relating to Public Accounts (emphasis provided)”. It thus becomes abundantly clear that where the amount is charged on the Consolidated Fund or relates to the Public Accounts of the Federation or of the Provinces, the same must be audited by the Auditor-General without exception. 12. The powers of the Auditor General in connection with the audit of accounts have been given in Section 14 of the aforesaid statute. This legal provision stipulates that “the Auditor-General shall, in connection with the performance of his duties under this Ordinance, have authority:-- (a) to inspect any office of the accounts, under the control of the Federation or of a Province … (b) to require that any accounts, books, papers and other documents which deal with, or form, the basis of or otherwise relevant to the transactions to which his duties in respect of audit Const.P.105/2012 9 extend, shall be sent to such place as he may direct for his inspection…”. It is not necessary to reproduce the entire text of the aforesaid Ordinance or of the Controller General of Accounts (Appointment, Functions & Powers) Ordinance, 2001 because the same are clear and do not exclude any amount forming part of the Consolidated Fund or the Public Account from audit. 13. As we have noted above sub-Article (2) of Article 170 of the Constitution was added by the 18th Amendment which amply empowers and directs the Auditor General to fulfill his constitutional obligation as watchdog of the people of Pakistan. It is only through audit that it can be ensured that the hard earned income of citizens of this country is being spent for lawful purposes. Without the audit specified by the Constitution and the two statutes, referred to hereinabove, there can be little or no room for any transparency. Absence of audit by the Auditor General, apart from being violative of the Constitution and law, is a sure and certain invitation to corruption and lack of accountability. 14. We have already noted in our judgment in Watan Party and others vs. Federation of Pakistan and others (PLD 2012 SC 292) that Article 19A of the Constitution, which also has been added through the 18th Amendment, constitutes a major advance of fundamental rights and is essential for the effective functioning of democracy. In that judgment, we held that “[t]he very essence of a democratic dispensation is informed choice. It is through such choice that the political sovereign, the People of Pakistan acquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the People to exercise their choice. If information on matters of public importance is not made available to citizens, it is obvious they will not have the ability to evaluate available choices. Information on matters of public importance thus, is a foundational bedrock of representative democracy and the accountability of chosen representatives of the people. It is in this context, both historical and conceptual, that the fundamental right to information has to be seen.” It was noted that democracy itself becomes meaningless if the electorate is not provided the information, which can enable it to exercise its right to franchise on the basis of informed choice. It is through their choice that the electorate rewards good governance and punishes bad governance and maladministration. Const.P.105/2012 10 15. The necessity for passing a detailed interlocutory order has arisen because our previous orders have neither been read nor complied with and the fundamental issues raised therein have not been addressed. We are concerned that without proper assistance on behalf of the Federation, it might suffer. We are, therefore, adjourning the matter to 9.5.2013 to enable the Federal Government to render proper assistance. We would also direct a senior functionary of the Auditor General’s Office to be present in Court on the next date of hearing. Adjourned. To come up on 09.05.2013 for further hearing. Judge Judge Judge Islamabad, 07.05.2013. Irshad Hussain /*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Mr. Justice Ejaz Afzal Khan CMAs Nos.2380 to 2385 of 2013 alongwith CMA-2376/2013 in Constitution Petition No.105/2012 AND Constitution Petition No.105/2012 alongwith CMA-3795/2012 & CMA-3798/2012 HRC No.23957-S/12 and Const. Petition No.53 of 2012 AND Constitution Petition No.117 of 2012 Hamid Mir and another … Petitioner (s) Versus Federation of Pakistan, etc. … Respondent (s) For the applicant(s): Ms. Asma Jehangir, Sr. ASC (In CMAs-2380 to 2385/13 Mr. Tariq Mehmood, Sr. ASC Applicant in person (in CMA-2376/13) For the petitioner(s): M/s Hamid Mir and Absar Alam (both in person) Mr. Asad Kharal For the petitioner(s): Dr. Tariq Hassan, ASC (In Const.P.53/12) For the petitioner(s): Mr. Taufiq Asif, ASC (In Const.P.104/12) Mian Gul Hassan Aurangzeb, ASC For the petitioner(s): Sheikh Ahsan ud Din, ASC (In Const.P.117/12) For respondent No.1: Raja Aamir Abbas, ASC Mr. M. Azam, Additional Secretary. Mr. Nasir Jamal, DG Mr. Tahir Hassan, Director o/o Secretary. Muhammad Azam (Press Information Officer) For M/o Information: Mr. Tahir Hassan, D.G. Information For Pak. Broadcasting Khawaja Tariq Sohail, ASC Association: For respondents 2-3: Mr. Hasnain Ibrahim Kazmi, ASC For respondent No.4-5: Nemo For respondent No.6: Nemo. For respondent No.7: Mr. Naveed Ihsan & Mr. Asif Hussain For respondent No.8: Nemo. For the Federation: Mr. Dil Muhammad Khan Alizai, DAG CMAs-2380/13 etc. in Const.P.105/13 2 For the Province of KPK: Syed Arshad Hussain Shah, Addl. A.G. For respondent No.11 & Mr. Yasin Azad, ASC and Raja Muqsit Nawaz, ASC Value T.V.: Mr. Asad Kharal, Express TV. Mr. Arshad Sharif, Bureau Chief, DUNYA TV. Mr. Ghulam Nabi, President, Press Association SC. Mr. M. Hanif Awan, (CMA 3464/12) For PFUJ: Mr. Riffat Qadri For ECP: Mr. Abdul Rehman, Addl. DG Law. For M/s Vision Network: Mr. Adnan Iqbal Chaudhry, ASC For M/s AURORA: Nemo. For Airwaves: Mr. Babar Bilal, ASC For Express TV: Nemo For VIVE TV: Nemo. For PTV: Mr. Shahid Mehmood Khokhar, ASC For Punjab T.V.: Nemo. For PEMRA: Syed Hasnain Ibrahim Kazmi, ASC For Airways Media: Nemo. For ARY: Nemo. For Cable Operators: Dr. Amjad Hussain Bokhari, ASC For Pakistan Broadcasters: Nemo. (In CMA-3464/12): Mr. M. S. Khattak, AOR For Indus Television: Mr. Tariq Ismail On Court’s Notice: Dr. Asif ur Rehman, D.G. (Federal Audit) Date of Hearing: 25.4.2013 ORDER Jawwad S. Khawaja, J.- These applications have been filed by the applicants Ms Rameeza Nizami (CMAs-2380/13, 2382/13), Ms. Fareeha Idrees (CMA-2381/13, 2385/13), Ms. Muniza Jehangir (CMAs-2383-2384/13) and Mr. Shakeel Ahmed Turabi (CMA-2376/13). The applicants have raised certain objections as to the contents of list ‘A’ posted as part of our previous order on the Supreme Court’s web-site. The same list has also been posted on the web site of PEMRA. 2. Let notice issue to the other parties including the petitioners in the main petitions who may file a reply to the same within this week. 3. The Director General Federal Audit is present in person. He says that it will take approximately three weeks to audit the amount mentioned in list ‘A’ referred to in our previous order. He will do so within the said period and submit the report in Court. CMAs-2380/13 etc. in Const.P.105/13 3 4. We may add that the learned Attorney General has also sought time to show to the Court such laws, rules, regulations, directives etc. which we have been asking for repeatedly through our previous orders, to justify the Government’s opposition to audit of expenditure or non-disclosure of information to the public from whom the amounts spent have been extracted. 5. This order shall also be posted on the Supreme Court’s web-site. To come up on 2.5.2013. Judge Judge Judge Islamabad, 25.4.2013 M. Azhar Malik

{'id': 'C.M.A.2380_2013.pdf', 'url': ''}

{'id': 'C.M.A.2380_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL MISC. APPLICATIONS NO.2593 AND 2812 OF 2008 IN CIVIL APPEAL NO.1268 OF 2008 CDA and another …Appellant(s) VERSUS Hashwani Hotels Ltd. …Applicant/Respondent For the Appellant: Syed Najmul Hassan Kazmi, Sr. ASC Mian Muhammad Hanif, ASC Raja Abdul Ghafoor, AOR For the Applicant/ Respondent: Mr. Naeem Bukhari, ASC Date of Hearing: 25.9.2017 ... ORDER MIAN SAQIB NISRA, CJ.- Through the noted CMAs, the applicant (who is the respondent in the main appeal) seeks the dismissal of the appeal filed by the appellants on 11.8.2008 challenging the impugned judgment of the learned Islamabad High Court dated 10.7.2008 on the ground that the same is barred by 44 days for the reason that when the appeal was filed, the decree-sheet was not attached thereto and when it (decree-sheet) was filed on 24.09.2008 vide CMA No.2720/2008 by that time the appeal had become barred by the above-stated number of days. 2. Brief facts of the case are:- that the applicant filed a suit for declaration, permanent injunction, restitution and damages alternative for the specific performance, possession and compulsory execution and registration of lease deed in its favour against the C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 2 :- appellants. This suit was dismissed by the learned Trial Court vide judgment and decree dated 29.7.2006. Aggrieved of the said decision, the applicant filed RFA No.86/2006 before the learned Islamabad High Court, which was allowed vide impugned judgment dated 10.7.2008 and the judgment and decree of the learned Trial Court was set aside. It may be pertinent to mention here that the suit of the applicant was not specifically decreed in any of the terms as per the prayer made by it in the plaint. Be that as it may, on 23.7.2008, Mr. Zafar Khan, Advocate applied on behalf of the appellants for the certified copy of the impugned judgment vide Form No.4451 and the same was delivered to the appellants on 25.7.2008 and the appeal as mentioned above was filed on 11.8.2008 which was within time. The office entertained the appeal without any objection or calling upon the appellants to file the copy of the decree-sheet as well. The case of the applicant is that through this Form, the appellant did not apply for the copy of the decree-sheet, but only the impugned judgment; besides, as it is evident from the memo of appeal, the title and the prayer clause, the appellants had only challenged the impugned judgment dated 10.7.2008 but not the decree. It is argued that as the appeal was incompetently filed, therefore, the applicant moved the instant application for the dismissal of the same and it is only thereafter that the appellants applied for the copy of the decree on 9.9.2008 which was supplied on the same day and they filed the same in this Court on 24.9.2008 and by that time the appeal had been rendered barred by time. 3. The learned counsel for the applicant has argued that according to Order XII Rule 4 of the Supreme Court Rules, 1980 C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 3 :- (Rules, 1980) the memo of appeal had to be accompanied by the certified copy of the judgment and decree to be challenged and as the appellants have failed to do so, therefore, the appeal should be dismissed as being barred by law. For the purposes of drawing support that the memo of appeal should be accompanied by the decree-sheet, the learned counsel has relied upon the provisions of Order XLI Rule 1 of the CPC and the judgments of superior Court reported as Haji Abdul Karim and others Vs. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247 at page 263, para 10), Apollo Textile Mills Ltd. And others Vs. Soneri Bank Ltd. (PLD 2012 SC 268 at pages 287 & 288, para 27), Cooperative Model Town Society through Secretary Vs. Mst. Asghari Safdar and others (2005 SCMR 931), Anoud Power Generation Ltd. and others Vs. Federation of Pakistan and others (PLD 2001 SC 340 at pages 353 & 358) and Imtiaz Ali Vs. Atta Muhammad and another (PLD 2008 SC 462 at page 465, para 6). 4. On the contrary, learned counsel for the appellants has argued that the decree-sheet in this case was not prepared along with the impugned judgment, but it was much later in time. When the appellants applied for the judgment of the court on 23.7.2008, the decree-sheet was not ready and prepared and thus, only the impugned judgment was delivered to them. He has further argued that while passing the impugned judgment, the learned High Court has not passed a decree to hold as to what relief has been allowed to the applicant, i.e., either the relief pertaining to declaration, injunction or the specific performance etc., therefore, any decree prepared in the case is beyond the scope of the judgment, rather it is absolutely not in consonance thereto. He has C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 4 :- further submitted that when the file of the Trial Court was sent back to it on 15.07.2008, only the copy of the impugned judgment of the learned High Court was attached thereto and not the decree- sheet. Had the decree-sheet been prepared, that should have also been attached therewith. It is also submitted that according to the provisions of Order XII Rule 4 of the Rules, 1980, the filing of the decree-sheet in all cases is not required as the language of this rule is absolutely different from the provisions of Order XLI Rule 1 of the CPC, which provisions even otherwise are not applicable to the appeals filed before this Court. Learned counsel has also submitted that when the appeal was filed, the office did not raise any objection about the non-attachment of the decree-sheet. Such objection was only conveyed to the appellants when the office in this respect issued a notice on 5.9.2008, but before that the appellants had already procured the decree-sheet and filed the same. He has also submitted that even the applicant had applied for the judgment and decree of the learned Trial Court, but only the copy of the judgment was supplied to it on 15.7.2008 because till then the decree-sheet had not been prepared. It is for such reason that when Criminal Original Petition No.77/2008 was initiated by the applicant before the learned High Court, seeking implementation of the impugned judgment/decree, the decree- sheet had not been filed alongwith. Learned counsel in support of his submissions has relied upon the judgment reported as Imtiaz Ali vs. Atta Muhammad (PLD 2008 SC 462) and Prime Dairies Ice Cream Ltd, Lahore vs. Commissioner of Income Tax, Companies Zone (2002 SCMR 540 at page 543, para 6). In the former judgment this Court held that where a copy of the judgment C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 5 :- impugned has been appended with the memo of appeal, while filing of appeal in this Court, the same would be competent as the impugned judgment has been treated as a decree by fiction of law due to the provision of Order XLV, Rule 1 of the C.P.C. In the later judgment it was held by this Court that since by virtue of subsection (2) of Section 137 of the Income Tax Ordinance, 1979 (ITO), the provisions of the CPC relating to appeals to the Supreme Court against the judgment and decree of the High Court so far as applicable shall apply to the appeals under that section, and the provisions of CPC shall be deemed to have been incorporated by way of legislation with regards to the regulation of the procedure of filing of appeals to judgments under the ITO in the Supreme Court, therefore, by fiction of law, a judgment under appeal is to be treated as a decree of the High Court passed in a regular civil matter. 5. Heard. The gist of the submissions made by the learned counsel for the parties has been provided above. However during the course of reasoning of this opinion, if any further submission made by them requires mention, it shall be so depicted. In order to resolve whether the provisions of Order XII Rule 4 of the Rules, 1980 have been complied with by the appellants or not, suffice it to say that this rule prescribes as under:- “(4). The petition of appeal shall be accompanied by: (i) certified copies of the judgment and decree or final order appealed against, and of Courts below; C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 6 :- (ii) a certified copy of the certificate granted under Article 185(2)(f) where that certificate is not embodied in the judgment; and (iii) an affidavit of service of copy of the petition or appeal on the respondent.” It may also be relevant to mention here the specific provisions under Order I Rule 5 of the Rules, 1980 which provide that “Save as otherwise expressly provided by these Rules, the provisions of the Code shall not apply to any proceedings in the Court”. The ‘Code’ has been defined in the Rules to mean “the Code of Civil Procedure, 1908” (CPC). We have not come across any provision of the Rules, 1980 whereby the provisions of Order XLI Rule 1 of the CPC has been made applicable thereto; therefore, the case law relied upon by the applicant’s counsel and his reliance upon Order XX Rule 7 of CPC is not of much help in this case. Even otherwise order/rule ibid is not meant for the purpose of the determination and the calculation of period of limitation for the purposes of appeal, rather according to the said provisions, regardless of the decree-sheet when it is prepared, the purpose and the object is that it (decree) shall have the effect from the date of the pronouncement of the judgment. This is so clear from the wording of the rule which stipulates that “The decree shall bear date the day on which the judgment was pronounced …”. It does not mean that such date should be considered to be the date of coming into existence of the decree-sheet, rather the decree sheet should mention the date of its preparation and completion, so that the limitation for the appeal purpose should be reckoned from that date. It may not be irrelevant to mention here that there are no two opinions that the decree-sheet is not prepared on the same day, rather it takes time and therefore, the date on which it C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 7 :- came into existence is relevant and has to be mentioned in the decree-sheet. It may be mentioned that according to the judgment reported as Government of Sindh through Land Acquisition Officer and others Vs. Muhammad Juman and another (2009 SCMR 1407) the limitation for filing appeal will commence from the date of decree and the time, elapsed between the announcement of the judgment and signing of the decree, shall be included in the time requisite for obtaining the copy of the judgment and decree. In another judgment of this Court reported as The Government of West Pakistan through Chief Secretary, Lahore etc. Vs. Niaz Muhammad (PLD 1967 SC 271) in which it has been clearly held that the limitation for the purposes of appeal shall commence from the date of preparation of the decree. In this case, we had sought report from the learned High Court as to when the decree was prepared and had also requisitioned the original record but it is not clear therefrom on what specific date the decree-sheet has been prepared. There is no material about the movement of file indicating as to when, after the judgment had been signed by the Hon’ble Bench, the file was sent to the office for the preparation of the decree, how much time was consumed in this respect and what is the exact date when the decree-sheet was prepared and completed in all respects. It is this date, on which the decree comes into existence and thus there is a serious doubt in this regard. This view is fortified by the fact that when the applicant filed the contempt petition before the learned High Court, the decree-sheet was not appended thereto. We had repeatedly required the learned counsel for the appellants to produce any certified copy of the decree which the applicant had applied and C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 8 :- was supplied to him so as to suggest the exact date on which the decree-sheet was prepared. The record of the Trial Court when sent by the learned High Court also does not accompany the decree- sheet, rather it is only the impugned judgment was sent. The office had entertained the appeal against the impugned judgment alone and never required the appellants to also file the decree-sheet till such date when a notice in this regard was issued but before that the appellants had already filed an application for obtaining the copy of the decree-sheet which was, as mentioned earlier, supplied to them and had been filed. Keeping in view all these circumstances in totality, we are of the candid view that no sure date can be ascertained as to when the decree as per the provisions of Rule 8 Part H of Volume V of the Rules and Orders of the Lahore High Court, Lahore (which too were adopted by the Islamabad High Court) was prepared because one thing is absolutely and unequivocally clear that the decree-sheet was not prepared and was not in existence on the date of the pronouncement of the impugned judgment i.e. 10.7.2008, rather it is subsequently prepared and, as repeatedly mentioned above, the date in this regard is absolutely obscure. Obviously in such a situation the appellants’ appeal cannot be with surety held to be barred by time and even if that being so on account of the facts forthcoming and the law mentioned, the appellants are entitled to the condonation of delay which is hereby condoned. Before parting with this opinion, we must make it clear that we do not agree with the contention of the learned counsel for the appellants that as per Order XII Rule 4 of the Rules, 1980 (reproduced above) it is not mandatory that the impugned judgment and the decree (whereby the C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 9 :- decree-sheet has been prepared pursuant to the impugned judgment) is not required to be filed, rather in case where either the judgment or the decree has not been filed, that shall be the sufficient compliance of the above provision. Rather to the contrary, such an appeal filed by the appellants would be incompetent and the defect would only stands cured from the date when the decree-sheet or the impugned judgment is filed and obviously the time limitation shall also be reckoned from the date of complying with the mandatory provision of law. Obviously this shall be subject to the appellant in any case showing ‘sufficient cause’ for not filing the copy of either of the two documents and can seek the condonation of delay which would be dependent upon the facts and circumstances of each case. 6. In light of the above, the delay of 44 days as alleged by the applicant in filing the present appeal is condoned. The applications seeking dismissal of the appeal on account of the limitation are dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 25th of September, 2017 Approved for reporting Waqas Naseer/* C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 10 :- Be that as it may, we have required a report from the learned High Court as to when the decree was prepared and also requisitioned the original record from the learned High Court. It is not clear therefrom that on what specific date the decree-sheet had been prepared. As there is a serious doubt about the date of preparation of the decree in this case and the signing thereof by the competent authority, throughout, we have asked the learned counsel for the applicant to place on the record the decree-sheet which had been provided to it pursuant to the application which it had filed for the attested copy of the judgment and decree, but it has not been able to do so. There is no material on the record as to when the file of the case after the pronouncement of the judgment was sent to the office, where the decree sheet had to be prepared by the office. Moreover, the office of this Court also did not raise any objection while entertaining the appeal of the appellants, rather issued a notice on 15.07.2008 requiring them to file the copy of the decree. Before that date, the appellants having the awareness that the applicant is seeking the dismissal of this appeal being time barred, as a precaution, had moved an application for obtaining the certified copy of the decree, which was supplied to the appellants on 9.9.2008 and immediately, the same was filed in the office. Keeping in view all the facts in totality, we find it obvious that the decree which had to be prepared by the office in terms of the provisions of Rule 8 Part H of Volume V of Rules and Orders of the Lahore High Court, Lahore (which too were adopted by the Islamabad High Court) the decree-sheet was not prepared on the same day when the judgment was pronounced on 10.7.2008, rather it was prepared subsequently, but it is not divulged from the record that on which C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 -: 11 :- date the same was prepared and thus came into existence. Obviously, in such a situation, the benefit should be given to the appellants for the purpose of condoning the delay. Thus, following the view set out in the judgment reported as The Government of West Pakistan through Chief Secretary, Lahore etc. Vs. Niaz Muhammad (PLD 1967 SC 271), we hold that the decree-sheet having not been prepared on the same day, but subsequently on an unknown date, hence, in the circumstances, the provisions of Order XX Rule 7 of CPC shall not be attracted. 6. In light of the above, we find it to be a fit case for condonation of delay; resultantly, the delay of 44 days in filing of the appeal is condoned. The applications are accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 25th of September, 2017 Not approved for reporting Waqas Naseer/*

{'id': 'C.M.A.2593_2008.pdf', 'url': ''}

{'id': 'C.M.A.2593_2008.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ MR. JUSTICE JAVED IQBAL MR. JUSTICE SARDAR MUHAMMAD RAZA KHAN MR. JUSTICE KHALIL-UR-REHMAN RAMDAY MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE RAJA FAYYAZ AHMED MR. JUSTICE CH. IJAZ AHMED MR. JUSTICE GHULAM RABBANI MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE RAHMAT HUSSAIN JAFFERI C.M.A. No.2745/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 Justice Khurshid Anwar Bhinder …Applicant Versus Federation of Pakistan and another …Respondents C.M.A. No.2747/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Justice Hasnat Ahmed Khan …Applicant Versus Sindh High Court Bar Association, etc. ..Respondents C.M.A. No.2748/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 Justice Zafar Iqbal Chaudhry and another …Applicants Versus Federation of Pakistan and another …Respondents C.M.A. No.2750/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Justice Syed Shabbar Raza Rizvi …Applicant Versus Sindh High Court Bar Association, etc. …Respondents CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 2 C.M.A. No.2776/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Syed Sajjad Hussain Shah …Applicant Versus Sindh High Court Bar Association, etc. …Respondents C.M.A. No.2779/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Mrs. Yasmin Abbasi …Applicant Versus Sindh High Court Bar Association, etc. …Respondents C.M.A. No.2782/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 Syed Sajjad Hussain Shah …Applicant Versus Nadeem Ahmed Advocate and another …Respondents C.M.A. No.2788/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Muhammad Ahsan Bhoon …Applicant Versus Sindh High Court Bar Association, etc. …Respondents C.M.A. No.2790/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Anwar-ul-Haq Pannu …Applicant Versus Sindh High Court Bar Association, Sindh …Respondents High Court, Karachi through its Secretary, etc. C.M.A. No.2825/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Syed Hamid Ali Shah …Applicant Versus Sindh High Court Bar Association, etc. …Respondents C.M.A. No.4002/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 Barrister Jahanzeb Rahim …Applicant Versus Federation of Pakistan through …Respondents Ministry of Law, Justice & Human Rights, Islamabad, etc. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 3 CRIMINAL ORIGINAL PETITION NO.90/2009 [Contempt matter regarding press statement made by Syed Zulfiqar Ali Bokhari] For the applicant : Mr. Wasim Sajjad, Sr. ASC (in C.M.A.No.2745/2009) Mr. Ejaz Muhammad Khan, AOR For the applicant : Mr. Farooq Amjad Meer, ASC (in C.M.A.No.2747/2009) For the applicant : Malik Muhammad Qayyum, Sr. ASC (in C.M.A.No.2748/2009) For the applicant : Dr. A. Basit, Sr. ASC (in C.M.A.No.2750/2009) Mr. G. N. Gohar, AOR For the applicant : Sheikh Zamir Hussain, Sr. ASC (in C.M.As.No.2776 & 2782/2009) Mr. Ejaz Muhammad Khan, AOR Mr. Mahmoodul Islam, AOR(absent) For the applicant : Dr. Khalid Ranjha, Sr. ASC (in C.M.A.No.2779/2009) Mrs. Yasmin Abbasi (In person) Mr. Mazhar Ali B. Chohan, AOR (absent) For the applicant : Dr. Khalid Ranjha, Sr. ASC (in C.M.A.No.2788/2009) Mr. A.H. Masood, AOR (absent) For the applicant : In person (in C.M.A.No.2790/2009) For the applicant : Syed Ali Zafar, ASC (in C.M.A.No.2825/2009) Mr. G. N. Gohar, AOR For the applicant : Syed Naeem Bokhari, ASC (in C.M.A.No.4002/2009) Mr. G. N. Gohar, AOR For the Federation : Mr. Shah Khawar, Acting Attorney General for Pakistan For the Sindh High Court Bar : Mr. Hamid Khan, Sr. ASC (On caveat) Mr. Rashid A. Rizvi, ASC Mr. M.S. Khattak, AOR For Nadeem Ahmed, Advocate : Mr.Muhammad Akram Sheikh, Sr. ASC (On caveat) Ch. Muhammad Akram, AOR On Court notice : Syed Zulfiqar Ali Bokhari (In person) Date of hearing : 13.10.2009 …….. JUDGMENT JAVED IQBAL, J.- The above captioned applications for permission to file review petitions against judgment dated 31.7.2009 passed in Constitutional Petitions No.9 and 8 of 2009 have been CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 4 dismissed by means of short-order dated 13.10.2009 which is reproduced herein below for ready reference:- “For reasons to be recorded later, by majority of 13 to 1 (Sardar Muhammad Raza Khan, J dissenting), all these applications for permission to file review petitions against the judgment dated 31.07.2009 passed in Constitution Petitions Nos. 9 & 8 2009 are dismissed. 2. For reasons to be recorded later, we unanimously hold and direct as under:- (1) The notices issued under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976 or any other enabling provisions of the relevant law, to the Judges who have expressed their regrets and repentance; by tendering unconditional apologies and affirming their remorse through withdrawal of the petitions filed by them and tendering of resignations, are discharged; (2) Similarly, as to the Judges who have already retired and have tendered unconditional apologies and have expressed their repentance and remorse, the notices issued to them are discharged. (3) As to the Judges, who are contesting notices, they shall be proceeded against separately along with the cases of those Judges, who have not filed replies and/or have prayed for grant of time; (4) The Judges of the Supreme Court and the High Courts, who tendered resignations after pronouncement of the judgment dated 31.07.2009 in deference thereto shall not be proceeded against; (5) The Judges who have tendered resignations, but have not filed replies to the notices, the process shall be repeated to them so as to file the replies within two weeks; (6) The Judges, who have neither tendered resignations nor have filed replies, are required to file replies within two weeks; CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 5 (7) Mr. Ahmed Raza Kasuri, ASC, has prayed for grant of four weeks’ time to submit reply on behalf of Justice (Retd.) Abdul Hameed Dogar. Let the reply be filed within two weeks. (8) Justice (Retd.) Muhammad Nawaz Abbasi has filed reply, which is not unconditional apology, therefore, his matter shall be proceeded along with other cases; and (9) As far as Syed Zulfiqar Ali Bokhari is concerned, he has tendered unconditional apology and has thrown himself at the mercy of the Court, the notice issued to him is also discharged.” 2. The reasons for the above reproduced short-order are as follows. 3. We may make it clear at the outset that we are not dilating upon the merits of the review petitions and we shall confine ourselves to the pivotal question which needs determination at first instance as to whether these review petitions are maintainable or otherwise? Before we could answer the said question, we intend to examine the respective contentions as agitated on behalf of the petitioners. 4. Mr. Wasim Sajjad, learned Sr. ASC entered appearance on behalf of Mr. Khurshid Anwar Bhinder in CMA No.2745 of 2009 and addressed the Court at length on the question of maintainability whose prime contention remained that no such decision could have been given without affording proper opportunity of hearing in violation of the well entrenched doctrine of ‘audi alteram partem’ and the fundamental rights guaranteed in the Constitution coupled with the judicial precedents which ought to have been followed but were ignored. In order to substantiate his contention it is argued that it is a cardinal principle of law that no person should be condemned unheard and besides that the principle of audi alteram partem has also been jealously guarded by this Court. It is contended that the petitioner and all other CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 6 removed judges were neither impleaded as party in the above mentioned Constitutional Petitions nor any opportunity of hearing was afforded which resulted in serious miscarriage of justice. It is next contended that this Court has ample powers as conferred upon it under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) to hear the review petitions and besides that no bar whatsoever has been imposed in the provisions enumerated in Order XXVI of the Supreme Court Rules, 1980 and even otherwise the petitioner may not be knocked out on the basis of sheer technicalities in the absence of any restraints imposed by law. It is also argued that in Civil Petition No.8 of 2009, a specific prayer was made for removal of the Judges including the applicant, who were not appointed in consultation with the Hon’ble Chief Justice of Pakistan but in consultation with Abdul Hameed Dogar, J, who was not a constitutional consultee. The applicant was appointed as Additional Judge of the Lahore High Court, Lahore on 14.12.2007 and as permanent Judge of that Court on 12.12.2008. The order dated 03.11.2007 passed by a seven-member Bench of this Court restraining, inter alia, the Judges of the Supreme Court and High Courts from taking oath under any extra-constitutional set up, was set aside by an eight-members Bench vide order dated 06.11.2007. The applicant had no means to know that the latter order would be declared illegal and void at any time in the future. Further, the order dated 06.11.2007 got merged in the final order dated 19.11.2007, by which the Constitution Petition No. 73 of 2007 (Wajihuddin Ahmed v. Chief Election Commissioner) was dismissed. The order dated 03.11.2007 became alive on 31.07.2009 when a judgment was passed by a fourteen- member Bench. On 03.11.2007, the applicant was not a Judge but was a lawyer, therefore, the order dated 03.11.2007 was not applicable to him. It is further argued that in the matter of removal of a Judge of a CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 7 superior Court, Articles 4, 9 and 25 of the Constitution would be attracted. Access to justice had been made a fundamental right. The applicants had been deprived of their right to hold office, therefore, they had a right to be heard against their removal. By virtue of Article 2A of the Constitution, the Islamic principles would be attracted, and an affected person would be granted the right of hearing. It is next contended that the applicant was an aggrieved person within the contemplation of Order XXVI, Rule 1 of the Supreme Court Rules 1980, read with Order XLVII, Rule 1 of the CPC and had a right to file the review petition against the judgment of the Hon’ble Supreme Court, which adversely affected him. In order to substantiate his view as mentioned hereinabove the following case law has been referred to by Mr. Wasim Sajjad, learned Sr. ASC:- H. M. Saya & Company v. Wazir Ali Industries Limited (PLD 1969 SC 65), Custodian of Evacuee Property v. Saifuddin Shah (PLD 1981 SC 565), Muhammad Siddique v. Chief Settlement & Rehab Commr. (PLD 1965 SC 123), Fehmida Khatoon v. Addl. Dy. Commr. PLD 1975 Lah.942 at 949, Al- Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 at 367, Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) at 2212, Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 at 1911, Noubahar v. the State 2002 SCMR 1218 at 1219, Muhammad Yaqub v. Saeed Shah PLD 1961 Kar. 656, Jhabba Lal v. Shib Charan (AIR 1917 ALL. 160), Kawdu v. Berar Ginning Co. (AIR 1929 NAG 185), 1986 CLC 1048, Muhammad Akram Sheikh v. Federation of Pakistan (PLD 1989 SC 229), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642 at 668). 5. Mr. Farooq Amjad Meer, learned ASC entered appearance in CMA No.2747/2009 on behalf of Mr. Justice Hasnat Ahmed Khan and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with the further submission that the applicant irrespective of his status enjoys the protection as afforded by Article 4 of the Constitution and at least a notice should have been given enabling him to defend himself as CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 8 an adverse order has been passed against him without affording proper opportunity of hearing. It is pointed out that notice was issued to General (Retd.) Pervez Musharraf and accordingly it should have been issued to the petitioner in the interest of justice, fair play and equity. 6. Malik Muhammad Qayyum, learned Sr. ASC entered appearance on behalf of Mr. Zafar Iqbal Chaudhry and Mr. Muhammad Akram Qureshi in CMA No.2748/2009 and adopted the arguments as canvassed at bar by Mr. Wasim Sajjad, learned Sr. ASC with the further submission that neither the opportunity of hearing was afforded to the petitioners nor they were impleaded as party and, therefore, no adverse order could have been passed against them as it would be in violation of the well entrenched principles of the law of natural justice. It is also contended that mere publication of the proceedings in the electronic and print media did not constitute sufficient notice in law. Non- issuance of notice to the applicant was against the very finding recorded by the fourteen-member Bench. 7. Dr. A. Basit, learned Sr. ASC entered appearance on behalf of Mr. Justice Syed Shabbar Raza Rizvi in CMA No. 2750/2009 and submitted that Mr. Justice Syed Shabbar Raza Rizvi has no grievance qua the judgment impugned which is historic one but a few lapses are there which need rectification. It was urged with vehemence that the judgment passed by seven Members Bench was not within the knowledge of Mr. Justice Syed Shabbar Raza Rizvi who was not available at Lahore on the day when the said order was passed and besides that it was never communicated by the Registrar concerned to the Hon’ble Judges. It is pointed out that Mr. Justice Syed Shabbar Raza Rizvi was in his village on Saturday when the said order was passed by the seven Members Bench of this Court. It is also pointed out that Supreme Court has unbridled powers under Article 188 of the Constitution as well as Order XXVI of the Supreme Court Rules and, CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 9 therefore, in the absence of any restraint imposed by any law the application may be allowed. It is also contended that this Court may exercise its power as conferred upon it under Article 187 of the Constitution. The learned counsel has relied upon case titled Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869 at pages 1214, 1216). It is also contended that the celebrated judgment dated 31.07.2009 was required to be partially reviewed, in that, in Para 248, it was unequivocally laid down that the Judges, who made oath in violation of the order dated 03.11.2007 were guilty of the breach of the order. The said finding had pre-empted the power and jurisdiction of the Supreme Judicial Council. As a matter of fact, the Court, in such a proceeding, would record a tentative finding by using the words “prima facie”. 8. Mr. Anwar-ul-Haq Pannu appeared in person in CMA No.2790/2009 and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC and Malik Muhammad Qayyum, learned Sr. ASC. He also reiterated the submission that the judgment impugned has been passed in violation of universally accepted principles of natural justice i.e. audi alteram partem and the petitioner has been condemned unheard without affording him proper opportunity of hearing causing serious prejudice against him. 9. Syed Ali Zafar, learned ASC entered appearance on behalf of Mr. Justice Syed Hamid Ali Shah in CMA No.2825/2009 and submitted that a person though not a party to a lis can file a review in view of the provisions as enumerated in Order XLVII CPC. It is next contended that no one should be condemned unheard and opportunity of proper defence being mandatory in nature required to be provided irrespective of the fact whether it has been provided by a particular statute or otherwise. It is pointed out that Order XLVII CPC makes it abundantly clear that any person considering himself to be aggrieved CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 10 may file a review petition and neither any embargo whatsoever has been imposed nor any condition laid down therein. It is also contended that in view of the provisions as enumerated in Article 188 of the Constitution this Court has ample powers to hear a person at any stage irrespective of the fact whether he remained a party in appeal or otherwise. In this regard, particular reference has been made to the powers of Suo Motu review jurisdiction as conferred upon this Court. Syed Ali Zafar, learned ASC also referred to Article 187 (1) of the Constitution which according to him can also be invoked for the redressal of the grievances of the petitioner. Besides that the provisions as enumerated in Order 33 Rule 6 of the Supreme Court Rules, 1980 have also been mentioned with the further submission that procedure should not be considered as a hindrance but justice should be done. It is also contended that the Constitution did not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine of stare decisis would come in its way so long as review was warranted in view of the significant impact on the fundamental rights of the citizens or in the interest of public good. The learned counsel lastly submitted that access to justice was a fundamental right and a Judge, as much as a citizen, was entitled to approach the Court for the redress of his grievance. In support of the submission, the learned counsel placed reliance on the case of Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan v. President of Pakistan (PLD 2007 SC 578). 10. It is also mentioned that the order passed on 03.11.2007 by seven Members Bench of this Court on Saturday was never communicated or served upon the petitioner, hence the question of its violation does not arise and no conclusion can be drawn qua service/communication of said order on the presumption having no value in the eye of law. In order to substantiate the said version it is CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 11 pointed out that no punishment could be awarded without having a concrete proof qua service of the said order on the petitioner. It is also mentioned that presumption of knowledge of the order passed on the assertion that it was widely circulated in the media and communicated to the Registrar of the High Court has no legal footings in such like proceedings and it can not be equated to that of an effective service. 11. Syed Naeem Bokhari, learned ASC who entered appearance on behalf of Mr. Justice Jahanzeb Rahim, applicant in CMA No.4002/2009 referred to the case of M. H. Khondkar v. The State (PLD 1966 SC 140) and sought recusal of certain Members of the Bench on the ground of bias. It was contended that he would exercise his right to raise issue of bias and the Court must hear him instead of knocking him out of the Court. It was also submitted by Mr. Naeem Bokhari, learned ASC that his arguments may be heard in Chambers so that he could highlight certain important aspects having substantial bearing on merits of the case. It is also contended that petitioner could not have been condemned unheard without impleading him as a party or issuance of notice. It is contended that the judgment impugned is in violation of basic norms of principle of natural justice which resulted in serious miscarriage of justice and on this score alone the review petition preferred by the petitioner may be heard on merits and proper opportunity of hearing be afforded. The learned ASC also explained two cardinal principles of natural justice i.e. “audi alterm partem” and “nemo judex in causa sua”. The learned ASC has referred case of M.H. Khondkar (supra) to support his view point. It is argued with vehemence that the applicant was not a party to the judgment dated 31.07.2009, wherein it was concluded that the applicant had committed misconduct and his case was directed to be placed before the Supreme Judicial Council. He lastly submitted that the provisions of Rule 6 of Order XXVI of the Supreme Court Rules 1980, can be taken into consideration in CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 12 the instant case because the applicant was not represented at the hearing of the main case. 12. Sheikh Zamir Hussain, learned Sr. ASC entered appearance on behalf of Mr. Justice Syed Sajjad Hussain Shah in C.M.As. No.2776 & 2782 of 2009 and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC, Malik Muhammad Qayyum, learned Sr. ASC and Mr. Farooq Amjad Meer, learned ASC with the further submission that the provisions as enumerated in Order XXVI Rules 1 and 6 of the Supreme Court Rules read with Article 188 of the Constitution can be pressed into service conveniently by allowing the civil miscellaneous application. It is also pointed out that no restriction whatsoever has been imposed in Order XXVI Rules 1 and 6 of the Supreme Court Rules and for the sake of arguments if presumably there is any hurdle that can be removed as technical knockout is not desirable and every lis should be decided on merits and in accordance with law. It is pointed out that the Supreme Court Rules are subservient to the Constitution and may not be considered as hindrance for imparting justice. It is also pointed out that rule can be relaxed in case of hardship which is discretion of this Court and it should be exercised as it would be in the interest of justice. It is also contended that the Supreme Court and the High Courts were the Courts of record. The principle of absolute justice and absolute fairness demanded that if the Court, while writing a judgment found that the judgment was going to affect someone, who was not heard notice would be issued to him, and generally it did the same thing. Article 188 of the Constitution conferred upon the Supreme Court substantive power of review. Though such power was subject to any act of Majlis-e-Shoora and the rules framed by the Supreme Court, but the constitutional power could not be curtailed by any subordinate legislation, and would CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 13 always prevail over the law/rules. The learned counsel has relied upon the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161). 13. Dr. Khalid Ranjha, learned Sr. ASC entered appearance on behalf of Mrs. Justice Yasmin Abbasi in CMA No.2779/2009 and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with the further submission that Supreme Court Rules cannot curtail the Constitutional powers conferred upon this Court under Article 188 of the Constitution. Mrs. Justice Yasmin Abbasi also argued for herself and submitted that she was not aware of the restraining order of seven Members Bench by this Court passed on 3.11.2007 as it was never communicated to her by the Registrar concerned. It is submitted that oath was taken on 3.11.2007 in a good faith by following the prevalent precedents. It is submitted that non-communication of restraining order passed by seven Members Bench of this Court being a question of fact requires consideration and no conclusion can be drawn qua its service on the petitioner merely on the basis of presumption. It is also submitted that notice was given on 22.7.2009 to General (Retd.) Pervez Musharraf and accordingly all the affected persons including removed Judges should have been impleaded as party by issuance of notice which was not done resulting in serious miscarriage of justice. It is also pointed out that social justice as enunciated by Islam also requires that no person should be condemned unheard and proper opportunity of defence must be afforded which was not done in this case. It is time and again pointed out that on 3.11.2007 the order passed by seven Members Bench was never communicated to her. It is also contended that clause 3 of the Oath of Office (Judges) Order, 2000 provided that any person holding office of Judge of the Supreme Court or a High Court would not continue to hold office if he did not make oath within the time determined in that behalf. Accordingly, the Judges who did not make oath ceased to hold office. The matter came up before a twelve- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 14 member Bench of the Supreme Court where it was held that the removal of the Judges under the Oath Order, 2000 was past and closed transaction. Therefore, even if she had got proper knowledge of the order dated 3.11.2007, she would have made oath otherwise, on the basis of the past practice, if she had not made oath on 3.11.2007, she would also have been deprived of office of Judge. 14. Mr. Muhammad Ahsan Bhoon entered appearance in person in CMA No.2788/2009 and requested that the grounds mentioned in the review petition may be considered as his arguments. 15. Mr. Rashid A. Rizvi, learned Sr. ASC entered appearance on behalf of caveat (Sindh High Court Bar Association) and strenuously controverted the view point as canvassed at bar by the learned Sr. ASC on behalf of applicants with the further submission that CMAs are not maintainable as the applicants were never impleaded as party and besides that they were neither necessary parties nor proper parties, hence the question of filing review petition against judgment dated 31.7.2009 does not arise. In order to substantiate his version it is argued that no Hon’ble Judge was involved in Constitutional Petitions No.9/2009 and 8/2009 and no question whatsoever regarding their eligibility, qualification or entitlement for appointment against the post of Judge was ever raised rather the prime question urged before the Hon’ble Court was that the purported act done by General (Retd.) Pervez Musharraf between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments were unconstitutional, invalid and without legal consequence and of the appointments of Judges of superior judiciary made on or after 3.11.2007 up-till 22.3.2009 without having consultation of Hon’ble Chief Justice of Pakistan were unconstitutional, invalid and without any legal consequence and the prime thrust was on the question whether PCO was a valid piece of legislation? He submitted that none of CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 15 the Judges were impleaded as party nor criticized in this regard and more so the judgment dated 31.7.2009 does not amount to any stigma regarding any of the Judges and hence re-hearing of the case would be nothing but an exercise in futility. The learned ASC further argued that entire superstructure raised on the foundation was based on the actions of General (Retd.) Pervez Musharraf taken between 3.11.2007 to 16.12.2007 which were declared unconstitutional, null and void and therefore, no one can claim and say that such a superstructure was Constitutional and legal. It is mentioned that none of the advocates on behalf of applicants has supported the PCO and subsequent action of General (Retd.) Pervez Musharraf. The learned Sr. ASC on behalf of caveat also referred to the provisions as enumerated in Order XXV Rule 9 of the Supreme Court Rules which, inter alia, provides that notice shall be served on all persons directly affected and on such other persons as the Court may direct but no such direction was ever issued by the Court. It is also contended that the judgment dated 31.7.2009 is a judgment in rem and, therefore, the applicants have no locus standi to make such petitions. In order to substantiate his version case titled Federation of Pakistan v. Qamar Hussain Bhatti (PLD 2004 SC 77) has been referred. Mr. Rashid A. Rizvi, learned Sr. ASC urged with vehemence that in the past Constitutional history no affected Judges have ever pleaded their cause for seeking service as a Judge which otherwise is neither desirable nor in accordance with the principles relating to morality and ethics. It is further argued that the applicants had not challenged PCO and the verdict given in case titled Tika Iqbal Muhammad Khan v. General Pervez Musharraf Chief of Army Staff (PLJ 2008 SC 446) rather supported the judgment of 31.7.2009 and once the judgment is supported no particular observation can be challenged or any prayer for its review can be made because the judgment has been supported in its entirety and had the applicants been aggrieved by the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 16 judgment of 31.7.2009 they would have challenged it. The learned Sr. ASC also pointed out that Order XXVI Rule 1 of the Supreme Court Rules hardly renders any assistance to the case of applicants. The learned Sr. ASC has referred cases titled Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145 at 166), Ghulam Muhammad v. Saeed Ahmad (1986 CLC 1048), Federation of Pakistan v. Qamar Hussain Bhatti (PLD 2004 SC 77) in support of his above mentioned contentions. 16. Mr. Hamid Khan, learned Sr. ASC also entered appearance on behalf of caveat (Sindh High Court Bar Association) and supported the arguments as advanced by Mr. Rashid A. Rizvi, learned Sr. ASC with the further submission that the applicants were fully aware regarding the proceedings and they could have joined it at appropriate stage and before the pronouncement of judgment dated 31.7.2009. This was not done for the reasons best known to them. Mr. Hamid Khan, learned Sr. ASC also invited the attention of this Court to Order XXVI Rule 9 of the Supreme Court Rules and submitted that it cannot be interpreted in such a manner to infer that each party can file a separate review without having sufficient lawful justification which is lacking in this case. It is also argued that the appointments of certain Judges were declared unconstitutional and unlawful as a sweep and consequence of the judgment impugned and therefore, no one can claim as a matter of right that he is an aggrieved person as it would be against the fall out of judgment which is binding in its nature in view of the provisions as enumerated in Article 189 of the Constitution. It is also contended that no new principle whatsoever has been enunciated but on the contrary the well entrenched legal principles qua appointment of Judges in cases titled Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) have been followed. In case of enunciation of any new principle the applicants may CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 17 have some grievance but now they cannot be considered aggrieved in any manner. According to Mr. Hamid Khan, learned Sr. ASC the applicants are seeking review of the judgment delivered in cases titled Al-Jehad Trust, Asad Ali (supra) and Ghulam Hyder Lakho v. Federation (PLD 2000 SC 179) which cannot be allowed at this belated stage. It is also contended that case law mentioned by Mr. Wasim Sajjad, learned Sr. ASC cannot be made applicable as there is a difference between review and appeal which was not kept in view while referring to the case law. It is also pointed out that in case titled Al-Jehad Trust (supra) the affected Judges from Peshawar and Sindh were never impleaded as party and impleading of the applicants as a party would set a new precedent which would not be in consonance with the dictum laid down in the cases of Al-Jehad Trust, Asad Ali and Ghulam Hyder Lakho (supra) but rather it would be contrary and in violation thereof. It is also mentioned that individuals are not important but it is the national interest which is supreme and the same has been kept intact in the judgment dated 31.7.2009 which being historic one hardly needs any kind of review as each and every aspect of the controversy brought before the Court has been dilated upon and decided in a comprehensive manner. Mr. Hamid Khan, learned Sr. ASC further contended that some time we have to go by legally permissible presumption and argued that the order dated 03.11.2007 passed by learned seven Members Bench restraining all the Judges of superior Courts to take oath was in the knowledge of applicants and by no stretch of imagination it can be said that they remained unaware. It is contended that for the sake of arguments if their ignorance is accepted even then there could be no justification for their conduct after taking oath as they could have taken appropriate action in accordance with the order passed by seven Members Bench when it came to their knowledge which was not done and it speaks volumes about their conduct. The learned Sr. ASC also CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 18 contended that country remained in turmoil for a considerably long time and such instances must not be repeated again. For the first time in the history this has been checked by this Court in judgment dated 31.7.2009. Mr. Hamid Khan, learned Sr. ASC submitted in a categoric manner that it is not his case that no affected person can file a review who was not a party in the proceedings but the case of applicants cannot be equated to that of an ordinary case being very exceptional and in view of special circumstances and sweeping effects of the judgment. The controversy before the Court was in respect of the unconstitutional acts of General (Retd.) Pervez Musharraf from 3.11.2007 to 15.12.2007 and the judgment in Tika Iqbal Muhammad Khan’s case (supra) validating the same were either to be upheld or declared unconstitutional. Whenever a judgment of this generality was passed, it would not be a few applicants who would be affected, rather innumerable others would be affected and the right of review cannot be conferred on each of them. Mr. Hamid Khan, learned Sr. ASC has also invited our attention to Article 112 of the Qanun-e-Shahadat, Order 1984. The learned Sr. ASC has referred the case law enunciated in Al- Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179), Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 01), Jibendra Kishore etc v. Province of East Pak (PLD 1957 SC 09). 17. Mr. Muhammad Akram Sheikh, learned Sr. ASC entered appearance for caveat (Nadeem Ahmed, Advocate) and pointed out that law qua appointment regarding Judges has already been declared in case of Al-Jehad Trust (supra) wherein it was held that even the consultation with Hon’ble Acting Chief Justice of Pakistan was not constitutional and lawful. It is next contended that the CMAs are not maintainable as no rights whatsoever were accrued in favour of the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 19 applicants and besides that foundation of their claim is not based on constitutional and valid grounds and as such right of hearing would not be available to them. Mr. Muhammad Akram Sheikh, learned Sr. ASC is also of the view that, however, the rights of aggrieved persons and individuals can be taken care of in view of the provisions as enumerated in Article 188 of the Constitution and Order XXVI of the Supreme Court Rules but the cases of applicants are absolutely distinguishable and hence the above mentioned provisions cannot render any assistance to their cause. It is pointed out that the powers as conferred upon this Court under Article 188 and the Rules made thereunder must be utilized for the benefit of the people of Pakistan and the doors for aggrieved persons should not be closed in view of the provisions of review as provided under the law. The learned Sr. ASC has relied upon cases titled Rustomji v. Offl. Liquidator (AIR 1919 Lahore 180), Muhammad Rafique v. Maryam Bibi (1996 SCMR 1867), Hameed Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185). 18. Mr. Shah Khawar, learned Acting Attorney General for Pakistan, entered appearance on behalf of Federation and submitted without any ambiguity that CMAs are not competent and all the actions taken by Chief of Army Staff were unconstitutional and ab initio void as declared by this Court in its judgment dated 31.7.2009 and in consequence thereof the Review petitions are not maintainable. It is also argued that notice was issued to General (Retd.) Pervez Musharraf. If he wished to join the proceedings, he could do that. Similarly, notice was also meant for all others concerned, who could join those proceedings. Clearly, ample opportunity was provided to all the applicants. In the light of Article 188 and rules, because they were not party to the proceeding before the Court, technically and legally they had no right to file review. The judgment of the fourteen-Member Bench had interpreted the Constitution and settled a principle of law, it had the force of law CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 20 and was binding upon all concerned and therefore no exception can be taken. 19. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the Constitution, law and rules made thereunder. It is to be noted that there are two categories of Judges i.e. the first comprising those who were Judges of this Court or of any of the High Courts on 3.11.2007 and the second category is of those persons who were notified as Judges of this Court or of the High Courts between 4.11.2007 and 23.3.2009 on the basis of “consultation” with Abdul Hameed Dogar, J., purporting to act as Chief Justice of Pakistan. The need for classifying the applicants into the aforesaid categories will be apparent from the discussion below. 20. It is to be kept in mind that the judgment of 31.7.2009 has, in clear and unequivocal terms, declared the actions of 3.11.2007 taken by General (Retd.) Pervez Musharraf to be un-Constitutional and void ab initio. In none of the petitions before us, has any challenge been made against this declaration which is the foundation and bedrock of the judgment. The other aspects of the judgment naturally and logically flow as a consequence of such declaration. Once this premise is understood, the adjudication of the petitions before us becomes simple. 21. We first take up for consideration the case of the petitioners in the second category noted above. These petitioners were notified as Judges on the basis of “consultation” with Mr. Justice Abdul Hameed Dogar. For reasons which have been elaborately set out in the judgment sought to be reviewed, it is clear that Mr. Justice Dogar was not the Chief Justice of Pakistan. The petitioners in this category have not claimed or even remotely suggested that Mr. Justice Dogar was the Chief Justice of Pakistan. The most which has been urged by them is that he was the de facto Chief Justice of Pakistan and, therefore, CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 21 consultation with him was sufficient to fulfill the requirement of Article 193 of the Constitution. This contention is misconceived and wholly without merit. We need go no further than the case titled Al-Jehad Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324) to debunk the argument. The ratio in the said precedent has been followed and reiterated in the cases titled Malik Asad Ali and others Vs. Federation of Pakistan and others ( PLD 1998 SC 161) and Ghulam Hyder Lakho Vs. Federation of Pakistan ( PLD 2002 SC 179). In the light of these precedents, there remains no doubt whatsoever as to the exact meaning of Article 193 of the Constitution viz. that none other than the Chief Justice of Pakistan and not even an Acting Chief Justice of Pakistan, who is a Constitutional functionary, can be the consultee in terms of the aforesaid Constitutional provision. It therefore follows (consistent with established precedent) that the persons comprised in the second category mentioned above were not Judges of the High Courts regardless of the fact that they purported to occupy such office. In the circumstances, we are not in any doubt that they do not possess locus standi to file the CMAs or review petitions, the sole object of which is to seek an order that they were validly appointed as Judges and are entitled to hold such office. According to Mr. Wasim Sajjad, learned Sr. ASC, pursuant to acceptance of C.P. No.8 of 2009 the petitioners have been declared not to be Judges and soon after the judgment impugned the petitioners in CMA No.2745 of 2009 and the other persons falling in the second category were removed from their offices by means of Notification No. F.12(4)/2007-A.II-(Vol.II)(d) dated 2.8.2009. We have considered this argument advanced by learned counsel but find little force to commend it. Firstly, it is to be noted that the removal of the petitioners from the office being occupied by them was a direct consequence of the finding that the actions of General (Retd.) Pervez Musharraf taken on 3.11.2007 CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 22 were void ab initio and secondly that the Notifications of those petitioners who were appointed Judges of the High Courts between 3.11.2007 and 23.3.2009 had not been issued after “consultation” with the Chief Justice of Pakistan as mandated by Article 193 of the Constitution. These findings enunciate a principle of law and are based on the interpretation of the relevant provisions in Part-VII of the Constitution including Article 193, supra relating to the Judicature. The same are binding in view of the provisions as envisaged in Article 189 of the constitution which, inter alia, provide that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan. The ultimate responsibility of interpreting the law of the land is that of the Supreme Court. (Maroof Khan v. Damsaz Khan NLR 1992 Civ. 97, Salah-ud-Din v. The State PLJ 1990 Cr.C. 270, Malik Muhammad v. Jan Muhammad 1989 CLC 776, Abdul Ghaffar Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358, Abdul Ghaffar Khan v. Saghir Ahmed Aslam PLJ 1987 Lah. 384, Abdul Ghaffar Khan v. Saghir Ahmed Aslam, etc 1987 LN 504, Roshan Ali v. Noor Khan PLD 1985 SC 228, Roshan Ali v. Noor Khan PLJ 1985 SC 370, Roshan Ali v. Noor Khan 1985 PSC 734, Muhammad Khan v. Sanaullah PLD 1971 S.C.324, Khalid Rashid v. State PLD 1972 Lah. 729, Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329, Hashim v. State PLD 1963 Lah. 82). Where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this article and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictam. Even obiter dictam of the Supreme Court, due to the high place which the Court holds in the hierarchy of courts in the country, enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle, or the meaning of a CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 23 law. (M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966 Dacca 296, Nagappa v. Ramchandra AIR 1946 Bombay 365, K.C.Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173, K.P. Doctor v. State of Bombay AIR 1955 Bom. 220, Bimla Devi v. Chaturvedi AIR 1953 All. 613). In the case of non-implementation of the judgment it will have to be found out as to who is responsible for not implementing it. Article 190 of the Constitution is a mandatory provision under which there is no alternative for the Executive but to act in aid of the Supreme Court. Persons identified as responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment. (Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84, Abdul Hameed v. Special Secretary, Education Schools 2007 SCMR 1593, Abdul Waheed v. Ramzanu 2006 SCMR 489, Nazar Abbas Jaffri v. Secretary to Government of the Punjab 2006 SCMR 606, Muhammad Sharif v. Settlement Commissioner 2007 SCMR 707, Shaukat Baig v. Shahid Jamil PLD 2005 SC 530). Such judgments, to the extent of the legal principle settled therein, are judgments in rem. Courts as also parties litigating in respect of matters covered by legal principles enunciated by the Supreme Court, can at best, distinguish the precedent of this Court but the Courts before which such litigation arises cannot disregard the legal principle so enunciated. This Court, however, by virtue of powers under Article 188 of the Constitution may review any judgment pronounced or any order made by it. In the present case, since there is no challenge made to the findings and declarations recorded in the judgment of 31.7.2009 in respect of the actions of 3.11.2007 and “consultation” in terms of Article 193 of the Constitution, the true meaning of the relevant Articles of the Constitution, has been laid down. Such enunciation affects not only the petitioners but others as well to lesser or greater degrees. To illustrate this point, the case of all CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 24 those litigants who have lost legal actions in the High Courts and in this Court between 4.11.2007 to 23.3.2009, can be taken note of. Such litigants are directly and adversely affected by the judgment of 31.7.2009. This is so because they have been prevented from agitating those matters on the ground that the Courts which rendered decisions against them were coram non judice. If the argument advanced on behalf of the petitioners is accepted, there will be no justification for not allowing each one of the said litigants from seeking review of the judgment of 31.7.2009 on the ground that they were not impleaded as parties or afforded an opportunity of hearing before affecting their rights to their detriment. Such losing litigants as aforesaid, have a much better case than the petitioners. 22. We next take up for consideration the cases set up by those petitioners who fall in the first category mentioned above. At the outset, it is to be stated that they too have not challenged the findings and the declaration recorded in the judgment of 31.7.2009 to the effect that the actions taken by General (Retd.) Pervez Musharraf on 3.11.2007 were un-Constitutional and void ab initio. In so far as the Hon’ble Judges who fall within the first category are concerned, their cases stand entirely on different footing and are distinguishable from the cases of Hon’ble Judges who were appointed in superior judiciary in violation of the Constitution and precedent law already discussed in preceding paragraphs. However, they have deliberately and knowingly violated the order of seven Members Bench and took oath not only in flagrant violation thereof but from Justice Abdul Hameed Dogar who was never and could have never been appointed as Chief Justice of Pakistan for the reasons mentioned in the judgment impugned. They have acted in a highly prejudicial, unconstitutional and contemptuous manner fully knowing the implications and consequences of non-compliance of the said order being mandatory in nature and binding upon them pursuant CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 25 to the provisions as enumerated in Article 189 of the Constitution which has been discussed in the preceding paragraphs. After having taken into consideration all the pros and cons of the issue it was held in the judgment impugned as follows:- (iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly. Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan.” It was their Constitutional, legal and moral duty to defend the Constitution but amazingly they took oath under the PCO having no Constitutional and legal sanctity. In such view of the matter to check such transgressions and blatant violation of the order passed by this Court, there was no escape but initiation of action under Article 209 of the Constitution and there is absolutely no lawful justification warranting interference in the judgment impugned. We are deliberately withholding our comments lest it may not prejudice the case of Hon’ble Judges in future before the Supreme Judicial Council. 23. In view of what has been stated herein above it is not necessary to discuss all the arguments advanced by Mr. Wasim Sajjad, learned Sr. ASC on behalf of applicant (Khurshid Anwar Bhinder in C.M.A. No.2745/2009) and adopted by learned counsel representing CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 26 other applicants, however, we are dilating upon some of the contentions to show that absolutely no case of review is made out and the petitions are not maintainable. 24. First of all we intend to deal with the prime contention of Mr. Wasim Sajjad, learned Sr. ASC that in view of the provisions as enumerated in Article 188 of the Constitution and Order XXVI of the Supreme Court Rules these CMAs are maintainable and the applicants cannot be knocked out on sheer technicalities which has always been considered undesirable. Article 188 of the Constitution is reproduced herein below for ready reference:- “188. Review of judgments or orders by the Supreme Court. The Supreme Court shall have power, subject to the provisions of any Act of (Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it”. 25. A bare perusal would reveal that it has been couched in a very simple and plain language hardly necessitating any scholarly interpretation. It, inter alia, provides that the Supreme Court has power to review its judgment or order subject to the provisions of any Act of Parliament and any rule made by the Supreme Court itself. (The contention whether Supreme Court Rules, 1980 are subservient to the Constitution have been discussed in later part of this judgment) It is to be noted that no Act of Parliament whatsoever has been promulgated and thus it can reasonably be inferred that legislature does not want to restrict or impose any condition on the powers conferred upon this Court under Article 188 of the Constitution. In fact the words “subject to the provisions of any Act of (Majlis-e-Shoora/Parliament) and of any rules made by the Supreme Court" are indicative of the fact that indirectly the powers so conferred have been enhanced and there was absolutely no intention for curtailment of such powers conferred upon this Court under Article 188 of the Constitution. The point under CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 27 discussion has been examined by this Court in case titled Evacuee Trust Property Board v. Hameed Elahi (PLD 1981 SC 108) with the following observations:- “6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Now, as we observe d, “a litigant should not suffer on account of the mistakes or errors of the Court, and the corollary of this principle is that the Court should have the inherent power to correct its errors. The said rule only clarifies in terms that this Court has the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” There is no ambiguity about these words, and if the respondent’s plea be true, he has brought his case within the meaning of the said rule. Additionally, the said rule was not framed for first time by this Court. It is almost verbatim reproduction of section 151 of the Civil Procedure Code and of section 561- A of the Criminal Procedure Code, and these two sections (which in turn are in pari materia with each other) have been part of our procedural laws for generations, so that there is no ambiguity about of our procedural laws for generations, so that there is no ambiguity about them, because they have been repeatedly construed by the superior Courts. Thus, for example, taking first, section 151 of the Civil Procedure Code, the Indian Supreme Court held in Keshardeo Chamaria v. Radha Kissen Chamaria and others (AIR 1953 SC 23) that a Court could in the exercise of its powers under section 151 re-call an order passed by it without notice to the parties concerned. Next, as to section 561-A of the Criminal Procedure Code this Court held in Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) that a Court was competent under section 561-A to re-call an order passed by it without notice to the parties concerned. However, as this judgment was pronounced long after the rules of this Court had been framed in 1956, the case-law on section 561-A before 1950 would be more relevant. We say 1950 and not 1956, because the said rule was originally enacted as rule 6 of Order LIII of the Federal Court Rules of 1950. And on the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 28 repeal of those rules of 1956, the same provision was re- enacted in the present rules as the said rule.” 26. We are conscious of the fact the principles of CPC also need to be examined and thus the provisions as enumerated in Order XLVII Rule 1 of CPC would require consideration qua its application which is reproduced herein below for ready reference:- “1. Application for review of judgment.- (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.” 27. A bare perusal would reveal that the salient features of Order XLVII CPC are as under:- (i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by the petitioner at the time when the decree was passed or order made; or CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 29 (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. [2003 CLC 1355) 28. We have examined the salient features and grounds as enumerated in Order XLVII Rule 1 CPC and we are of the view in so far as these CMAs are concerned that neither there is discovery of new important fact nor some mistake or error has been pointed out and besides that no sufficient reasoning has been advanced on the basis whereof the principle as enunciated in Order XLVII Rule 1 CPC can be made applicable. It may not be out of place to mention here that “sufficient cause” is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. The words “sufficient cause” mentioned in O. XLVII, R.1 of the Code do not mean any and every cause but it means any reason sufficient on ground at least analogous to those stated in the rule. The view that the “sufficient grounds” need not necessarily be construed ejusdem generic with the words preceding cannot be accepted as laying down the correct law.” Suruj Mian v. Asst. Manager, Govt. Acquired Estate (PLD 1960 Dacca 1045). None of the grounds urged by the petitioners attracted the provisions as enumerated in Order XLVII CPC and thus CMAs cannot be declared competent. A similar proposition was examined in Yusuf Ali v. State (PLD 1971 SC 508) with the following observations:- “The right of review granted by Article 62 of the Constitution of 1962 is subject not only to the provisions of any Act of the Central Legislature but also to the provisions of any rules made by the Supreme Court and the Rules of the Court specifically provide by Order XXVI that “subject to the law and practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code and in a criminal proceeding on the ground of an error apparent CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 30 on the face of the record”. Where none of the grounds urged by the petitioner come within the ambit of this rule no valid ground could be said to have been made out for the review of the judgment.” (Emphasis provided) 29. It may be mentioned that the words “any other sufficient reasons” used in Order XLVII Rule (1) (c) CPC means a reason sufficient on grounds at least analogous to those mentioned in a categoric manner in clauses (a), (b), and (c) of Rule 1 of Order XLVII CPC. “A review, as has been pointed out by this Court in the case of Lt. Col. Nawabzada Mohammad Amir Khan v. The Controller of Estate Duty Government of Pakistan, Karachi and another (PLD 1962 SC 335) is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court. It can only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure the provisions whereof incorporate the principles upon which a review can be granted.” In this regard we are fortified by the dictum laid down in the following authorities:- i) Chhaju v. Neki (AIR 1922 PC 112), ii) Iftikhar Hussain Shah v. Azad Govt. of The State of J & K (PLD 1984 SC AJ&K 111), iii) Muhammad Ghaffar v. State (1969 SCMR 10) 30. In our view decision once given cannot be reviewed subject to certain legal exceptions pursuant to the provisions as enumerated in Order XLVII Rule 1 CPC, scope whereof can neither be enlarged nor it can be farfetched in such a manner as argued by the learned ASCs for the petitioners in view of the language as employed in Order XLVII Rule 1 CPC its application would be only upto that limited extent and it cannot be unlimited. As mentioned above, the powers of review are not wide but definite and limited in nature. “It has to be confined to the four corners of the relevant rules or the phrase or for any other sufficient CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 31 reason even the review jurisdiction as visualized must be traced to Order XLVII which contains the prescribed conditions and limitations in terms of the requirement of the section and more so power to review is not an inherent power. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction and cannot be equated to that of a technical obstruction.” In this regard the case law as enunciated in the following cases can be referred:- Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah. 596), Prahlad Krishna Kurne AIR 1951 Bom. 25, Hajee Suleman v. Custodian Evacuee Property (AIR 1955 Madhya Bharat 108, Rukan Din and others v. Hafiz-ud-Din and another (PLD 1962 Lah. 161), Mohd. Amir Khan v. Controller of Estate Duty PLD (1962 SC 335) Abdul Jabbar v. Collector of Central Excise and Land Customs Review Application No.15 of 1959 (Quetta) unreported considered. 31. Mr. Justice Pir Hamid (as he then was) while discussing the provisions as enumerated in Order XLVII Rule 1 CPC has opined that “I for my part would be inclined to hold that a review is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court, but that it should only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure, the provisions whereof incorporate the principles upon which a review was usually granted by Courts of law in England. The indulgence by way review may no doubt be granted to prevent remediable injustice being done by a court of last resort as where by some inadvertence an important statutory provision has escape notice which, if it had been noticed, might materially have affected the judgment of the Court but in no case should a rehearing be allowed upon merits.” (Emphasis provided). (Muhammad Amir Khan v. Controller of Estate Duty PLD CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 32 1962 SC 335, Young v. Bristol Aeroplane Company Limited (1944) 1 K B 718, Gower v. Gower (1950) 1 A E R 804 distinguished). 32. Mr. Justice Ghulam Mujaddid Mirza (as he then was) has also examined the provisions as enumerated in section 114 CPC and Order XLVII Rule 1 CPC in the light of dictum laid down in H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65) as under:- “2. I called upon Mr. K. H. Khurshid, learned counsel for the petitioners to first convince me as to how this petition was competent when the petitioners were not a party to the writ proceedings. Learned counsel submitted that as the petitioners had been adversely affected by the order of this Court dated the 5th of December 1973, they are, therefore, aggrieved persons and hence have a locus standi to file this petition in the present form. Learned counsel relied on PLD 1971 SC 130, in order to prove that the petitioners were aggrieved persons but in my view this authority would not be of much help to him because in this case the question examined was as to who would be the person aggrieved within the ambit of Article 98 of the late Constitution of Islamic Republic of Pakistan whereas in the instant case the petitioners have to bring their case within the purview of Order XLVII, rule 1, C.P.C. Learned counsel tried to avail of section 114, C.P.C. which deals with the power of review and argued that the words “any person considering himself aggrieved” were wide enough to include even those persons who initially were not a party to the proceedings but at a later stage were affected by an order adverse to their interest. My attention was invited to Order XLVII, rule 1, C.P.C. and it was submitted that even in this provision the above mentioned words have been repeated, and the learned counsel, therefore, emphasized that these words would cover the case of even a stranger, the only essential requisite being that he must consider himself to be an aggrieved person, the test for which, according to the learned counsel would be subjective. Reliance was also placed on H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65) with special reference to the following observations:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 33 There can be no dispute that the only party which was adversely affected by the order of ad interim injunction was respondent No.1. We are satisfied that Saya & Co., deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the relief sought were really directed against Wazir Ali Industries Limited, and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit for proceeding.” and it was argued that the principle laid down in this case was fully applicable to the present petition and hence not only that the petition was competent but also that the order dated the 5th of December 1973, of this Court deserves to be reviewed. 3. I have very carefully gone through this decision and find that the law laid down by the Supreme Court is only with regard to the appellate proceedings, whereas the scope of review is much different and the review jurisdiction is substantially and materially different to the appellate jurisdiction, because it can be only utilized on the specific grounds mentioned in Order XLVII, rule 1, C.P.C. (Emphasis provided). In this connection it would be worthwhile to reproduce in extenso rule 1 of Order XLVII, C.P.C. which is to the following effect:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 34 “(1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order.” The important words to be noted in this connection are “desires to obtain a review of the decree passed or order made”. These words leave no room for doubt that the remedy of review could be availed of only by a person who initially was a party to the proceedings in which either a decree had been passed or an order had been made against him, otherwise the very essence of the grounds on which a review would be competent, would be rendered ineffective. It is, therefore, obvious that a stranger to the proceedings would not be permitted to avail of the grounds on which a review petition would be competent. I, therefore, do not agree with the contention of the learned counsel that a wider interpretation of the words “any person considering himself aggrieved” would be the only proper and reasonable interpretation. On the other hand, I find that these words would have to be read and interpreted in the light of the main rule and when so done in my view their operation would be restricted and would cover the case of only those persons who initially were party to the proceedings.” (Emphasis provided). (Qaim Hussain v. Anjuman Islamia PLD 1974 Lah. 346). 33. We have no reason to disagree with the said conclusion which also finds support from the case titled Muhammad Rafiq v. Marium Bibi (1996 SCMR 1867). In the said case “the petitioners filed review petition for review of the Court’s order dated 25.11.1991 passed in C.A.No.87 of 1987 and C.A.No.698 of 1990. The petition was returned CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 35 to the petitioners with the observation that the review was placed before the Acting Chief Justice and his Lordship has been pleased to pass the following order:--- “Parties not before this Court when the judgment was passed cannot be permitted to file a review petition. This review petition cannot be entertained.” The petitioners, therefore, submitted an application for reconsideration under Order V, Rule 2 of the Supreme Court Rules which was heard by a Bench of three Judges (Mr. Justice Dr. Nasim Hasan Shah, C.J., Mr. Justice Saleem Akhtar and Mr. Justice Manzoor Hussian Sial) and held that “we do not think this is a fit case for reconsideration of the earlier order refusing to entertain the review petition.”(Order dated 14.2.1994 passed in C.M.A. No.1-L of 1992). In the case of Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller (PLD 1962 SC 335) it was held that even if there be material irregularity but there is no substantial injury consequent thereon, the exercise of power of review to alter the judgment would not necessarily be required as the irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustices. In the same case it was held that to permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments. In the case of Raja Prithwi Chand Lal Chodhry v. Sukhraj Rai and others (AIR 1941 FC 1) it was observed that the Federal Court will not sit as a Court of Appeal from its own decisions nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision and that the Federal Court will exercise its power of review for the purpose of rectifying mistakes which have crept in.(Emphasis provided). In the case of Syed Muhammad Zaki v. Maqsood Ali Khan (PLD 1976 SC 308) it was observed that merely because a decision of case is erroneous per se is not a ground to justify CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 36 its review for what would seriously impair the finality attaching to the judgment of this Court which allowed the apex of the judicial system, but if there be found a material irregularity in the decision which converts the process from being one in aid of justice to a process which brings about injustice, or if the decision is in conflict with the law of the land then it would be the duty of the Court to mend the error.” It is well settled by now that “where the decision sought to be reviewed is a conscious and deliberate decision for which full reasons are given in the impugned judgment. The petitioner may or may not agree with those reasons. But where a conscious and deliberate decision had been made with regard to the nature of orders which it was empowered to pass under a provision of law only because another view with regard thereto was canvassed could not and did not constitute a ground for review.” (Muhammad Saifullah Khan v. Federation of Pakistan PLD 1990 SC 79). 34. The CMAs have been argued in oblivion of the fact that “right of appeal and review are not analogous as an appeal is, review is not the continuation of same proceedings, a person not party to proceeding has no right to file review. The two sub-rules of R.1 read together lead to this conclusion. Sub-rule (2) begins with the words “party who is not appealing. Sub-rule (1), no doubt, begins with the words “any person considering himself aggrieved.” But R.(1), read as a whole persuade to take the view that a the words “a party who is not appealing” cannot be kept confined to sub-r (2) alone and cannot but we read in sub-r (1) also for the sake of consistency, so that the expression “person” in the opening words of sub-r(1) can only mean a person who is a party in the concerned suit or proceeding. A person who is a stranger to a suit or proceeding cannot be a person aggrieved by the decision in the suit or proceeding.” (Emphasis provided). (Khan Muhammad v. Injuman Islamia 1987 CLC 1911). CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 37 35. On the touchstone of the criterion as laid down in the above mentioned cases we are firmly of the view that allowing the review applications would not be in aid of justice and besides that the judgment impugned is not in conflict with the Constitution or law of the land in any manner and hence no lawful justification is available for its review as it has protected, preserved and defended the Constitution being supreme law of the land. 36. After having discussed Article 188 of the Constitution, Order XXVI Rule 1 of the Supreme Court Rules and Order XLVII Rule 1 CPC, now we intend to discuss the point as canvassed at bar that the Supreme Court Rules are subservient to the Article 188 of the Constitution by which unbridled powers qua review has been conferred upon this Court. In order to appreciate the said point of view it seems proper to examine the provisions as enumerated in Article 188 of the Constitution from another angle to determine i.e. the legal status of the Supreme Court Rules. The language as employed in Article 188 of the Constitution is very plain and simple and there is absolutely no confusion on the basis whereof different interpretation could be made. “A fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. As has been aptly observed, “the pole star in the construction of a Constitution is the intention of its makers and adopters.” When the language of the statute is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language best declares, without more, the intention of the law- givers, and is decisive of it. The rule of construction is “to intend the Legislature to have meant what they have actually expressed”. It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language used in a statute is unambiguous and is in CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 38 accord with justice and convenience, the Courts cannot busy themselves with supposed intentions, however admirable the same may be, because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the Court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given.” (Shah Jahan Begum v. Baloch PLD 1975 Lahore 390, Faiz Muhammad v. Soomar PLD 1972 Karachi 459), Abdul Hameed v. Municipal Committee PLD 1973 Lahore 339). It may be kept in view that “the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.” (Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). The judicial consensus seems to be that “the essence of law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the Courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must, in general, taken it absolutely for granted that the Legislature has said what it meant, and meant what it has said. Ita scriptumest is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable. It is no doubt true that the felt necessities of the times must, in the last analysis, affect every judicial determination, for the law embodies the story of a nation’s development CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 39 through the centuries and it cannot be dealt with as if it contains only axioms and corollaries of a book of mathematics. A Judge cannot stand aloof on chill and distant heights. The great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judge by. But at the same time, the Judge must remember that his primary function is to interpret the law and to record what the law is. He cannot allow his zeal, say, for social or agrarian reform, to overrun his true function. He does not run a race with the Legislature for social or agrarian reform. His task is a more limited task; his ambition a more limited ambition. Of course in this process of interpretation he enjoys a large measure of latitude inherent in the very nature of judicial process. In the skeleton provided by the Legislature, he pours life and blood and creates an organism which is best suited to meet the needs of society and in this sense he makes and moulds the law in a creative effort. But he is tied by the basic structure provided by the Legislature which he cannot alter and to appeal to the spirit of the times or to the spirit of social or agrarian reforms or for the matter of that any other reform for the purpose of twisting the language of the Legislature is certainly a function which he must refuse to perform. The words of a statute must, prima facie, be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statue law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 40 choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result”. (Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). The above mentioned principles of interpretation have been followed in the following authorities:- Viscountess Rhonda’s Claim, (1922) 2 AC 339, p.365 by Viscount Birkenhead, LC; Jurisprudence at p.152, 11th Edn.; Motilal v. L.T. Comr, AIR 1951 Nag. 224, 225; Thakorelal Amritlal Vaidya v. Gujarat Revenue Tribunal AIR 1964, Guj. 183, 187; Maxwell in Interpretation of Statues, p.7 10th Edn. Satyanarain v. Buishwanth AIR 1957 Pat. 550, 554; Nokes v. Doneaster Amalgamated Collieries (1940) AC, pp. 1014, 1022; Kanai Lal v. Parannidhi 1958 SCR 360; 367 AIR 1957 SC 907; 910-11; Municipal Board, Rajasthan v. S.T.A.Rajasthan AIR 1955 SC 458, 464; Bootamal v. Union of India, AIR1962 SC 1716, 1718, 1719; Sirajul Haq v. S.C. Board AIR 1959 SC 205; (1857) 6 HL Cas 61; 26 Lt. Ch. 473; 1901 AC, at pp. 102, 107 Collector of Customs, Baroda v. Digvijayasinhji and others Mills AIR 1961 80 1549, 1551; Shri Ram v. State of Maharashtra, AIR 1961 SC 674, 678; AIR 1950 SC 165, 168; Madan Lal v. Changdeo Sugar Mills, AIR 1958 Bom. 491, 495; AIR 1954 SC 749; (1955) 1 SCR 829, 836-7; AIR 1955 SC 376, 381; AIR 1955 SC 504; Kanai Lal v. Parannidhi 1958 SCR 360, 367, AIR 1957 SC 907, 910-11; Municipal Board, Rajasthan v. S.T.A. Rajasthan AIR 1955 SC 458,464; Jamat-i-Islami v. Federation of Pakistan PLD 2000 SC 111; Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109, Province of East Pakistan v. Noor Ahmad PLD 1964 SC 451, Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600; Shujat Hussain v. State 1995 SCMR 1249; Province of Punjab v. Munir Hussian Shah 1998 SCMR 1326; Interpretation of Statues 7th Edn. 1984 by Dr. Tahir Mahmood; understanding Statutes Canons of Construction, 2nd Edn. By S.M. Zafar; The Interpretation of Statutes by M. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 41 Mahmood and Craies on Statues Law, 7th Edn. by S.G.G. Edgar. 37. In view of the above discussed principles of interpretation it seems immaterial to discuss whether Supreme Court Rules are subservient to Article 188 of the Constitution for the simple reason that the main object to enact Article 188 of the Constitution was to enhance the power of review conferred upon this Court and in order to achieve this object it has been provided specifically in the Article itself that such power would be subject to “any rules made by the Supreme Court” meaning thereby that it was entirely left to this Court that how and in what manner such power is to be regulated and exercised. We are conscious of the fact that “it cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the Legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The Legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.” (Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). There is no denial of the fact that Courts are creatures of the Constitution; they derive their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the Constitution but it hardly needs any elucidation that it is the right of the judiciary to interpret the Constitution and determine as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction. In this regard reference can be made to the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 42 case of Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151), Pak. v. Saeed (PLJ 1974 SC 77). A line of distinction is to be drawn between statutory rules made by the executive pursuant to an Act or an Ordinance and statutory rules made by the Supreme Court pursuant to the mandate of Constitution as conferred upon it under Article 188 of the Constitution. In the former case we are mindful of the fact that “statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statue, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statue, same shall be invalid. The rule-making authority cannot clothe itself with power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force.” The said principle of interpretation has been followed in the under mentioned cases:- Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186, Institute of Patent Agents v. Lackwood (1894) AC 347, 359, 360, 364, 365; Cf. London Traffic Act, 1924, S. 10(3), Land Realization Co. Ltd. v. Postmaster-General (1950) 66 TLR (Pt.1) 985, 991 per Romer, J. (1950) Ch. 435), 1951 SCR 747, Harilal v. Deputy Director of Consolidation 1982 All LJ 223, Chief Inspector Mines v. K.C. Thapar AIR 1961 SC 838, 845, Narasimha Raju v. Brundavanasaha AIR 1943 Mad. 617, 621, Aribam Pishak Sharma v. Aribam Tuleswar Sharma AIR 1968 Manipur 74, Quoted James, LJ in Ex parte Davies (1872) 7 Ch. A. 526, 529. “New Sindh”, AIR 1942 Sindh 65, 71, Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537, Municipal CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 43 Corporation v. Saw Willie AIR 1942 Rang. 70, 74, Hazrat Syed Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal.436, Shankar Lal Laxmi Narayan Rathi v. Authority under Minimum Wages Act 1979 MPLJ 15, M.P. Kurmaraswami Raja AIR 1955 Mad. 326, K. Mathuvadivela v. RT Officer AIR 1956 Mad. 143, Kashi Prasad Saksena v.State of U.P. AIR 1967 All. 173, PLD 1975 Azad J&K 81, PLD 1966 Lah. 287, Shanta Prasad v. Collector, Nainital 1978 All. LJ 126, Dattatraya Narhar Pitale v. Vibhakar Dinka Gokhale 1975 Mah. LJ 701, Narayanan v. Food Inspector, Calicut Corporation 1979 Ker LT 469, Ganpat v. Lingappa AIR 1962 Bom. 104,105, Adarash Industrial Corporation v. Market Committee, Karnal AIR 1962 Punj. 426, 430 by Tek Chand, J, Devjeet v. Gram Panchayat AIR 1968 Raj LW 231, Shri Synthetics, Ltd, Ujjain v. Union of India 1982 Jab LJ 279, 1982 MPLJ 340, Central Bank of India v. Their Workmen AIR 1960 SC 12, Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537, 540, Rajam Chetti v. Seshayya ILR 18 Mad. 236, 245, Raghanallu Naidu v. Corporation of Madras AIR 1930 Mad. 648, Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370, Ziauddin v. Punjab Local Government 1985 SCMR 365, Hirjina Salt Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522, Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806, Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600. The Supreme Court Rules are on a higher pedestal and promulgated on the basis of mandate given by the Constitution itself and not by the Government, object whereof was to enhance the power of review as conferred upon Supreme Court under Article 188 of the Constitution. 38. Now we intend to discuss the question as to whether issuance of notice to the applicants was mandatory? Before we could answer this question, another question would arise here at this juncture as to whether the former question needs any reply for the simple reason that it has been dilated upon, discussed and determined in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 44 “146. However, we did not issue notices to the concerned Judges of the Supreme Court and High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven-member Bench of this Court in Wajihuddin Ahmed’s case, as also the Judges who were appointed in consultation with Abdul Hameed Dogar, J, inter alia, on a consideration of the law laid down in Supreme Court Bar Association’s case where this Court examined the question of issuance of notice in a somewhat similar situation with reference to the law laid down in the cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179). It was held that the principle of natural justice would not be violated if no notices were issued to the concerned Judges. Relevant portion from the judgment is reproduced below:- “32. This brings us to the next common contention that the senior Judges of the Lahore High Court were condemned unheard and even in these petitions notices have not been issued to them. It is rather unnecessary to consider the contention as we have already held that the recommendations of the judicial consultee are not justiciable. Be that as it may, the contention is misconceived. The recommendations in questions were manifestation of subjective satisfaction of the judicial consultee, therefore, the principle of natural justice ‘audi alteram partem’ was not attracted. Moreover, the contention in essence is identical with contentions Nos.(iv) and (vii) raised in the case of Ghulam Hyder Lakho which read as under:- “(iv) That the petitioners were de-notified or the appointments were nullified by the Government without hearing them and as such the action of Government nullifying their appointments as Judges of the High Court offended against the principles of natural justice.” “(vii) That the removal of the petitioners from the office of Judges of the High Court in the above manner amounted to a stigma and as such the petitioners were entitled to be heard.” The above contentions were held to be devoid of force as is evident from the following observations at page 196 of the judgment:-- “In these circumstances, we are inclined to hold that where the Chief Justice of the High Court concerned and the Chief Justice of Pakistan do not recommend a particular incumbent for confirmation or appointment as a Judge of the High Court and these recommendations are accepted by the President/Executive the same cannot be brought under challenge in the Court on the ground that the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 45 incumbent was not heard before making such recommendations.” 33. As regards the question of notices we are of the considered view that issuance of notices to the concerned Judges will do more harm than good. This question was considered in the Judges’ case also and it was clearly held at page 534 of the judgment that the principle of natural justice is not violated if notice is not issued to the concerned Judges. The observations in Asad Ali’s case at page 327 of the judgment are also relevant which read as under:- “It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the Superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the Judges of superior Courts can only express their disapproval, resentment or reservations’ on an issue either in their judgment or order if the opportunity so arises…..” 39. In the light of what has been reproduced herein above, the only inescapable conclusion would be that issuance of notice was not necessary. We may point out that some of the petitioners have taken the plea that they were unaware of the Supreme Court order of 3.11.2007. They have, therefore, contended that the finding in the judgment of 31.7.2009, which holds that they had knowledge of the order amounts to denial of the rule of natural justice and as a consequence they will be prejudiced in the proceedings to be initiated under article 209 of the Constitution. On this point, it may be noted that the petitioners are silent as to when the petitioners got knowledge of the order and what they did thereafter to show respect and obedience to the same. It is an admitted feature of the case that the judgment impugned has not been challenged and what is claimed is re-hearing in the interest of natural justice in oblivion of the fact that all the questions required to be re- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 46 heard have been dealt with in the judgment impugned after having taken into consideration each and every aspect of the controversy. The provision qua review in fact is not meant for getting the matter re-heard. In this regard reference can be made to case titled Abdul Hamid Saqfi v. Service Tribunal of Pakistan (1988 SCMR 1318). No doubt that the petitioners are dissatisfied but this does not constitute a valid ground for review. (Nawab Bibi v. Hamida Begum 1968 SCMR 104, Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504, Rashid Ahmed v. Irshad Ahmed 1968 SCMR 12). We may make it clear that a mere desire for rehearing of the matter does not constitute a valid cause and sufficient ground for the grant of review. In this regard we are fortified by the dictum laid down in the following authorities:- Abdul Hameed Saqfi v. Service Tribunal of Pakistan (1988 SCMR 1318), Ali Khan v. Shah Zaman (1980 SCMR 332), Abdul Majeed v. Chief Settlement Commissioner (1980 SCMR 504), Maqbool Ahmed Tabassum v. The State (1980 SCMR 907), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741), Nawab Bibi v. Hamida Begum (1968 SCMR 104), Muhammad Najibullah Khan v. Govt. of Pakistan (1968 SCMR 768), Muhammad Ghaffar v. The State (1969 SCMR 12), Ghulam Fatima v. Settlement Commissioner (1969 SCMR 5), Feroze Din v. Allah Ditta (1969 SCMR 10). 40. It is also an admitted legal position that “reversing an action taken initially without issuing a show-cause notice was not a principle of universal application. Undoing of such an act was also refused where the facts leading to the impugned action were uncontrovertible and admitted and where despite a prior hearing, the results could and would not have been any different. Reliance is placed on the following authorities:- S.L.Kapoor v. Jagmohan and others AIR 1981 SC 136, Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669, CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 47 Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907.” Besides the reasoning as given above, it may not be lost sight of that the applicants were never made respondents in Const. Petition No.9 of 2009 and Const. Petition No.8 of 2009 and no specific relief whatsoever was sought against them in person. The removal of the applicants is fall out of the judgment impugned which cannot be questioned individually. 41. No stricture was passed qua their eligibility, integrity, entitlement, qualifications and besides that their removal from the office of Judges does not amount to be a stigma and therefore, the doctrine of ‘audi alteram partem’ argued with vehemence cannot be pressed into service which otherwise is not universally recognized due to certain limitations. Let us examine the doctrine itself which was referred to time and again by the learned ASC on behalf of petitioners. “In Seneca’s Medea, it is said: “a judge is unjust who hears but one side of a case, even though he decides it justly”. Based on this, has been developed “Audi alteram partem” as a facet of natural justice”. (Seneca Medea 4 BC-AD 65). ‘Audi alteram partem’ means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties in the controversy for contradicting or correcting anything prejudicial to their view.” (emphasis provided). (Union of India v. Tulsiram Patel AIR 1985 SC 1416 at p.1460). The petitioners were admittedly not a party in the main controversy. “Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. ‘Audi alteram partem’ rule as such is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications.” (Emphasis provided). (Maneka Gandhi v. Union of India CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 48 AIR 1978 SC 597). It may not be out of place to mention here that by now it is well established that “where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. Thus, the rule may be discarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests.” (Swadeshi Cotton Mills v Union of India AIR 1981 SC 818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533. Note: Decisions in Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248, Mohinder Sindh Gill v The Chief Election Commissioner AIR 1978 SC 851, (1978) 1 SCC 405, Union of India v Tulsiram Patel AIR 1985 SC 1416, (1985) 3 SCC 398. The ‘audi alteram partem’ rule would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. (Pearlberg v Varty (Inspector of Taxes), [1971] 1 WLR 728 (CA), [1971] 2 All ER 552 (CA). A prima facie right to opportunity to be heard may be excluded by implication in the following cases:- (i) When an authority is vested with wide discretion (H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.391 H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.392) (ii) When the maxim ‘expressio unius est exclusio alterius’ is involved (Colquhoun v Brooks 21 QBD 52 at p. 62 Humphrey’s Executor v. United States (1935) 295 US 602) (iii) Where absence of expectation of hearing exists (Y.G. Shivakumar v B.M. Vijaya Shankar (1992) 2 SCC 207, AIR 1992 SC 952) (iv) When compulsive necessity so demands (Union of India v. W.N.Chadha (supra) (v) When nothing unfair can be inferred (Union of India v. W.N.Chadha (supra) (vi) When advantage by protracting a proceeding is tried to be reaped (Ram Krishna Verma v State of U.P. (1992) 2 SCC 620, AIR 1992 SC 1888). (vii) When an order does not deprive a person of his right or liberty CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 49 (Indian Explosive Ltd. (Fertiliser Division), Panki, Kanpur v State of Uttar Pradesh (1981) 2 Lab LJ 159) (viii) In case of arrest, search and seizure in criminal case (Union of India v W.N. Chadha 1993 Cr LJ 859, 1993 Supp (4) SCC 260, AIR 1993 SC 1082) (ix) In case of maintaining academic discipline (1992) 2 SCC 207) (x) In case of provisional selection to an academic course (S.R. Bhupeshkar v Secretary, Selection Committee, Sarbarmathi Hostel, Kilpauk, Medical College Hostel Campus, Madras AIR 1995 Mad 383 (FB) (xi) In case of enormous malpractices in selection process (Biswa Ranjan Sahoo v Sushanta Kumar Dinda (1996) 5 SCC 365, AIR 1996 SC 2552) 42. It must not be lost sight of that in the above mentioned “exclusionary cases, the ‘audi alteram partem’ rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case.” (Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248. vide also Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851, (1978) 1 SCC 405. The doctrine of ‘audi alteram partem’ is further subject to maxim nemo inauditus condemnari debet contumax’. Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that “application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdrawn/cancel such order without affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 50 person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice.” (Nazir Ahmad Panhwar v. Govt. of Sindh thr. Chief Secy. Sindh 2009 PLC (CS) 161, Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It has been elucidated in the detailed reasoning of the judgment of 31.7.2009 how the order passed by a seven Member Bench of this Court has been flagrantly violated. Besides that the applicants had no vested right to be heard and furthermore they have acted illegally and in violation of the order of seven Member Bench for obtaining illegal gains and benefits which cannot be ignored while examining the principle of ‘audi alteram partem’. 43. Now let us discuss the concept of natural justice which has been addressed repeatedly by almost all the learned counsel on behalf of the applicants. In India, the concept of natural justice was discussed in the case of “Swadeshi Cotton Mills v. Union of India (AIR 1981 SC 818) and R.S. SARKARIA, J, speaking for himself and on behalf of D.A. DESAI, J, observed: ‘The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formulae. Historically, “natural justice” has been used in a way “which implies the existence of moral principles of self-evident and unarguable truth”, “Natural justice” by Paul Jackson, 2nd Edn., CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 51 page 1. In course of time, judges nurtured in the traditions of British Jurisprudence, often invoked it in conjunction with a reference to “equity and good conscience”. Legal experts of earlier generations did not draw any distinction between “natural justice” and “natural law”. “Natural Justice” was considered as “that part of natural law which relates to the administration of justice”.’ In Maclean v. The Workers’ Union, MAUGHAM, J. observed that justice, and with it ‘natural justice’, is in truth an elaborate and artificial product of civilization which varies with different civilisations. BLACK, J in Green v Blake remarked that ‘natural justice’ understandably meant no more than ‘justice’ without the adjective. But what is ‘justice’? It is a question which has been asked for thousand of years by distinguished scholars and men of eminence. Socrates asked it 2000 years ago, and never got a satisfactory answer. LORD DENNING said: ‘Justice isn’t something temporal-it is eternal-and the nearest approach to a definition that I can give is, “Justice is what the right thinking members of the community believe to be fair.”(Emphasis provided) 44. It is also well acknowledged by now that “rules of natural justice are principles ingrained into the conscience of men. Justice being based substantially on natural ideals and human values, the administration of justice here is freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. Rules of natural justice are not embodied rules. Being means to an end and not and end in themselves, it is not possible to make an exhaustive catalogue of such rules. “The principles of natural justice”, said SIR RAYMOND EVERSHED, MR, “are easy to proclaim, but their precise extent is far less easy to define.” (Swadeshi Cotton Mills v Union of India AIR 1981 SC 818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533., Abbott v. Sullivan [1952] 1 KB 189, [1952] 1 All ER 226), [1929] 1 Ch 602; [1929] All ER Rep 468, [1948] IR 242, ‘Constitutional Developments in Britian’, CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 52 BY LORD DENNING as published in The Fourteenth Amendment, [A Century in American Law and Life], Centennial Volume, Edited by Bernard Schwartz) The concept of natural justice is a combination of certain rules i.e. ‘audi alteram partem’ (nobody should be condemned unheard) and discussed in depth in preceding paragraphs and ‘nemo judex in re sua’ (nobody should be a Judge in his own case or cause) application whereof is to be decided by the Court itself in accordance with the fact, circumstances, nature of the case vis-à-vis the law applicable on the subject. It squarely falls within the jurisdictional domain of the Court concerned whether it would be necessary to embark upon the concept of natural justice and whether it would be inevitable for the just decision of the case. The Court is not bound to follow such rules where there is no apprehension of injustice. It can be said with certainty that the concept of natural justice is flexible and it cannot be rigid because it is the circumstances of each case which determine the question of the applicability of the rules of natural justice. “There are a number of cases in India in which the flexibility of the rules of natural justice has been upheld. In New Parkash Transport Co. Ltd. v. New Sawarna Transport Co. Ltd., the Supreme Court observed that rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provision of the relevant Act. While natural justice is universally respected, the standard vary with situations contacting into a brief, even post-decisional opportunity, or expanding into trial-type trappings. As it may always be tailored to the situation, minimal natural justice, the bares notice, ‘littlest’ opportunity, in the shortest time, may serve. In exceptional CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 53 cases, the application of the rules may even be excluded.” A few other important cases which may be referred to are as under:- Suresh Koshy George v University of Kerala AIR 1969 SC 198, (1968) 2 SCWR 117, Union of India v Col. J.N. Sinha AIR 1971 SC 40, (1971) 1 SCR 791, A.K. Kraipak v Union of India AIR 1970 SC 150, (1970) 1 SCR 457, (1969) 2 SCC 262, (1969) 1 SCA 605, Swadeshi Cotton Mills v Union of India AIR 1981 SC 818, (1981) 2 SCR 533, (1981) 51 Comp CAs 210 (SC), J. Mahapatra & Co. v State of Orissa AIR 1984 SC 1572, (1985) 1 SCR 322, Smt. Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248. AIR 1957 SC 232, Mohinder Singh Gill v The Chief Election Commissioner, New Delhi AIR 1978 SC 851, (1978) 1 SCC 405, S.L. Kapoor v Jagmohan AIR 1981 SC 136, (1980) 4 SCC 379, Union of India v Tulsiram Patel AIR 1985 SC 1416, (1985) 3 SCC 398). 45. The concept of audi alterum partem cannot be invoked in view of the peculiar circumstances of the case as it would be an aid to and violation of the Constitution, which can never be the object of natural justice. We have already held in the judgment impugned that: “iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith; Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 54 revert back as District and Sessions Judge subject to limitation of superannuation; (iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly. Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan.” 46. As mentioned above all appointments made in the superior judiciary have been declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith. In such view of the matter as rightly pointed out by Mr. Rashid A. Rizvi, learned Sr. ASC that any super structure subsequently built on the basis of such void orders passed under the garb of PCO did not possess any legal sanctity and besides that it is well settled by now that Constitutional jurisdiction cannot be invoked in aid of injustice. It is noteworthy that the courts have refused to intervene and the judicial consensus is that “where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice,” as such the question of the applicability of natural justice does not arise and in support thereof various cases can be cited which are as under:- Government of N.W.F.P. v. Muzaffar Iqbal and others 1990 SCMR 1321, Hussain Bakhsh and others v. Settlement CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 55 Commissioner and others PLD 1969 Lah. 1039, Pakistan Gum and Chemicals Ltd. v. Chairman, Karachi Municipal Corporation PLD 1975 Kar. 495, Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104, Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208, Conforce Ltd. S. Ali Shah PLD 1977 SC 599, Mazhar Hussain Khan v. Government of West Pakistan 1983 SCMR 40, Muhammad Swaleh’s case PLD 1964 SC 97, Yousaf Ali Mullah Noor Bhoy v. The King PLD 1949 PC 108, Muhammad Fazil v. Chief Settlement Commissioner PLD 1975 SC 331, Sharif Ahmad Hashmi v. Chairman, Screening Committee 1978 SCMR 367, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236, Chittagong Chamber of Commerce and Industry v. C.S. Ltd PLD 1970 SC 132, PLD 1973 SC 236, Begum Shamsun Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413, Gul Muhammad v. Additional Settlement Commissioner 1985 SCMR 491, Nazim Ali and others v. Mustafa Ali and others 1981 SCMR 231, Wali Muhammad and others v. Sheikh Muhammad and others PLD 1974 SC 106, Meraj Din v. Director, Health Services 1969 SCMR 4, Tufail Muhammad v. Muhammad Ziaullah Khan PLD 1965 SC 269, Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260, Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351, Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230, Reg v. Eastbourne Corporation (1900) 83 LTR 338, The Queen v. The Eastern Counties Railway (1843) 12 LJR 271, The Queen v. Lord Newborough (1869) LR 4 QB 585) Khiali Khan v. Nazir PLD 1997 SC 304, Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), Muhammad Baran v. Member (Settlement and Rehabilitation), Board of Revenue PLD 1991 SC 691, Engineer-in-Chief Branch v. Jalauddin PLD 1992 SC 207, Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar PLD 1975 SC 678, Allah Ditta v. Barkat Ali 1992 SCMR 1974, Vulcan Company (Pvt.) Ltd. v. Collector of Customs PLD 2000 SC 825, Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others 1975 SC 331 at 350, Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231, Wali Muhammad and others v. Sakhi Muhammad and others CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 56 PLD 1974 SC 106, Tufail Muhammad and others v. Raja Muhammad Ziaullah and others PLD 1965 SC 269, Khaili Khan v Haji Nazir and others PLD 1997 SC 304, Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907, Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, Muhammad Shoaib v. Govt. of NWFP 2005 SCMR 85. 47. It is well settled by now that “the object of the establishment and the continued existence of the Courts of law is to dispense and foster justice, and to right the wrongs. This purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful. It is for this reason that the Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains. Nor have the Courts ever opted to exercise their powers in aid of injustice or to grant any relief to persons with unclean hands or for protecting the unethical or underserved benefits”. We cannot render any help to the applicants who were admittedly the consequent beneficiaries of the said unconstitutional, illegal and unethical actions. “There is no gain reiterating that superior Courts are not expected to act in aid of injustice and to perpetuate the illegalities or put a premium on ill-gotten gains.” 48. We are afraid that the Objectives Resolution relied upon by Mr. Wasim Sajjad, learned Sr. ASC may not render any assistance to the case of applicants for the simple reason that no interpretation of any Article of the Constitution repugnant to the Islamic provisions has been made in the judgment impugned. The Objectives Resolution remained a subject of discussion in various judgments and the judicial consensus seems to be that “while interpreting the Constitution, the Objectives Resolution must be present to the mind of the Judge and where the language of the Constitutional provision permits exercise of CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 57 choice, the Court must choose that interpretation which is guided by the principles embodied therein. But that does not mean, that Objectives Resolution is to be given a status higher than that of other provisions and used to defeat such provisions. One provision of the Constitution cannot be struck down on the basis of another provision. The Objectives Resolution made substantive part of the Constitution provides a new approach to the constitutional interpretation since the principles and provisions of the Objectives Resolution have been placed in the body of the Constitution and have now to be read alongwith the other provisions of the Constitution. While interpreting the provisions of the Constitution and the law the Supreme Court observed that the provisions contained in Article 2-A read with Objectives Resolution have also been kept in mind in the sense that any doubt, major or minor, has been resolved in such a manner so as to advance the dictates of justice as well as the rule that justice not only should be done but it should seem to have been done. The last mentioned principle is enshrined as much in the Islamic jurisprudence as in any other juridical system. It may also be clarified that had a need arisen to further rely on Article 2-A of the Constitution so as to give effect to the Objectives Resolution treating the right to obtain justice as a very important substa ntive part of our entire Constitutional set up as well as the Constitution itself, the court would have done it.”Ghulam Mustafa Khar v. Pakistan) (PLD 1988 Lah. 49), Khar v. Pakistan (NLR 1988 Civ. 35), Malik Ghulam Mustafa Khar v. Pakistan etc (KLR 88 Cr. C 128), Farhat Jaleel (Miss) v. Province of Sindh (PLD 1990 Kar. 342), Mrs. Resham Bibi v. Elahi Sain (PLD 1991 SC 1034), Mirza Qamar Raza v. Tahira Begum (PLD 1988 Kar. 169), Bank of Oman Ltd. v. East Trading Co. (PLD 1987 Kar. 404). 49. The judgment impugned is neither in violation of the Objectives Resolution as enumerated in Article 2-A of the Constitution nor is repugnant to any principle of Qur’an and Sunnah. We are afraid CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 58 the Objectives Resolution would not render any help to the case of the applicants because the main purpose of insertion of Article 2-A in the Constitution was the enforcement of Qur’an and Sunnah within the framework of the principles and provisions of the Objectives Resolution through Courts of law. (Shaukat Hussain v. Rubina PLD 1989 Kar 513, Qamar Raza v. Tahira Begum PLD 1988 Kar 169, Habib Bank Ltd v. Muhammad Hussain PLD 1987 Kar. 612, Muhammad Sharif v. MBR Punjab PLD 1987 Lah. 58). 50. It is worth mentioning that in the judgment impugned it has been declared that PCO was not a valid piece of legislation, therefore, the entire structure raised on it was bound to fall alongwith it. In such view of the matter no person can prefer review with the plea that he was deprived of the benefit which had accrued to him by the said illegal construction. It is also to be kept in view that electronic and print media had widely published the proceedings and judgment impugned and all the applicants were aware that they were deriving their legitimacy under the garb of judgment delivered in Tika Muhammad Iqbal Khan’s case (supra) and thus it was incumbent upon them to have approached this Court for impleadment. They had no other legitimacy and no legal right to hold the office of Judges of superior courts once the dictum as laid down in Tika Muhammad Iqbal Khan’s case (supra) has been set aside and would be too late in the day to take the plea that they were unaware and should be afforded proper opportunity of hearing. 51. By no stretch of imagination it can be believed that order dated 3.11.2007 was not within their knowledge. It was held at page 183 of the judgment impugned that the entire world ‘knew’ about the order dated 3.11.2007 which was appreciated not only in the country but at global level hence the plea of ignorance is not tenable. In the same wake of events it has been observed that notice was issued both CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 59 in general as well as in specific terms as is indicative from paragraphs No. 145 and 261 of the judgment impugned wherein it was made abundantly clear that any one interested in the proceedings was at liberty to join the same and thus all the aggrieved and affected persons could have approached the Court which was not done by the petitioners. As mentioned herein above, the above notice was specific for General (Retd.) Pervez Musharraf and it was general for anyone interested in the proceedings which negates the version of petitioners that no notice was given to them. The question as to the issuance of notice was mandatory which was only issued to General (Retd.) Pervez Musharraf has been examined and we are of the view that such a contention is devoid of merit because General (Retd.) Pervez Musharraf was a person responsible for violating the Constitution by means of action taken on 3.11.2007 and therefore proper opportunity of hearing was afforded to him to put forward his defence. The petitioners do not assail the judgment in respect of the treatment it gives to those actions. They, therefore, are not on the same footing as General (Retd.) Pervez Musharraf but their grievances are altogether different in nature. It may be correct upto the extent that no notice was served individually and by name which was not felt necessary in view of the peculiar circumstances of the case and for the reasons discussed earlier. It is also not believable that the order dated 3.11.2007 was not within their knowledge which was widely published in print and electronic media and the petitioners being members of higher judiciary cannot remain ignorant as their entire fate was revolving around the PCO and the Oath Order hence the question of lack of knowledge does not arise. We fully subscribe to the view of Mr. Hamid Khan, learned Sr. ASC that the houses of people were being raided, many arrest has been taken place, some had gone to hiding, whole of the country was at turmoil and it was not an isolated matter but it affected the entire country which was CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 60 completely paralyzed. In such a situation how the petitioners could remain ignorant qua the order passed on 3.11.2007. The presumption of knowledge of the order can be validly drawn. 52. After having discussed the relevant provisions of law qua review and various judicial pronouncements, we are of the view that no yardstick can be fixed that by whom review can be filed and therefore, no restriction can be made on an ordinary litigant for the redressal of his genuine grievances subject to circumstances of the case. After having a careful perusal of all the review petitions it can be inferred safely that no grievance whatsoever was expressed against the judgment impugned whereby all the actions of General (Retd.) Pervez Musharraf taken w.e.f. 3.11.2007 to 15.12.2007 were declared unlawful and unconstitutional. It is worth mentioning that the petitioners were also not defending the dictum laid down in Tika Muhammad Iqbal Khan’s case (supra) rather they were aggrieved of the fall out of the judgment impugned declaring their appointments as invalid. It is, however, to be noted that this principle was never evolved at first occasion and rather the law laid down in the cases of Al-Jehad Trust and Asad Ali (supra) was followed and re-affirmed. In our view it was not the first occasion as mentioned herein above that the validity or otherwise of the appointment of a person as a Judge of the superior Court was examined. How a declaration can be given that the appointment of the petitioners were not unconstitutional and illegal as it would be in contravention of the law laid down in Al-Jehad Trust and Ghulam Hyder Lakho’s case (supra). The impugned judgment had only re-affirmed the well entrenched legal proposition finally decided in the above referred two cases. 53. We may clarify once again that the powers as conferred upon this Court under Article 188 of the Constitution, Rule XXVI of the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 61 Supreme Court Rules, 1980 and Order XLVII CPC can be invoked in suitable cases as this Court had a prerogative and privilege to do so if found in the interest of justice, fair play and equity. An ordinary litigant must not be prejudiced by the observation made herein above in a peculiar backdrop and scenario already discussed at length in preceding paragraphs. 54. Mr. Wasim Sajjad and other counsel representing the petitioners have not been able to satisfy us as to the implication of a judgment in rem which binds parties and non-parties alike as opposed to a judgment in personam which only affects the parties to a lis. The cases of Pir Bakhsh Vs. Chairman Allotment Committee (PLD 1987 SC 145) and Hameed Akhtar Niazi Vs. Secretary, Establishment Division (1996 SCMR 1185) have established the distinction between judgments in rem which apply to all regardless of whether they were parties or not and a judgment in personam which does not bind non-parties. It would be appropriate to mention here at this stage that the judgment of 31.7.2009 sought to be reviewed was a judgment in rem enunciating a legal principle. It, therefore, had the status of conclusiveness and finality and no person can be allowed to challenge it merely for the reason that he was not a party in the case and had not been heard. 55. In fact the judgment impugned has been considered in the country as well as on global level as a triumph of democratic principles and a stinging negation of the dictatorship. It is the first instance of the Supreme Court stating in a categoric, loud and abundantly clear manner that military interventions are illegal and will hardly find any colluder in future within the judiciary. The impugned judgment provides much needed redress as it will render considerable help in blocking the way of adventurers and dictators to creep in easily by taking supra Constitutional steps CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 62 endorsed, supported and upheld under the garb of the principle of necessity in the past which will never happen again. Had our superior judiciary followed the path of non-PCO Judges, the course of Pakistan’s political and judicial history would have been different. The verdict has been appreciated by all segments of society for being issue oriented rather than individual specific and therefore, no individual including the petitioners should be aggrieved. The judgment impugned would encourage future justices to take the firm stand against usurpers. The judgment impugned being in the supreme national interest hardly needs any justification for review. The review applications being not maintainable are accordingly dismissed. These are the reasons for our short-order dated 13.10.2009. Chief Justice Judge Judge Judge Judge Judge Judge Judge Judge Judge Judge Judge Judge Judge Islamabad the 13th October, 2009 Iqbal Naseer NOT APPROVED FOR REPORTING CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 63 56. Sardar Muhammad Raza, J.– The background, the circumstances and detailed introduction has already been furnished by my Honourable brother Mr. Justice Javed Iqbal. Suffice it to say that the learned Judges of High Courts, affected by our judgment dated 31.7.2009 in Constitutional Petitions No.8 and 9 of 2009, through applications in hand, seek permission to get the judgment reviewed, on the ground, inter alia, that they had been condemned unheard. Majority held, through short order dated 13.10.2009, that the Reviews are not maintainable. With my humble comprehension of law and justice, I happened to dissent with the majority view. 57. Mr. Wasim Sajjad, learned Senior ASC was the first to initiate. His elaborate arguments were followed by rest of learned counsel, among whom, Shaikh Zameer Hussain, Malik Muhammad Qayyum, Mr. Khalid Ranjha, Syed Ali Zafar, Syed Naeem Bokhari and Dr. A. Basit, added their finishing notes. The caveat contentions were supported by Mr. Rashid A. Razvi, Mr. Hamid Khan, Mr. Muhammad Akram Sheikh; Mr. Shah Khawar, being the Acting Attorney General. 58. The learned counsel on either side seem to have agreed on one thing that the review jurisdiction is exercised by the Supreme Court under (i) Article-188 of the Constitution, (ii) Order XXVI of the Supreme Court Rules, 1980, and (iii) Order XLVII of the CPC, all taken together. I would like to dilate upon Article-188 of the Constitution and Order XXVI of the Supreme Court Rules, 1980 and would not rely upon Order XLVII because as per Rule-9(ii) substituted by the Federal Adoption of Laws Order, 1975 (P.O 4 of 1975), Order XLVII, CPC is not applicable to the Supreme Court. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 64 59. A close perusal of Article-188 of the Constitution and Order XXVI of the Supreme Court Rules, 1980 would indicate that both these provisions commence with the words “the Supreme Court shall have power”. Similar are the words in Order XXVI that “the Court may review its judgment or Order”. This makes it abundantly clear that the Supreme Court has wide, rather, suo moto powers to review its judgments or orders provided the grounds for such review are available. Order XLVII, CPC, according to the Supreme Court Rules, are referable only to the extent of the grounds, not the ones mentioned in the Order but similar to those mentioned therein. The Rules, therefore, provide a much wider ambit for review than that mentioned in Order XLVII. Once again I may mention that except for the similarity of grounds, nothing can be borrowed from Order XLVII, CPC so as to restrict the jurisdiction of the Supreme Court for the simple reason that nothing mentioned in Order XLVII CPC is applicable to the Supreme Court. 60. The above conclusion leads to further analogy that even filing of application by a person is not necessary. If, at all, an application is filed by any person feeling aggrieved, it may be considered as an information furnished for the Supreme Court to exercise its powers under Article-188 of the Constitution. I have purposely mentioned Article 188 of the Constitution and avoided the Supreme Court Rules because any jurisdiction, original or appellate, exercised by the Supreme Court under the provisions of the Constitution (Article-184(3) – 188) cannot be limited, abridged, curtailed or restricted even by the Supreme Court itself, under its rule making power. I fully agree on this point with Sheikh Zamir Hussain, learned counsel for one of the applicants that in order to do complete justice under Article-4, 25, 187 and 188, the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 65 Supreme Court should rather assume jurisdiction instead of refusing to do justice. Malik Asad Ali’s case (PLD 1998 SC 161). 61. It was contended that the applicants have no locus standi to get the judgment in question reviewed. This argument makes room for discussion as to whether the applicants (the judges of superior judiciary) are the aggrieved persons, in view further of a phenomenon, as to whether the judgment in question was in rem or in personam. In order to determine as to who is the person aggrieved, I would be referring to the case law produced by the learned counsel on either side. Before that, I may emphatically express my belief that no previous authority is required on any of the points involved. If this Bench of 14 Honourable Judges of the Supreme Court consider a view to be based on natural justice, fair play and good conscience, it can render a favourable verdict which by itself would be the strongest of rulings to be followed by all concerned as a source of relief for teeming millions. I would, thus, refer to the authorities only to satisfy those, who believe in letters. 62. Far back in the year 1917, in Jhabba Lal’s case (AIR 1917 Allahabad 160), Mr. Walsh, J. of Allahabad described the person aggrieved as “not the one who is disappointed of a benefit, which he might have received if some other order had been made. He must be a man, who has suffered a legal grievance, a man against whom the decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to some something”. In the instant case, the applicants claimed, and rightly so, that through the judgment in question, they have wrongfully been deprived of the status and their right and title to such status has wrongfully been affected. 63. It was also argued that the applicants are not the persons aggrieved, because they were not a party to the case in CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 66 which the judgment is pronounced. In Kawdu’s case (AIR 1929 Nagpur 185(d), a Director of the company was considered an aggrieved person, though he was not a party to the original case. I have already observed that under Article-188 of the Constitution, the Supreme Court has wide powers to review its judgment, in order to prevent miscarriage of justice, without having regard to any intriguing technicalities. Similar view seems to have been taken by a five member larger Bench of the Indian Supreme Court in Shiv Deo Singh’s case (AIR 1963 SC 1909), where nothing in Article-226 of the Indian Constitution was considered precluding a High Court from exercising the powers of review, which inheres in every Court of plennary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In this case review of a person, not a party to the proceedings, was allowed with remarks that “Khosla, J. (of the High Court) did what the principles of natural justice required him to do”. Khosla, J. had reviewed his own order on the application of a person, who was not a party to the earlier one. 64. Coming to the case law of our own country, the learned counsel placed reliance on H.M Saya & Company’s case (PLD 1969 SC 65), where it is observed that even a stranger to suit can file an appeal. To my mind, this verdict is extremely important because, if a stranger can file an appeal, he can file a review as well on the same analogy. In the instant case, the entertainment of review is all the more important, because the judgment in question is that of the Supreme Court against which not appeal is provided. Obviously, an aggrieved person can file nothing, but a review on a very strong ground that he was not a party and was not heard. The restriction prevailing in the mind of the learned opposite counsel might not have been damaging, had the order under review been passed either by the Civil Court or by the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 67 District Court or the High Court because any aggrieved person could have filed an appeal. If such principle is applied to the judgment of the Supreme Court, it would tantamount to absolutely barring the remedy to persons who have certainly been condemned unheard. Fahmida Khatoon’s case (PLD 1975 Lahore 942) is though a single Bench judgment of Lahore High Court yet numerous rulings have been mentioned and discussed therein; holding that even a stranger, without being a party, can file a review, even under Order XLVII, Rule-1, CPC. 65. To be treated in accordance with the law, and to be heard by any forum, likely to decide some matter against him, is the fundamental and inalienable right of a citizen. Any violation thereof would be a violation of Article-4 & 25 of the Constitution. In this behalf, I would like to refer, with credit, to a judgment rendered by a seven member Bench of this Court in case of Pakistan Muslim League (PLD 2007 SC 642) which, with pleasant coincidence, happened to be authored by my honourable brother, Javed Iqbal, J., who also is the author of majority judgment in the instant case. In this case, with reference to Article 184 (3) of the Constitution, it was under consideration as to whether it was necessary that the person invoking relevant jurisdiction should be an aggrieved party. This Court held that it is not necessary for the purpose involved in the said case. Presently, the case of the applicants is on a better footing because they are most certainly the aggrieved party. 66. After having discussed the law produced in the case of Pakistan Muslim League, supra, the Honourable author Judge observes in view of judicial consensus that; “(i) that while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 68 to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. (ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the “aggrieved party” in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide. (iii) …………………………………………… (iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person. (v-vii) ……………………………………………….. (viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by High Court in a case.” (Emphasis provided). Though the discussion aforementioned refers to Article 184(3) yet the principles of prudence, interpretation and assumption of jurisdiction, in order to do complete justice, are fully in consonance with what I feel in the instant case with reference to Article 187-188 of the Constitution. 67. Faqirullah’s case (1999 SCMR 2203) is another example of doing justice by invoking review jurisdiction. In this case, despite State being the protector of the rights of complainant in criminal cases, was present yet on the review application of complainant, who was not a party in the original case, he was heard and, no less a judgment of acquittal was set aside and the accused sentenced to death. This Court maintains the practice of imparting ultimate justice throughout. It should not be departed from in the instant cases. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 69 68. I am of the firm view that, for the Supreme Court to exercise its powers under Article 188 of the Constitution and Order XXVI of the Supreme Court Rules, it is not at all necessary for the applicant/petitioner to be a party in the judgment under review. Such inferences are drawn, if at all, from Order XLVII of the CPC, which is not applicable to the Supreme Court. Rather, in cases where complete justice was needed to be done, even strangers were entertained in review matters under Order XLVII, CPC. 69. The instant applications are further contested on the ground that our judgment sought to be reviewed was judgment in rem and conclusive against world and thus could not be challenged by the individuals. Mr. Rashid A. Razvi placed reliance on Pir Bukhsh’s case (PLD 1987 SC 145). After having gone through the above ruling and also having reconsidered our own judgment in question, I believe that the judgment in totality is not in rem. So far as our declaration with regard to the Proclamation of Emergency, the Enforcement of Provisional Constitution Order and Oath of Office (Judges) Order, 2007 is concerned, it can be dubbed as judgment in rem, but so far as the fall out thereof with regard to the applicants is concerned, it is in personam, especially because such judges were not a party and could have been impleaded in view of the prospective results of our principal findings. The amends can be made only by hearing them now at this stage. 70. Quite forcefully, it was alleged that this Court in Al-Jehad Trust’s case (PLD 1996 SC 324) had not impleaded many judges despite the fact that they were eventually affected. No doubt Al- Jehad Trust’s case, Supra, has been extensively relied upon in our judgment in question, but this aspect of Al-Jehad Trust’s case, where also the Judges were condemned unheard, is not at all CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 70 enviable. It was admitted at the Bar that judges of some High Courts were even issued notice in Al-Jehad Trust’s case, but it is equally undeniable that many affected were not made party. Should we, in the circumstances, feel bound by an action, where the judgment operated in rem for those who were not impleaded and in personam for those who stood impleaded. This course of action adopted in that case was also not judicial and should not be followed as a precedent, especially by a Bench of as many as 14 Judges. To my mind, even in Al-Jehad Trust’s case, the Court was not sure, whether it is going to pronounce a judgment in rem or in personam. To some, it impleaded, to others, it did not, thereby, condemning them unheard. If such a precedent is followed once again, as was followed in our judgment in question, and is placed reliance upon even to deny hearing in the review petitions, it would not be a judgment in rem, but a “condemnation-in-rem”. 71. It was further argued in the light of the case of Hameed Akhtar Niazi (1996 SCMR 1185) considering the judgment to be one in rem, that the benefit thereof was extended to those people as well, who were not a party. I think this judgment, rather, serves my view point. In the judgment aforesaid, benefit of one verdict was given to all universally and not that the people were condemned universally. The ruling aforesaid was beneficiary and not jeopardizing and hence, cannot be pressed into service. Assuming for the sake of arguments that our judgment in question was a judgment in rem, which I do not believe it was, how on earth it was inferred that such judgment cannot be challenged by a person or persons who were not a party to it, but seriously and adversely affected thereby. There is every likelihood that if heard in review, the applicants might be able to influence the Court to change its decision concerning the applicants. It all depends upon the hearing of the case and, for the sake of doing CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 71 ultimate justice, I hold the view that the review petitions be heard on merit. 72. A judgment cannot be called one in rem when questions of fact being a deciding factor and being variously relevant and applicable to the affectees involved, has differently and specifically been pleaded in defence. 73. Now I come to the most important aspect of the case concerning the principle of audi alteram partem. The applicants claimed that they have been condemned un-heard. That they have not been a party to the constitutional petitions No.8 & 9/2009; that they were not even issued notice to appear and answer the charges before taking the drastic action against them and that the review petitions filed by them are the first and last chance that they are likely to avail. If not given a chance to be heard, the principle of audi alteram partem would stand violated, not once but thrice. 74. The centuries old concept of audi alteram partem is nothing but a principle of due process embodied clearly and expressly in Article 4 of our constitution. The principle which now has become of universal acceptance is a wide ranging guarantee of procedural fairness in the judicial process. Giving the defendant his day in the Court is of the essence of principle of justice as also of natural justice. Guarantee of due process refers to procedure that protects the people against arbitrary treatment. Essential elements of due process in “Methew Vs. Albridge” were laid down as follows:- i) Adequate notice of charges or basis for action; ii) A neutral decision maker; iii) An opportunity to make an oral presentation to the decision maker iv) An opportunity to present evidence; CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 72 v) An opportunity to controvert and cross-examine the evidence; vi) The right to have a counsel; 75. In his book “Judicial Review of Public Action” Mr. Justice Fazal Karim has elaborately discussed the principle of due process associating the same with human rights. He further goes on to refer to Section 24-A of the General Clauses Act and concludes that the concept of “fairness” has received legislative recognition and confirmation through its insertion in the General Clauses Act. According to the learned author, Section 24-A of the Act embodies, by necessary implication, the principles of natural justice, which include the right of hearing before an impartial Tribunal. In the case of Fisher Vs. Keen (1878) 11 Ch.D.353, it was observed that persons who decided upon the conduct of others, they are not “to blast a man’s reputation forever, to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct”. The jurists have gone to such an extent of holding that the defect created by an absence of hearing cannot be cured by a second and subsequent hearing because the original decision is a nullity. 76. The concept of audi alteram partem based on the principle of natural justice is Centuries old. Audi alteram partem applies to “Everyone who decides Anything”. The history quite laboriously is traced by a five member larger bench of Supreme Court of India in Tulsi Ram’s case (AIR 1985 SC 1416). The expression ‘natural law’, was largely used in the philosophical speculation of the Roman Jurists and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by rational intelligence of man and would be found to grow out of and conform to his CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 73 nature, meaning by that word his whole mental, moral and physical constitution. This principle was opposed by those who believed natural justice, with reference to its terminology, as the law of jungle that prevailed widely on earth. From the clash of those theories, if there was any help to be found or any hope to be discovered, it was only in a law based on justice and reason which transcended the laws and customs of men, a law made by someone greater or mightier than those men who made these laws and established these customs. Such a person could only be a divine being and such a law could only be “natural law” or “the law of nature”, so just that it could be binding on all mankind. It was not the law of nature in the sense of the law of jungle. With the passage of time, the natural justice happened to be considered as part of the law of God. 77. Natural justice fulfills the requirements of substantial justice and the natural sense of what is right and wrong. Many writers have dubbed it as “fundamental justice”, “fair play in action” and a “duty to act fairly”. Ormond, LJ in Lewis Vs. Heffer (1978) I WLR 1061.1076 have found the phrase of natural justice to be “a highly attractive and potent phrase”. 78. Maugham, J., in Maclean Vs. Workers Union (1929) 1 Ch. 602, 624) held a different view and considered natural justice to be a law of jungle and of might is right. He summed up with the observation that, “the truth is that justice is a very elaborate conception, the growth of many centuries of civilization; and even now the conception differs widely in countries usually described as civilized”. Some jurists following Maugham L. J., were of the opinion that “the principle of natural justice are vague and difficult to ascertain”. This fallacious view was well rebutted by Lord Reid in Ridge Vs. Baldwin (1964) AC 40, in the following words:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 74 “In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle”. (Emphasis supplied) 79. The whole discussion boils down to the conclusion that justice should not only be done but should manifestly be seen to be done. In Bosweel’s case (1605) 6 Co.Rep.48b, 52a), it was beautifully held that; “He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right.” The principle of natural justice has now received international recognition by being enshrined in article 10 of the Universal Declaration of Human rights adopted and proclaimed by the General Assembly of the United Nations by resolution 217A (III) of December 10, 1948. It was further recognized by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14 of the International Covenant on Civil and Political Rights adopted by the General Assembly Resolution 2200A (XXI) of December 16, 1966, having come into force on March 23rd, 1976. 80. The outcome of the short history of audi alteram partem narrated hereinbefore, as applicable to the present judicial CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 75 systems of the whole world, is put in a nutshell by the Supreme Court of India in the case of Tulsi Ram Supra, as follows:- “……audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against hi m, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence…..” 81. Coming to the learned discourse of my honourable brother in the majority view, the reliance was placed on the assertions of Mr. Rashid A. Razvi and Mr. Hamid Khan, learned counsel for the caveators that the applicants were not a party to Constitution Petitions No.8 & 9 of 2009 and hence have no locus standi to file a review, not maintainable in turn. This argument, I have already mentioned, is derived from Order XLVII of the CPC which, as observed earlier, is not applicable. It was further alleged that the applicants, not being a party, no relief was claimed against them. Such argument makes the review petitions all the more necessary to be heard. If the actions challenged in the Constitution Petitions were those of General Pervez Musharraf, taken in between 3.11.2007 and 16.12.2007, and if this Court deemed it necessary to issue notice to General Pervez Musharraf, it was rather obligatory to issue notices to the applicants, if any possible action was intended to be taken against them as a fallout of any declaration. 82. Mr. Hamid Khan’s assertion that the applicants were aware of the hearing of Constitution Petitions and that they could have applied for becoming a party, was also approved in the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 76 majority judgment. I do not subscribe to the view so taken because it assumes that the applicants had a knowledge of what is happening in this Court and that they ought to have had the knowledge as to what was going to happen, concerning them. It is a settled principle of law that any knowledge outside the Court does not fall within the purview of knowledge. If the argument is considered valid, it would mean that in proceedings in rem (as it is called by the opposite side), the public at large, even if in thousands, should themselves come to the Court and apply for impleadment. This is neither advisable nor practicable. The simple rule of justice is that, whosoever is likely to be affected, notice should be issued to him or them by the Court itself. This was precisely done by this Court qua General Pervez Musharraf, but the applicants were ignored. 83. Mr. Hamid Khan further contended that in our judgment dated 31.7.2009, reliance is placed upon the case of Al-Jehad Trust and Malik Asad Ali, supra and if the review petitions are heard, the applicants might allege to set the aforesaid rulings aside. I have already referred to Al-Jehad Trust’s case and firmly believe that this Bench is not bound to follow every act taken in that case as gospel. The fact that the Judges from the province of Sindh and NWFP were not made party to the above referred case, is not at all enviable aspect of Al-Jehad Trust case. This Bench consisting of 14 Honourbale Judges could have avoided to follow Al-Jehad Trust case, so far as the question of condemnation of certain citizens was concerned, especially when such citizens happened to be the judges of superior judiciary. 84. It was further accepted in majority judgment that in our judgment in question, the void actions of General Pervez Musharraf and void declarations in Tikka Iqbal case were set aside; that it was a national act, which cannot be set aside in CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 77 review. This argument is totally misplaced because it might be advanced when the review petitions are heard. At the moment, we are stuck up in the problem as to whether the review petitions should at all be heard or not. Wittingly or unwittingly, the remarks have come for the third time, concerning the merit of the review petitions and such remarks have condemned the applicants for the third time. 85. The argument that the hearing of the review petitions would be an exercise in futility, is also not valid because such exercises are mostly undertaken by this Court regardless of what the outcome of review petition would be. How the results of review petitions could be assessed or visualized at the present moment. The majority view has decided this aspect as well without the applicants being heard in review petitions. At this juncture, Mr. Muhammad Akram Sheikh, learned counsel for the caveator was last to be heard. He stated that power of Court is not a charity, but bound to be used for the benefit of the citizens. I agree with the learned counsel that power of Court should always be used for the benefit of citizens, and those citizens who were Judges of the superior judiciary, if condemned unheard, must be heard in review. Mr. Sheikh, while speaking from the deep recesses of his mind and heart, at the end submitted that “he was not in favour of closing the door of justice to any one”. So do I. 86. The matters alluded to above and the points yet to be heard in the review petitions have already been decided in para No.21 of majority judgment, pre-determining that if heard, a contrary view cannot be taken. Whether a contrary view can be taken or not, is possible to be judged only after when the review petitions are heard. Does it require to be reaffirmed that this aspect of Al-Jehad Trust’s case, if found violative of the principles CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 78 of natural justice, could not be set aside or differed from, by a Bench of 14 Honourable Judges of this Court? 87. In majority judgment (para-22), it is remarked that the applicants, in their review petitions have not challenged the declaration of this Court in main judgment that the actions of General Pervez Musharraf were void ab initio and hence it be presumed that the applicants accepted the fallout thereof. I humbly disagree with this view as well because if that part of our judgment is not challenged, it does not mean that the fallouts are accepted. Had those been accepted by the applicants, there was no sense in filing the review petitions. Such remarks in para-22 are also made with reference to the review petitions, which are never heard as yet. In para-22, page-25, the merits of review are rejected on the very basis of our own judgment which is under review and which reviews we have not yet heard. 88. A review, under the law, can be allowed if sufficient grounds are established. Such grounds are dispelled in para 28 and 29 of the judgment without hearing the petitioners on merits. I may recall that no technicalities of Order XLVII, CPC can be brought under consideration, the order being not applicable to the Supreme Court, except for the grounds mentioned therein. Moreover, the grounds also could be adhered to only when review petitions are heard. In para 32, with reference to the judgment of Honourable Mr. Justice Ghulam Mujaddid Mirza, it was observed that the Supreme Court had laid down a law (PLD 1969 SC 65), regarding appeals and that there is a lot difference between appellate and review jurisdiction. I remember having discussed this matter in the earlier part of the judgment and have tried to equate appellate jurisdiction with the review jurisdiction, especially when the order under review is that of the Supreme Court, against which no appeal lies, except to the God Almighty. I CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 79 have a firm faith and belief that the matter in hand should not be left to Almighty Allah because His retribution and requital is, no doubt delayed but certainly not outrageous. 89. The applicants through the majority judgment are denied hearing of review on the analogy that by doing so, the finality attached to the judgment of the apex court would be eliminated. I do not agree with this view as well because had it been so, there would have been no justification for the legislature to provide Article 188 in the Constitution and no occasion for the Supreme Court to make a provision of Order XXVI in the Rules. Judgments of the Supreme Court are occasionally reviewed. If the factum of finality is of prime consideration, the judgment in review can, rather, be the one which becomes final. In para 35 of the majority judgment, it was after all mentioned that “any other view possible” could not be taken even if the review petitions are heard. At the cost of repetition, I may say that it is tantamount to rejecting the review petitions without hearing them, whereas, the fact of the matter is that if a judgment is reviewed, it is always the other view which is taken. In para 38, it was observed that a rule making authority cannot clothe itself with the power, which is not given to it under the statute. I also believe in the same concept of law that rule making power cannot step beyond the legislation and on the same analogy, this Court under its rule making power, cannot curtail its own power, widely given by Article 187 and 188 of the Constitution. 90. Repeatedly it was argued that the applicants have not been issued notice in main Constitution Petitions No.8 & 9 of 2009, decided on 31.7.2009, because they happened to possess the status of Judges. In this behalf, the majority seems to be of the view, approved and taken from Al-Jehad Trust’s case as follows:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 80 “It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the Superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the Judges of superior Courts can only express their disapproval, resentment or reservations’ on an issue either in their judgment or order if the opportunity so arises…..” (Emphasis provided) 91. The above view seems also to be prevailing all over when, with reference to the review applications and present applications of the Judges, it was seriously objected to as to why, being Judges, they had mentioned that through our judgment, they happened to loose their service. The use of word ‘service’ regarding their assignments and status was considered to be below their dignity. With utmost respect and with utmost effort at my command, I could not reconcile with this paradoxical logic that, on the one hand the Judges are considered so honourbale and so exalted that even issuance of notice to them in a very crucial matter is considered below their dignity and, on the other hand, they are issued contempt notices in utter disregard of their status as well as the principle of comity among Judges. For a long time, they have been hearing the cases of millions of litigant public; they have been awarding decrees, recording convictions, imposing sentences and redressing the grievances of the people (which actions we have safeguarded in our judgment dated 31.7.2009) and for a long time they have been addressed by the learned counsel and the litigant public as “my lord”, but at the present, they are issued contempt notices, insulted and CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 81 humiliated in Court to such an extent that one of the advocates among audience, uninvitedly and uninterruptedly stands up, pointing out his finger at Mr. Justice Syed Zulfiqar Ali Bukhari and proclaiming in the open Court, “isko saza do – isko zaroor saza do – isko exemplary punishment do”. This act has shocked me so much as if that counsel was pointing his finger at us. In view of the dignity attached to their high offices and the exalted image that the public have about the Judges of superior judiciary, I am of the firm opinion and hold that the contempt proceedings against the Judges be not initiated and if so, the notices be withdrawn. 92. If heard in review petitions, it is not necessary that they be able to persuade this Court to recall its judgment, concerning the actions of General Pervez Musharraf, but there is likelihood that they might persuade this Court to take lenient view against them and to follow the principle of condonation by keeping in view the centuries old principle of comity among judges. But that too is subject to the hearing of the cases. The majority judgment is of the view that even if we hear the cases, we would not resort to any second opinion. This is tantamount to condemning the applicants for the third time and I am afraid, the theory of judgment in rem might not turn out to be of condemnation in rem. 93. Getting support from Monika Gandhi’s case (AIR 1978 SC 597), my honourable brother maintained the view that where the right to prior notice and an opportunity to be heard before an order is passed, would obstruct the taking of prompt action, such a right can be excluded. The relevant observation of the Supreme Court of India in the aforesaid case is reproduced as follows:- CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 82 “Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. ‘Audi alteram partem’ rule as such is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications.” Accordingly, it was observed that the principle of audi alteram partem can be applied to achieve the ends of justice and not to defeat them. I am spellbound to answer to such reasonings. Being a member of the Bench in the original case, I personally could not see any urgency involved for which a drastic action of ignoring audi alteram partem be resorted to. Do we mean to say that, had the applicants/Judges been issued notice and had they been heard during the main case and even if they are heard in review petitions, it would lead to defeat the ends of justice, making the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation. At least, I am not aware of any commonsense of the situation that would have lead to injustice, had the applicants been heard. If not heard earlier, they must be heard now in the review petitions. 94. An undeniable hard fact cannot be forgotten that every word reduced into black and white by the Supreme Court is a command of law. Consitutionally, such verdict is bound to be followed by all the Courts and by generations of the people. We should avoid holding a view of such nature that tomorrow, even a Civil Judge might stand up and quote the Apex Court in order to shun the concept of audi alteram partem and resultantly commit injustice. I wish, we had followed the quotations of Lord Denning, “Justice isn’t something temporal-it is eternal-and the nearest approach to a CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 83 definition that I can give is, Justice is what the right thinking members of the community believe to be fair”. If a just end is to be achieved, it must be through just means. 95. Numerous paragraphs of our judgment dated 31.7.2009 are referred to by my honourable brother in support of the view that review petitions have no merit. This also, to my mind, is not a fair approach because those very portions of our judgment are sought to be reviewed and unless we hear the applicants in review, we cannot justify our own views under review. Again it was observed that the principle of natural justice cannot be applied where “the grant of relief would amount to retention of ill-gotten gains or lead to injustice or aiding the injustice”. At the cost of repetitions, I am constrained to say that this again is a verdict given about review petitions, which are never heard. Numerous substantial points have already been answered in the judgment, which could have only been answered after hearing the applicants in review. The applicants are demanding no better opportunity than the one given by notice to General Pervez Musharraf. Any denial, therefore, to the applicants would be a discrimination, violating the provisions of Article 25 of the Constitution. 96. In paragraph 55, it was remarked that the one sought to be reviewed, was a landmark judgment in impeding the future path of any dictator. In relation to the aforesaid object it was, no doubt, an important judgment in judicial history of the country, but another equally important aspect thereof is that it practically damaged none except the weakest of the strata. The fallouts ought to have been equal. Such discrimination can only be made amends for through the hearing of review petitions filed by the applicants. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 84 97. Consequent upon what has been discussed, I hold that the Supreme Court has unfettered powers under Article 187-188 of the Constitution read with Order XXVI of the Supreme Court Rules to do ultimate justice for which review petitions are absolutely maintainable. The applications in hand are hereby accepted and the review petitions entertained for full hearing by the Court. (Sardar Muhammad Raza) Judge Islamabad, 13th October, 2009. APPROVED FOR REPORTING Sadaqat CH. IJAZ AHMED, J.- I have had the benefit and privilege of going through the judgment recorded by my learned brother Mr. Justice Javed Iqbal and generally agree therewith. In view of the importance of the case, I deem it prudent to add few words in support thereto. The petitioners, through instant petitions, have sought review of judgment dated 31.7.2009 passed by this Court in Constitution Petition No.9/2009 and Constitution Petition No.8/2009 and thereby seek opportunity of being heard for modifying or recalling or setting aside only the consequential order of the judgment which affects them. The judgment has declared the imposition of emergency as illegal and unconstitutional and as a consequence thereof its offsprings get affected. The petitioners being offsprings concede that emergency was unconstitutional but challenged the consequential order on the plea that it was passed without granting opportunity of hearing to the affectees. The argument in essence is that cutting of roots of undesirable tree is valid but thereafter pruning of its branches is invalid. CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 85 2. The doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. It is, therefore, for the courts to articulate from case to case what is involved in the concept of natural justice in a particular situation. The courts do not like the idea of confining the rules of natural justice within any rigid formula. 3. The reliefs claimed in Petitions Nos. 9 & 8 are of general nature and are against the State and no particular relief is claimed against any individual party, therefore, beneficiary of consequential order is not entitled to any hearing before striking such order. 4. The courts only insist on fair play in action. Fairness does import an obligation to see that no body can take benefits of any acts which were passed by the authorities beyond the parameters of the Constitution. A ship and its sailors swim and sink together. Hence, when the hazardous ship of emergency is drowned then its sailors cannot claim immunity as the fair play demands equal treatment. JUDGE RAHMAT HUSSAIN JAFFERI, J-. I have had the privilege of going through the judgment recorded by my learned brother Mr. Justice Javed Iqbal and generally agree therewith. However, I like to express my opinion with regard to the filing of review application by stranger under Order XLVII Rule 1, CPC. The Lahore High Court in the case of “Qaim Hussain v. Anjuman Islamia (PLD 1974 Lahore 346)” appearing at page 34 of the judgment observed that a stranger, who is not a party to the suit cannot file such application. In order to appreciate the point, the provisions of Section 114 and Order XLVII of CPC are required to be examined. The Section 114, CPC reads as under:- “Sec.114. - [Review. - (1) Subject as aforesaid, any person considering himself aggrieved.— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 86 and the Court may make such order thereon as it thinks fit. (2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or any order made by the Supreme Court].” A bare reading of the Section reveals that right to apply for review has been given to “any person” but subject to condition that he should be aggrieved by a decree or order of the Court. The phrase “any person” means a person, no matter who or a person of any kind. Words “a person” appearing in Section 12(2), CPC has been defined as a person not party to the suit by this Court in the cases of “Muhammad Yousaf v. Federal Government (1999 SCMR 1516) and Ghulam Muhammad v. M. Ahmad Khan (1993 SCMR 662)”. Thus there is no restriction placed under Section 114, CPC to debar any person other than the parties to the suit to file review application. 2. The rules contained in the First Schedule of Code of Civil Procedure are enabling provisions for the advancement of justice, therefore, they are required to be consistent with the provisions of the enactment. The said rules cannot enlarge or reduce the scope of relevant Sections of CPC. In the case of Qaim Hussain (supra) it appears that scope of the Section has been reduced which in my humble view is not permissible. A detailed and valuable discussion has been made in the judgment of my learned brother on the consistency of rules with the enactment and observed that statutory rules cannot enlarge the scope of the Section under which it is framed and if a rule goes beyond what the Section contemplates, the rule must yield to the statute. 3. A perusal of Order XLVII which has already been reproduced in the judgment would show that in sub-rule 1 the words “any person” have been used which are also appearing in Section 114, CPC whereas in sub-rule 2 instead of using the words “any person” the Framers of rules have used the words “a party”. This departure is a significant one which clearly demonstrates that the Lawmakers did not intentionally use the words “a party” in sub-rule 1, so as to make it in consonance with Section 114, CPC. In my humble view all the grounds mentioned in sub-rule 1 of Order XLVII, CPC for review of the decree or order would be available to the parties of the suit whereas the last two grounds: (i) on account of mistake or error apparent on the face of record or (ii) for any other sufficient reason would appear to be available to the persons who are not parties to the suit. If the meaning of “any person” is restricted to the parties of the suit then it will negate the CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 87 words “any person” appearing in Section 114, CPC which in my humble view would not be the intention of the Framers of rules. Therefore, I am of the view that the words “any person” would not only include the parties to the suit but also other persons. 4. It is further pointed out that under sub-section 2 of Section 114, CPC the sub-section 1 thereof has been excluded from application before this Court. Therefore, Section 114(1), CPC would not be applicable before this Court and so also the rules framed thereunder viz. Order XLVII. Nevertheless, Order XXVI Rule 1 of Supreme Court Rules, 1980 shows that only reference has been made to the grounds mentioned in Order XLVII Rule 1, CPC. The said Rule reads as under:- “1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule I of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record.” 5. Thus for the purpose of review of judgment or order of this Court, only the grounds mentioned in order XLVII Rule 1 of CPC can be taken into consideration and not the Order itself or Section 114, CPC. However, the grounds may be other than the grounds mentioned above as the word “similarity” has been used, which has enlarged the scope from the above provisions of CPC. Sub-rule 6 of Order XXVI of Supreme Court Rules, 1980 deals with entertaining and hearing of review application, which is as under:- “6. Except with the special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Nor shall any other Advocate, except such Advocate, be heard in support of the application for review, unless the Court has dispensed with the requirement aforesaid.” The above provision clearly shows that the Advocate, who had appeared at the hearing can draw the review application and be heard in support of the said application. Thus it refers to the party. Reference is invited to “Muhammad Rafique v. Maryam Bibi (1996 SCMR 1867)”. However, the Court has also suo motu powers to review the judgment or order on its own or on receipt of any information through any source in any manner either written or oral. The person supplying information can be treated as informer and if the Court finds that the information is such where any of the grounds for review is attracted then the matter can be heard to do complete justice. Judge

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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 C.M.A. NO. 2769 OF 2023 IN C.M.A. 2600 OF 2023 IN CONST. P. NO.5 OF 2023 (Representation on behalf of Election Commission of Pakistan) C.M.A. NO. 2770 OF 2023 IN C.M.A. 2600 OF 2023 IN CONST. P. NO.5 OF 2023 (Compliance Report on behalf of Election Commission of Pakistan) C.M.A. NO. 2771 OF 2023 IN C.M.A. 2600 OF 2023 IN CONST. P. NO.5 OF 2023 (Compliance Report on behalf of the State Bank of Pakistan) C.M.A. NO. 2772 OF 2023 IN C.M.A. 2600 OF 2023 IN CONST. P. NO.5 OF 2023 (Compliance Report on behalf of Finance Division) C.M.A. NO. 2773 OF 2023 IN C.M.A. 2600 OF 2023 IN CONST. P. NO.5 OF 2023 (Report by Attorney General on behalf of Federation of Pakistan) Mohammad Sibtain Khan and others (in all cases) …Applicant(s) Versus Election Commission of Pakistan through Chief Election Commissioner Islamabad and others (in all cases) …Respondent(s) CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 2 For the Applicant(s) (In CMA 2769 of 2023 etc.) : Mr. Mansoor Usman Awan, AGP assisted by: Barrister Maryam Ali Abbasi, Consultant Mr. M. Arshad, DG Law ECP Mr. Owais Sumra, Spl. Sec. Fin. Mr. Omer Hamid Khan, Secretary ECP Mr. Tanveer Butt, Addl. Secretary (Budget) Mr. Aamir Mehmood, Addl. Secretary Mr. Habibullah, J.S. Lit (Fin) Date of Hearing : 19.04.2023 O R D E R There are a number of miscellaneous matters before the Court in the shape of various CMAs. We first take up CMA Nos. 2770-2772/2023 since they relate to the compliance required by the order dated 14.04.2023 (“Order”), for the release of Rs. 21 Billion to the Election Commission of Pakistan (“Commission”) for the holding of general elections to the Punjab and Khyber Pakhtunkhwa Assemblies. 2. CMA 2771/2023 is a report filed by the State Bank of Pakistan stating that a sum of Rs. 21 Billion from Account No. I of the Federal Consolidated Fund (“Fund”) has been allocated for purposes of the aforementioned general elections. The Commission has however filed a report (CMA 2770/2023) stating that the said funds have not yet been made available to it. These CMAs are taken on record. 3. The Finance Division, Government of Pakistan has also filed a report (CMA 2772/2023) in terms of the Order. The report seeks to justify why the funds have not been made available. Briefly stated, it is reported that the matter of providing the funds was placed before the Federal Cabinet which, at its meeting held on CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 3 17.04.2023, decided that a demand for the authorization and release thereof be sent to the National Assembly for its consideration in terms of Article 82(2) read with Article 84 of the Constitution. The following motion was tabled before the National Assembly the same day (“Demand No. 64A”): “That a supplementary grant not exceeding Rs. 21 billion be granted to the Federal Government to meet the expenditure (other than charged) during the financial year ending 30th June, 2023 in respect of Election Commission of Pakistan (Demand No. 64A)” The Finance Division has reported that this motion was rejected by the National Assembly and the necessary funds could not therefore be made available to the Commission. 4. The first point to note is that, as set out in the Order, it was specifically queried from the team from the Finance Division and confirmed by them, that Article 84 allows and enables the Federal Government to make expenditures from the Fund for, inter alia, “expenditure upon some new service not included in the Annual Budget Statement” during any financial year. For such expenditure the Federal Government obtains ex post facto authorization from the National Assembly in the form of a Supplementary Budget Statement. The team from Finance Division also stated that the normal practice was for the Supplementary Budget Statement for the current financial year (as also any previous years) to be laid before the National Assembly along with the Annual Budget Statement for the succeeding financial year, with both then to be approved. There can therefore be no doubt, as noted in the Order, that the Federal Cabinet all along itself had the authority and power to authorize the expenditure of Rs. 21 Billion from the Fund CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 4 in order to enable the Federation to perform its constitutional obligations in relation to the general elections. 5. The learned Attorney General, in our view quite correctly and properly, did not attempt to seriously dispute the position as just stated. However, the reason why in the present case the matter was first referred to the National Assembly was sought to be explained. The learned Attorney General submitted that at an earlier date, the National Assembly had passed a resolution expressing its disapproval of the release of any funds for the holding of the general elections. It was this resolution that created a certain doubt and uncertainty, and so the Federal Cabinet decided to first refer to the National Assembly. On a query from the Court the learned Attorney General stated that the earlier resolution was not in terms of a specific request for a grant of funds for a financial measure. With respect, we were not satisfied that the earlier resolution stood in the way of the Federal Cabinet exercising its constitutional power under Article 84. The reasons for this are set out below. 6. To the extent therefore that the report of the Finance Division concludes, or proceeds on the basis that, the Federal Government did not itself have the requisite constitutional authority and power at all times to authorize the expenditure of Rs. 21 Billion for the general elections, it cannot be accepted. 7. The effect of the Federal Cabinet’s decision to refer the matter to the National Assembly in terms as noted above, and for Demand No. 64A to be rejected when voted upon by that House may now be considered. In terms of the system of parliamentary CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 5 democracy envisaged by the Constitution the Government of the day must command the confidence of the majority of the National Assembly at all times. Furthermore, given that the office of Prime Minister has primacy (who is declared by Article 91(1) to be the chief executive of the Federation), this also means that the Prime Minister must enjoy the confidence of the majority of the National Assembly at all times. It follows from the foregoing (and this is an important constitutional convention) that the Government of the day must be able to secure the passage of all financial measures that it submits before the National Assembly. This would be certainly true for a financial measure of constitutional importance, i.e., one that seeks the release of funds for the holding of general elections to two Provincial Assemblies. 8. When viewed from this perspective the rejection of Demand No. 64A has serious constitutional implications. One possibility is that the Government (and also, since the Federal Cabinet is appointed on the advice of, and is headed by, him, the Prime Minister) have lost the confidence of the majority of the members of the National Assembly. The learned Attorney General categorically stated that this was not so. The Federal Cabinet and the Prime Minister have, and had, at all times the confidence of the majority of the National Assembly. For present purposes, we accept this statement made by the learned Attorney General. The other possibility then is that the putative rejection of Demand No. 64A is to be regarded as anomalous, and the resulting situation can be rapidly rectified. The learned Attorney General fully appreciated the serious constitutional consequences that would flow, were the first possibility to reflect the correct position. Furthermore, any CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 6 future to and fro of this matter between the executive and legislative branches would not advance or serve any constitutional purpose. There would be a serious breach of constitutional duty and obligation. It is also to be emphasized that the orders of this Court seek only to enforce and effectuate binding constitutional obligations. A disobedience and defiance of the orders of the Court can itself have serious consequences. The learned Attorney General was therefore directed to draw the attention of the Federal Cabinet and the Prime Minister to the foregoing so that the matter is remedied at the earliest. The Court requires that appropriate remedial measures be taken in full measure not later than 27.04.2023 and, in particular, by that date the sum of Rs. 21 Billion be provided, in immediately available and realizable funds, to the Commission for the holding of the general elections to the Punjab and KPK Assemblies. CMA 2772/2023 is, for the time being, dealt with in the foregoing terms. 9. CMA 2773/2023 is filed by the Federal Government. It seeks to place on record a report, prepared by the Ministry of Defence, on the security situation in the country at the present time and for the next few months This CMA is moved under Order 33, R. 6 SCR and the relief sought is for the order dated 04.04.2023, whereby CP 5/2023 was finally disposed of, be recalled. It was pointed out to the learned Attorney General that such an application could not be entertained nor relief granted, as CP 5/2023 has been decided by final judgment. CMA 2773/2023 is therefore disposed of as not maintainable. 10. The last matter is CMA 2769/2023 which purports to be a representation filed by the Commission. It seeks, in essence, for CMAs. 2769-2773 of 2023 In CMA No.2600 of 2023 in Const.P.5 of 2023. 7 the Court to restore the date for the general elections to be 08.10.2023, which was impugned before the Court in CP 5/2023 and set aside by the order dated 04.04.2023. The Commission seeks restoration of the said date on essentially security grounds, which in large measure overlap the concerns expressed in the report of the Ministry of Defence appended to CMA 2773/2023. In our view the Commission seeks, in the guise of a representation, to re-agitate matters that were before the Court when CP 5/2023 was heard and decided, and in which two fully instructed learned counsel were permitted to make submissions on its behalf. It is impermissible to attempt to so reopen issues and questions that already stand finally decided. The representation is not maintainable and CMA 2769/2023 is disposed of accordingly. Sd/- Chief Justice Sd/- Judge Islamabad 19.04.2023 Sd/- Judge

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam CMA-2774/14 in Constitution Petition No.51 of 2010 (Application for revival of Const. Petition) AND Constitution Petition No.48 of 2014 (Under Article 184(3) of the Constitution) Independent Media Corporation … Applicant(s) Versus Federation of Pakistan, etc. … Respondent(s) For the applicant(s): Mr. Muhammad Akram Sheikh, Sr. ASC On Court’s call: Mr. Salman Aslam Butt, Attorney General for Pakistan Mr. Khawaja Ahmed Hosain, DAG Voluntarily appeared: Mr. Sabir Shakir, Bureau Chief, ARY News Islamabad For the PEMRA: Mr. Zahid Malik, Legal Head. Date of hearing: 22.05.2014 ORDER Jawwad S. Khawaja, J. This case was taken up earlier in the day. Before learned counsel for the applicant could state the facts of the case it was pointed out to him from the Bench that apparently there was an objection from some quarters in respect of the constitution/impartiality of the Bench. Therefore, the case was adjourned for hearing after the break at 12 noon. After the break it was stated by the Bench that the respondent or any other person having any objection against constitution of this Bench may come to Court and the matter was adjourned to 1:00 p.m. 1:00 p.m: 2. At 1:00 p.m. when the matter was taken up, the learned Attorney General appeared and stated that the Federation has no objection to the hearing of this petition by this Bench which includes (Jawwad S. Khawaja, J.). However, one Sabir Shakir, Bureau Chief, ARY, Islamabad appeared and stated that Mubashar Luqman who is Anchor Person of ARY had sent him to state that he would like to engage a counsel in this case. There may be CMA 2774/14 in Const. 51 of 2010 2 justification for this request though, prima facie, it does not appear so but there appears to be some TV talk show aired last evening which may need to be seen as it appears to be relevant in this context. However, in order to ensure absolute transparency in these cases, we are prepared to consider the objections which may appear from the aforesaid TV show to be against one Member of this Bench (Jawwad S. Khawaja,J.). It may be that this objection has something to do with the news programme Kharra Sach which was aired on ARY yesterday i.e. 21.5.2014. Therefore, we direct the Registrar of the Court to obtain the CD of the said programme which was aired yesterday and which needs to be seen as the same may throw some light on the basis or otherwise of any objection as vehemently urged by Sabir Shakir. 3. The Court will re-assemble at 2 p.m. today for the viewing of the TV programme. In the meanwhile, the office shall make arrangements for displaying relevant parts of the programme “Kharra Sach” relayed yesterday on ARY News Channel, through multimedia in Court at 2. p.m. 2:00 p.m: 4. This case has been taken up for the third time today. Firstly the case was called at 12: 00 noon and at that time the order of 12 noon was passed which has been reproduced above. The matter was then set for hearing for 1:00 p.m. The order which was passed at 1:00 p.m. is also reproduced above. The matter was then adjourned for hearing at 2:00 p.m. primarily for the purpose of viewing the programme Kharra Sach which was aired on ARY TV last evening. We have seen two relevant clips of the aforesaid programme in Court through multimedia. The transcript of the said two clips is reproduced below:- CMA 2774/14 in Const. 51 of 2010 3 5. It is not for the present necessary to make any determination as to the nature of the above reproduced excerpts from the TV programme. If there is any cause or matter which may require intervention in exercise of proceedings under any constitutional or statutory provision, that matter, needless to say, will proceed separately because that has no direct nexus with the matter at hand. The matter right now is as to whether one of us (Jawwad S. Khawaja, J.) should sit on this Bench. The basis of the objection can be gathered from the second excerpt of the TV programme reproduced above. It is in this excerpt that it has been alleged that because of a relationship I (Jawwad S. Khawaja) have with Shakeel ur Rehman I should recuse from the hearing of this case. This statement has been made by a gentleman named Aqeel Karim Dhaidi aged 56 years. It is quite obvious that he is totally unaware of the nature of the office of a judge and of the rules which have been laid down to ensure transparency and impartiality of Benches hearing cases. Mr. Dhaidi appears to be unaware that although Mir Shakeel ur Rehman happens to be the brother of the wife of my brother, I do not recall the last time we met, it may have been 20 years ago, 16 years ago or CMA 2774/14 in Const. 51 of 2010 4 perhaps at some shadi or ghami which I do not recall at present. It is always for the Judge himself to make a determination as to whether or not his relationship with any other person is such that he should not hear a particular case in which such person is a party. 6. The Code of Conduct prescribed by the Supreme Judicial Council for Judges of the Superior Courts includes Article 4 which states that a Judge should not “act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.” From this it will be evident that only such persons can trigger recusal of a Judge who are considered to be close by a Judge. The rationale of this stipulation is evident from its content. It is clear that I have no basis for regarding or treating Shakeel ur Rehman as a near relative. 7. The Oath of Office of Judges of the Supreme Court is set out in the Schedule to the Constitution as per Article 178. It is expressly stated therein that the Judge “ will not allow [his] personal interest to influence [his] official conduct or [his] official decision”. Judges also swear under the Constitution to “ do right to all manner of people according to law without fear or favour, affection or ill-will”. The Holy Quran in fact directs Judges to act fairly, justly and impartially even if they are hearing cases involving their own relatives. The above provisions of the Code of Conduct or Oath of Office or the verses from the Holy Quran do not impose a bar on a Judge from hearing cases unless there is cause under Article 4 of the Code of Conduct reproduced above. No such cause exists in this case. 8. In a recent judgment in CRPs-328 & 329 of 2013 which had been filed by General (Retd.) Parvaiz Musharraf it was held as under:- “6. Judges, it may be noted, do encounter allegations of bias and also receive criticism some of which may be expressed in civil language while others may be through hate speech or outright vilification based on malice. In either event, the Judge by training does not allow such vilification to cloud his judgment in a judicial matter. Even extremely derogatory language used against Judges does not, by itself create bias, as is evident from the negligible number of contempt cases based on scandalisation of Judges, (none leading to a sentence) cited in the case titled Baz Muhammad Kakar vs. Federation of Pakistan (PLD 2012 SC 923). Courts, therefore, cannot decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case … if a subjective perception of bias could be made a basis for recusal of a Judge … it would be very simple for any litigant not CMA 2774/14 in Const. 51 of 2010 5 wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him.” 9. In the said judgment, we have also observed that it may become very easy for a litigant to avoid appearing before any Bench which is not of his choice. He can speak against a Judge or such Bench directly or through innuendo and thereafter claim that the Judge is biased against him and should recuse from the hearing. In the present case, we may assume that the comments made by Mr. Dhaidhi may be in good faith, however, such comments before being aired on a TV channel licensed by PEMRA could have been vetted or even in the case of a live telecast it should have been ascertained that the interviewee was aware of Article 19 of the Constitution and the law. We, however, donot intend to embark on any such inquiry as this will be a matter within the competence and jurisdiction of PEMRA. It is for PEMRA to ensure that the constitutional provisions set out in Articles 19 and 19A of the Constitution are strictly adhered to. These provisions have also been incorporated in the PEMRA Ordinance and the rules framed by PEMRA thereunder and also in the provisions of the licences which are issued by PEMRA to various channels. 10. In the above context, it may be useful to record that all litigants at times make attempts to avoid hearing before certain Benches but at times such attempts are not well intentioned. There may even be attempts to intimidate or malign judges or institutions of the State and thereby, to undermine such individuals or institutions. 11. It is in this context that two instances can be referred to by us. When I, (Jawwad S. Khawaja, J.) was a Judge of the High Court, I received a letter stating therein that I had illicit relations with women folk of the opposite party. The said letter was circulated by me amongst the lawyers of the parties. The person who purportedly wrote this letter was summoned in Court on the following day. She appeared in Court. Her demeanor in Court depicted that she was a simple village woman. She admitted that she wrote the said letter. When asked why she did so, she replied that she did not want the case to be heard by me and was advised by a worldly-wise man in the village to write the letter to me and as a consequence the case would be ordered to be placed before some other Bench. This approach is unfortunate but is prevalent in our society. Judges cannot be tricked by such CMA 2774/14 in Const. 51 of 2010 6 tactics. If they succumb to such tactics they will thereby empower litigants and enable them to control fixation of cases and constitution of Benches. 12. There is another instance relating to a commercial matter in which a letter was received by me. This letter was purportedly from one of the parties to the case. In the letter it was stated that I had been a lawyer for one of the parties and was, therefore, biased in favour of the opposite side. This letter was also circulated amongst the lawyers of the parties at which point the party who was purported to have written the letter stood up in Court and stated that he had not written the letter and in fact he would want the same Bench headed by me to hear the case. 13. These instances show that there can be reasons, other than those that meet the eye, which may motivate a remark or comment. If judges donot deal firmly with such remarks (where unfounded) this may encourage unscrupulous or uninformed elements into saying things which may erode the standing, respect and credibility of the Court. The hearings of this case at intervals today is significant. Courts are not to succumb to any remark, defamatory or otherwise. It is the conscience of the Judge himself which must determine his decision to sit on a Bench or not. 14. We are very conscious and careful in noting that Mr. Dhaidhi may genuinely have felt the way he did when he said that one of us (Jawwad S. Khawaja, J.) should recuse from this case. Therefore, it may be for some other person or some other proceedings to deal with the utterances in the TV Programme as reproduced above. We have no intention to comment on matters which are sub judice before this Court and before other Courts including Accountability Courts which are part of the Judicial System of Pakistan wherein Mr. Dhaidhi may be arrayed as a party or as an accused. We are deliberately and consciously not recording any remarks or comment lest it causes prejudice to the trial or to Mr. Dhaidhi in such pending matters. 15. The upshot of the above is that I do not find any reason whatsoever not to sit on this Bench. 16. At this juncture, it is important to reproduce Article 19 of the Constitution which is in the following terms:- CMA 2774/14 in Const. 51 of 2010 7 “19. 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 or 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. 17. Thus barring the exclusions which have been mentioned in the said Article, there can be no restriction imposed on the freedoms of speech and expression set out in Article 19 of the Constitution. 18. To come up tomorrow i.e. 23.5.2014, for further proceedings. Judge Judge Judge ISLAMABAD, 22nd May, 2014 M. Azhar Malik APPROVED FOR REPORTING.                            51 of 2010        2774 of 2014                 Independent Media Corporation                                                                                 201422                                                    12                1 01:00PM                                                                                                                                           02:00PM   01   12                                                          mind set                                            2                56                                             Conflict of Interest                                                                  against                                365                                                                                           3                                                56                                            16     20                                    4                                    "                             ".                                                          178                        "          "                                  " "                        4                                                        4  328                      329/2013               "                                                                                                                                                                            293      2012                                                   5                                                                          "                                                                                   19                                            19 A  19                                                                                                                                6                                                                                                                                                                                                                                                                                                                                7                                                      19                      19 "                                                                      "                  19                         23-05-2014                    8

{'id': 'C.M.A.2774_2014.pdf', 'url': ''}

{'id': 'C.M.A.2774_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SYED MANSOOR ALI SHAH CMA NO. 284 OF 2021 (For transfer of family suit from one Province to another) Mst. Kulsoom Rasheed ...….Applicant(s) Versus Noman Aslam ….Respondent(s) Applicant(s): Kulsoom Rasheem (In person) For the Respondent(s): N.R. Date of hearing: 23.02.2021 ORDER Mushir Alam, J.- It appears that the suit for recovery of maintenance and dowry articles filed in the court of Judge Family Court, Islamabad West was decreed ex-parte vide judgment dated 24.02.2020. From the record it appears that the respondent is resident of Karachi and the decree could not possibly be executed at Islamabad. The applicant in person through titled application prays for transfer of the titled case from Judge Family Court Islamabad- West to the court of competent jurisdiction/Judge Family Court, Karachi (Sindh) in terms of Section 25-A (2-B) of the Family Courts Act, 1964. For facility of reference the said provision is reproduced below:- “25A. Transfer of cases.-(1) Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing. … (2a)… (2b) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the Supreme Court may at any state transfer any suit, appeal or other proceedings under this Act pending before a Court in one Province to a Court in another Province, competent to try or dispose of the same.” (emphasis supplied) CMA No.284/2021 2 2. Bare perusal of the above provision reveals that this Court may order the transfer of proceedings pending from one jurisdiction to another more particularly from one Province to another either at the motion of the parties or on its own motion without notice. 3. In view of the above stated legal position and looking into the facts and circumstances of the case, it would be cumbersome to issue notice to the respondent, who is resident of Karachi. Even otherwise it will burden the respondent with heavy cost on travelling or contesting the matter here. In order to protect the rights and interest of the parties and to ensure that right as conferred by Article 10A of the Constitution “fair trial” is protected, this Court can always make an order of transfer and the transferee court may take further proceedings from where it is left by the Court from which matter is transferred, only after due service of notice on the respondent. In view of the fact that the matter in issue relates to the execution of a decree passed in favour of the petitioner, who is also the wife of the respondent, the execution proceedings, in order to facilitate expeditious disposal, are ordered to be transferred from the Family Court/Guardian Judge, Islamabad-West to the District Judge, Karachi (concerned) who shall assign the matter to the competent Family Court concerned for the purpose of the execution of the judgment and decree noted above after due service on the respondent. 4. This CMA is accordingly disposed of in the above terms. Islamabad, 23rd February, 2021. Approved for reporting Iqbal Judge Judge

{'id': 'C.M.A.284_2021.pdf', 'url': ''}

{'id': 'C.M.A.284_2021.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM CMA NO. 290 OF 2012 & CONSTITUTION PETITIONS NO. 77 TO 85, 89 & 92 OF 2011 & CMA NO. 5505/2011 IN CONST. P. 79 OF 2011 [Constitution Petition under Article 184(3) of the Constitution regarding alleged Memorandum to Admiral Mike Mullen by Mr. Hussain Haqqani, former Ambassador of Pakistan to the United States of America] … Watan Party … PETITIONER [CP 77/2011] M. Tariq Asad Advocate Supreme Court … PETITIONER [CP 78/2011] Muhammad Nawaz Sharif … PETITIONER [CP 79/2011] Senator Muhammad Ishaq Dar & another … PETITIONERS [CP 80/2011] Iqbal Zafar Jhagra & another … PETITIONERS [CP 81/2011] Lt. General ® Abdul Qadir Baloch & 2 others … PETITIONERS [CP 82/2011] Raja Muhammad Farooq Haider Khan & another… PETITIONERS [CP 83/2011] Syed Ghous Ali Shah & 2 others … PETITIONERS [CP 84/2011] Hafeez Ur Rahman … PETITIONER [CP 85/2011] CONST P 77-2011/2010, etc. 2 Shafqatullah Sohail … PETITIONER [CP 89/2011] Shahid Orakzai … PETITIONER [CP 92/2011] VERSUS Federation of Pakistan & others … RESPONDENTS For the petitioners: Barrister Zafarullah Khan, ASC in person Mr. Tariq Asad, ASC in person Senator Muhammad Ishaq Dar & Khawaja Muhammad Asif, MNA in person Mr. Attique Shah, ASC Dr. M. Salahuddin Mengal, ASC Sardar Asmatullah Khan, ASC Mr. Naseer Ahmad Bhutta, ASC Mr. M.S. Khattak, AOR Mr. Shahid Orakzai in person For the President of Pakistan: Nemo. For the Prime Minister of Pakistan: Nemo. For Chief of Army Staff, Maulvi Anwar-ul-Haq DG, ISI & M/O of Cabinet, Attorney General for Pakistan Defence, Foreign Affairs, Interior & Law: For Mr. Hussain Haqqani: Ms. Asma Jahangir, ASC Ch. Akhtar Ali, AOR For Mr. Mansoor Ijaz: Mr. Muhammad Akram Sheikh, Sr. ASC Date of hearing: 30.01.2012 … O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – CMA NO. 290 OF 2012 The Commission constituted to probe into the origin, authenticity and purpose of the alleged Memo dated 11.05.2011 has submitted a request through its Secretary for the enlargement of the time. We have heard the learned Attorney General for Pakistan, who CONST P 77-2011/2010, etc. 3 has briefed us about the proceedings so far undertaken by the Commission. From the facts so narrated by him, it seems that the Commission has not completed its proceedings to procure evidence, and as it has been pointed out that Mr. Mansoor Ijaz has not appeared before the Commission, therefore, some time is likely to be consumed to complete this exercise. The learned Attorney General for Pakistan and the learned counsel appearing for Mr. Hussain Haqqani have no objection. However, Barrister Zafarullah Khan, ASC has stated that in absence of the statement of Mr. Mansoor Ijaz, the statement of DG, ISI who has already given his affidavit, be recorded. We do not want to interfere in the proceedings, which are being undertaken by the Commission. However, in the interest of justice, we extend the time for completion of the proceedings for a period of two months commencing from the passing of this order. CMA NO. 331 OF 2012 2. The learned counsel for Mr. Hussain Haqqani has submitted an application, inter alia, stating therein that he has fully cooperated with the Commission and will continue to do so and also undertakes to return to Pakistan any time on four days’ notice to join the proceedings, if and when required to do so by the Commission, therefore, the condition placed upon him of not leaving the country be withdrawn and he be allowed to join his family abroad. The learned Attorney General for Pakistan has no objection if permission as prayed for is accorded and Mr. Hussain Haqqani is allowed to leave the country in view of the undertaking given in the application to return back on four days’ notice whenever his attendance is required by the Commission. It is to be noted that in the earlier orders dated 01.12.2011 & 30.12.2011, he was asked not to leave the country CONST P 77-2011/2010, etc. 4 without prior permission of this Court and now such permission is being sought and for the reasons disclosed hereinabove, he is allowed to leave the country. However, he will provide his full particulars to the Registrar of this Court and be also bound to return back on four days’ notice if his attendance is required by the Commission or by this Court. CMA NO. 329 OF 2012 3. Mr. Muhammad Akram Sheikh, Sr. ASC has submitted an application for recording of evidence outside the country. He may place this request before the Commission for passing of appropriate order. 4. Mr. Mansoor Ijaz has addressed a letter to the Chief Justice of Pakistan under the caption “secret letter” wherein he has disclosed certain information, but we are not aware of its authenticity. It is a cardinal principle of law that whenever a person claims confidentiality or requests the Court to treat any document as confidential or classified, the Court may go through it, but its status to be treated as confidential or classified document has to be decided according to law. However, as he has engaged a counsel, we would have appreciated if he had sent such a document to the Court through his counsel. Be that as it may, at this stage, we would not be considering this document for any purpose, but the same would be kept in a sealed cover under lock by the Registrar of this Court. Registrar present in Court is directed accordingly. CONST. PETITION NO. 92 OF 2011 5. Mr. Shahid Orakzai, petitioner has appeared in person and stated that he has raised a different question in his petition, which are not taken up in the petitions already entertained. Issue notice to the CONST P 77-2011/2010, etc. 5 respondents to file comments before the next date of hearing. To be fixed along with other petitions. IFTIKHAR MUHAMMAD CHAUDHRY, CJ MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. JAWWAD S. KHAWAJA, J. ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J. MIAN SAQIB NISAR, J. AMIR HANI MUSLIM, J. Islamabad, the 30th January, 2012

{'id': 'C.M.A.290_2012.pdf', 'url': ''}

{'id': 'C.M.A.290_2012.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE SH. AZMAT SAEED CMA NO.2915 OF 2013 IN CMA NO.1262 OF 2012 IN HRC NO.965 OF 2005 (Amina Masood Janjua v. the State thr M/o Interior and others) AND CMA NO.2996 OF 2013 IN CMA NO.1262 OF 2012 IN HRC NO.965 OF 2005 (Amina Masood Janjua v. the State thr M/o Interior and others) AND CMA NO.4246 OF 2013 IN CMA NO.2996 OF 2013 IN HRC NO.965 OF 2005 (Ziaullah v. The State through M/o Interior) Amina Masood Janjua … Applicant VERSUS The State through M/o Interior etc … Respondents For the applicant: Mst. Amina Masood Janjua With Naseer On Court Notice: Mr. Tariq Mahmood Khokhar, Addl. AGP Malik Faisal Rafique, Addl. A.G. Punjab Mr. Siddique Khan Baloch, ASC Mr. Shahidullah Khan, Addl. Secy, FATA Mr. Abdul Qayyum, LO Mr. Usman Khan, SO Home Date of hearing: 26.7.2013 ORDER The learned Additional Attorney General for Pakistan has placed on record, a list of 64 persons supplied to CMA No.2915-2013 etc-1.doc - 2 - him by the Secretary, FATA and stated that they are confined in the different Internment Centers. However, the detail of the cases in which they are involved, if any, has not been mentioned. Similarly, he stated that about 504 persons, list of which has been prepared by the Secretary PATA, are confined in different Internment Centres. 2. The learned Addl. Attorney General may file both the lists in the office within three days alongwith the details, if any, about their involvement in the criminal cases and in the column of the remarks, it would also be mentioned as to why they are not proceeding against them, if there are some cases against them. 3. The learned Addl. Attorney General has stated that, as per the direction of the Court, some of the internees have provided an opportunity to meet with their relatives. However, we direct that they may prepare SOPs and a focal person should be appointed preferably to be the District and Sessions Judges in the area where Internment Centres are situated and they are discharging their duties otherwise the Political Agent or the Deputy Commissioner would himself be a focal person and he (they) would be responsible to CMA No.2915-2013 etc-1.doc - 3 - manage the meeting of the relatives according to rules without causing any inconvenience to them. 4. On the last date of hearing, we have also pointed out about providing the medical treatment to the detenues, as there was a complaint before us that for want of medical facility and food their health is deteriorating day by day. The report in this behalf may be called from both the Secretaries FATA and PATA before the next date of hearing so that we may pass an appropriate order, if need be. Although, we have already observed that a human being, who is kept in Internment Centre, is entitled for the food and medicines, as per his fundamental rights. 5. On receipt of the reports from both the agencies, noted herein above, the matter shall be taken up further for the purpose of passing an appropriate order. Adjourned to a date in office after 10 days. Chief Justice Judge Judge Islamabad, the 26th July, 2013 Not approved for reporting M. Safdar Mahmood/* IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CMA NO.2916/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005 (Amina Masood Janjua Vs. The State through M/o Interior and others) AND CMA NO.2994/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005 (Amina Masood Janjua Vs. The State through M/o Interior and others) For the Applicant : Mrs. Amina Masood Janjua On Court’s Notice : Mr. Tariq Mehmood Khokhar, Addl. A.G. Malik Faisal Rafique, Addl. A.G. Mr. Ihsan Elahi, I.O. Qazi Muhammad Amin, ASC Mr. Ghulam Shabbir, ASI Date of Hearing : 26.07.2013. O R D E R It is informed by the learned Additional Attorney General for Pakistan that now he has been instructed by the Ministry of Defence, Government of Pakistan, to cross-examine the witness, namely, Ihsan Elahi in this case. It is to be noted that on the last date of hearing, a request was made to engage another counsel for the purpose of cross-examination. Before recording his statement during the hearing of the case, SHO-Ihsan Elahi pointed out that he has conducted an CMA.2916/2013, etc. 2 independent investigation and examined Malik Amir Farooq, owner of Coal Mines where both the missing persons, namely, M/s. Umer Hayat and Umer Bakhat were employed as labourers and the former SHO- Badar Munir, SI-Khizer Hayat (Police Post Incharge, Basharat) and ASI-Wajid Ali as well as ASI Shabbir Ahmad who accompanied the persons to whom the officials went to the Coal Mines of Malik Amir Farooq and there from both the above mentioned missing persons were picked up and were taken away by the agencies. 2. In such view of the matter instead of examining the statement of Ihsan Elahi and others before the Supreme Court of Pakistan, we send this case to the learned District and Sessions Judge, Chakwal, for recording the statements of Ihsan Elahi, Badar Munir, Khizar Hayat, Shabbir Ahmad and Wajid Ali as well as Malik Amir Farooq, owner of the Coal Mines, subject to allowing an opportunity of cross-examination. The Ministry of Defence, shall depute a counsel after seeking necessary information from the learned Additional Attorney General for Pakistan whereas Prosecutor shall appear on behalf of State to assist the Court. 3. The learned District and Sessions Judge, after recording the evidence of the persons noted herein above and any other material brought by the complainant or other persons interested in this case shall record the finding as to whether M/s. Umer Hayat and Umer Bakhat had been picked away by the agencies/persons as it is alleged by the police and whether presently they are in custody of which agency. CMA.2916/2013, etc. 3 4. The requisite report shall be sent by the learned District & Sessions Judge, Chakwal, before the next date of hearing. 5. Put up on 05.08.2013. Chief Justice Islamabad Judge 26.7.2013 Mahtab/* Judge IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CMA NO.2997/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005 (For Recovery of Ghulam Sajjad Amjad) (Amina Masood Janjua Vs. The State through M/o Interior and others) For the Applicant : Mrs. Amina Masood Janjua On Court’s Notice : Mr. Tariq Mehmood Khokhar, Addl. AGP Mr. Faisal Rafique, Addl. AG Pb Mr. Muhammad Shoaib, DSP Mr. Muhammad Akram, Inspector Date of Hearing : 26.07.2013. O R D E R Mrs. Amina Masood Janjua, has placed on record an affidavit through CMA No.4910 of 2013 in view of our observation made in the Order dated 25.07.2013. A perusal of the same suggests that Ghulam Sajjad Amjad son of Basara, resident of Islamkot, Kabeerwala along with other two persons, namely, Muhammad Saleem, Alipur and Muhammad Saleem, Multan were present in Qasim Bela, Multan Cantt. 2. Copy of the same be handed over to the learned Additional Attorney General for Pakistan and issue a notice to him to ensure the production/recovery of Ghulam Sajjad Amjad on the next date of CMA.2997/2013, etc. 2 hearing. He should also ensure to furnish the details of the other two persons, named herein before who were confined in the said Camp along with detailed reasons, if any, for which they were detained over there. 2. Adjourned to 2nd August, 2013. Chief Justice Islamabad Judge 26.7.2013 Mahtab/* Judge IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CIVIL MISC. APPLICATION NO.3956 OF 2013 (For recovery of Muhammad Farhaj Waheed Butt) IN CIVIL MISC. APPLICATION NO.3762 OF 2012 IN HUMAN RIGHTS CASE NO.965 OF 2005. Amina Masood Janjua. Applicant (s) VERSUS The State through M/o Interior and others. Respondent (s) For the Applicant : Mrs. Amina Masood Janjua On Court’s Notice : Mr. Tariq Mehmood Khokhar, Additional Attorney General for Pakistan Mr. Faisal Rafique, Additional A.G. Pb. with Mr. Khan Baig, IGP and Mr. Umar Virk, SSP (CTD) Date of Hearing : 26.07.2013. O R D E R Mr. Khan Baig, Provincial Police Officer (IGP), Punjab, Lahore, has submitted a report (CMA No.4911 of 2013) in response to our Order dated 23.07.2013. It has also been informed by Mr. Umer Virk, SSP (CTD) that Farhaj Waheed Butt is presently confined in Central Jail, Kot Lakhpat, Lahore, along with other three persons, namely, Usman Basra, Rana Abdul Rehman and Nemat Ullah (under police remand since 15th July, 2013), as they are involved in the CMA.3956/2013, etc. 2 different FIRs bearing No.687/2008 of Police Station, Faisal Town, Lahore, 899/2010 of Police Station Ghalib Market, Lahore and 1036/2011 of Police Station, Gulberg, Lahore. As far as the involvement of Farhaj Waheed Butt along with others in criminal cases is concerned, it needs no comments at this stage as Mrs. Maria wife of Farhaj Waheed Butt has different version. 2. According to her version noted in order dated 23.7.2013, initially Abdul Waheed Butt father of Farhaj Waheed Butt was picked up by the police in the month of September, 2011 and when Farhaj Waheed Butt appeared before the police, the father was released. Thereafter, Mr. Umar Virk, SSP, arranged the meeting of Abdul Waheed Butt with his son Farhaj Waheed Butt. Now when we have issued notice on 23.07.2013, directing the Inspector General of Police to appear and produce him as he was in the police custody. Now it is informed that he is in the Central Jail, Kot Lakhpat, Lahore, along with others from the date as noted herein before. Thus, the question is that as to whether previously he was kept in illegal detention and because of present proceedings, he has been surfaced. 3. Under the circumstances, the Inspector General of Police is directed to conduct thorough probe into the matter personally after having taken into consideration all the attending circumstances and evidence, etc. 4. At the same time, Mr. Nazir Ahmed Gujanah, learned District & Sessions Judge, Chinot, is appointed to conduct an inquiry CMA.3956/2013, etc. 3 to ascertain questions of detention of Farhaj Waheed Butt from the month of September, 2011 to 15th July, 2013, if it is a true version alongwith Role of Police and submit a report for our perusal. It is to be pointed out that the learned District and Sessions Judge may examine any witness, including Abdul Waheed Butt or Farhaj Waheed Butt who along with others is presently confined in the Central Jail, Kot Lakhpat, Lahore. The logistic arrangements shall be made by the Registrar of the learned Lahore High Court to facilitate the learned District & Sessions Judge in preparing the report. On receipt of the report from both the functionaries, the matter shall be decided further. 5. Petitioner-Mrs. Amina Masood Janjua, pointed out that Mrs. Maria wife of Farhaj Waheed Butt has been threatened for approaching this Court. The Inspector General of Police who is present in Court is directed to provide proper protection to her and ensure her safe appearance before this Court on the next date of hearing. 6. Adjourned to 2nd August, 2013. This Order be communicated to all concerned during course of the day. Chief Justice Islamabad Judge 26.7.2013 Mahtab/* Judge

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{'id': 'C.M.A.2915_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN C. M. A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. Imran Ahmed Khan and others. …Applicant(s) Versus Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan. …Respondent(s) In attendance : Mr. Ashtar Ausaf Ali, A. G. for Pakistan. Mr. Riaz Riazuddin, Governor State Bank of Pakistan. Mr. Zafar Hijazi, Chairman SECP. Date of Hearing: 05.05.2017 O R D E R On the last date of hearing we observed as under :- “Pursuant to our directions, names of the Officers have been sent by all the Departments/Institutions but since we have reservations about the names given by the Governor State Bank of Pakistan and the Chairman Security & Exchange Commission of Pakistan, let both of them appear before us day after tomorrow i.e. 05.05.2017 at 11:00 a.m. with the lists of all the scale 18 and above Officers or equivalent so that we may consider them for approval as Members of JIT. 2. Today, the Governor State Bank of Pakistan and the Chairman SECP appeared with the lists they were directed to produce. We examined the lists and deliberated over our choice. We from the list submitted by the Governor State Bank of Pakistan select and nominate Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with NIBAF, as a Member JIT. We also examined the list submitted by the Chairman SECP and deliberated over the names. We from the said list select and nominate Mr. Bilal Rasool who is C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. 2 Executive Director, SECP, presently working at the Commission’s Secretariat, Media and Corporate Communication and Translation Department as a Member JIT. We have also examined the lists submitted by the Chairman NAB. We after due deliberation select and nominate Mr. Irfan Naeem Mangi, Director (BS-20) as a Member JIT. We also examined the list submitted by the Director General ISI. We after due thought and deliberation select and nominate Brig. Muhammad Nauman Saeed as a Member JIT. We have also examined the list submitted by the Military Intelligence (M.I.). We after due consideration select and nominate Brig. Kamran Khurshid as a Member JIT. We also examined the list submitted by the Director General, FIA. We having considered the background and antecedents of the Officers in the list decided to select and nominate Mr. Wajid Zia, Additional Director General (Immigration), FIA to head the JIT. 3. We further direct as follows :- i) The Secretariat of the JIT shall be housed in the Building of the Federal Judicial Academy, Islamabad where they shall be provided adequate office accommodation and related facilities. The requisite approval has been obtained from Hon’ble The Chief Justice of Pakistan. ii) Since the JIT in connection with the investigation would need funds, the Federal Government is directed to provide them necessary funds. We direct the Federal Government to initially provide an amount to the tune of rupees twenty million C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. 3 forthwith so that the JIT may not feel handicapped in its movement in any direction. The funds shall be placed at the disposal of the Head of the JIT. iii) The Head and Members of the JIT shall arrange secretarial staff of their choice from their respective departments. The JIT would also be at liberty to utilize the expertise available in their departments and any other department of the Federal or Provincial Governments as and when required by it. iv) The boarding, lodging and transportation of the Members of JIT shall also be provided by their respective Departments in accordance with the rules. v) The JIT shall have the power to engage and associate local and/or foreign experts to facilitate the investigation and collection of evidence in line with the letter and spirit of order dated 20.04.2017 of this Court. vi) The JIT shall have all the powers given by the law relating to investigation including those available in the Code of Criminal Procedure, 1898, National Accountability Bureau Ordinance, 1999 and the Federal Investigation Agency Act, 1975. vii) As the JIT, in essence and substance, is acting on the direction of the Supreme Court of Pakistan, C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. 4 all the Executive Authorities throughout Pakistan shall act in aid of the JIT. viii) If and when any person fails or refuses to associate with or appear before the JIT or refuses to cooperate or provide oral or documentary information required by it, the same be immediately brought to the notice of the Court for taking appropriate action. ix) The Secretary Interior, Government of Pakistan is directed to ensure necessary security arrangements for the Secretariat and the Members of the JIT. 4. The JIT is directed to commence and complete the investigation and submit its final report in terms of the order dated 20.04.2017. It shall also submit fortnightly progress reports as stipulated in the said order. 5. For further proceedings to come up on 22.05.2017. JUDGE JUDGE JUDGE ISLAMABAD. 05.05.2017. M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Gulzar Ahmed Mr. Justice Iqbal Hameedur Rahman CMA No.2943/14 in CMA No.2774/14 in Const. Petition No.51/2010 (Miscellaneous matter regarding unwanted posters and banners in Islamabad) Independent Media Corporation (Pvt.) Ltd. Petitioner Versus Federation of Pakistan through Ministry of Information and PEMRA Respondents Voluntarily Appeared: Sheikh Ahsan-ud-Din, ASC Mr. Taufeeq Asif, ASC Mr. Yaqoob Butt, On Court’s Call: Mr. Salman Aslam Butt, AGP On Court Notice: For the Federation: Khawaja Ahmad Hussain, DAG For M/o Interior: Nemo For I.B.: Ms. Naveeda Noor, Director (Law) For Islamabad Police: Mr. Aftab Ahmad Cheema, I.G. Mr. Jameel Hashmi, S.P. Mr. Azhar Shah, DSP Mr. Hakim Khan, SHO, PS. Aabpara Mr. Azhar Mehmood, S.I./I.O Date of Hearing: 2.07.2014 ORDER We have repeatedly expressed our concern that the police has been less than diligent in this case. We note that FIR No.234/14 was lodged by Mr. Azhar Mehmood, S.I. at Police Station, Aabpara on 27.05.2014, whereafter, the police file shows extreme lack of diligence in investigating the case and bringing the culprits to book. Two accused were arrested on 27.05.2014. The main accused in the case namely Muhammad Rashid was identified more than one month ago. It is unfortunate that due to a lack of CMA No.2943/14 in CMA 2774/14 in Const.P.51/10 2 diligent efforts and investigation, the said Muhammad Rashid was arrested only last night. 2. The Inspector General of Police, Islamabad is present in person. He was not in a position to explain as to why diligent effort in the case had not been made by the police. He also conceded that there had been incompetence (ﺎﻧ ﯽﻠﮨا) in the investigation. He being head of the Police Force in Islamabad shall within seven days submit an explanation firstly, as to the reasons behind the incompetence and secondly, disciplinary action, if any, which he has taken against those who have been incompetent. It may also be that there may have been some attempt to cover-up/protect the accused. His explanation should also comment on this aspect of the case. 3. We may also add that we have seen the police file. From the same it is evident that there have been long periods when no action at all appears to have been taken in the investigation of the case. When questioned, the I.G. also conceded that he had not seen all zimnees. This also reflects a sorry state of affairs within the police. It needs to be emphasized again that whoever the persons were involved, could as easily have come in the same way and escaped undetected after planting 22 bombs or explosive devices instead of banners. This must be a cause of concern to the citizens of Pakistan. 4. Sheikh Ahsan-ud-Din and Mr. Taufeeq Asif, learned ASCs had pointed out in Court more than one month ago the main accused was in fact one Muhammad Rashid who could lead to those who were behind the anti- state activity. Mr. Taufeeq Asif, learned ASC also states that although he had passed on this information earlier, he will be happy to record his statement with the police even today or tomorrow. 5. The report of the I.G. shall be submitted before the next date of hearing. Re-list on 8.07.2014. Mr. Yaqoob Butt brother of Shafiq Butt (one of the accused) present in person states that his brother is in judicial custody. CMA No.2943/14 in CMA 2774/14 in Const.P.51/10 3 He wishes to record his statement. The police shall ensure that his statement is recorded at the earliest. Judge Judge Judge ISLAMABAD 2nd July, 2014 (Nasir Khan)

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IN THE SUPREME COURT OF PAKISTN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE JAVED IQBAL MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE RAJA FAYYAZ AHMED MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE RAHMAT HUSSAIN JAFFERY MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE GHULAM RABBANI MR. JUSTICE KHALIL-UR-REHMAN RAMDAY CMA NO. 2981 OF 2010 [REPORTS ALLEGING THAT GOVERNMENT IS CONSIDERING WITHDRAWAL OF THE NOTIFICATION OF RESTORATION OF JUDGES DATED 16.03.2009] IN CONSTITUTION PETITION NO. 9 OF 2009 Sindh High Court Bar Association v. Federation of Pakistan … … On Court notice: Moulvi Anwarul Haq Attorney General for Pakistan CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 2 Mr. Mushtaq Ahmed Malik Chairman PEMRA Voluntary appeared: Qazi Muhammad Anwar, Sr. ASC President, Supreme Court Bar Association Malik Manzoor Hussain, Vice President, Supreme Court Bar Association Mr. Ahsanuddin Sheikh, Additional Secretary, Supreme Court Bar Association Mr. Sanaullah Zahid, Finance Secretary, Supreme Court Bar Association Mian Abdul Quddus, President Lahore High Court Bar Association Syed Zulfiqar Abbas Naqvi, President, High Court Rawalpindi Bench Bar Association Khan Afzal, Member, Executive Committee, Pakistan Bar Council Malik Ghulam Mustafa Kandwal, Member, Punjab Bar Council Malik Waheed Anjum, President, District Bar Association, Rawalpindi Mr. Jan Muhammad, ASC Date of hearing: 15.10.2010 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - Listed application has been placed before this Bench in pursuance of office note put up by Registrar on 14.10.2010. Necessity was felt for bringing into the notice of the Court about the events going on for the last few days i.e. the reports published in print media and also aired on electronic media, thus the Government of Pakistan is contemplating to withdraw notification/executive order dated 16.03.2009 restoring the Chief CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 3 Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices and Judges of High Courts. In view of the importance of the matter, it was considered to hear the Attorney General for Pakistan and after knowing his viewpoint, matter should be disposed of. It is not only in the recent past such information was passed on to print and electronic media, but prior to it as well, whenever judgment in some important case is pronounced by this Court, or the Court is seized of an important matter and is likely to decide the case, attempts are made to pressurize the judiciary by spreading news that since the Chief Justice and the Judges were restored in pursuance of an executive order, which has not yet been sanctified by the Parliament, therefore, all the concerned members of the judiciary must take note of it inasmuch as a similar statement was made by a highest constitutional functionary in the Parliament. 2. On 14.10.2010 when after 8.00 p.m. private TV channels aired this news, a denial was also issued from the office of Prime Minister, saying that there is no truth behind the said news and the Government has no such intention to withdraw the notification of restoration of Judges. But contrary to it, the news item flashed in various private TV channels, including AAJ, GEO, ARY, etc., was to the effect that the Government of Pakistan, in consultation with one of the leading lawyers of the country and the Law Minister, had taken the decision to withdraw the notification. As has been pointed out hereinbefore, that it is not for the first time that such a news/rumour has been spread, but it so happens whenever a high profile case is being heard by the Court. It may not be out of context to note here that before and after 13.10.2010, when the case pertaining to the hearing of the review petition filed by the Federation of Pakistan in the CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 4 case of Dr. Mubashir Hasan, judgment of which was announced on 16.12.2009, such news items were being discussed everywhere all around. Therefore, to impress upon the constitutional functionaries of State in the country that what has already been decided on 31.07.2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Moulvi Anwarul Haq, Attorney General for Pakistan was served with a notice along with the copy of CM Application under consideration, wherein the facts noted hereinabove have been mentioned categorically. The relevant paragraph from the judgment of this Court in Sindh High Court Bar Association's case was also reproduced. Learned Attorney General for Pakistan appeared in Court and when questioned by the Court that after the judgment in the Sindh High Court Bar Association's case, what authority is left with the Government or any of its functionaries to withdraw the restoration order of the judiciary, he could not answer it satisfactorily despite the fact that we called upon him to clarify his position as well as the position of the Federation to whom he represents as the Chief Law Officer. Anyhow, he sought time to obtain a statement from the constitutional head of the Government, i.e. Chief Executive (Prime Minister) to clarify the position. At his request, case was postponed till 11.30 a.m. In the meanwhile, from his office a message was communicated to the Registrar that the Prime Minister was busy in some meeting, therefore, he would be in a position to place a statement on record at 12.30 p.m. 3. The Court again assembled at 12.45 p.m. and when the learned Attorney General for Pakistan was clarifying his position, he could not answer except saying that he has established a contact with the Secretary to the Prime Minister who shall be informing him after CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 5 some time. Again, some time was consumed in further deliberation with him and ultimately he came out with a statement that case be postponed for tomorrow, i.e. 16.10.2010 (Saturday). Whatever has been pointed hereinabove clearly indicates that the Government or any of its constitutional heads is reluctant to make the statement and is trying to find time for one or the other reason. The anxiety of the Bench at this stage, underpins its constitutional mandate and resolve to defend, protect and preserve the Constitution of Pakistan. The judiciary, which is one of the most important organs of the State, cannot be allowed to be throttled in such a manner. 4. This is not for the first time that the judiciary has to pass an order. Even in the month of November 2007, when a high profile case (Wajihuddin Ahmed v. Chief Election Commissioner of Pakistan) was under consideration on 02.11.2007, an application was submitted by Mr. Aitzaz Ahsan, learned Sr. ASC appearing for the petitioner wherein he had informed about the purported action, which the then Government was contemplating to take to sack the judiciary, but his application was kept on record because Malik Muhammad Qayyum, the then Attorney General for Pakistan, who was appearing in the Court, made a statement at the bar that there was no such thing as was being apprehended by the learned counsel for the petitioner, but his apprehension proved to be correct, as on 03.11.2007 (Saturday), “emergency plus” was imposed in pursuance whereof all the members of the judiciary except few who agreed to take oath under the PCO, were made dysfunctional, but such unconstitutional and illegal order was nipped in the bud immediately through a restraint order passed by a 7–Member Bench, which was circulated widely to all and sundry, informing them that no action shall be taken nor any Judge shall take CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 6 oath under the PCO as Chief Justice or Judge of High Court, and ultimately matter came to an end when the judiciary sacked by the then Government was restored on 16.03.2009 by an executive order/notification issued by the Government. 5. It is equally important to note that all the actions taken by the then President as Chief Executive commencing from 03.11.2007 to 15.12.2007, including the Proclamation of Emergency, issued by General Pervez Musharraf, as Chief of Army Staff, as he then was on 03.11.2007, the Provisional Constitution Order No. I of 2007, issued by him on the same date in his said capacity, the Oath of Office (Judges) Order, 2007 issued by him also on the same day, and Proclamation of Emergency and Provisional Constitutional Orders issued by him subsequent thereto, etc., came up for consideration before a 14 – Member Bench of this Court in the Sindh High Court Bar Association's case. The Government of Pakistan was represented by the Attorney General for Pakistan who made a categorical statement not to support or endorse any of those actions of the then Chief of Army Staff/President of Pakistan, inasmuch as after the elections, which were held on 18.02.2008, the sitting Parliament had also not confirmed/endorsed/authenticated any of his such actions or instruments. Details of the same shall be reproduced hereinafter: - “13. The learned Attorney General stated that the acts and instruments of 3rd November 2007 of General Pervez Musharraf, which were obviously extra- constitutional, were not accepted, rather were objected to by all the democratic political parties except Pakistan Muslim League (Quaid-e-Azam), hereinafter referred to as “PML (Q)”, which had tabled a resolution in the National Assembly to endorse the said actions and got it passed. He unequivocally declared that neither he was supporting General Pervez Musharraf’s actions of 3rd November, 2007 nor he would defend him in the instant proceedings. He made the following arguments: - CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 7 (1) The present democratic government had never accepted extra-constitutional promulgation of Orders and/or any other repressive measures. The respect for judiciary had always been hallmark of its ideology and judicial process was resorted to by their leaders even in the most trying circumstances. The verdict in Tikka Iqbal Muhammad Khan’s case was affirmed in review by a 13 – member Bench of the Supreme Court whereby the acts of 3rd November 2007 were validated on the principles of state necessity and salus populi est suprema lex, which even otherwise ceased to exist on revival of the Constitution on 15th December 2007.” 6. In the meanwhile, on the petitions filed by the Sindh High Court Bar Association and others, the actions of imposing the Emergency and sacking the Judges of the superior judiciary including Chief Justice and Judges of the Supreme Court and Chief Justices and Judges of High Courts, etc., were considered, and the Court in its judgment dated 31.07.2009, pronounced a unanimous verdict, holding therein that all the actions taken by the then Chief of Army Staff/President were unconstitutional. It also included the sacking of the members of the superior judiciary. A detailed discussion has been made in the said judgment. For convenience, Paragraphs 21 and 22 with items (i) to (v) are reproduced below: - “21. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like- wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President’s Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President’s Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President’s Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President’s CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 8 Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect. 22. As a consequence thereof: - i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration; ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect; Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office; iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith; Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation; iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 9 the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly; Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan; v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in MALIK ASAD ALI’S CASE (PLD 1998 SC 161).” 7. On having gone through the above Paragraphs, there should not be any ambiguity in the mind of anyone that the Judges of the superior judiciary had never been sacked/deposed in pursuance of the Proclamation of Emergency, the PCO and Oath of Office (Judges) Order, 2007, as is evident from Paragraph 22 (i) above. Not only this, the appointment of Mr. Justice Abdul Hameed Dogar as Chief Justice of Pakistan was declared unconstitutional, holding that the office of Chief Justice of Pakistan never fell vacant on 03.11.2007. Suffice to observe that the executive order passed was an acknowledgement of the factual and legal position, i.e. that the order passed by the then President was unconstitutional and void ab initio. If now the said order is attempted to be withdrawn, it will be tantamount to throttling one of the important pillars of the State, namely, the judiciary, thereby subverting the Constitution in terms of Article 6. As has been noted hereinabove, particularly in view of the fact that when matter has finally been clinched/decided in view of the judgment in Sindh High CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 10 Court Bar Association's case (supra), no functionaries of the Government, including the head of the State or head of the Government or any of their other functionaries can take any steps for withdrawing the executive order/notification of restoration of Judges, which otherwise is non-existent in view of the above judgment. 8. In the light of the above, we direct: - (i) All the constitutional and State functionaries and administrative heads in the country to ensure that no action qua initiation of proceedings concerning withdrawal of the executive order (order of “restoration of Judges”) dated 16.03.2009, status whereof has already been determined by this Court in its judgment in Sindh High Court Bar Association's case (supra), is taken, intentionally or otherwise, by any of the functionaries as noted hereinabove, and all the constitutional and administrative heads/ functionaries are restrained/refrained from doing so; (ii) The Government of Pakistan/Prime Minister to conduct an inquiry through an appropriate responsible functionary that if the statement of the former that no such action was being contemplated was true, then how this news in the print and electronic media was spread, and who was responsible for it because we feel that it is the primary duty of the Government to look into it and unearth such persons who are taking such steps or spreading such news, which are causing panic, sensation and anguish throughout the country, since last night. The members of the Bar Associations throughout the country have also started agitating the matter. The senior representatives have appeared in Court and have taken serious exception to the steps, which the Government was reportedly contemplating to take in this behalf; (iii) The Attorney General for Pakistan, present in Court, to communicate immediately this order to all concerned, and send compliance report to the Registrar of this Court in the course of the day. CMA NO. 2981 OF 2010 IN CONST.P. 9 OF 2009 11 (iv) This report must be placed before the Court on the next date of hearing. We may point out here that it is already 1.37 p.m., when we are dictating this order in the Court, but no statement from the office of the Chief Executive/Prime Minister, denying the news items published in the print media and aired on the private TV channels has been placed before us. 9. The case is adjourned for 18.10.2010, enabling the authorities/functionaries to put up report and statements, if desired, as has been pointed out by the learned Attorney General for Pakistan. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. JAVED IQBAL, J. MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. NASIR-UL-MULK, J. RAJA FAYYAZ AHMED, J. MUHAMMAD SAIR ALI, J. MAHMOOD AKHTAR SHAHID SIDDIQUI, J. JAWWAD S. KHAWAJA, J. ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J. RAHMAT HUSSAIN JAFFERI, J. TARIQ PARVEZ, J. MIAN SAQIB NISAR, J. ASIF SAEED KHAN KHOSA, J. GHULAM RABBANI, J. KHALIL-UR-REHMAN RAMDAY, J. Islamabad, 15 October 2010 APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR C.M.A.No.3221/2012 in S.M.C.No.25/2009 (Suo Motu action regarding cutting of trees for canal widening project Lahore) AND CRIMINAL ORIGINAL PETITION NO.96/2014 Lahore Bachao Tehrik …Petitioner(s) VERSUS Dr. Iqbal Muhammad Chauhan etc. …Respondent(s) For the petitioner(s): (in Crl.O.P.96/2014) Mr. Aitzaz Ahsan, Senior ASC Mr. M. S. Khattak, AOR For L.D.A.: Kh. Haris Ahmed, Senior ASC Mr. Israr Saeed, Chief Engineer Mr. M. Rashid, Director (Legal) Mr. Raza Hassan Rana, Asstt. Director For Lahore Bachao Tehrik: Ms. Imrana Tiwana For the applicant(s): (in C.M.A.615/2015) Ch. Munir Sadiq, ASC For Environment Deptt: Mr. Nawaz Manik, Director (Law) Date of hearing: 14.05.2015 … JUDGMENT MIAN SAQIB NISAR, J.- These two matters have genesis and direct nexus with 14 km widening of the Lahore Canal Bank Road (Canal Road) on both the sides thereof. The Government of Punjab initiated a project for the above purpose and in the process had already widened a part of the road when Lahore Bachao Tehrik (LBT) submitted an application to the Hon’ble Chief Justice of Pakistan primarily asserting therein that the said widening would entail the C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 2 :- cutting of trees on both the sides of the canal and the greenbelt area around the canal would be encroached which would result in environmental hazard. This project, thus, is violative of the fundamental rights set forth in the Constitution of the Islamic Republic of Pakistan, 1973, particularly the right to life. This application was treated as SMC No.25/2009 and vide judgment dated 15.9.2011 (Judgment) reported as Cutting of trees for canal widening project, Lahore (2011 SCMR 1743) it was disposed of with certain directions, which shall be mentioned in due course of this opinion. 2. We may like to mention at this juncture that for the purposes of ascertaining the effect of widening upon environment and other related issues raised by LBT, a Mediation Committee comprising of certain nobles of the city and experts was constituted (Mediation Committee). Such Committee had given its report which was accepted by the Government of Punjab, the applicant in toto while some objections were expressed by LBT thereto but only to the extent of permitting the Government to widen a part of the Canal Road. These objections seemingly were not endorsed by the Court and thus the afore-mentioned decision on the basis of the Mediation Committee report primarily is in the nature of a consent order. In this context this Court made certain directions in the said Judgment (paragraph 60) which reads 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 by the Assembly as undertaken by the respondent- Provincial Government; C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 3 :- (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 part 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 (x) Elaborate measures/steps be taken to ensure that the Canal is kept clear 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 C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 4 :- 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.” Through the instant CMA No.3221/2012 the Province of Punjab has sought a permission from this Court to allow further widening of the road, by utilizing some greenbelt and cutting of trees, whereas the Crl.O.P.No.96/2014 seeks an action against certain officials of the Province of Punjab who statedly have violated the above Judgment. 3. It may be pertinent to mention here that for the purposes of the factual backdrop and for the points which were raised, dilated upon, discussed and resolved by this Court in the said Judgment, we do not intend either to reiterate the factual background or in any manner revisit the said Judgment on the basic points which were settled therein, particularly that the canal area (in dispute) is a public trust and that it cannot be used for any purpose other than public purpose. Besides that the area around the canal should be declared as a heritage park. These basically are the two salutary legal and factual aspects which were settled and resolved in this matter. 4. Anyhow, now through the present application, the Government of Punjab claiming it to be a precautionary measure (because the case of the Government of Punjab is that it has the requisite permission to widen the Canal Road even within the letter and spirit of the Judgment) has sought permission from this Court for widening the Canal Road at certain points. The reason for the purposes of seeking permission is given in CMA No.3221/2012 and also has been supplemented by various documents submitted by the Government of Punjab in the course of the proceedings which have been taken into account by this Court. C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 5 :- 5. Learned counsel for the applicants, Khawaja Haris Ahmed, Sr. ASC, has stated that the Project for the widening of the Canal Road pertains to two sectors. One includes widening of road and construction of a 1.3 km long underpass at Chaubucha Interchange in the sector falling between Dharampura and Harbanspura to bring it in alignment with the rest of the Canal Road and for easy merger of traffic coming out from the underpass. Whereas, the second limb of the project is addition of a third lane in the sector falling between Doctor’s Hospital and Thokar Niaz Beg because of the acute difficulty faced in the merging of traffic from an already widened three-lane sector up to Doctor’s Hospital onto a narrower two-lane sector from there onwards. In both the cases, it is submitted, the need for widening/construction stems from the inevitable slowing down and congestion of traffic flow in these sectors and consequent emission of pollutants dangerous to the environment on either side of the canal, and to minimize noise pollution because of prolonged traffic jams or slowing down of traffic. With respect to the first half of the project, it has been argued that the same is in line with the recommendations of the Mediation Committee and the Judgment in light of Recommendations No.18(1) and 18(2) reproduced at pages 1771 and 1772 of the Judgment respectively. It is contended that review/re-visiting of the scope of the Judgment is not sought, rather a clarification to this effect is being asked for. With respect to the second segment of the project i.e. addition of a third lane on the Canal Bank Road in the sector from Doctor’s Hospital to Thokar Niaz Beg, it is submitted by the learned counsel for the applicant that though the same was ‘not recommended’ by the C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 6 :- Mediation Committee, it was also not categorically prohibited. Per the report of the Mediation Committee, there was no need for addition of a third lane because in its view, the traffic congestion problem could be resolved through construction of service roads, improvement of earthen shoulder and development of alternate routes. It is the case of the applicant that consequent to the report of the Mediation Committee and the Judgment, steps had been taken to implement the aforementioned recommendations, however, none of these helped in easing the traffic congestion in this sector necessitating addition of a third lane to counter the grave bottlenecks and traffic congestions faced by the commuters on account of sudden transition from three- lane traffic to two-lane traffic from Doctor’s Hospital onwards. It is submitted that since the rationale behind not recommending a third lane in this sector was to ease the traffic issues through alternate means, which (means) had proved futile, the addition of a third lane was in essence in consonance with the purport of the recommendations made by the Mediation Committee and the letter and spirit of the Judgment of this Court. Learned Counsel for the appellant has further submitted that the proposed project is neither violative of the provisions of the Lahore Canal Heritage Park Act, 2013 (Act) nor the Doctrine of Public Trust. Sub-sections (5) and (8) of section 3 of the Act imply that there may be certain contingencies necessitating use of some portion of the Heritage Park for construction or any other infrastructure development work which may be undertaken, subject however, to prior written permission from Parks and Horticulture Authority (PHA) which is to take into consideration the environment impact assessment of the proposed activity and in the instant case a go- C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 7 :- ahead has been given to the project by the PHA as also the Environmental Protection Agency (EPA). With respect to the Doctrine of Public Trust, it is contended that as was declared in the Judgment of this Court, though the greenbelt on both sides of the Canal is a public trust, the same may be used for a public purpose and in the instant case easing traffic congestion for the benefit of the public serves such a purpose. Lastly, it is contended that since public interest litigation proceedings under Article 184(3) are inquisitorial, rather than adversarial in nature (PLD 2013 SC1; PLD 2013 SC 501; PLD 2012 SC 664; PLD 2011 SC 997) and the purport of exercise of powers under said Article is to protect fundamental rights of the citizens, such a power is not limited by any technicalities. Reliance has been placed on judgment reported as PLD 2015 SC 50 to submit that a judgment that impacts the fundamental rights of the citizens or public good may be re-visited under Article 184(3) and it is therefore prayed that the widening/construction as envisaged in the Project may be allowed specifically when it also falls within the scheme of the report of the Mediation Committee and the purport of the Judgment of this Court. 6. The respondent, Lahore Bachao Tehrik, which was party to the earlier matter has vehemently opposed the application. It is submitted that the report of the Committee, referred to above, was conclusive and was accepted by the Government of Punjab. Since the Judgment in fact is a compromise judgment which has attained finality, the applicant cannot withdraw such consent and is estopped by its own conduct. It is also argued that the canal area throughout has been declared as Heritage Park and pursuant to the above, The Act came C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 8 :- into force. Accordingly per the force of law, it is now impermissible for the applicant to, in any way, widen the road, to encroach upon the greenbelt or cut any trees, as there is/are a strict prohibition to that effect in the said law. It is also argued that the extension/widening of the road is no solution of the traffic problem as has been highlighted in various documents produced before us rather the applicant should come up with alternate means to overcome the traffic congestion in the area. It is further submitted that there is no justification for widening of the road. There is no need or requirement to revisit the said Judgment. The applicant in the garb of the present application intends to undo the said judgment and is in fact seeking review of the said judgment, but no case in this regard (for review) at all has been made out. Besides, the review power of this Court has but a limited scope and no appeal (review) is available against a consent order. In making this submission the judgments reported as Muhammad Tufail Vs. Abdul Ghafoor (PLD 1958 SC 201), Syed Arif Shah Vs. Abdul Hakeen Qureshi (PLD 1991 SC 905), Amin Badshah Vs. Nargis Saleem (2000 SCMR 1641), Rashida Vs. Aziz Begum (1998 SCMR 1340) and Sajjad Hussain Vs. Musrat Hussain (1989 SCMR 1826) have been relied upon by the learned counsel. It is also stated that the Canal Park is a Public Trust and cannot be encroached upon only for the benefit of 8% of the population of Lahore which has vehicle ownership and fundamental right to life of the public at large cannot be compromised by cutting of age old trees (that are now part of the heritage park) as the same will have serious ecological impact. C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 9 :- Lahore Bachao Tehrik has also submitted through Criminal Original Petition No.96/2014 that as the respondents in disobedience/breach of the judgment of this Court ibid have already cut certain trees, they are guilty of violating the Judgment, therefore, criminal action be initiated against them. 7. On account of the pleadings and hearing of both the parties, the main propositions which emerged for our consideration are:- i) Whether per the judgment of this Court reported as Cutting of trees for canal widening project, Lahore (2011 SCMR 1743) and the Act, the widening of the road, the cutting of the trees and destruction of the greenbelt is not permissible and whether the permission being sought by the applicant is violative of the aforesaid Judgment and the Act; ii) Whether there is such acute need for widening of the road as has been propounded by the applicant and whether the canal road having been declared heritage park is protected by the doctrine of public trust; iii) Whether the judgment in question being in the nature of a consent order precludes the applicant from seeking permission of this Court for carrying out the proposed project including widening of the Canal Road by utilizing some part of the green belt deemed as the Heritage Park and whether the application filed by the applicant is one requiring review of the Judgment and Court while exercising its jurisdiction in terms of Article 184(3), by itself can permit the inclusion of the greenbelt for widening of the road and cutting of trees upon some conditions; iv) Whether on account of the allegations leveled in Crl.O.P.No.96/2014, the applicants have committed disobedience/violation of the judgment of this Court calling for contempt proceedings against them. PROPOSITION NO.1: C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 10 :- 8. In order to cater to this proposition, we will follow a two pronged process. Our first step will be to assess whether either limb of the project infringes upon any of the recommendations of the Mediation Committee as embodied in the Judgment of this Court and whether the same prohibit construction/widening of the Canal Bank Road in its totality. We will then proceed on to see whether any part of the project is violative of the Act and whether there is room for implementation of the project and if so, whether there are any conditions/prerequisites. COMPLIANCE OF THE PROJECT WITH THE RECOMMENDATIONS OF THE MEDIATION COMMITTEE AND THE DIRECTIONS GIVEN IN THE JUDGMENT OF THIS COURT 9. For the purposes of resolving this contention, we find it expedient to reproduce the relevant features of the consensus Recommendations of the Mediation Committee (Recommendations), which read as follows:- “…… 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"), ….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…. (…..) the fast-moving traffic going through and coming out C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 11 :- of the Incorrect Underpasses criss-crosses with slow 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…. (….) 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: 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. 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 C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 12 :- 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 geometries 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 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 Jinnah Hospital underpass) with appropriately designed smooth entry and exit points to avoid traffic turbulence and congestion…. 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… 13. People-Centric Planning ….The Committee would like to recommend a change in the urban agenda to include a more people friendly and people- C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 13 :- centric development. Pedestrians and cyclists are routinely ignored in road planning. This orientation needs to be balanced. 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... 1,700M (Eastern) 1,700M (Western) • Jinnah Hospital to Doctors Hospital... 700 M (Eastern) C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 14 :- 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 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 C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 15 :- 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. (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 C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 16 :- 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. 10. Whereas, the Project (construction of underpass and widening of road in the sector falling between Dharampura Underpass and HarbanspuraInterchange and addition of a third lane in the sector falling between Doctor’s Hospital and Thokar Niaz Begfeatures) for which permission has been sought by the applicant vide CMA No.3221/2014 includes the following construction/widening activities (project features):- i. U-turn Bridges and remodeling of underpasses through the entirety of the Canal Road; ii. Storm water/draining chutes and walkways along the whole of Canal Road; iii. Realignment of Jail Road Underpass; iv. Provision of service roads for the stretch between ThokarNiaz Beg to Doctor’s Hospital. v. Construction/widening of road by 6 metres for the stretch between Mall Road to Harbanspura Interchange; vi. Construction/widening of road by 6 metres by way of adding a third lane on either side of the Canal for the stretch between ThokarNiaz Beg to Doctor’s Hospital; 11. Having perused the basic Project features as also the Recommendations, it is clear to our mind that there can be no doubt C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 17 :- that the project features mentioned above are compliant with rather pursuant to the Recommendations and directions issued by this Court vide the Judgment in question and not in derogation thereto. Our view is based on the analysis provided below. 12. As regards, Project feature (i) (U-turn bridges and re- modeling of underpasses, Recommendation No. 3 supra clearly stipulates the need for re-engineering of Junctions/intersections along the Canal Road so as to ensure removal of bottlenecks leading to traffic congestion on these intersections whereas directions no. (iii) and (iv) by this Court in the Judgment supra require necessary corrections/modifications of underpasses and re-engineering of junctions. 13. Project feature (ii) (Storm water/draining chutes and walkways) is pursuant to Recommendations No. 12 and 13 supra. Recommendation No. 12 identifies the need to implement a plan for the cleaning up of the Lahore Canal and improving the water quality of the Canal which is also in line with direction No. (ix) supra whereas Recommendation No. 13 mandates a people-centric development of the Canal Road which takes into account the needs of pedestrians and cyclists. 14. With regards to Project Feature (iii) (Jail Road Underpass), there can be no cavil that it is in furtherance to the agenda laid out in Recommendation No. 2 supra which is to correct to the design of the underpass at Jail Road as currently this incorrect underpass poses a serious traffic safety hazard. This project feature is also in line with direction No. (iii) supra. 15. Project feature (iv) (provision of service roads) is clearly in accordance with Recommendation No. 4, i.e. construction of service C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 18 :- roads with appropriately designed smooth entry and exit points to avoid traffic turbulence and congestion. Direction No. (vii), on the other hand, also supports this project feature. 16. Project feature (v) (Construction/widening of road by 6 metres for the stretch between Mall Road to Harbanspura Interchange) entails actual widening by adding a third lane from Dharampura to Harbanspura and 1.3 KM underpass that covers the railway crossings at Chabucha Interchange and Griffin Park. It is the case of the applicants that this widening and construction of underpass is envisaged and tacitly allowed throughout the length of the Canal Road from Mall Road Underpass right up to Jallo More vide Recommendations No. 18(1) and 18(2). Widening of road and construction of underpass in the sector falling between Dharampura to Harbanspura falls within the sector considered by the Mediation Committee under Recommendation 18(1) i.e. the heading “Jallo Mor to Dharampura Underpass” which states that a moratorium on all new commercial activity be placed and draws attention to the ongoing unplanned development and encroachment activity in this sector. It also, however, adds that 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 Recommendation of the Committee. It is submitted that the widening of the Canal Road between “Jallo-Mor to Dharampura Underpass” and “Dharampura Underpass to Mall Road Underpass” was not specifically discussed in the Recommendations as at that time, the Punjab Government did not have any plans for construction or widening in the said sectors. In light of the above and the overall scheme of the Recommendations C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 19 :- and Judgment of this Court, we are of the view that, from the wording used in Recommendations No. 18(1) and 18(2), it is clear that the Mediation Committee was fully conscious of the traffic problems along these sectors and envisioned works in these sectors in the future and therefore since this project feature is in line with the overall Recommendations and directions of this Court, it is allowed provided there is minimal environmental intrusion. 17. Coming now to project feature (vi) (Construction/widening of road by 6 metres by way of adding a third lane on either side of the Canal for the stretch between ThokarNiaz Beg to Doctor’s Hospital), Recommendation No. 17 supra is of importance. Though it is acknowledged by the Mediation Committee in its Recommendations that the stretch from Doctor’s Hospital to Thokar Niaz Beg is getting increasingly congested because of various housing colonies surrounding this stretch, widening of the Canal Road through addition of a third lane in this stretch was not recommended. Instead, this problem was recommended to be tackled through construction of service roads and by removing trees on the edge of the road for improving earthen shoulders and by providing bus bays at suitable points. It is however clear from the submissions made by the learned counsel for the applicants (and documents/information brought on the record) during the course of hearing regarding this last stretch that the alternatives proposed by the Mediation Committee have been tried and tested and it has become clear that these solutions were not sufficient for relieving the traffic congestion problems in this stretch. From a reading of Recommendation No. 17, it is also clear that there in fact persisted a serious traffic issue in this sector and the only reason why addition of a third lane was not allowed was because at C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 20 :- that time, it was the view of the Mediation Committee that alternative solutions for countering this problem could be successfully employed. Owing to the sudden transition from three-lane traffic to two- lane traffic from Doctor’s Hospital onwards, however, the traffic problems have persisted and addition of a third lane at this point is the only solution to the problem at hand as alternative solutions have also proved futile. On account of the above we are of the view that provided there is minimum environmental intrusion and the Heritage Park is duly protected, addition of a third lane will significantly benefit the people of Lahore by enabling smooth flow of traffic in this stretch which is the purport of the Recommendations of the Mediation Committee and the Judgment of this Court. 18. Having said that, leaving apart the prohibitions and permissions granted in the Judgment, we are making it clear that other than the construction/widening activities for which permission has expressly been granted herein, the applicant shall not in the future engage in any construction/widening activities along the Canal Road without first applying to this Court and seeking its permission. All activities other than those specified in this opinion are prohibited and barred; no activities shall be construed as being tacitly allowed by the applicant which (activities) have not expressly been permitted. The applicant may, however, carry out repair and maintenance works of the Canal Road. COMPLIANCE OF THE PROJECT WITH THE PROVISIONS OF THE LAHORE CANAL HERITAGE PARK ACT, 2013 19. While making their submissions regarding whether the Project is violative of the Act, learned counsel for the parties have C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 21 :- referred to various provisions of the Act. The relevant Sections whereof are as follows:- 2. Definitions.– In this Act– (d) “canal tree” means a tree in the Heritage Park 3(5) Subject to subsection (8) and except with prior permission in writing from the Authority, the following acts shall be wholly prohibited in the Heritage Park– (a) construction or any other infrastructure development work, clearing or breaking up any land for cultivation, mining or for any other purpose; (b) felling, tapping, burning or in any way damaging or destroying, taking, collecting or removing any plant or canal tree; (c) polluting water flowing in and through the Heritage Park; (d) hunting, shooting, trapping, killing or capturing of any animal or bird; (e) using firearm or doing any other act which may disturb any animal or bird or acting in a manner which is likely to interfere with the breeding places; and (f) such other prohibitions as the Government may notify in the official Gazette. 3(8) The permission mentioned in subsection (5) shall be subject to such conditions and in such manner as may be prescribed and while granting such permission, the Authority shall, among other things, take into consideration the following:- (a) amenity value of the canal tree; (b) character of the area; (c) necessity of the action; (d) possibility of an affordable alternative; C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 22 :- (e) mitigation measures to reduce the impact of reducing canal tree cover; (f) expediency of the proposal or work requiring the felling, lopping, trimming or otherwise cutting of the canal tree; and (g) environmental impact assessment of the proposed activity. 6(2) The Advisory Committee may also advise the Authority on any other matter ancillary to the discharge of its functions under the Act. 6(3) In the performance of its functions under this Act, the Authority shall take into consideration any advice of the Advisory Committee. 7. Action by the Authority.– (1) The Authority shall take appropriate action on the recommendations of the Advisory Committee within reasonable time and shall communicate to the Advisory Committee the reasons for not accepting any of its recommendations, and the Advisory Committee may, in the prescribed manner, submit a representation to the Government for appropriate orders. From the sections reproduced above, it may be seen that per Sub- section (5) of Section 3, construction or any other infrastructure development work in the Heritage Park is wholly prohibited. This prohibition, however, is not absolute and definitive, rather the Sub- section itself clarifies that it (Sub-section 3(5)) is applicable only where permission from PHA has not been sought and that further it is subject to the provisions of Sub-section (8) of Section 3 and has to be read in accordance. Sub-section 3(8) lays down the factors that have to be taken into account by PHA before it grants permission for any construction C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 23 :- activity in the Heritage Park. Sub-section 3(8) read with Sub-sections 6(2), 6(3) and 7(1) read together mandate that permission may only be granted under Sub-section 3(8) after Environmental Impact Assessment and requisite approval from EPA and once Advisory Committee constituted under Section 5 has been consulted. In the instant matter, through the documents/information produced before us and brought on the record, we have been apprised that Environmental Impact Assessment of the proposed project was conducted and the EPA accorded its approval vide Approval Letter dated 15.12.2014 subject to certain conditions. Consequent to such approval, the matter was raised before the Advisory Committee which too approved the project in principle with the condition that a sub-committee would be constituted to formulate the Master Plan for Canal Trees Management which is evident from the Minutes of the 6th Meeting of Lahore Canal Advisory Committee held on 27.1.2015. Finally, after seeking approval of EPA as also the Advisory Committee, the matter was put before and approved by the Board of Directors of PHA in its 6th Meeting held on 6.2.2015. In view of the above we find no merit in the proposition that the Project infringes upon the protections accorded to the Heritage Park vide the Act and find that the applicant is fully compliant with the mandate of the Act. Before parting with this proposition, we would also comment upon another submission made by the learned counsel for the respondent that per Section 2(d) of the Act, canal tree means any tree in the Heritage Park and therefore each and every tree which falls within the Heritage Park has to be protected and substitutionary approach cannot be taken; trees in the Heritage Park may be felled C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 24 :- provided their replacements are planted elsewhere is not the mandate or purport of the law. As regards the above, suffice it to say that Section 2(d) is a definition clause and it cannot be read in isolation and has read to be read in conjunction with the substantive clauses of the Act; Section 2(d) is subservient to, dependent upon and must be interpreted/construed in line with Sub-sections 3(5) and 3(8) and therefore we do not find any merit in this submission either. PROPOSITION NO. 2: 20. We have considered the arguments as mentioned earlier and without in any manner, as has been stated, affecting the ratio of the judgment noted above, we find that the extension and widening of the road partly has provided a proper flow to the transport passing by but at the places where the road is narrowed, traffic congestion takes place. This congestion is undoubtedly against the public good as considerable residential localities have been made across Thokar Niaz Baig and also the main connection to the Motorway is also through the canal bank road. It is, therefore, the canal bank road which has attained considerable importance and most of the time it has been noticed that the traffic congestion has been experienced not only by the people who have to bring their children to the main city for education, rather as the main hospitals are also in the main city, ambulances also cannot pass through when there is a congestion at the places where the road is narrowed. The concern of the respondents is only that some trees will be cut and on account of the above, the green areas would be reduced and shrunk significantly impacting the ecology of the area and since the Canal Road is a public trust, the same cannot be tampered with. C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 25 :- We have been apprised that for each tree cut, the government is going to plant ten trees. Not only the above, it is a matter of public knowledge that in the city of Lahore, number of trees have been planted in different parts and on account of such, the environment has improved. Therefore, the cutting of trees would in no way be a hazard to the environment but to disallow such widening in fact is causing great trouble and inconvenience to the public at large and on account of congestions it has become in fact hazardous for the movers/commuters on this very important road; their life quality is being affected. Therefore, there is no reason as to why the applicant should not be allowed to execute the work and to correct the crooked part of the road i.e. skewed which in fact has become a traffic hazard. Moreover, with regards to the application of the doctrine of public trust, suffice it to say that as had been settled in the earlier Judgment of this court (see paras 32 to 35 thereof), a public trust resource cannot be converted into private use or any other use other than a public purpose and in the instant case the widening of the road to ease traffic congestion and facilitate the commuters was/is a public good. Specifically when a limited area is being affected by the proposed widening/construction to ease the greater problem of bottlenecks and traffic blockages and when the applicant has also undertaken to replace trees, as mentioned above, which are felled as a consequence of the proposed widening to ensure that no adverse ecological impacts are faced, we do not find a reason to deny the request of the applicant. PROPOSITION NO. 3: 21. We now turn to the argument propounded by the learned counsel for the respondents that the noted Judgment is a consent C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 26 :- judgment and, therefore, the applicant is estopped from asking for the widening of the road which was not permitted per the report of the Mediation Committee or Judgment and, therefore, the application should be dismissed on this score alone. We have pondered over the objection/plea but are of the considered view that the present is not an adversarial litigation between the parties, rather it has genesis in a social action litigation initiated by LBT and this Court in exercise of its powers under Article 184(3) accepted the report of the Mediation Committee and made it part of its Judgment with the consent of the parties. But such consent or judgment does not in any way denude this Court of its jurisdiction in social action litigation to subsequently pass appropriate orders where it becomes imperative and expedient and where information has been provided to the Court which necessitates appropriate orders. From the facts which have come on the record and as has been held by us, we find that on account of limited widening of road, further complications have emerged and in order to cater for those, this Court, leaving apart the consent, does have ample and absolute power and jurisdiction to permit widening for appropriate and justified reasons and for the cutting of 1372 number of trees and use of green belt to the extent of 30.85 acres needed for the Project, therefore, this consent part would not come in the way of the court’s empowerment. Moreover it may be pertinent to mention here that in the facts and circumstances the rules of acquiescence, waiver, estoppel, past and closed transaction or any other rule having nexus to these concept and theory would not at all be relevant when we are exercising jurisdiction under Article 184(3). C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014 -: 27 :- With regards to the contention of the learned counsel for the appellant that since the Judgment was a result of consent reached between the parties, it cannot be reviewed, suffice it to say that we in no way are considering the application before us to be one requiring review of the earlier Judgment of this Court. It is at best a case of re- visiting for the purposes of clarification of the Judgment. Even otherwise, in such public interest litigation, we, having been provided with requisite information, have the inherent power to re-visit out orders/decisions. In such a case, therefore, the rigors of review jurisdiction shall stricto sensu not be attracted. PROPOSITION NO.4: 22. In light of what has been discussed above, we do not find that the Judgment of this Court has been violated warranting criminal action against the applicant. Even otherwise permission for widening/construction to the extent aforementioned has been granted vide this judgment and since contempt is a matter between contemnor and Court, we do not find it necessary or expedient to take any action against the respondents of Crl.O.P.No.96/2014. In view of the above, C.M.A.No.3221/2012 is allowed, while Crl.O.P.No.96/2014 is dismissed. JUDGE JUDGE Announced in open Court JUDGE on 5.8.2015 at Lahore Approved For Reporting Waqas Naseer/*

{'id': 'C.M.A.3221_2012.pdf', 'url': ''}

{'id': 'C.M.A.3221_2012.pdf', 'url': ''}

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 CIVIL MISC. APPLICATION NO. 3258 OF 2013 (For extension of time) IN CONSTITUTION PETITION NO. 65 OF 2009 Raja Rab Nawaz … PETITIONER Versus Federation of Pakistan through Secretary, Defence & others …. RESPONDENTS Petitioner : In person On Court notice : Mr. Muneer A. Malik Attorney General for Pakistan with Maj. General Tahir Masood, D.G. Dr. Naeem Chaudhry, Director Mr. Kaleemullah, L.O. Date of hearing : 02.07.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- This Civil Misc. Application has been filed on behalf of the respondent Federation through Secretary, Ministry of Defence, Government of Pakistan for seeking extension of time in the holding of Cantonment Elections in respect whereof, this Court, vide judgment dated 03.01.2013 had directed to complete the process of elections up to 05.05.2013. 2. Brief facts of the case are that the petitioner approached this Court by filing a petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, inter alia, with the following prayer: - CMA No.3258/2013 2 “It is, therefore, respectfully prayed that keeping in view the above submissions, the respondent No.1 may kindly be directed to issue Notification for the purpose of de-limitation of the wards in Cantonments and further be directed to prepare electoral roll of the wards in Cantonment and further be directed to hold election of the Cantonment Board forthwith in accordance with law.” The petitioner’s case was that under Article 32 read with Article 140A of the Constitution, it is incumbent upon the State to encourage Local Government Institutions comprising elected representatives of the area concerned with special representation of peasants, workers and women. It was not disputed that the elections to the Cantonment Boards, as required under section 14(1)(b) of the Cantonment Act, 1924 [Act, 1924] were not conducted for about last 14 year on one pretext or the other. 3. During hearing of the matter, it was stated on behalf of the respondent Federation that in pursuance of provisions of section 14(1)(b) of Act, 1924, a summary had been moved to the Chief Executive/Prime Minister of Pakistan on 05.05.2012 with the proposal that it was necessary to vary the composition of 31 Cantonment Boards for a period of one year commencing from 05.05.2012, which was about to expire on 04.05.2013. It was also stated that as soon as approval was accorded by the Prime Minister allowing the Election Commission of Pakistan to hold elections to the Cantonment Boards, necessary administrative arrangements would be made in that behalf. Furthermore, by means of CMA No.5232/2012 it was, inter alia, stated that in compliance of order of the Apex Court dated 17.12.2012, it is submitted that this Ministry has no intention to seek further CMA No.3258/2013 3 extension (which is still 04.05.2013), in the existing Boards sought earlier vide section 14(1) of Cantonment Act, 1924. This Court vide order dated 03.01.2013 disposed of the petition with the direction that the Federal Government may not allow further extension in variation of composition of Cantonment Boards in terms of section 14(1)(b) of the Act, 1924 after 05.05.2013 unless conditions noted therein were required to be pressed into service compulsorily and in the meanwhile steps would be taken to ensure that the elections of Cantonment Boards were held after completing the process of the limitations of wards, etc., as per the Cantonment Ordinance, 2002 read with the Cantonments Local Government (Elections) Rule, 2012 as the Election Commission was also willing and ready to under the process of election. 4. By this Misc. Application for extension of time in the holding of Cantonment Boards Elections is being sought, inter alia, stating therein that a request for holding elections for the local government in the Cantonment areas was sent to the ECP vide letter dated 21.12.2012, but the ECP vide its letter dated 18.03.2013 raised certain legal questions/observations and advice of Law & Justice Division was sought thereon. It is stated that pending the clarification of the said legal issues and the fact that the ECP was busy in holding general elections in the country, it was not possible to hold the Cantonment Boards elections by the target date fixed by this Court. 5. A written statement signed by the Secretary, Ministry of Defence was filed in Court, wherein he had requested for extension of time for holding of elections of the Cantonment Boards and undertaken that the entire process of elections in all CMA No.3258/2013 4 the Cantonment Boards would be completed on or before 15.09.2013. 6. Learned Attorney General appeared and explained that the Government is contemplating essential amendments in the relevant laws for the purpose of holding Cantonment Boards elections and since the process is likely to consume some time, therefore, extension of time in holding the elections be allowed. 7. It may be observed that prior to the Partition of the Subcontinent, the territory of Indo-Pak remained under the foreign domination for a long period, during which its traditional institutions were badly mutilated if they escaped extinction. The vast majority of people in the country lived in villages and small towns; therefore, it was required to evolve a system that would increasingly associate them with the ordering of their affairs. This could only be achieved through decentralization of the authority which had been vested in the District Officer under the British rule. In that scenario, a system was required to be evolved which has its roots in the public and after building a strong base goes on to construct the structure above. It had to be different from the system which had beautifully trimmed structure with all the frills of parliamentary democracy but hollow from within and without any base below. For a real democracy, it is necessary that all the inhabitants must have a say in their affairs. With the prevailing level of political consciousness, they can fully understand their immediate problems and requirements and evaluate what is of immediate good and what is not. There is little reason, therefore, why advantage of this should not be taken by involving them in the management of their affairs through directly chosen CMA No.3258/2013 5 representatives. For a villager it is, perhaps, not possible to assess with any degree of accuracy the qualities and disabilities of rival candidates from distant cities who may make periodic appearances at the time of elections, but he is surely a good judge of a fellow villager who may canvass for his vote for a local council. 8. After long time a solution was provided in the year 1979 in the shape of respective Local Government Ordinances for each province. The procedure for conduct of election of the Local Government was provided. However, by means of respective Local Government Elections Ordinance, 2000, new mechanism was provided for conducting the elections. Later, the local government laws were repealed through fresh Local Government Ordinance, 2001. The said Local Government Ordinances contain the procedure for the conduct of elections for each local area. For reference, the relevant provisions of Punjab Local Government Ordinance, 2001 are reproduced hereinbelow: - 12. Local governments for local areas.– (1) For each local area, there shall be a local government comprising– (a) District Government and Zila Council in a district or a City District; (b) Tehsil Municipal Administration and Tehsil Council in a tehsil; (c) Town Municipal Administration and Town Council in a town; and (d) Union Administration and Union Council in a union. (2) In case of a district consisting of a single Tehsil, the Government may dispense with setting up of Tehsil Council and holding of election of Tehsil Nazim and Naib Tehsil Nazim in such Tehsil and in that case the Tehsil Municipal Administration shall function directly under Zila Nazim and the functions of Tehsil Council shall be performed by the Zila Council. (3) In case of a Tehsil consisting of a single Union, the Government may dispense with setting up CMA No.3258/2013 6 of Tehsil Council and holding of election of Tehsil Nazim and Tehsil Naib Nazim in such Tehsil and in that case the functions of the Tehsil Municipal Administration shall be performed by the Union Administration and the functions of Tehsil Council shall be performed by the Union Council. 148. Franchise.– (1) Members of a Union Council, including Union Nazim and Naib Union Nazim shall be elected through direct elections based on adult franchise and on the basis of joint electorate. (2) The Electoral College for the election of Zila Nazim and reserved seats of women, peasants and workers, and minorities in the Zila Council shall be all the members of Union Councils in the District, including Union Nazims and Naib Union Nazims. (3) The electoral college for the election of a Tehsil Nazim, Town Nazim and reserved seats of women, peasants and workers, and minorities in the Tehsil Council and Town Council, shall be all the members of the Union Councils in the Tehsil or, as the case may be, Town, including Union Nazims and Naib Union Nazims: Provided that for the election for reserved seats for women in Zila Council proportionately divided among Tehsils or Towns, shall be all members of the Union Councils in a Tehsil or, as the case may be, Town. Explanation.– For the purpose of this section, all members of Union Councils, notified as returned candidates in the elections held under this Ordinance, shall be deemed to be members of the Electoral College. 150. Election Commission to conduct local government elections.– (1) The Election Commission shall conduct the local government elections. (2) In this Ordinance, “Election Commission” means the Election Commission constituted under Article 218 of the Constitution of the Islamic Republic of Pakistan. 151. Delimitation of electoral wards.– (1) The electoral ward for the election of a Zila Nazim, shall be a District, for a Tehsil Nazim, a Tehsil, for a Town Nazim, a Town, and for a Union Nazim and a Naib Union Nazim, a Union. (2) The electoral ward for the election of a Naib Zila Nazim, Naib Tehsil Nazim and Naib Town Nazim shall be the respective Council. (3) The Union shall be a multi-member ward for election of members of a Union Council. 154. Elections of Nazims, etc.– (1) A candidate for the office of Zila Nazim and a Tehsil Nazim or a Town Nazim securing highest number of votes in their CMA No.3258/2013 7 respective wards against other candidates, shall be declared elected. (2) A Union Nazim and Naib Union Nazim as joint candidates, securing highest number of votes in their electoral ward against other joint candidates, shall be declared elected. 9. It may be observed that initially, the Cantonment Act, 1924 was promulgated to consolidate and amend the law relating to the administration of cantonments. Later on, the said Act was superseded by the Cantonment Ordinance, 2002. As per definition of Cantonment provided in section 3 of the Ordinance, 2002, the Government may, by notification in the official Gazette, declare any place or places in which any part of the armed forces of Pakistan is quartered or where defence installation or defence production units are located or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be a cantonment for the purposes of the Ordinance and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment. The Government may, by a like notification, define the limits of any cantonment for the aforesaid purposes. When any place is declared a cantonment for the first time, the Government may, until a local government is constituted in accordance with the provisions of the Ordinance, by order make any provision which appears necessary to it either for the administration of the Cantonment or for the constitution of the local government. The Government may, by notification in the official Gazette, direct that in any place declared a cantonment under sub- section (1) the provisions of any enactment relating to local government other than the Ordinance shall have effect only to such extent or subject to such modifications, or that any authority constituted under any such enactment shall exercise authority CMA No.3258/2013 8 only to such extent, as may be specified in the notification. Section 57 of the Ordinance provides that members of union councils, including union Nazims and Naib Union Nazims, shall be elected through elections based on adult franchise and on the basis of a joint electorate. The Electoral College for elections of Vice-President and reserved seats for women, peasants, workers and minorities in the Board shall, be all members of Union Councils in the cantonment including Union Nazims and Naib Nazims. For reference relevant provisions of the Ordinance are reproduced hereinbelow: - 57. Franchise.-(1) Members of Union Councils including Union Nazims and Naib Union Nazims shall be elected through elections based on adult franchise and on the basis of joint electorate. (2) The Electoral College for election of Vice-President and reserved seats of women, peasants and workers and minorities in the Board shall, be all members of the Union Councils in the cantonment including Union Nazims and Naib Nazims. Explanation.-For the purpose of this section, all members of Union Counsels notified as returned candidates in the elections held under this Ordinance, shall be deemed to be members of the Electoral College. 58. Authority for local government elections.-(1) All elections to the Union Council and the Board shall be organized and conducted by the President according to the rules made under this Ordinance and such rules may provide for all matters connected therewith or incidental thereto, including the time of holding the elections by-elections, corrupt or illegal practices and other election offences and the submission, trial and disposal of election petitions. Provided that in a cantonment where no Board has been constituted, the function of President under this sub-section shall be performed by the Officer Commanding the station. (3) [sic.] The Government may authorize any of its officers to exercise any of its powers and to perform any of its functions under this Ordinance. 61. Non-party elections.--Local government elections in the cantonment shall be held on non-party basis. CMA No.3258/2013 9 62. Joint candidacy and elections. - (1) A Union Nazim and Naib Union Nazim shall contest elections in their respective wards as joint candidates: Provided that on occurrence of a casual vacancy a candidate for the office of a Union Nazim or Naib Union Nazim shall contest the election for such office in his individual capacity; (2) Union Nazim and Naib Union Nazim securing the highest number of votes, as joint candidates shall be declared elected. 10. It is to be noted that under the Cantonment laws, total number of 43 Cantonments have been created in Pakistan, which are as under: - Balochistan (1) Khuzdar Cantonment (2) Loralai Cantonment (3) Ormara Cantonment (4) Quetta Cantonment (5) Zhob Cantonment Khyber Pakhtunkhwa (6) Abbottabad Cantonment (7) Bannu Cantonment (8) Dera Ismail Khan Cantonment (9) Kohat Cantonment (10) Mardan Cantonment (11) Nowshera Cantonment (12) Peshawar Cantonment (13) Risalpur Cantonment (14) Havelian Cantonment (15) Kala Bagh/Murree Galies Cantonment Punjab (16) Attock Cantonment (17) Sanjwal Cantonment (adjacent to Attock Cantt) (18) Bhawalpur Cantonment (19) Chaklala Cantonment (20) Gujranwala Cantonment (21) Jhelum Cantonment (22) Kamra Cantonment (23) Kharian Cantonment (24) Mangla Cantonment (25) Multan Cantonment (26) Murree Hills Cantonment (27) Okara Cantonment (28) Rawalpindi Cantonment (29) Sargodha Cantonment (30) Shorkot Cantonment (PAF Rafiqui) (31) Sialkot Cantonment (32) Taxila Cantonment CMA No.3258/2013 10 (33) Lahore Cantonment (34) Wah Cantonment (35) Walton Cantonment (Created out of the southern parts of the original Lahore Cantt.) Sindh (36) Clifton Cantonment, Karachi (37) Faisal Cantonment, Karachi (38) Hyderabad Cantonment (39) Karachi Cantonment (40) Korangi Creek Cantonment, Karachi (41) Malir Cantonment, Karachi (42) Manora Cantonment, Karachi (43) Pano Aqil Cantonment 11. It is pertinent to mention here that despite a clear mandate of law, elections of the Cantonment Local Government, i.e. Members of Union Councils including Union Nazims and Naib Nazims, have not been held for the last 14 years. Similarly, Federal and Provincial Governments have also failed to hold elections of the Local Governments in all the Provinces and Islamabad Capital Territory through election Commission of Pakistan. 12. It may be observed that the life of a community is essentially the creation of its particular environment. It is difficult to establish an organization that would effectively look after the well being of all the social groups in a country. Only such political system can succeed which is essentially indigenous. Therefore, establishment of democratic institutions at the grass root level is basic requirement for the welfare of the society. The Local Self- Government institutions lay the foundation of such a system. They are based upon the recognition that the only way to respond to the needs of the individuals is to associate them with the process of authority. In this regard, it would be appropriate to quote Sydney Webb’s remarks who said that any system of CMA No.3258/2013 11 government, however mechanically perfect, would fail to take roots in the midst of the masses of people, unless it was in some way grafted on to the spontaneous grouping of the people themselves. As such, the broad masses of people are to be genuinely associated with the management of their affairs and encouraged to work for their own welfare. Essentially, the institutions at local/grass root levels protect the human dignity of common man to which he is entitled. 13. Local Government or Municipal Government is a form of public administration, which in a majority of contexts, exists as the lowest tier of administration within a given state or district. In many countries, it usually comprises the third tier of government, often with greater powers than higher-level administrative divisions. The question of municipal autonomy is a key question of public administration and governance. It is noteworthy that Local Governments generally act within powers delegated to them by legislation or directives of the higher level of government. The political analysts have always emphasized on the importance of local self-government. There are two principles underlining the establishment of Local bodies. Firstly, local bodies enjoy extensive powers to act in a way they like for the betterment of the community unless restricted by law in any sphere of activity. Secondly, local bodies cannot go beyond the specific functions delineated to them in various acts and statutes. 14. The concept of participation of ordinary people in the conduct of public affairs was advanced by the liberal philosopher John Stuart Mill as early as the mid 19th century. He considered the broad involvement of citizens to be the most effective CMA No.3258/2013 12 guarantee of a well-functioning democratic polity, counterbalancing the threats posed by an over-powerful and interventionist state. In his view, the citizen’s opportunity to articulate his views and assert his rights afforded him the best protection against any abuse of these rights by the state. 15. In general, this tier of government is responsible for decision-making in those policy areas which have a direct impact on the lives of local citizens, e.g. urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and energy, and regional planning. These are the areas where the local citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process. Thus, local self- government not only has a legal and a political dimension, but it also has sociological connotations, namely, it directly affects community life within a demarcated locality. It is pertinent to mention here that in the developed democracies, local self- government has contributed substantially to social and economic development and the emergence of a civil society and its importance for democratic development has been recognized consistently all over the world. 16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such. Existence of local bodies is important for strengthening the process of democracy. In the recent years, local self-government has been playing a vital role in the establishment of good governance and community development. The local bodies, at one end, provide services to the local community and, CMA No.3258/2013 13 on the other, act as an instrument of democratic self-government. The existence of local self-government provides mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving law and order situation. In short, the local self-government is necessary not only for strengthening democracy in country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making process. 17. All modern states have developed a system of self- governing local authorities. In many countries, the basic unit of local self-government is the municipality. Over the course of history, two types of self-governing units, namely, cities and municipalities have evolved at local level. The territorial boundaries of units of local self-government are defined by law. local self-government is presumed to be in existence where a local government is established as a legal, corporate and political institution with decision-making powers. One of the main traits of local self-government is that there must be a representative body, a council or an assembly, directly elected by local citizens through elections, with budgetary autonomy and power to make legislation at local level. The brief of local government structure in various countries is given hereinbelow: - INDIA In India the local government is the third level of government apart from the State and Central CMA No.3258/2013 14 governments. There are two types of Local Government in operation; firstly, Panchayats in rural areas and Municipalities in urban areas. The Panchayats are a linked-system of local bodies with village panchayats (average population about 5,000), panchayat samities at the intermediate level (average population about 100,000), and district panchaytas (average population about 1,000,000). The local government bodies are the democratic institutions at the basic level. FRANCE In France there are three main tiers of local administration; namely, the commune, department and region. These are both districts in which administrative decisions made at national level are carried out and local authorities with powers of their own. A local authority is a public-law corporation with its own name, territory, budget, employees, etc. and has specific powers and a certain degree of autonomy vis-à-vis central government. In addition, there are France's overseas territories and regional bodies (collectivités territoriales) with special status (Paris, Marseille, Lyon, Corsica, Mayotte and Saint-Pierre-et- Miquelon). JAPAN Since the Meiji restoration, Japan has had a local government system based on prefectures. The national government oversees much of the country. Municipal governments were historical villages. There are 47 prefectures. They have two main responsibilities; one is mediation between national and municipal governments, and the other is area wide administration. Now mergers are common for cost effective administration. TURKEY CMA No.3258/2013 15 Turkey has two levels of local government; provinces (iller) and districts (ilçeler). The territory of Turkey is subdivided into 81 provinces for administrative purposes. The provinces are organized into 7 regions for census purposes; however, they do not represent an administrative structure. Each province is divided into districts, for a total of 923 districts. SOUTH AFRICA South Africa has a two tiered local government system comprising local municipalities which fall into district municipalities, and metropolitan municipalities which span both tiers of local government. PAKISTAN Local government is the third tier of government in Pakistan, after Federal Government and Provincial Government. There are three types of administrative unit of local government in Pakistan; namely, District Government Administrations, Town Municipal Administrations and Union Council Administrations. There are over five thousand local governments in Pakistan. After the promulgation of Local Government Ordinance, 2001, there established democratically elected local councils, each headed by a Nazim (Supervisor or Mayor). Some of the districts consisting of large metropolitan areas are called City Districts. A City District often contains subdivisions called Towns and Union Councils. As per local government laws, elections of union councils are to be held after every four years. District Governments also include a District Coordination Officer (DCO), who is a civil servant in-charge of all devolved departments. Currently, the Powers of Nazim are also held by the DCO. 18. Thus, in the light of the above, it is imperative upon the Government to ensure that the local government bodies CMA No.3258/2013 16 elections as envisaged under the law must be held from time to time so that the representatives of the people are enabled to participate in managing their affairs at the gross root levels and the Fundamental Rights guaranteed under the Constitution are protected and enforced. 19. Hereinabove are the detailed reasons of our order of even date, relevant paras therefrom are reproduced hereinbelow:- “2. After discussing the issue at length in presence of Secretary Defence and also seeking instructions from the Election Commission, who is responsible to hold elections, following statement has been placed on record:- “STATEMENT OF SECRTARY DEFENCE/ RESPONDENT NO.1 I, the Secretary Defence, respectfully request for extension in time during which elections are to be completed in the Cantonments boards and undertake that the entire process of the elections in all the Cantonment Boards shall be completed on or before the 15th September, 2013. Sd/- Lt. Gen (Retd) Asif Yasin Malik Secretary Defence/Respondent No.1” The petitioner also expresses his satisfaction on the above statement. 3. Thus, in view of commitment made on behalf of the Executive, we allow this application and extend the period of holding the elections in the Cantonment Boards up to 15th September, 2013. Copy of this order be also sent to the Election Commission of Pakistan to ensure holding of the elections in terms of Constitutional provisions (Article 32 read with Article 140-A) on or before the 15th September, 2013. 4. We extend our gratitude and place on record our thanks to learned Attorney General for Pakistan as on account of his intervention the Executive has agreed to CMA No.3258/2013 17 hold the elections of Cantonment Boards, after a period of about 14 years. 5. We may point out that in view of the constitutional provisions and the principles of good governance, local bodies have to play an important role to achieve the welfare and good governance for the citizens of the country. At the same time we are also hopeful that the provincial governments as well as the administration of Islamabad shall also make arrangements as early as could be possible to hold local bodies elections in accordance with law.” CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd July, 2013 Nisar/* Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed Mr. Justice Maqbool Baqar CMA No.3305 of 2014 in Civil Petition No.740 of 2013 (Show cause notice to the petitioner in CP-740/13 issued in compliance of the order of this Court dt. 21.5.2014) AND CRP No.295 of 2014 in Civil Petition No.740 of 2013 (Review against this Court’s order dated 21.5.2014 passed in CP-740 of 2013) Ameer Rehman, etc. … Applicant(s) Versus Ameer Mumtaz, etc. … Respondent(s) For the petitioner(s): Syed Rafaqat Hussain Shah, AOR (in CRP-295/14) On Court’s notice: Dr. Babar Awan, Sr. ASC (CMA-3305/14) For Ameer Mumtaz, etc.: Mr. Sher Muhammad, ASC Mr. M. S. Khattak, AOR Date of hearing: 01.07.2015 ORDER Jawwad S. Khawaja, J.- CMA-3305/14:- On 21.5.2014 while deciding CP No.740 of 2013 we had passed an order dismissing the said petition with costs. However, while dismissing the petition, we had also observed as under:- “8. In the foregoing circumstances, we hold that the title of the private respondents stood established and there is no necessity for reopening the issue of title considering the circumstances which have been narrated above. We have, however, considered the possibility of taking action against the petitioners under para 12 of President’s Order No.12 of 1980, which provides as under:- “Punishment,---Whoever obstructs any person in enforcing or giving effect to any decision or order made under this Order shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.” 9. In the alternate, we may also consider initiating proceedings inter alia, under Section 476 of the Code of Criminal Procedure, 1898. We cannot allow abuse of process of the Court as it undermines the credibility of the Court. 10. Let notice issue to the petitioners to show cause as to why such action should not be initiated. Notice shall also issue to the respondents. Mr. Sher Muhammad Khan, learned ASC accepts notice on behalf of the private respondents. The office shall create a separate file and list this matter for hearing after thirty days. The petition stands dismissed with costs.” CMA-3305/14 in CP-740/13 & CRP-295/14 in CP-740/13 2 Pursuant to the notice which was issued to Ameer Rehman, Rehm Dad, Muhammad Nawab and Pir Jamal petitioners in CP-740/2013, a separate file was created which is before us. We have heard learned counsel for the aforesaid Ameer Rehman, etc. He has taken us through the order passed by us on 21.5.2014. His main plea is that the aforesaid persons namely Ameer Rehman, etc. are not highly educated, and therefore, there was absence of mens rea and as a consequence the notice issued to them should be discharged. In the present proceedings, it is not for us to make a factual determination of the existence or otherwise of mens rea, this being an issue of fact. Learned counsel for respondents Ameer Mumtaz, etc. has, however, drawn our attention to an application filed on 3.11.2012 by Ameer Rehman, etc. This application is written in Urdu and is signed by Ameer Rehman, etc. and makes mention of the order dated 18.02.1976. We, however, would not like to make any further comment as it may cause prejudice to the trial which we now propose to order. 2. In the foregoing circumstances, we send the matter to the learned Sessions Judge, Swat who shall entrust it to a competent Court for proceedings in accordance with law against Ameer Rehman, etc. For the reasons which we have given for taking notice of this matter, it is expected that the trial shall be concluded expeditiously. A report shall be submitted in Court within six months from today for our perusal in Chambers. 3. We would like to add that perjury and fabrication of documentary evidence are to be taken very seriously by Courts. This is necessary for ensuring that the administration of justice is not undermined and that baseless and false litigation is also deterred. The listed matters stand disposed of. CRP-295/2014:- No valid ground for review is made out. The review petition is, therefore, dismissed. Judge Judge Judge Islamabad, 1st July, 2015 M. Azhar Malik/* APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE KHILJI ARIF HUSSAIN C.M.A. No. 3325/2012 in CRP No. 270/2011 In Const. P. No. 42 of 2011 a/w Crl.M.A No. 547/2012 & Crl. M.A. No. 565/2012 in Crl.Org.P.No. 63 of 2012 & C.R.P 9/2013 in CMA No.3325/2012 (Progress report of NAB in OGRA case) For the NAB: Rana Zahid Mehmood, Additional PG, NAB Mr. Mazhar Ali Chohan, Deputy PG, NAB Mirza Irfan Baig, Director (FCIW) Mr. Waqas Ahmed Khan, Deputy Dir. NAB Col (r) Shahzad Anwar Bhatti, DG(O) NAB Mr. Mehmood Raza, Addl. DPG, NAB For FIA: Mr. Muhammd Azam Khan, Director (Law) For Motorway Police: Mr. Ali Akbar, SP( Legal) In Crl. MA No. 547-565/12: Mr. Arshad Ali Chaudhry, AOR For Govt. of Punjab: Mr. Jawwad Hassan, Addl.AG, Punjab a/w Rana Shahid Pervaiz (SP) (CID) Rawalpindi, For the Petitioner: Mr. K.K.Agha, PG NAB (in C.R.P. 9/2013) Date of Hearing : 31.01.2013 ORDER Jawwad S. Khawaja, J:- On 25.11.2011 the Supreme Court vide judgment in Constitution Petition No. 42/2011 directed the National Accountability Bureau (NAB) to probe into a number of matters. These matters were listed in para 57 of our judgment of 25.11.2011 and are reproduced as under:- “(5) that the National Accountability Bureau (‘NAB’) shall probe into and prepare a report on the following matters:- (a) the serious allegations enumerated in the Constitution Petition including those enumerated in paragraph 15 thereof; (b) the conduct of state functionaries who were engaged in the process of selection of the respondent as Chairman, OGRA and their possible culpability for mal feasance, non feasance and other wrong doing; (c) the misuse of public office and the involvement of holders of public office in corruption or corrupt practices in terms of the National Accountability Ordinance; (6) the Chairman, NAB shall proceed in the matter with the promptness and diligence required in the matter; CMA 3325/12 in CRP 270/11 2 (7) the report of NAB shall be submitted in Court within 45 days from today; (8) the matter be placed before us after 45 days for such further orders as may be considered appropriate, The events which followed the above judgment, as appearing from the record and from reports submitted by NAB show prima facie, that there may have been interference in proceedings before this Court and possible culpability of some persons in terms inter alia of Chapters XI and IX, PPC and other statutes relating to Public Justice. This, prima facie, undermines the rule of law and the legal imperative of stamping out corruption and corrupt practices. It thus, raises a concern which requires serious consideration. 2. On 01.02.2012 i.e. more than 2 months after our judgment and our direction that a report be submitted in 45 days, the Chairman NAB authorized an investigation in the matter. Our record presently does not show as to why our order directing the filing of a report within 45 days, was not compiled with. The Chairman NAB appears to have authorized an investigation but the name of any investigation officer (I.O) was not indicated. On 28.02.2012 Mr. Ilyas Qamar and Lt. Col (r) Ikramullah were jointly appointed for the purpose. On 16.03.2012 the case was transferred to Mr. Waqas Ahmed Khan, Investigating Officer (I.O.) Deputy Director NAB who began his investigation and has since been pursuing this case. 3. On 09.04.2012, Mr. Waqas Ahmed Khan submitted for the Chairman’s approval, grounds of arrest and draft warrants for the arrest of Tauqir Sadiq and Mansoor Muzafar Ali. The next day i.e. on 10.04.2012 the Director General (SOD) of NAB namely Col. (r) Shahzad Anwar Bhatti returned the file to Mr. Waqas Ahmed Khan with the direction “as discussed please prepare grounds of arrest and put up again”. This prima facie appears unusual as we have not been able to find any explanation on record for this conduct. According to the available record, the grounds for arrest and draft warrants had already been prepared and it was after such preparation that the file had been sent to the Director General in the first place. Since Col (r) Shahzad Anwar Bhatti is present in Court he shall file his explanation for this circumstance which, prima facie, appears unusual and may also be culpable. 4. The next day i.e. on 11.04.2012 Mr. Waqas Ahmed Khan again submitted the grounds of arrest and draft warrants a second time. 5 days later i.e. on 16.04.2012, the DG CMA 3325/12 in CRP 270/11 3 (SOD) returned the file yet again directing that it be “put up after examining witnesses/accused persons”. This also prima facie seems highly unusual since Mr. Waqas Ahmed Khan had already examined Mr. Muhammad Yasin, Registrar OGRA, who was petitioner in Const. Petition No. 42/2011 and Jawad Jamil an accused in the case. This was done on 02.04.2012 and their statements had also been incorporated in the case diary. Nevertheless, Mr. Waqas Ahmed Khan went on to examine both Tauqir Sadiq and Mansoor Muzaffar on the same day i.e. 16.04.2012. 5. The next day i.e. on 17.04.2012 he resubmitted grounds of arrest and draft warrants for a third time. The DG (SOD) returned the file to Mr. Waqas Ahmed Khan yet again asking “have we got any bank accounts to be analyzed?”. Mr. Waqas Ahmed Khan wrote back that all steps have been taken for scrutiny of the bank accounts and other requisite details have been taken for the scrutiny of the bank accounts. This time around, the DG (SOD) moved the file to the Chairman NAB with the observation dated 18.04.2012 that “we must discuss case progress please”. On 19.04.2012 the Chairman NAB received the file and approved the arrest warrants and grounds for arrest. However, this approval and the file did not get back to Mr. Waqas Ahmed Khan for another twelve( 12) days. This also prima facie appears to be a serious omission. The DG (SOD) shall explain this aspect of the case also. It has been noted by Mr. Waqas Ahmed Khan that during this period Tauqir Sadiq and Mansoor Muzafar accused were frequently visiting NAB Headquarters for interrogation. The signed warrants finally got back to Mr. Waqas Ahmed Khan on 02.05.2012, which can be termed as a very eventful day in the NAB Headquarters in Islamabad. 6. It is stated in the NAB Report (CMA 134/2013) that Tauqir Sadiq was within the NAB Headquarters building at the time when Mr. Waqas Ahmed Khan received the warrants. So he immediately called the guards at the reception through intercom and directed them to detain Tauqir Sadiq. It appears that the guards did detain Tauqir Sadiq. In the meanwhile, Mr. Waqas Ahmed Khan went to DG (SOD)’s office for numbering of the warrants of arrest. It is stated in the aforesaid report that the DG (SOD) immediately took the warrants from Mr. Waqas Ahmed Khan and stepped out of the room. A short while later he returned and explained to Mr. Waqas Ahmed Khan that the warrants had been CMA 3325/12 in CRP 270/11 4 signed by the Chairman only as a result of confusion and that it was a mistake. Then, right in front of Mr. Waqas Ahmed Khan, the DG (SOD) “destroyed the signed arrest warrants”. Tauqir Sadiq thereafter managed to escape from the NAB Headquarters prima facie on account of this most unusual sequence of event. The Chairman, NAB may explain these events. 7. On 07.05.2012 Mr. Waqas Ahmed Khan, I.O submitted fresh warrants and grounds of arrest for the Chairman’s approval. It may be noted that this was the 4th time that grounds for warrants and arrest had been prepared by the said IO. The following day i.e. on 08.05.2012 the Chairman signed the same. However, it took another one week before the signed warrants were sent and handed over to Mr. Waqas Ahmed Khan on 15.05.2012. This omission also requires to be explained. It was only on 15.05.2012 i.e. more than one month after arrest warrants for Tauqir Sadiq had first been sought, that a search could be initiated to arrest him. 8. On 03.08.2012, Mr. Waqas Ahmed Khan prepared a reference and sent it to the Prosecutor General NAB (PGA). The Additional PGA endorsed the reference on 08.08.2012. The PGA however, marked the file to one Mr. Ahmed Hayat Lak, General Manager, Legal Affairs of OGDCL and also Legal Advisor to Attock Petroleum. It is not clear from the record if Mr. Ahmed Hayat Lak had any nexus or concern with NAB or the matter which was being investigated by Mr. Waqas Ahmed Khan pursuant to our judgment dated 25.11.2011. We have noted that NAB has its own high powered legal team headed by a Prosecutor General who under Section 8 of the National Accountability Ordinance has the qualifications for being appointed a Judge of the apex Court. Even today, we have three legal persons namely Rana Zahid, Additional Prosecutor General NAB, Mr. Mazhar Ali Chohan, Deputy Prosecutor General NAB and Mr. Mehmood Raza, Additional Deputy Prosecutor General NAB who are present in Court. NAB may, therefore, explain as to what extraordinary qualifications were possessed by Mr. Ahmed Hayat Lak which made his examination of matters indispensable for NAB and why it was that such senior functionaries in the legal department of NAB were considered either incompetent or unqualified to examine this matter? It may also be explained as to why a person potentially having a conflict of interest was considered for this purpose and what special qualifications CMA 3325/12 in CRP 270/11 5 are possessed by him which prompted a reference to him. Mr. Waqas Ahmed Khan is present in Court and has been questioned. He states that a four page note was prepared by Mr. Ahmed Hayat Lak in which he indicated that a reference was made out only in respect of CNG and the other references were not justified. The I.O. Mr. Waqas Ahmed Khan responded by making some detailed noting on file. The matters noted above which have been taken from the NAB report (CMA 134/2012) shall be made part of a report along with notings mentioned above and the same shall be submitted in Court by NAB. According to Mr. Waqas Ahmed Khan, he decided that it would be highly improper for him to meet Mr. Ahmed Hayat Lak because there was a serious conflict of interest which in the opinion of Mr. Waqas Ahmed Khan was enough to disqualify Mr. Ahmed Hayat Lak. Since there appears to be no explanation on record, prima facie, there seems to be some dubious and improper conduct which needs to be explained by NAB as the investigating agency in the case. 9. On 27.09.2012 i.e. almost two months after Mr. Waqas Ahmed Khan had initially submitted the reference and more than ten months after the judgment dated 25.11.2011, Chairman NAB finally approved a reference but this reference was confined to those aspects of the case only which have been highlighted in paragraph 15 of Constitution Petition No.42/2011. It is stated by the IO that only 5 persons have been named in the reference although this number is likely to increase once the investigation progresses further and the trail leading up to the other accused is substantiated through some oral/documentary evidence. The other aspects of para 57 of our judgment and the persons identified as per sub-para 5(6) were not subjected to any probe or questioning. 10. Today we have heard Mr. Azam Khan, Director (Law) FIA, Mr. Waqas Ahmed Khan, Deputy Director NAB and Rana Shahid Pervaiz, SP Punjab Police. From their statements made in Court, it appears that after escaping undetected from Pakistan, Tauqir Sadiq was apprehended by CID of UAE and was thereafter given in the custody of Interpol in UAE. It also appears from the statements made by these three persons that some steps may be in the contemplation of their organizations which may actually result in delaying or frustrating the return of Tauqir Sadiq to Pakistan. Specifically, it has been stated by all three officers that because the two passports which had been issued to Tauqir Sadiq by the CMA 3325/12 in CRP 270/11 6 Pakistan passport office have been cancelled, the said individual has to be deported from UAE. This recourse has not been adopted and instead a long, unnecessary and protracted process is being contemplated for extraditing Tauqir Sadiq from UAE to Pakistan. Responding to the Court’s query, Mr. Waqas Ahmed Khan estimated that deporting would take 6-7 days. SP Rana Shahid estimated that this could be achieved in around three days. Both averred that the extradition proceeding, on the other hand, would definitely take much longer, possibly months. Prima facie extradition would not be required in this case because the very basis on which Tauqir Sadiq entered UAE i.e. the Pakistan passport issued to him, stands cancelled. According to the I.O. the residence/work visa of Tauqir Sadiq has already been cancelled by the UAE authorities. 11. Mr. Azam Khan, Director (Law) FIA, Mr. Waqas Ahmed Khan, Deputy Director NAB and Rana Shahid Pervaiz, SP Punjab Police shall submit their detailed reports in this behalf. We may note that Mr. Waqas Ahmed Khan, Deputy Director NAB and Rana Shahid Pervaiz, SP Punjab Police were in UAE since 15.01.2013 with the object of bringing Tauqir Sadiq back to Pakistan. The Foreign Office, Director General Passports and other relevant authorities are directed to provide all possible assistance to NAB, FIA and other authorities pursuing the arrest of the accused and his deportation to Pakistan. These authorities shall ensure that Tauqir Sadiq is brought to Pakistan before the next date of hearing. 12. Mr. Waqas Ahmed Khan, has informed us that on 30.01.2013 a reference against twelve individuals was prepared as per para 57(5)(b) of our judgment dated 25.11.2011 and the same has been forwarded through proper channel and is likely to be signed by Chairman NAB. This reference relates to the selection process whereby Tauqir Sadiq was first vetted, interviewed and then finally appointed as Chairman OGRA. A 3rd reference under section 31 (a) of the NAO has also been prepared by the Deputy Director and has been forwarded on 28.01.2013 through proper channel for signing by the Chairman NAB. We have also been informed that the Executive Board Meetings (EMBs) have been held in NAB Rawalpindi for the purpose of forwarding the aforesaid two references. However, EBMs at NAB Headquartes have still not taken place. NAB shall explain the reasons as to why this is so, considering the background which has been noted above and the fact that more than 14 months have elapsed since our order of 25.11.2011, wherein the Chairman, CMA 3325/12 in CRP 270/11 7 NAB was directed to “proceed in the matter with the promptness and diligence required in the matter”. 13. On a question put to him by the Court, the I.O/Deputy Director NAB stated that 41 bank accounts in different branches of various banks in the name of Tauqir Sadiq or his family members had been detected. In addition to the aforesaid accounts, three other accounts in the name of benami account holders were also detected. These accounts contained a sum of around rupees three billion (Rs.3,000,000,000) but through an unusual occurrence, all 44 accounts were emptied and the amounts therein were siphoned off just before a caution was placed on the said accounts by NAB. As a result the amount of rupees 3 billion was withdrawn and there are no funds left in the said 44 accounts. NAB shall explain as to how and why this was allowed to happen. 14. The evidence on record before us gives rise to questions relating to deportation/extradition. We may also require assistance on the ambit and parameters of the provisions of chapters XI and IX PPC and Section 31(a) of the NAO read together with section 476 and 476A of Cr.P.C. Further progress on the matter my require the assistance of amicus curiae. Kh. Haris Ahmad, Sr. ASC may be asked to assist the Court in the case. 15. To come up on 07.02.2013 for consideration of the reports sought above and for passing appropriate orders. Civil Review Petition No.9/2013. Civil Review Petition No. 9/2013 has been filed on behalf of NAB. The petitioner seeks review of our order dated 24.01.2013. The learned Prosecutor General NAB, Mr. K.K. Agha is busy before Bench No. 1 of this Court. He is not likely to be free any time soon and has requested to be accommodated. It is already 03:50 p.m. The Review Petition and the case (CMA 3325/2012) is adjourned to 07.02.2013. Judge Judge Islamabad 31.01.2013                  C.M.A No. 3325/2012CRNP No. 270/2011 In Const. P. no. 42 of 2011 a/w Crl. M.A. No. 547/2012 & Crl. M. A. No. 565/2012 in Crl.Org.P.No. 63 of 2012 & C.R.P 9/2013 in CMA No. 3325/2012                                                                                                   547-565/12                   1                           C.R.P. 9/2013 2013  31                25-11-2011  42/2011                    57   25-11-2011                              (5)                             15                                                                                                       (6)         2                   45           (7)              45  (8)                                                                                                     9  11                        01-02-2012  2    45                          28-02-2012                                            16-03-2012                         09-04-2012  3                                        10-40-2012                           3                                                                              11-04-2012   4   16-04-2012                                                                       42/2011               02-04-2012                                             17-04-2012    5                                                                                    19-04-2012                                                           4                                      2-5-2012                               CMA 134/2013         6                                                                                                                                                                                            07-05-2012  7                          08-05-2012                                         15-05-2012                                  5                     3-08-2012  8                                    08-08-2012                            8                                                                                                                                                                                                        27-09-2012  9            25-11-2011        42/2011                        6                15                   57                     6                    10                                                                                         (Deportation)                                         (Extradition)                                                                                               /              7 30-01-2013            11                                                                 12          57(5)(b)   25-11-2011                          31(a)                         28-01-2013                       25-11-2011                 14                                 13                                  41            (3,000,000,000)                                               8                      14  31(a)        11  9                476(a)  476                                                            15   07-02-2013           09/2013       24-01-2013                09/2013   1                           CMA             3:50             07-02-2013   3325/2012  31-01-2013            9

{'id': 'C.M.A.3325_2012.pdf', 'url': ''}

{'id': 'C.M.A.3325_2012.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Civil Miscellaneous Application No.3393/2013 (Application by Syed Adil Gilani against appointment of Federal Ombudsman) In Constitution Petition No.30 of 2013 Khawaja Muhammad Asif Petitioner (s) VERSUS Federation of Pakistan & others Respondent(s) Applicant (s) : Nemo. ON COURT NOTICE : Mr. Munir A.Malik, Attorney General for Pakistan For the Wafaqi Mohtasib Sectt: : Mr. Imtiaz Kazi, Secretary For M/o Law : Nemo. : For Establishment Division : Nemo. For PSPM : Nemo. For Mr. Salman Faruqui : Mr. Wasim Sajjad, Sr.ASC Date of Hearing : 10.06.2013 ORDER The Secretary Ombudsman has filed a report through CMA No.3644 of 2013. Notification dated 01.03.2013, issued by Imtiaz Kazi, Secretary, Wafaqi Mohtasib (Ombudsman) Secretariat has been filed, perusal whereof indicates that Mr. Salman Faruqui has been appointed as Wafaqi Mohtasib (Ombudsman). The said notification is reproduced as under: - C.M.A.No.3393/13 in Const.P.no.30 of 2013 - 2 - “WAFAQI MOHTASIB (OMBUDSMAN)’S SECRETARIAT, ISLAMABAD Islamabad, 1st March, 2013 NOTIFICATION No.F.1(632)/A-II/2012. In exercise of powers conferred on him by Articles 3 and 4 of the Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order 1983 (P.O.1 of 1983) and all other powers enabling him in that behalf, the President, Islamabad Republic of Pakistan is pleased to appoint Mr. M. Salman Faruqui, as Wafaqi Mohtasib (Ombudsman). 2. Mr. M. Salman Faruqui assumed the charge of the Office of the Wafaqi Mohtasib (Ombudsman), today, the 1st March, 2013. Sd/- (IMTIAZ KAZI) Secretary” The Secretary Ombudsman was asked to explain as to whether in all cases whenever Ombudsman is appointed a separate Notification as in the case of Mr. Salman Faruqui reproduced hereinabove is issued by the Ombudsman Office. He stated that on assumption of the charge such Notifications are issued, which are also treated as charge assumption report. Be that as it may, all the Notifications of the Ombudsman from 1983 onward be filed by him by tomorrow with the Registrar of this Court to ascertain the procedure being followed in the office of the Ombudsman for the appointment of the Ombudsman. He further stated that a separate charge report is also prepared by the Ombudsman on assumption of the charge. He also explained that copy of the above reproduced Notification, issued by the office of the Wafaqi Mohtasib (Ombudsman)’s Secretariat, Islamabad was endorsed/forwarded to the Manager, Printing Corporation of Pakistan Press, Karachi for its publication in the Gazette of Pakistan and it was accordingly published on the same day. Further, the oath taking ceremony of the Ombudsman had also taken place on the same day i.e 01.03.2013. We inquired from him as to whether any request from the C.M.A.No.3393/13 in Const.P.no.30 of 2013 - 3 - office of Wafaqi Mohtasib (Ombudsman)’s Secretariat, Islamabad was sent for seeking time from the Worthy President to administer oath, he stated that no such request was sent as at that time Mr. Salman Faruqui was working in the Presidency, therefore, the oath was administered there. We fail to understand that in such like situation when the copy of the Notification was also forwarded/endorsed to the Secretary to the President, President’s Secretariat (Public), Aiwan-e- Sadr, Islamabad the process and procedure of witnessing of oath taking ceremony must have been followed. Inasmuch as Mr. Imtiaz Kazi is concerned, he stated that he has not attended the oath taking ceremony of Ombudsman held on 01.03.2013 in the Presidency. He further stated that Mr. Salman Faruqui is at present in United States for the treatment of his lady wife, however when we inquired from him whether leave for any specified period has been sanctioned, he stated that neither he knows about the sanctioning of leave nor he has received any Notification in this regard from the Ministry of Law. He stated that no case for sanctioning of leave was referred by Wafaqi Mohtasib (Ombudsman)’s Secretariat. It is to be noted that such applications like leave etc., under the Rules of the Business have to be routed from the Administration Department, Prime Minster Secretariat for formal approval, the same is to be placed before the President of Pakistan. In the instant case no such procedure seems to have been followed by him. It is also to be noted that in view of the Section 4 of the Federal Ombudsmen Institutional Reforms Ordinance, 2013 in absence of the Federal Ombudsman, the Federal Tax Ombudsman shall act as Wafaqi Mohtasib (Ombudsman), in addition to his own C.M.A.No.3393/13 in Const.P.no.30 of 2013 - 4 - duties. We inquired from Mr. Imtiaz Kazi as to whether he has intimated to the Federal Tax Ombudsman to discharge his functions in accordance with Section 4 to which his reply was in negative. 2. Registrar of this Court may send a letter to the Federal Tax Ombudsman, seeking information from him as to whether in pursuance of Section 4 of the Ordinance, appointment of the Acting Ombudsman was made and whether he has assumed duties/functions as an Acting Ombudsman. In this behalf the Registrar may also procure the statement from him. 3. Mr. Imtiaz Kazi, Secretary further stated that copy of the Notification dated 01.03.2013 was forwarded by the Ombudsman Office to 14 functionaries, list of which is available at the bottom thereof including the AGPR, Islamabad. Surprisingly a Certificate dated 08.06.2013 under the title “TO WHOM IT MAY CONCERN’ has been placed on record at page 18 in CMA No.3644/13. A perusal whereof indicates that Mr. Salman Faruqui has drawn pay and allowances as Wafaqi Mohtasib from 1st March, 2013. He was issued Cheque No.4304413 and 4304414 for his pay and allowances for the month of March and April, 2013 respectively. From perusal of the certificate impression can be gathered that no intimation was sent to the AGPR. As according to the practice if a person is already functioning in office on his appointment he relinquishes the charge of the same and since Notification either himself or through the Department to AGPR, who is required to appoint the Officer and monthly amount of the salary is credited to his account and at the same time monthly pay slip is also issued by the AGPR but it seems that as per the certificate referred C.M.A.No.3393/13 in Const.P.no.30 of 2013 - 5 - hereinabove he has received his salary through the cheques mentioned in the certificate. It is necessary to look into the travelling history of the Notification dated 01.03.2013, maintained in the dispatch register by the office of the Ombudsman to ascertain as to when the intimation was sent to the AGPR. Similarly, the Secretary is directed to highlight the entries in the original dispatch register of Ombudsman Secretariat from where the copies endorsed to other functionaries were sent and the same be deposited in the office of the Registrar of this Court for further probe into the matter. It is also to be observed that stately on 25.02.2013, the Ministry of Law and Justice had issued a Notification a copy of which is available in the file, which has been deposited. Contents of the Notification dated 25.02.2013 is as under: - Government of Pakistan Ministry of Law and Justice *** Islamabad, the 25th February, 2013 NOTIFICATION No.F.1(8)/2012-A.I. In exercise of powers conferred by Article 3 and 4 of the Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order 1983 (P.O.1 of 1983), the President is pleased to appoint Mr. M. Salman Faruqui, as Wafaqi Mohtasib (Ombudsman) for a period of four years from the date he assumes the charge of the said office. Sd/- Justice (R) Yasmin Abbasi Secretary” 4. Interestingly the copy of this Notification was not dispatched to anyone of the offices as it has been endorsed in the Notification dated 01.03.2013. Let the Secretary, Ministry of Law and Justice Division explain the traveling history of the Notification dated C.M.A.No.3393/13 in Const.P.no.30 of 2013 - 6 - 25.02.2013 before 11.06.2013, by depositing the dispatch register etc. with Registrar of this Court. The office is directed to intimate this order today positively to the Secretaries, Law and Justice and Ombudsman. 5. Mr. Wasim Sajjad, learned Sr.ASC requested for time to file Power of Attorney on behalf of Mr. Salman Faruqui. At his request the matter is adjourned to 20.06.2013. Chief Justice Islamabad Judge 10.06.2013 *Rabbani*

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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 SH. AZMAT SAEED C.M.A. NO.3470 OF 2013 IN CMA 1536/2013 IN CIVIL APPEAL NO. 191-L & 409 OF 2010 (Action taken on News Clipping dated 4.6.2013 published in Daily Jang, against the Parliamentarians having fake/bogus degrees) AND CIVIL MISC. APPLICATION NO.3723 OF 2013 (Application by Nawazada Ghazanfar Ali Gull for taking action against Ch. Wajahat Hussain, MNA on account of fake degree) AND CIVIL MISC. APPLICATION NO.4275 OF 2013 (Application on behalf of Ch. Ghulam Qamar for taking action against Ghulam Sarwar Khan, MNA, on account of having fake degree) AND CIVIL MISC. APPLICATION NO.4295 OF 2013 (Application on behalf of Muhammad Atta Shah and others against Mr. Faisal Zaman, MPA, on account of having fake degree) AND CIVIL MISC. APPLICATION NO.4337 OF 2013 (Application on behalf of Faisal Javed against Rana Munawar Hussain, MPA, on account of having fake degree) For the Applicants: Nawabzada Ghazanfar Ali Gul, Adv. (in CMA.3723/2013) Sh. Ahsan-ud-Din, ASC (in CMA.4275/2013) Syed Attique Shah, ASC (in CMA.4295/2013) Raja Amir Abbas, ASC (in CMA.4337/2013) On Court Notice: For the HEC: Mian Muhammad Hanif, ASC Raja Abdul Ghafoor, AOR Mr. Raza Chohan, DG(A&A) Mr. Azizullah, AD (A&A) 2 Mr. Umar Hanif Khichi, Legal Counsel For ECP Mr. Abdul Rehman Khan, DG (Law) For the Parliamentarians: Mr. Waseem Sajjad, Sr. ASC (On behalf of Faisal Zaman, MPA) Mr. Tariq Mahmood, Sr. ASC (On behalf of Ms. Samina Khawar Hayat) Syed Nayyab Hassan Gardezi, ASC (On behalf of Ch. Wajahat Hussain) Mr. Zulfiqar Khalid Maluka, ASC (On behalf of Malik Muhammad Nawaz, MPA) Mr. Ghulam Mustafa Kandwal, ASC (On behalf of Makhdoom Syed Ali Raza, MNA) Raja Shoukat Aziz Bhatti, MPA, In person Mr. Karam Dad Wahla, MPA In person Mr. Muhammad Ahmad, In person (brother of Kh. Muhammad Islam, MPA) Ms. Maiza Hameed, MPA (In person) Date of hearing 8.7.2013 O R D E R Ms. Samina Khawar Hayat: The Election Commission of Pakistan (ECP) vide CMA No.3470 of 2013 had stated that Higher Education Commission (HEC) declared the degree of Ms. Samina Khawar Hayat as fake/bogus whereas the ECP in CMA No.4055/2013 had filed the following statement, which has been reproduced herein below:- “7) That it is brought to the notice of this Hon’ble Court that overall outcome of the verification process was communicated to the Election Commission of Pakistan dated 06.04.2013. However as far as the case of the Samina Khawar Hayat is concerned, she has made an application stating that in fact her degree issued by the PIMSAT dated 3 25.09.2006 is genuine which had been verified by the Higher Education Commission on 23.12.2010 whereafter, it was found, it is most humbly submitted, that earlier a degree in the name of Samina Saleem of BBA shown to have been issued by the Riphah International University was declared fake to which she had disowned before the Election Commission of Pakistan and favourable order was passed in her favour on 13.03.2012 by ECP as she had produced a degree from PIMSAT issued on September 25, 2006 which was attested and verified by HEC on 23.12.2010 and now she has been allowed to participate in the recent election by the Election Tribunal, Lahore High Court, Lahore vide order dated 15.04.2013. (Annexure “G”).” It is to be noted that along with CMA No.4336/2013, which has been filed by the ECP, the Nomination Papers to all other persons whose degrees have been verified are available but the Nomination Papers of Ms. Samina Khawar Hayat has not been filed. In such view of the matter, a precise question for consideration would be as to whether she relied upon a degree dated 25.9.2006 which was considered to be a fake on 23.12.2010. Subsequent thereto, it appears that this degree was in the name of one Samina Aslam, therefore, she disowned it and stated that she has passed BBA from the Preston University and degree was issued in her favour on 25.9.2008, which was attested and verified by the HEC on 23.2.2012. In such view of the matter, we direct the Election Commission of Pakistan to place on record her nomination papers which she submitted during the 4 Election of 2008 as well as 2013 on the basis of which she has been returned as a successful candidate. Let the Election Commission of Pakistan do the needful by tomorrow i.e. 9.7.2013. Similarly, the HEC is directed to place on record the original record so as to verify the genuineness or otherwise of the degree. Sardar Mir Badshah Qaisrani No one has appeared on behalf of Sardar Mir Badshah Qaisrani whose degree has been found fake. Issue notice for his appearance through the Election Commission as according to the Director General (Law), ECP, he has been declared successful in the Elections held on 11th May, 2013. Adjourned to 18.7.2013. Raja Shoukat Aziz Bhatti As far as the case of Raja Shoukat Aziz Bhatti is concerned, according to the HEC, the degree relied upon by him is genuine but pertains to Mr. Shoukat Aziz Sheikh. He stated that the ECP has filed Criminal Petition No.111/2013 against him in respect of the same issue, which is pending before this Court. The office is directed to club the said case with this case. He has also requested for some time to engage a counsel. Adjourned for tomorrow i.e. 9.7.2013. 5 Nawabzada Mir Nadir Magsi Issue notice to Nawabzada Mir Nadir Magsi through the Election Commission of Pakistan, as according to the Director General (Law), ECP, he has been declared a successful candidate in the Elections held on 11th May, 2013. In the meanwhile, the HEC to put up a comprehensive report about the genuineness of his degree. Adjourned to 18.7.2013. Maulvi Agha Muhammad Maulvi Agha Muhammad is not in attendance. Office has reported that Civil Appeal No.427/2013 filed by him stands fixed before this Court on 11.7.2013. Let this matter be fixed along with the said appeal. Kh. Muhammad Islam A request for adjournment has been made by his brother (Muhammad Ahmed). Kh. Muhammad Islam is directed to appear before this Court on tomorrow i.e. 9.7.2013. Mr. Karam Dad Wahla He appeared and stated that in fact he had lost the original educational testimonials and he has now obtained the duplicate of the same. He has submitted the same for their verification on 6 3.7.2013 before the HEC. The HEC is directed to expedite the verification process before the next date of hearing. Adjourned to 18.7.2013. Makhdoom Syed Ali Raza Shah As far as the case of Syed Ali Raza Shah is concerned, his BA degree has not been verified because it has been reported that in his absence in the year 1972 his Matriculation Certificate was cancelled and against the said order a Writ Petition No.7220/2013 has been filed before the Lahore High Court, Lahore. It is contended that the learned High Court may decide the case in view of the fact that he is not responsible for giving incorrect date, on the basis of which the certificate has been cancelled. According to him, he has passed Matriculation and FA from the Atchison College, Lahore. In view of the fact that the matter is pending, in the meanwhile, the HEC is directed to collect all the documents and verify the same. However, we may also observe that let the learned High Court may dispose of the matter expeditiously as early as possible within a period of 7 days after receipt of this Order, enabling this Court to proceed with his case. Adjourned to 18.7.2013. 7 Malik Muhammad Nawaz So far as the case of Malik Muhammad Nawaz is concerned, his degrees have not been verified so far. The learned counsel for the HEC is directed to submit a report in this behalf by tomorrow i.e. 9.7.2013. Ms. Zaib Jaffar: According to the learned counsel for the HEC, the documents of Ms. Zaib Jaffar have been received on 5th of July, 2013 and report from the concerned authority is awaited and the report in this regard shall be filed before the next date of hearing. Adjourned to 18.7.2013. Ms. Maiza Hameed: Ms. Maiza Hameed appeared and stated that she has handed over all the educational documents in original to the HEC. The learned counsel for the HEC stated that the according to the documents which have been received, she is not qualified to be holder of the degree equivalent BA Degree. In such view of the matter, we direct the HEC to pronounce the decision as to whatever the documents have been received are equivalent to the BA or not? Adjourned to 18.7.2013. 8 Mr. Iftikhar Hussain Gillani: Mr. Iftikhar Hussain Gillani is not in attendance. According to the HEC, his documents were unverified. Issue notice to him for his appearance before this Court through the Election Commission of Pakistan, on the next date of hearing i.e. 18.7.2013. Mr. Bilal Rehman: According to the learned counsel appearing for HEC, his documents had been verified, therefore, no further action is called for. Notice to his extent is discharged. CMA No.3723/2013: It has been informed that Ch. Wajahat Hussain had contested the Election for the year 2013 but could not succeed. In such view of the matter, the listed CMA is disposed of. If the applicant has any grievance he may agitate the same before a Competent Forum, as presently we have taken up the issue in respect of the implementation of our earlier judgment in respect of those persons who have been returned as successful. CMA No.4275/2013: Notice to the Election Commission of Pakistan and the Higher Education Commission, to explain as to whether respondent Ghulam Sarwar contested the Election of 2008 by declaring himself to be a holder of BA degree; and the said 9 degree was a genuine or otherwise. In the meanwhile, notice to the Election Commission of Pakistan be also issued as to whether he contested the Election in the year 2008. The learned counsel further stated that for possessing a bogus degree as complaint was filed against him vide FIR No.67/2012 at Police Station ACE, Lahore and the matter is still pending before the learned Anti Corruption Court and bail before arrest (Crl. M. No.16724- B/2012) is pending before the Lahore High Court. In the meanwhile, the HEC shall call for documents from the respondent and verify the same and submit a report on the next date of hearing. The Registrar shall also obtain the report from the learned Lahore High Court in respect of the pendency of the bail matter. Adjourned to 18.7.2013. CMA No.4295/2013: Mr. Waseem Sajjad, learned Sr. ASC has pointed out that in respect of the verification of the degrees, the matter is also pending before the Election Commission and the judgment has been reserved. The Secretary, Election Commission may inform the outcome on the next date of hearing. In the meanwhile, the HEC is directed to verify the degree before the next date of hearing. Adjourned for 18.7.2013. 10 CMA No.4337/2013: Notice to the HEC to verify the degree. In the meanwhile, notice to the Election Commission and respondent Rana Munawar, MPA (PP-36) through the Election Commission of Pakistan as he has been reportedly declared as successful from the said constituency. Adjourned to 18.7.2013. Chief Justice Judge Judge Islamabad, the 8th July, 2013. *M. Safdar Mahmood*

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain CMAs Nos.3685-3686/12 (6th and 7th progress report by the NAB in RPPs Case) IN Human Rights Case No.7734-G/2009 On Court’s Notice: Mr. Fauzi Kazmi, ADPGA Mr. Raza Khan, Director Mr. Kamran Faisal, Astt. Director/I.O. Date of hearing : 14.09.2012. O R D E R Iftikhar Muhammad Chaudhry, CJ. In this case judgment was passed as back as on 30th March, 2012 wherein alleged corruption in rental power plants contracts was highlighted in its different paras. In paragraphs 25 and 27 as well as in the concluding paragraph of the impugned judgment dated 30th March, 2012 corruption and corrupt practices has been specifically mentioned as well as criminal actions on the part of the persons who had taken the benefits. In fact, the judgment itself speaks about the misappropriation made by the concerned authorities. Despite specific directions for implementing the judgment in letter and spirit the NAB authorities had intentionally avoided to implement the same which is a clear violation of directions/observations of this Court and thereby prima facie committed contempt of Court as envisaged under Article 204 of the Constitution read with Section 3 of the Contempt of Court Ordinance, 2003. Mr. Fauzi Kazmi, ADPG NAB when questioned, stated that Muhammad Rafi, Amir Shahid, Ashgar Khan and presently Kamran Faisal is the I.O. in the case. Mr. Raza Khan, Zahir Shah were also supervising the investigation. One Col. Shahzad Anwar Bhatti, D.G. was also heading the investigation team. Show Cause notice be issued to the Chairman NAB as well as the above named officers to appear and show cause as to why the contempt proceedings may not be initiated against them for non-implementing the Court judgment. We may note that the Chairman NAB shall be responsible if the officers responsible for delaying the implementation of this Court’s judgment are gone out of country or take any other evasive measures. The reply to the show cause notice shall be submitted within seven days. The case shall be relisted on 25th September, 2012. CJ. J. J. Islamabad, 14.09.2012. M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. Application against the illegal adjustment in Revenue Record Land is being given to Bahria Foundation, filed by Syed Mehmood Akhtar Naqvi AND CIVIL MISC. APPLICATION NO.450-K OF 2014 IN S.M.C. NO.16 OF 2011. Objection in C.M.A.408-K/2014 filed by Syed Mehmood Akhtar Naqvi AND CRIMINAL ORIGINAL PETITION NOS.20-K TO 23-K OF 2014 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Syed Mehmood Akhtar Naqvi … Petitioner(s) VERSUS Malik Israr, Sr. Member Board of Revenue Sindh (in Crl.O.P.20-K/14) Muhammad Ali Shah, Deputy Commissioner District West Karachi (in Crl.O.P.21-K/14) Jan Muhammad Qazi, Deputy Commissioner District Malir, Karachi (in Crl.O.P.22- K/14) Muhammad Suhail, D.G. Malir, Development Authority (in Crl.O.P.23-K/14) … Respondent(s) AND CIVIL MISC. APPLICATION NO.275-K OF 2015 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Written Arguments on behalf of the Senior Member Board of Revenue, Sindh AND CIVIL REVIEW PETITION NO.32-K OF 2015 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Muhammad Sohail … Petitioner(s) VERSUS S.M. Akhter Naqvi and another … Respondent(s) AND CIVIL MISC. APPLICATION NO.261-K OF 2016 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 2 Application for Intervenor filed by Mr. Anees Ahmed for taking action Ex-DG, MDA (Mr.M.Suhail for illegal allotment and recruitment in the Authority AND CIVIL REVIEW PETITION NOs.51-K OF 2016 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Waqas Riffat and others … Petitioner(s) VERSUS Mehmood Akhtar Naqvi and others … Respondent(s) AND CIVIL REVIEW PETITION NO.57-K OF 2016 IN CRIMINAL ORIGINAL PETITION NO.6-K OF 2016 Director General Malir Development Authority … Petitioner(s) VERSUS Anees Ahmed others … Respondent(s) AND CIVIL REVIEW PETITION NO.59-K OF 2016 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 The Province of Sindh and another AND CIVIL REVIEW PETITION NO.62-K AND 63-K OF 2016 IN CIVIL MISC. APPLICATION NO.6-K OF 2016 M/s Bahria Town (Pvt.) Ltd. (in C.R.P.62-K/16) Secy: Local Govt. (HTP), Govt. of Sindh. (in C.R.P.63-K/16) … Petitioner(s) VERSUS Syed Mehmood Akhtar Naqvi and others … Respondent(s) AND CRIMINAL MISC. APPLICATION NO.1699 OF 2016 IN CRIMINAL ORIGINAL PETITION NO.6-K OF 2016 Application on behalf of Muhammad Irfan & 16 others for setting aside the notification dated 21.09.2016 issued by the respondent AND CRIMINAL MISC. APPLICATION NO.1816 OF 2017 Application on behalf of M Irfan and 16 others AND CIVIL MISC. APPLICATION NO.1497 OF 2017 IN CIVIL MISC. APPLICATION NO.376-K OF 2014 Application for impleadment by Qamar Bhatti CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 3 AND CRIMINAL ORIGINAL PETITION NO. 211 OF 2017 Akhtar Ali vs Javid Iqbal and others. AND CRIMINAL ORIGINAL PETITION NO. 216 OF 2017 Anees Ahmed vs Province of Sindh. AND CRIMINAL ORIGINAL PETITION NO. 240 OF 2017 Dr. Muhammad Shafiq-ur-Rahman vs Absar Alam, Chairman, PEMRA, Islamabad etc. AND CRIMINAL ORIGINAL PETITION NO. 16 OF 2018 Mian Ghulam Rasul vs Mr. Muhammad Sohail Khan and others In Attendance: For petitioners/applicants and respondents: Syed Mehmood Akhtar Naqvi, In person. (in CMA.376-K/14, 450-K/14, Crl.O.Ps.20-23-K/14) Mr. Farooq H. Naek, Sr. ASC. (in CMA.275-K/15 & CMA.376-K/14). Mr. Rasheed A. Rizvi, Sr. ASC (For MDA) a/w M. Irfan (Law Officer MDA). Mr. Munir-ur-Rehman, ASC. (in CRP.32-K/15, CMA. 376-K/14 & CRP.57-K/16) Nemo. (in CMA. 261-K/16) Mr. Aitzaz Ahsan, Sr. ASC (For Bahria Town) Mr. Gohar Ali Khan, ASC. Mr. M. S. Khattak, AOR. M. Asif (Law Officer Bahria Town). (in CRP. 51-K/16 & CMA. 376-K/14). Barrister Zamir Hussain Ghumro, AG, Sindh. Mr. Shehryar Qazi, Addl. A. G. Sindh. (in CRP.59-K/16 and CMA.376-K/14). Syed Ali Zafar, ASC (For Bahria Town). (in CRP.62-K/16 and CMA. 376-K/14). Mr. Munir-ur-Rehman, ASC. (in CRP. 63-K/16). Mr. Zakir Hussain Khaskheli, ASC. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 4 Syed Rifaqat Hussain Shah, AOR. (in Crl.M.As.1699/16, 1816/17 & Crl. O. P.211/17). Nemo. (in CMA.1497/17 and Crl. O. P. 216/17). Dr. M. Shafiq-ur-Rehman, In person. (in Crl. O. P. 240/17). Mian Ghulam Rasool, In person. (in Crl. O. P. 16/2018. Nasir Mehmood Mughal Sp. Prosecutor Along with Qamar Abbasi, IO (NAB) Date of hearing: 07, 20 to 22.02.2018, 28.02.2018, 06.03.2018, 14.03.2018, 21 to 22.03.2018 and 27.03.2018. (Judgment Reserved). .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. J U D G M E N T EJAZ AFZAL KHAN, J.- C.M.A 376-K of 2014 was filed alleging that Malir Development Authority (hereinafter called “MDA”) is adjusting the government land pursuant to the notifications issued by the Board of Revenue, Sindh. It was alleged that the value of the government land was far higher than the value of the private land it was exchanged for. The exchange thus effected was looked at with raised eyebrows. A series of orders was passed by this Court in this behalf. The order passed on 23.07.2015 is quite significant for the purposes of this case. The relevant part of the order deserves a look and thus runs as under: “The Deputy Commissioner, Malir admits to have signed the plan defining the boundaries of controlled area. According to him the master plan is comprised of 43 dehs. He states that he has merely forwarded the plan to the Senior Member, Board of Revenue. He further states that all the layout plans are routed through him and the schemes of the layout plans whether private or otherwise are signed by him after verifying their title. He is directed to place before us all the schemes whether public or private with their layout plans, which he has forwarded or verified since the day he assumed the office of Deputy Commissioner, Malir before the next date of hearing. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 5 Mr. Rasheed A. Rizvi, Senior Advocate Supreme Court for MDA, when confronted as to how the MDA has acquired the title of the land, states that the land is owned by the Provincial Government and there is no notification by the Board of Revenue allowing the MDA to utilize this land. He however, relies upon sections 8 and 14 of MDA Act, 1993, which has been amended in the year 2013 for the purposes of acquiring power of allotment. We with respect disagree with this contention of the learned Counsel. The Board of Revenue under law, with the approval of competent authority has the authority to allot land under the Colonization Act and no other procedure provided in law, for allotment of land. Another order having meaningful bearing on this case was passed on 09.03.2016. The relevant part of the order reads as under: "We are informed by the Chief Secretary, Sindh that the Sr. Member, Board of Revenue has proceeded to Islamabad on account of some family emergency and will be back by today evening. Since the matter relates to the Board of Revenue, therefore, we deem it necessary that he should appear before the Court tomorrow before any Order is passed in this matter. We are further informed that in compliance with the Order passed yesterday, Mr. Muhammad Sohail who was assigned the look after as D.C. MDA has been de-notified. The Sindh Government is directed to appoint any officer of their choice, eligible for the post of D.G. MDA, within one week in the intervening period, the Secretary, Local Government will have the additional charge. 3. We restrained the MDA from allotting and/or dealing with the land in any manner whatsoever till further orders. The Sr. Member, Board of Revenue yesterday, while present in Court, has disputed the authority of the MDA to allot or otherwise deal with the land with anyone as, according to him, the land was neither allotted nor given possession to the MDA. According to the Sr. Member, Board of Revenue, the land within MDA is fully owned by Sindh Government. Besides the aforesaid reason, this Court on 28.11.2012 has passed restraining order restricting the powers of authority from allotting state land to anyone. This restraining order also applies to all the authorities under Sindh Government who claimed their title from the state/Board of Revenue.” On 24.05.2016, this Court apprehending that things are not done in an open, fair and transparent manner, proceeded to pass the order dated 24.05.2016 by observing as under: “We have heard Mr. Waqas Qadeer Dar, Prosecutor General NAB, Mr. Qamar Abbas Abbasi, Investigating Officer, Mr.Farooq H. Naek, learned Sr. ASC, Mr. Zia-ud-Din CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 6 Sabir, Director Town Planning, MDA and Mr. Rizwan Memon, Sr. Member, Board of Revenue. 2. NAB has so far not been able to complete the inquiry as directed by this Court on the last date of hearing. However it has filed an interim inquiry report. We have gone through this report and from a cursory glance find that whatever probe that has so far been made is not sufficient to address the issues raised by this Court with regard to allotment of land by Government of Sindh to MDA and its subsequent disposal by MDA. Mr. Waqas Qadeer Dar, Prosecutor General NAB seeks a further period of two months to finalize the inquiry. Time for filing final report is extended by two months, From what has been addressed at the bar today by the learned counsel, we are of the view that inquiry must contain answers to the following questions in order to adequately address the issue which is subject matter of these proceedings. i) Whether the Sindh Government allotted the state land, which is subject matter of these proceedings to MDA under any legal instrument? Whether the possession of allotted land was handed over by the Sindh Government to MDA in terms of Section 10(4) of the Colonization & Disposal of Government Lands (Sindh) Act, 1912? iii) Whether the issuance of the notification dated 26.12.2013 by which 43 dehs were declared as controlled area of MDA created any title in its favour in the land of such dehs? iv) Whether MDA prepared and issued its master plan after 43 dehs were declared to be its controlled area and if so whether such plan was approved by the competent authority? v) Under what authority MDA can exchange private land within its controlled area with the state land? vi) Whether MDA handed over possession of 11000 acres of state land to private land developers and builders which was neither leased out nor handed over by the Sindh Government to MDA? vii) In what manner MDA transferred the land to Bahria Town or its directors or promoters or to any other private land developer or builder? viii) Whether MDA was competent to put private persons and land developers and builders in possession of the state land, which the MDA claims to have been transferred to it, on the basis of exchange and or consolidation scheme? ix) Whether the exchange/ consolidation of the private land with the state land by MDA is permissible under the law and that too beyond the area earmarked by MDA for planning purposes? x) Whether exchange of approximately 11000 acres of the valuable state land located on the superhighway by the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 7 MDA with the land of the private person/private developers on the periphery under the garb of exchange and or consolidation scheme was in the interest of the state? xi) Whether Bahria Town or its directors or its promoters or any private developers or private parties lawfully owned and possessed land within the limits of district Malir on the date of inviting applications for allotment from public at large for the Housing Schemes through electronic and print media? xii) Whether before inviting applications for allotments from public at large, Bahria Town, its promoters, directors or other private developers got their Housing Schemes approved from the MDA through Deputy Commissioner Malir? and xiii) Whether Bahria Town or its directors or promoters or any private land developer or builder are in physical possession of land in excess of the land given to them by MDA? 3. The NAB shall proceed with the inquiry in an independent manner without being influenced from any quarter. The inquiry in addition to other factors shall probe into the questions formulated hereinabove. For such purpose it shall examine entire record, including the revenue record, which shall be provided by the relevant authority (Senior Member Board of Revenue) to the officers of NAB who are entrusted with the inquiry in the matter. To come up after two months.” Another order which was passed on 01.08.2016 is also quite comprehensive as it not only deals with the controversy emerging before this Court but also refers to other orders which are relevant for understanding the instant case in its correct perspective, therefore, its reproduction is necessary which reads as under: “The Prosecutor General, NAB, has filed interim report dated 25.07.2016 (confidential), along with a copy of the survey report dated 20.07.2015, prepared by the Ministry of 'Defense Directorate of Survey of Pakistan. It is contended by the learned Prosecutor General, NAB, that after the order dated 24.05.2016, passed by this Court, the Survey of Pakistan, was approached by the NAB, for demarcation of the land in actual possession of the Bahria Town. 2. The Director of Survey of Pakistan responded to the request of the NAB and after notices to the Board of Revenue Sindh, Survey and Settlement Department, Sindh, Malir Development Authority (MDA), Deputy Commissioner, Malir, and the Bahria Town Karachi, conducted joint survey in presence of the representatives of the aforesaid organizations and compiled report, copy of which was supplied to the NAB authorities and has been placed before us. The Senior Member, Board of Revenue, states that they have not received any copy of the said report. We direct the NAB authorities to supply copies of the survey report to the Senior CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 8 Member, Board of Revenue, Mr. Aitzaz Ahsan, learned Sr.ASC, for officials of Bahria Town, Mr. K.A. Wahab, AOR for the Bahria Town and Syed Mehmood Akhtar Naqvi, the Applicant, who request to file their objections if they deem it appropriate. The confidential report dated 25.07.2016 submitted by the NAB, shall be kept in sealed envelopes by the office. 3. According to the survey report, the M.D.A has exchanged! consolidated 9140.260 Acres of land to Bahria Town. The survey report contains a portion of green colour with black lines, reflecting that M.D.A has consolidated a piece of land measuring 244.925 Acres which the Bahria Town has not yet developed. The survey report further shows that the total land consolidated by the M.D.A and handed over to the Bahria Town is 93 85.185 Acres. The portion marked with pink colour as "A" reflects that the Bahira Town has developed 386.276 Acres of land which has not yet been consolidated by the M.D.A. The portion of survey report in pink colour marked as "B" reflects that Bahria Town has developed an area of 1975.059 Acres which though developed by the Bahria Town has not been consolidated by the M.D.A. Another portion of the survey report marked as "C" in pink colour shows that the land measuring 410.444 Acres has been developed by the Bahria Town, but has not been consolidated by the M.D.A. The survey report shows that total land developed/under development but not consolidated by the M.D.A comes to 2771.79 Acres. In this respect, total area of land of Bahria Town reflected in the survey report comes to 12156.964 Acres. 4. We have inquired from the Chief Secretary, Senior Member, Board of Revenue, and the Advocate General, Sindh, to satisfy us under which law the M.D.A is competent to exchange private lands with the lands falling in the area which is reserved as corridor area, they could not offer any explanation and submit that no such powers are available with the M.D.A to allot or exchange the private land with the State land. It has come on record that no portion of the land pertaining to the subject matter has ever been allotted and or part in possession under Section 10(4) of the Colonization of Government Lands Act, 1894, by the Sindh Government to the M.D.A, which fact was confirmed by the Senior Member, Board of Revenue and incorporated in the order of this Court dated 09.03 .2016, which has already been reproduced above. This Court after going through the survey report dated 20.07.2016 observed as under: 5. After going through the survey report dated 20.07.2016, we, in order to safeguard the public interest and to avoid multitude of proceedings, are constrained to pass the following interim order:- (i) the Bahria Town is restrained from undertaking any development activity in the area demarcated with green colour with black lines on it measuring 244.925 Acres and or to deal with this portion of land with any person or organization in any manner whatsoever; CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 9 (ii) the Bahria Town is further restrained from undertaking any development activity on the portion marked as "A" with. pink colour measuring 386.276 Acres, which is not consolidated by the M.D.A, with further restriction to deal with this portion of the land in any manner whatsoever; (iii) the Bahria Town is restrained from undertaking any development activity on the area marked as "B" with pink colour measuring 1975.059 Acres, which as per survey report has not been consolidated by the M.D.A and to deal with the land in any manner whatsoever; (iv) the Bahria Town is further restrained from undertaking any further development activity on the area marked as 'C" with pink colour measuring 410.444 acres and or to deal with the land in any manner whatsoever; (v) the Bahria Town is further restrained from raising any further development activity in area measuring 2771.779 Acres, which has not been consolidated by the M.D.A and to deal with the land in question in any manner whatsoever; (vi) the M.D.A is restrained from consolidating any further portion of the private land of the Bahria Town or any other private enterprise under the garb of exchange of land in exercise of their powers conferred on them under the M.D.A Act or the Rules framed thereunder; (vii) We further restrict the Board of Revenue, Government of Sindh, from dealing with the land of M.D.A or any other Authority which is subject matter of these proceedings in any manner whatsoever in defiance of the order of this Court passed by a five Member Bench of this Court on 28.11.2012; (viii) the MD.A is restrained from dealing with the land which are subject-matter of survey report either with Bahria Town or with any other organization in any manner whatsoever; (ix) defiance of the interim orders passed hereinabove by any of the organization whether public or private shall expose them to contempt proceedings. 6. In order to ensure that no further construction or development activity is carried out on the land specified hereinabove, we direct the NAB authorities through the Prosecutor General that they should immediately if possible by tomorrow obtain google earth maps/images of the entire land stated to be in possession of the Bahria Town as per the survey report and submit the same for record. What the orders reproduced above prima facie point to is that the provisions of Colonization of Government Land Act 1912 (hereinafter CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 10 called “COGLA 1912”) and Malir Development Authority Act 1993 (hereinafter called “the MDA Act”) were flouted by the Board of Revenue, the Malir Development Authority and Bahria Town. But all the three stated to have stayed within the purview and periphery of the enactments mentioned above. 2. Mr. Farooq H. Naek, the learned Sr. ASC appearing on behalf of the Board of Revenue, contended that the entire process underlying exchange conforms to the relevant dispensation; that Malir Development Authority Ordinance, 1993 was promulgated which was replaced by the Malir Development Authority Act, 1993 (Act XI of 1994); that Malir Development Authority has been established under Section 3 of the MDA Act; that the Authority has been constituted under Section 4 of the MDA Act which is consisting of a Chairman and other members as described in the said provision; what is controlled area, what is a Master Programme and what is a scheme have been defined in Section 2 of the MDA Act, what are the functions of the Authority and how schemes for development of an area are prepared and how the improvement in the socio- economic conditions of the people is brought about, what measures are taken by the Authority for carrying out the purposes of the MDA Act and how the land vested in it can be disposed of by sale, lease, exchange or otherwise have been provided in Section 8 of the MDA Act; that the Authority under Section 14 of the MDA Act has the power to declare an area to be a controlled area if it becomes necessary for the prevention of haphazard growth, encroachment and unauthorized construction, etc. and that the Authority has also power to prepare Master Programme for development, improvement, expansion and beautification of such area or such CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 11 sectors of economy if it is necessary in the opinion of the Authority or the Government. The Authority, the learned Sr. ASC added, may and if directed by the Government shall prepare specific scheme or schemes for controlled areas or part thereof in such form and manner as may be prescribed by Section 17 of the MDA Act; that all the schemes prepared under the MDA Act and operated by or on behalf of the Authority shall be deemed to be schemes for public purpose under Section 25 of the MDA Act and that the Authority has the power to acquire by purchase, lease or exchange any moveable or immovable property or any interest therein by entering into an agreement with the party concerned under Section 31 of the MDA Act and that if that cannot be done under the aforesaid section, the Authority can acquire land in accordance with the provisions of Hyderabad Development Authority Act as is provided by section 32 of the MDA Act. The provisions of the COGLA 1912, the learned Sr. ASC maintained, do not have much bearing on the provisions contained in the Malir Development Authority Act. The learned Sr. ASC next contended that even COGLA 1912 provides for incremental housing which means a housing scheme sponsored by the government, authority, autonomous body or a company for providing residential land to a family not exceeding 120 yards. Section 10 of COGLA 1912, the learned Sr. ASC maintained, provides for grant of land to any person in a colony; that sub-section 10 (2A) of COGLA 1912 starting with non-obstante clause provides that the land granted under section 10 shall not be exchangeable with private or kabuli land but it would not be of much significance when the provisions of the MDA Act, rules and regulations framed thereunder, in view of section 47 of the MDA Act, would have effect CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 12 notwithstanding anything contained in any other law, rules or regulations. Section 10-A of COGLA 1912, the learned Sr. ASC argued, also provides that no land shall be disposed of except by the government in accordance with the provisions of COGLA 1912 to an autonomous body, authority, company, a person or group of persons save as otherwise provided under section 10-A (2). The learned ASC next contended that the MDA being a purchaser having paid the entire amount of purchase money could not be deemed to be a tenant in terms of section 15 of COGLA 1912, therefore it could exchange the land so granted to it with private or kabuli land notwithstanding the provision contained in section 10 (2A) and proviso to section 17 of COGLA. The learned Sr. ASC next contended that after the insertion of (ff) in Section 2 of the MDA Act through an Amending Act of 2013 the expression “consolidation” means adjustment by way of exchange or otherwise for the purpose of the scheme, therefore, it has to be taken as such while dealing with the controversy raised in this case. The learned Sr. ASC next contended that nothing in the Transfer of the Property Act 1882 would apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein by or on behalf of the Government to or in favour of any person, therefore, any transfer or adjustment in violation of the said Act cannot be held to be illegal or against law. Malir Development Authority, the learned Sr. ASC stated at the bar is carrying out various schemes such as Shah Latif Town, New Malir Housing Project and Taiser Town by exchanging the government land granted under section 10 of COGLA 1912 with private or kabuli land, therefore, exchange of land granted to the MDA with private or kabuli land is not something unusual or CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 13 unprecedented. Another objective underlying such schemes, the learned Sr. ASC added, is to ensure planned development and avoid mushroom growth of housing schemes or at random construction of houses. The learned Sr. ASC next contended that how land is to be disposed of and what are the restrictions on its disposal have been provided in paragraph 4 of the notification No. 09-294-03- SO-I/336, dated 25.02.2006 issued by the Government of Sindh under Section 10(2) of the COGLA, 1912; what is the procedure for determination of market price has been highlighted in paragraph 8(1)(a)(b) and 8(2)(i)(ii)(iii) and how the Price Committee submits its recommendations to the Scrutiny Committee has been provided by paragraph 8(3) of the statement of conditions issued in 2006. The learned Sr. ASC next contended that the notification mentioned above was modified vide notification No.09-294-03/SO-I/719 dated 10.11.2010, whereunder constitution of the Land Reservation and Allotment Committee was provided as is evident from paragraph 3 of the notification. The learned Sr. ASC next contended that the Board of Revenue also has the power to reserve and grant the land and that reservation and grant are regulated by law. The process of reservation, grant, consolidation, exchange and disposal of land is not unprecedented and that all the decisions taken in this behalf are reflected in the summary of the Chief Minister; that a meeting was convened on 24.01.2014 wherein the Authority was requested to accord approval regarding the work already done and prepare schemes for execution of Master Programme of 32 out of 43 villages; that the Authority accordingly approved a proposal as described in item No. 1; that the Authority also approved item No. 2 for consolidation, exchange and adjustment of private ownership with CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 14 state land; that the Director General, MDA in his note dated 01.01.2015 highlighted the approval of the competent authority i.e. the Chief Minister, Sindh regarding the reservation of 14617 acres of State Land in favour of MDA for public purpose on price; that the land so reserved for MDA was mutated in favour of the MDA as was communicated by the Deputy Commissioner, Malir vide letter dated 28.01.2014 with the request to approach Member Utilization Department, Board of Revenue, Sindh for payment of price as per procedure agreed upon in the meeting held under the Chairmanship of the Chief Secretary, Sindh on 23.01.2014. The request, learned Sr. ASC stated, for fixation of price amounting to Rs.1,25,000/- per acre was also forwarded. The learned Sr. ASC next contended that summary for the Chief Minister would also show the name of the village, area in acres N.C.No., category, market price per acre notified in the years 2011 and 2012, total market price and final approval of the Chief Minister. The learned Sr. ASC next contended that MDA has made payment of Rs. 1.66 Billion to the Board of Revenue for the land measuring 11068 acres in five villages namely, Karkharo, Langheji, Konkar, Kathore and Bolhari at the rate of 25% of market price out of the nine villages measuring 14617 acres. The learned Sr. ASC went on to argue that the entire process of the land adjustment has been transparent as it was made after due publication in various newspapers and that the rights of MDA and the interest of government have been fully protected at every step. The learned Sr. ASC lastly contended that where price of the land has been paid, mere fact that conveyance deed has not been executed would not affect the sale. Learned ASC by referring to the chart describing the categories of the land and their prices fixed in CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 15 2006 and then in 2011 contended that the latter are on lower side but they were perfectly justified by the ground realities as no town builder in view of the prices fixed in 2006 came forward to invest in the building project. The learned Sr. ASC by elaborating his arguments contended that the aforesaid rationalization being in conformity with the prices of similar land in the market has been rightly accepted by the Chief Minister Sindh. 3. Mr. Ali Zafar, the learned ASC for the Bahria Town highlighted the necessity of adjustment of property, the quality and quantity of the land owned by the government and the quality and quantity of the land exchanged therefor and the purpose behind such exchange. The learned ASC by referring to the provisions already referred to by the learned Sr. ASC for the Board of Revenue sought to canvass at the bar that the adjustment of the property has been made strictly in accordance with the provisions of MDA Act and in accordance with law and policy as notified in the year 2006 and modified in 2010 and that the complaints against the Board being frivolous be dismissed; The learned ASC maintained that it is the discretion of the government to give any property to any development authority gratis or for a price fixed in accordance with law; that an area of 7068 acres has already been exchanged while an area of 2339 acres is in process of being exchanged and that this is not something unprecedented as New Malir Housing Scheme, Shah Latif Housing Scheme and Taiser Town have mainly been built up by following a similar pattern. Preamble of the MDA Act, the learned ASC contended provides for the development of certain areas of Karachi Division and improvement of the socio-economic conditions of the people and this is what the provisions of the Act aim at and CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 16 this is what the Bahria Town strives for. The learned ASC next contended that an apple for an apple and an orange for an orange have been exchanged and that in case the property owned by the government is found to have a better status, differential could be paid by the respondent. The learned ASC lastly contended that the process of consolidation which includes adjustment and exchange has been resorted to because the MDA did not have sufficient funds to start with the project and that it has been ensured that everything be done transparently which can well be gathered from the fee paid in billion by the Bahria Town to the Government and the MDA. 4. Mr. Aitzaz Ahsan, learned Sr. ASC appearing on behalf of the persons exchanging private land with MDA supported the arguments of Mr. Ali Zafar, learned ASC for the Bahria Town, by adding that after the insertion of (ff) in Section 2 of the Malir Development Authority Act through an Amending Act of 2013, the expression consolidation has been given wider ring and connotation, therefore, it has to be read accordingly. The learned Sr. ASC contended that the enterprise of the Bahria Town consisting in building planned towns with ideal surroundings, green areas, stadium, five star hotels, etc. is perfectly in accordance with law; that entire property for building the town has been acquired in conformity with the modes recognized by law; that even if the Court at any stage gathers the impression that the price charged from the respondent is on the lower side that could be ignored. The learned Sr. ASC to support his contention placed reliance on the cases of Government of Punjab. Vs. M/s Crescent Textile Mills (PLD 2004 SC 108) and Dr. Akhtar Hassan Khan and others. Vs. Federation of Pakistan and others (2012 SCMR 455). The learned Sr. ASC next CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 17 contended that if by any means the Court comes to the conclusion that price of the property acquired by the respondent is less than the price then prevailing in the market, the respondent is willing to make up the deficiency. 5. We have gone through the record carefully and considered the submissions of learned ASCs for the parties. 6. The main issue raised in this case is that enormous tracts of government land were granted by the Board of Revenue to the MDA for launching incremental housing scheme. The MDA instead of launching the scheme on the land thus granted, exchanged it with the Bahria Town through its henchmen. Having thus placed, the Bahria Town proceeded to launch a scheme of its own. MDA defended the grant as well as exchange mentioned above. Bahria Town also defended the grant of the land and its exchange with the private land by seeking refuge under the provisions of the MDA Act providing for declaration of controlled area, preparation of Master Programme and scheme for a controlled area or part thereof. It also defended its scheme by referring to section 17(2) of the MDA Act as the Authority under the aforesaid provision has been given discretion to assist in the preparation of any scheme on the request of any local council, government agency, society, any person or body of persons on such terms and conditions which may be settled between them. While considering the issues raised before us and analyzing the viability of the defence, we have to see how the things originated, progressed and reached the desired culmination. The first step in this behalf is the declaration of controlled area. The relevant provision dealing with declaration of an area to be a controlled area is section 14 of the MDA Act which deserves a look and thus reads as under: CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 18 “14. The Authority may, by notification, declare any area under jurisdiction of Authority to be controlled area and issue such directions and do such things as may be necessary for the prevention of haphazard growth, encroachments, unauthorized constructions or operations in such area and for planned growth of the area.” What does the Authority consist of has been provided in section 4 of the MDA Act which reads as under: - “4. 1[“(1) The Authority shall consist of— (a) Minister for Local Government, Public Health Engineering, Rural Development and Housing Town Planning, Sindh Chairman (b) One Local Member of the Provincial Assembly to be nominated by Government Member (c) Secretary, Local Government, Public Health Engineering, Rural Development and Housing Town Planning Department Member (d) Commissioner, Karachi Member (e) Managing Director, Karachi Water and Sewerage Board Member (f) Director General Malir Development Authority Member/ Secretary (g) Two Person to be nominated by Government (one Technocrat and one from the Civil Society)”] Member (2) The Chairman shall be appointed by Government who shall hold office of a period of three years unless he resigns or is removed earlier. (3) A non-official member shall hold office for a period of three years unless he resigns or is removed earlier. (4) A non-official member may, at any time, by wiring under his hand addressed to Government resign his membership and the resignation shall take effect from the date on which it is accepted. (5) A casual vacancy in the office of non-official member shall be filed in accordance with sub-section (1) and the member so appointed shall hold office for the un-expired portion of the term of such vacancy.” A bare reading of the provisions reproduced above shows that the power to declare an area to be a controlled area lies with the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 19 Authority. The Authority is consisting of a Chairman, members of the Provincial Assembly of the area and many others as listed above. How a matter required to be decided by the Authority would be decided by the Authority has been provided in section 9 of the MDA Act which reads as under: “9. (1) Any matter required to be decided by the Authority shall be decided in a meeting of the Authority presided over by the Chairman, by vote of majority of the members present in such meeting. (2) Each member shall have one vote; provided that in case of a tie, the Chairman shall exercise a casting vote. (3) One-third of the total members shall form a quorum for a meeting of the Authority. (4) The Authority shall meet at such place and time and in such manner as it may prescribe.” Who issued the notification dated 26.12.2013 declaring 43 villages as a controlled area is evident from the notification which reads as under: “BOARD OF REVENUE, SINDH GOVERNMENT OF SINDH NOTIFICATION No.PS/SMBR/BOR/KAR/430, Karachi dated 26th December 2013. In exercise of the powers conferred under section 16(1) of the Malir Development Authority Act, 1993, the Government of Sindh has been pleased to allow Malir Development Authority to get physical survey and preparation of Road Network / Land used plan of the following notified dehs under its jurisdiction as controlled area for adjustment of affected private / acquired state land for development purpose through consultant so that proper planning and development scenario of the area is generated. 1. Lohar Kolang. 2. Mitha Ghar. 3. Katore 4. Ghaghar. 5. Dhabeji. 6. Khadeji. 7. Allah Phal. 8. Shah Mureed. 9. Dhando. 10. Narathar. 11. Konkar. 12. Darsano Channa 13. Tore 14. Mahyo. 15. Bazar 16. Shahi Chib. 17. Langheji. 18. Bolhari 19. Chuhar. 20. Amilano 21. Bayal 22. Karamtani-Lat 23. Bhad 24. Abdar 25. Mandro. 26. Moidan 27. Gadap 28. Khar 29. Sundi 30. Kharkharo 31. Tarari. 32. Jhunjhar 33. Malh CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 20 34. Lusar 35. Shoring 36. Hidarwah 37. Mehar Jabol. 38. Kund 39. Jung Khund 40. Shore Kundi. 41. Wan Kund 42. Sanharo. 43. Koteiro. The authority shall prepare specific, scheme or schemes for execution of the Master Programme in accordance with M.D.A. Act, 1993 amended Act, 2013, specified in Chapter-III and IV of the Act ibid, provided all codal formalities are completed as per law and policy. The Malir Development Authority and Revenue Authorities shall update the record of rights and keep entries in the computerized registers in the future, and so also safeguard the interest of the Government of Sindh. The concerned Deputy Commissioners and MDA shall update and sign the notification plan maps provided by MDA in light of the provisions of the Sindh Land Revenue Act, 1967. The signed copies of the maps and master plan may be sent to Board of Revenue, Sindh, as and when this exercise is completed. The Malir Development Authority shall abide by all enforced laws of the Provincial Government, directions and policies from time to time given by Government of Sindh. Sd/- Senior Member Board of Revenue, Sindh. No.PS/SMBR/BOR/KAR/430- Karachi dated: 26th December, 2013. A copy is forwarded for information and necessary action to : 1. The Chief Secretary, Government of Sindh, Karachi. 2. The Principal Secretary, to Governor of Sindh, Karachi. 3. The Principal Secretary to Chief Minister, Sindh, Karachi. 4. The Administrative Secretaries to G.O.S, ………….. (All in Sindh). 5. The Chairman, CMITE and IT, Karachi. 6. The Chairman Anti-Corruption and Enquiries, Sindh, Karachi. 7. The Director General, Malir Development Authority, Karachi. 8. The Inspector General of Registration, Sindh, Karachi with directions to bound down the Sub-Registrars to follow the above direction, while executing the documents. 9. The Commissioner. ………………………. (All in Sindh). 10. The Deputy Commissioner ………………( All in Sindh). 11. The P.S. to Minister, Local Govt. Karachi. 12. The Section Officer (L&C), Local Govt. Deptt: Karachi, with reference to his letter No.SO(L&C), HTP/MDA/9-37/2013, Dated: 24 December, 2013. 13. The Superintendent Govt. Printing Press, Karachi for publication in next gazette. 14. The P.S. to Secretary, Local Govt. Deptt: Karachi. Sd/- Section Officer (Admn) Board of Revenue, Sindh.” CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 21 The notification reproduced above shows that it was issued by the Senior Member Board of Revenue who does not figure anywhere in the entire scheme in general and section 14 of the MDA Act in particular. What canons of law and jurisprudence would justify an out-right departure from the provisions of the MDA Act has not been explained anywhere. What would be the value of such notification and what effect such declaration would have when it stemmed from a person who has no power and authority to issue it has been rather glossed over. What has stunned and startled us is that the notification thus issued has heavily been banked upon. A corrigendum at a later stage has been issued showing that the notification dated 26.12.2013 was indeed issued by the Secretary Local Government and Housing Town Planning Department, Government of Sindh but he too being a nonentity in the MDA Act neither has the power to declare an area to be a controlled area nor issue a corrigendum. When the basic notification has not been issued by the Authority in terms of section 4, 9 and 14 of the MDA Act, any structure raised thereon would automatically collapse. Reference could well be made to the judgement rendered in the case of Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). 7. What is a Master Programme; how and when it was prepared; what is its tangible form; what is its description in words and who approved it; what is a scheme, how has it been prepared, what does it consist of in terms of section 17(3), where has it been described in words and figures within the framework of the MDA Act have been asked time and again but none of the learned ASCs representing the parties bothered to answer the questions with reference to documents on the record. Land was reserved for MDA CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 22 as is apparent from the summary moved in this behalf. It was approved by the Chief Minister on 24.1.2014 but preparation of the Master Programme and schemes conforming thereto never saw the light of the day. A map at page 380 of CMA 1691/2018 was referred to with the marginal notes. We with the assistance of the learned ASCs for the parties tried to decipher the Master Programmes and the schemes therefrom but we could not find any. Learned ASC appearing on behalf of the Bahria Town contended that the Master Programmes or for that matter the schemes may not be palpable on the map but this Court while examining the entire spectrum projected in the case could suggest ways and means by stepping into the shoes of the Authority. Such approach, the learned ASC added, has to be adopted when this Court intervenes through an inquisitorial proceeding under Article 184(3) of the Constitution of the Islamic Republic of Pakistan to ensure proper development of the area and betterment of the people. This argument of the Learned ASC for the Bahria Town is quite tempting but what we have to see at the moment is whether the provisions of law providing for the preparation of the Master Programme and schemes were adhered to? Our answer to the question is in the negative as the MDA, without preparing the Master Programme and scheme worth the name, let the Bahria Town initiate and embark upon an adventure of its own. 8. Let us now see the tenability of the defence set up by the Bahria Town in terms of section 17(2) of the MDA Act. Before we discuss this aspect of the case it is worthwhile to refer to section 17(2) which reads as under: “Section 17(2)—The Authority may, on the request of any Local Council, Government agency, society or any person or body of persons, assist in preparation of, or caused to be CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 23 prepared, any scheme on such terms and conditions as may be settled between them.” This provision, so to say, provides for the assistance of the Authority on the request of any Local Council, government agency, society or any person or body of persons in the preparation of schemes on such terms and conditions as may be settled between them. But when did the managers of the Bahria Town request the Authority for assistance in the preparation of scheme and what terms and conditions have been settled in between them in this behalf has not been adverted to in the concise statement or during the course of the arguments nor their existence has been substantiated at any stage. How could the Authority own or espouse a scheme of the Bahria Town, which was prepared by the latter on its own without the assistance of the former in terms of Section 17(2) of MDA Act and how could this scheme be held to have been prepared, undertaken or executed under this Act in terms of Section 2(p) of the MDA Act are the questions which went uncommented. All this points to the conclusion as if the Bahria Town is the Authority and the Authority is just a pawn or a plaything in its hands. 9. Next comes the grant of land to MDA by the Board of Revenue and its exchange with private or kabuli land. What is the mode of grant of government land, what are the provisions regulating it and who are the persons such land could be granted to are pivotal questions whose answers can well be found in section 10 of COGLA 1912 which reads as under: “10. Issue of statements of conditions of tenancies. – (1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 24 (2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), such land shall, not be exchangeable with private or kabuli land. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of the [Board of Revenue], allot land to any person, to be held subject to such statement or conditions issued under sub-section (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. (5) If a person who has been granted, allotted or leased out, land after applicability of this Act to the Province of Sindh, or a person who may be granted land under this Act hereinafter for specific purpose has – (a) failed to deposit the occupancy price within a period of six months after the issuance of offer letter or allotment letter regarding grant, allotment or lease of land, such offer letter or allotment letter shall automatically stand withdrawn and shall not be restored; provided that the grantee, allotee or leasee may apply afresh for grant, allotment or lease of the land and the Competent Authority may make a fresh grant, allotment or lease as the case may be; and (b) failed to use the land for the purpose for which it was granted or allotted or converted or leased out and the period of five years from the date of grant, allotment, conversion or lease has expired, the grant, allotment conversion or lease of the land shall automatically stand cancelled and the amount deposited shall stand forfeited: Provided that the competent authority may extend the period for one year more in the justified cases on payment of ten percent (10%) of the occupancy prices Provided further that the Chief Minister may extend the period of completion of projects in respect of land granted for education and health purposes in the cases where the delay in completion of project is not on account of any negligence of part of grantee.” A careful examination of the section reproduced above shows that the government land could be granted to any person or tenant subject to the statement of conditions issued under section 10(2) of the said Act. Statement of conditions were purportedly issued under section 10(2) of COGLA 1912 by Government of Sindh, Land CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 25 Utilization Department vide notification no. 09-294-03-SO-I/336, Karachi dated 25th February 2006 and notification no. 09-294-03/SO- I/719, Karachi dated 10th November 2010. Land in this case has been granted to MDA under section 10 of COGLA 1912. It in its essence and substance is tenancy and not proprietary on any account as proprietary rights to a tenant or any other person could be granted under section 30 of COGLA 1912 but since section 30 has been omitted from the said Act by Sindh Repealing and Amending Act 1975 (Sindh Act XVII of1975) such rights cannot be granted to any. 10. Now the question arises whether a land granted under section 10 of COGLA 1912 could be exchanged with a private or kabuli land. Our answer to the question is a pointblank no, because section 10(2A) which has been given overriding effect over section 10(1) and 10(2) of COGLA 1912 provides in unequivocal terms that a land granted to any person under section 10 of COGLA 1912 is not exchangeable with a private or kabuli land. Section 17 of COGLA 1912, however, permits the exchange of tenancy for tenancy but does not permit the exchange of tenancy with private or kabuli land. The rationale behind this provision is that a land comprised in tenancy cannot be equal to the one comprised in proprietary. When the land comprised in tenancy is not equal to private or kabuli land, it cannot be exchanged with the other. Where a land granted under section 10 of the Act cannot be exchanged with private or kabuli land, its exchange being against law would be void ab initio. The learned Sr. ASC for the Board, in his effort to extricate the MDA and even the Bahria Town from the clutches of this prohibition referred to section 8(2)(iii), section 31 and 32 of the MDA Act and thereby sought to canvass at the bar that the aforesaid provisions in view of CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 26 section 47 of the MDA Act shall have effect notwithstanding anything contained in any other law, rules or regulation. Before we deal with this argument it would be imperative to refer to the aforesaid provisions: “Section 8 (2) The Authority may— (ii) acquire permanently or requisition temporarily property movable or immovable; (iii) dispose any land or other property vested in it by sale, lease exchange or otherwise. Section 31 — The Authority may, by purchase, lease or exchange, acquire any movable or immovable property or any interest therein by entering into an agreement with the party concerned. Section 32 – Where the Authority is of the opinion that nay land needed for any scheme or other public purpose cannot be acquired under section 31, such land may be acquired in accordance with the Hyderabad Development Authority Act, 1976 and any reference in that Act to the Hyderabad Development Authority shall be deemed to be a reference to the Authority” A look at section 8(2)(ii), section 31 and section 32 of the MDA Act reveals that the Authority has the power to acquire permanently any moveable or immoveable property by purchase, lease or exchange by entering into an agreement with the party concerned or in accordance with the provisions of the Hyderabad Development Authority Act 1976. Any property thus acquired would vest in the Authority which shall be free to dispose it of by sale, lease, exchange or otherwise in terms of section 8(2)(iii) of the MDA Act. But since the land granted to the Authority under section 10 of the COGLA 1912 is comprised in tenancy and not proprietary it cannot be said to have vested in the Authority. Since it cannot be said to have vested in the Authority, it could not dispose of such land by sale, lease, exchange or otherwise. Therefore, any disposal in any of the modes mentioned above would be void ab initio. In the case of Abdul Haq and others v CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 27 Province of Punjab and others (2007 SMCR 1525) this Court while dealing with a similar situation held as under: “A careful scrutiny of record would reveal that the said order had been passed by the learned Commissioner Sargodha Division in a casual and cursory manner without diligent application of mind by ignoring the fact that the State land could not have been exchanged with private land situated in Chak No. 40-A/M.B., proprietary rights whereof were obtained by the appellants about thirteen years back and mutations were also attested in their favour and duly registered in the Register Haqdaran Zamin. The closed and past transaction could not have been reopened by the Commissioner Sargodha Division having no locus standi whatsoever which amounts to misuse and abuse of authority never conferred upon him. The Commissioner Sargodha Division has violated the Government instructions contained in letter No. 1841-C dated 28-4-1932 which makes it abundantly clear that once the proprietary rights have been acquired in a grant no application for exchange could be entertained. For the sake of argument if it is conceded that the allocation of land in favour of appellants was not “by way of grant” even then State land pertained to Agriculture Department could not have been transferred with private land, proprietary rights whereof had been conferred upon the appellants. Besides that the Commissioner Sargodha Division has ignored the provision enumerated in section 17 of Colonization of Government Lands Act 1912 whereby only the State land can be exchanged for State land and therefore, the order passed by the Commissioner Sargodha Division was in utter violation of section 17 of Colonization of Government Lands Act, 1912.” The argument of the learned Sr. ASC for the Board that MDA being a purchaser having paid the entire amount of the purchase money cannot be deemed to be a tenant, therefore, it could exchange the land granted with private or kabuli land notwithstanding the provision contained in section 10(2A) and proviso to section 17 of COGLA, would have been tenable had the proprietary rights been granted to it. But since the provision providing for the grant of proprietary rights has been omitted by virtue of the amendment mentioned above, this argument being shorn of force cannot be accepted. The argument that MDA is carrying out various schemes such as Shah Latif Town, New Malir Housing Project and Taiser Town by exchanging the government land granted under section 10 of COGLA 1912 with private or kabuli land, therefore, exchange of land CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 28 granted to the MDA with private or kabuli land is not something unusual or unprecedented has not moved us because nothing has been brought on the record to show that land granted under section 10 of COGLA 1912 was ever exchanged with private or kabuli land. In case it is correct, two or any number of wrongs cannot justify another wrong or make it right. The argument that nothing in the Transfer of the Property Act would apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein by or on behalf of the Government to or in favour of any person, therefore, any transfer or adjustment in violation of the said Act cannot be held to be illegal or against law has no perceptible relevance to the controversy raised in this case as exchange in this case is illegal in view of the provisions contained in COGLA 1912 and not in view of the provisions contained in Transfer of Property Act. 11. Now let us see what was the purpose behind the grant of this land? We have been told time and again that the purpose behind the grant of this land to MDA is to launch an incremental housing scheme. Where does the ‘incremental housing scheme’ come from and what does it stand for? This scheme, so to speak, was introduced by substituting section 3 and adding section 10-A to section 10-F in COGLA through The Colonization of Government Lands (Sindh Amendment) Ordinance, 2005, Sindh Ordinance No. XIII of 2005. But it being promulgated by the Governor of Sindh under Article 128 of the Constitution of the Islamic Republic of Pakistan, was not a permanent legislation. Nor was it made an Act of the Provincial Assembly. It, therefore, stood repealed after the expiration of 90 days. With the repeal of the Ordinance, the Act was restored to its original position as it stood before the promulgation of the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 29 Ordinance. The incremental housing scheme and whatever was provided in section 3 and Section10-A to Section 10-F of the Ordinance disappeared altogether. However, in the statement of conditions many other terms with their meanings besides ‘incremental housing scheme’ have again been introduced in paragraph 2 of the statement of conditions which being relevant for the purposes of this case are reproduced as under: 2. In this statement of conditions, unless there is anything repugnant in the subject or context: - (a) "Act" means the Colonization of Government Lands Act, 1912; (b) “amenity purpose” means a use of plot of land for park, garden playground, graveyard, educational institution, health institution, reading rood, library, community centre and place for religious worship; (c) “authority” means a development authority established by Government under any law for the time being in force; (d) “autonomous body” means an autonomous body under the control of Government established under a law and includes an authority but does not include a council; (e) “commercial purpose” means a plot of land used or to be used for the Government; (f) “company” means a company registered under Companies Ordinance 1984; (g) “council” means a council constituted under the Sindh Local Government Ordinance, 2001; (h)“District Officer Revenue” means the District Officer (Revenue) as described in the Sindh Land Revenue Act, 1967 and includes:- (i) any officer appointed by the Board of Revenue to perform all or any of the functions and exercise all or any of the powers of the District Officer (revenue) under this Act; and (ii) any Colonization Officer or Assistant Colonization Officer appointed as such before the commencement of this Act, whether or not such officer was by notification appointed to perform all or any of the functions of a Deputy Commissioner under the Act hereby repealed; (i) “Executive District Officer (Revenue)” includes any officer appointed by the Board of Revenue to perform all or any of CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 30 the functions and exercise all or any of the powers of a Executive District Officer (Revenue) under this Act; (j) “flat site” means any plot of land used or to be used for constructing residential flats; (k) “Government” means the Government of Sindh; (l) “incremental housing” means a housing scheme sponsored by the Government, or an authority, or an autonomous body or a company for providing residential land to a family not exceeding 120 square yards; (m) “industrial purpose” means use of a plot of land as:- a) a cottage, small, medium and large industry or b) an Industrial Estate or c) an Information Technology Park or d) tourism including hotels that offer lodgings; (n) “land” means lands vesting in Government, authority or autonomous body and includes lands is used and may be used for agricultural, commercial, residential, residential cum commercial, industrial and amenity purposes; (o) “market price” means market price and includes occupancy value of the land prevailing at the time of disposal of the land by the Government under this Act; (p) “occupancy price” means the price paid by the occupant of Govt. land granted for non-agricultural purpose or a period not exceeding ninety nine years; (q) “project” means commercial, incremental housing, residential, flat site, residential-cum commercial industrial and amenity projects for which land is granted; (r) “residential cum commercial land” means use of land for construction of flats, shops and or private or public offices; (s) “residential land” means use of a plot of land for constructing residential houses; (t) “grant” means lease of land made under these conditions; (u) “price committee” means the District Price Committee appointed under condition No.8(1)(a); (v) “scrutiny committee” means by Scrutiny Committee appointed under condition 8(1) (b).” Addition of the expression amenity purpose, commercial purpose, incremental housing, industrial purpose etc and their meanings in paragraph 2 shows that the framers of the statement of conditions in their wisdom also decided to grant the land for the purposes mentioned above. But they instead of using the word ‘grant’ used CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 31 the word ‘dispose’ in paragraph 3 of the notification. The word ‘dispose’ has not been defined anywhere in the notification, therefore, its ordinary dictionary meanings are to be looked into. This word according to the Oxford Dictionary means to sell something to someone or get rid of it. But this meaning would tend to change the meaning of word grant as used in section 10 (2) of COGLA 1912, the parent statute which is restricted to grant of tenancy and not sale of proprietary. It becomes all the more clearer when the word ‘grant’ has also been used in the statement of conditions issued in 2006 and has been defined to mean “lease of land under these conditions”. The word ‘dispose’, therefore, has to be interpreted in harmony with the parent statue or read down as being an addition alien to the parent statute. For it is axiomatic and an extensively known principle of interpretation of statute that a subordinate legislation has to be interpreted in a way which conforms to and stays within the parameters of the parent statute. Such interpretation would be in harmony with the letter and spirit of section 10 of COGLA 1912 particularly after the omission of section 30 therefrom as held above. We, therefore, hold that the word ‘dispose’ or the word ‘grant’ would mean grant of tenancy and not proprietary right. 12. Alright with the addition of the expression incremental housing scheme to the statement of conditions issued in 2006 the land under section 10(2) of the COGLA could be granted for launching an incremental housing scheme. The Board, pursuant to the aforesaid conditions, granted land to Malir Development Authority for launching an incremental housing scheme. The Authority after the grant of land should have proceeded to launch the scheme itself. But to our regret and surprise, the Authority for the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 32 reason best known to it rather opted to exchange the land thus granted with private or kabuli land purchased by the dummies of the Bahria Town before fulfilling the legal formalities and even before taking its possession under section 10(4) of COGLA and thereby abdicated its authority in favour of the Bahria Town in violation of the provisions contained in sections 10(2A) and proviso to section 17 of COGLA. Whereas the Bahria Town with all its magical and mesmerizing prowess and paraphernalia dropped in the land and started the work with goebbelsian fanfare a day after the summary reserving the land for MDA was signed which can well be seen from the aggressive publicity in the newspapers of the following days. The Malir Development Authority which is all in all for the purposes of the MDA Act became a conduit to facilitate the designs of the Bahria Town. At times the MDA appears to have acted as a property dealer and even as a go-between in the deal. Likewise, the government of Sindh which is all in all for the purposes of COGLA acted as more of a collaborator than a protector of the government land. Grant of land to MDA for an incremental housing scheme proved to be a gimmick to accomplish the agenda of Malik Riaz aiming at his personal enrichment at the cost of the state and the people. It is, thus, a brazen betrayal of the trust of the state and the people and a blatant fraud on the statute. A business adventure of this type cannot be said to have any meaning for the poor people and as such cannot be held to have any of the trappings of a public purpose. 13. We have no doubt in our mind as held above that the land granted under section 10 of COGLA 1912 cannot be exchanged with private or kabuli land. But even if we assume by CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 33 ignoring the law that the Authority has the power to exchange the land granted under section 10 of COGLA 1912 with private or kabuli land, what mode was adopted for determining the status and price of the government land and that of the one it was exchanged for has not been explained by the learned ASCs appearing for the Board, MDA and Bahria Town. Nor has anything been brought on the record to show that the nature, character, location, potential of the land and those of the land it was exchanged for, stand on equal footing. There is also nothing on the record to explain why did the MDA exchange its compact and well-located blocks of land for scattered strips of land situated in far-off areas. What utility such strips of land could possibly have for MDA also went unanswered. It was stated that MDA paid Rs. 1.66 billion at the rate of 25% of the market price for 11068 acres in five villages to the Board and that MDA exchanged land measuring 7068 acres in 4 villages namely Bolhari, Langheji, Konkar and Kharkharo with henchmen of the Bahria Town in 39 villages. The value of the land of MDA in four villages has been worked out as Rs. 6.12 Billion (Rs. 6120 million) while the value of the land exchanged therefor has been worked out as Rs. 5.859 Billion (Rs. 5859 Million). The differential between the two has been worked out as Rs. 0.26 Billion (Rs. 260 million) out of which Rs. 0.24 Billion (Rs. 240 Million) has been paid, whereas only Rs. 0.02 billion (Rs. 20 Million) is outstanding. But nothing authentic has been brought before us to show as to what was the per acre price of the land in the 4 villages and what was the per acre price of the land situated in 39 villages. When the price of the land in any of the 39 villages has not been determined nor has any basis been provided for its determination, the differential being worked out at random cannot be given any CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 34 weight. All this shows that neither the Board nor the MDA cared a fig while dealing with this aspect. Everything appears to have been done mechanically without examining what has been poured in and what has been poured out as a result of exchange. How far the MDA was guided by its sense of proportion when it exchanged 68-30-19 acres situated in Langheji for 68-30-19 acres situated in village Mandaro, an area bordering Balochistan? What equation the MDA saw between 56-36 acres situated in Langheji and an area of 56-36 acres situated in Ghaghar which is bordering district Thatta to justify their exchange? Exchange of the property at Ghaghar for that in Langheji would bring the private owner windfall benefits but what would it bring the Authority when the area at Ghaghar being far off and bordering district Thatta is of no use when viewed in the light of the provisions of the MDA Act. An area of 10 acres situated in Langheji was exchanged for an area of 10 acres in village Shahi Chip which being situated in a far-flung area does not admit of a comparison with the area situated in Langheji. What parity did the Authority find between an area of 75 acres situated in Langheji and an area of 75 acres in Deh Jang Kund, a village situated in an area bordering Balochistan? What was common in between an area of 73 acres situated in Langheji and an area of 73 acres situated in Deh Darsano Chano in terms of their nature and location has been left to speculation. Likewise, no visible similarity is seen between an area of 44 acres situated in Langheji and an area of 44 acres situated in Dhabheji. An area of 68 acres situated in Bolhari was exchanged for an area of 68 acres situated in Deh Tore without ascertaining its surrounding and connectivity – the features which always matter in determining the status of the land. These are a few examples which CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 35 go a long way to prove that no homework was done by anybody at any level to strike a balance between the input and the output of exchange. Determination of differential in the absence of such homework would, therefore, be conjectural. A transaction thus settled cannot be held to be transparent. 14. An effort was made to protect the exchange of tenancy with private or kabuli land under the panoply of section 2(ff) of the MDA Act without appreciating what does the aforesaid provision precisely say. It would, therefore, be worthwhile to refer to the said provision which reads as under: “2(ff) – consolidation of land means adjustment of plots in a scheme by way of exchange or otherwise for the purpose of the scheme” Even a cursory glance at the aforesaid provision would show that it does not deal with the exchange of a land for a land. It indeed deals with adjustment of plots in a scheme by way of exchange or otherwise. Plot according to the definition as given in Rule 2(j) of the Malir Development Authority Disposal of Plot Rules 2006 means: “j). “Plot” includes a residential plot, residential cum commercial plot, industrial plot, commercial plot, or flat site in any scheme”. The word “adjustment” if seen in the light of the definition as given above, by no means covers the exchange of a land for a land in a set-up where no scheme has been prepared even in terms of conception. Granted, that The Malir Development Authority (Consolidation, Adjustment, Exchange of private survey lands and state land) Regulations 2013 provides procedure for exchange of a land for a land but it being against the provisions of the parent statute cannot be sneaked in when according to the latter the expression adjustment means adjustment of plots in a scheme for the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 36 purposes of the scheme. Reference to section 2(ff) being an attempt to clutch at a straw cannot help justify the exchange of a land for a land. 15. What was the occasion calling for the reduction of the prices which were fixed in 2006 notwithstanding the passage of time in between 2006 and 2011 brought an exponential increase therein. What business the secretariat of the President had in the fixation of the prices of the land when the matter relating to land lay within the domain of the province? What weighed and proved to be the catalyst can well be gathered from the summary which is reproduced as under: “GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT SUMMARY FOR THE CHIEF MINISTER, SINDH SUBJECT: FIXATION OF RATES OF LAND UNDER CONDITION NO.8(1)(b) OF THE STATEMENT OF CONDITIONS FOR GRANT OF STATE LAND FOR NON- AGRICULTURAL PURPOSE AND RECOMMENDED THE CATEGORIZATION OF GOVERNMENT LAND FOR ALLOTMENT OF VARIOUS PURPOSE. The facts of the case are that Chairman Association of Builders and Developers of Pakistan (ABAD) has made an application to the Honourable President, Republic of Pakistan to rationalize the rates of different Dehs (Annexure- A). The Deputy Director (HD), President’s Secretariat (Public Aiwan-e-Sadr Islamabad has forwarded the same to the Chief Secretary Government of Sindh Karachi for such action as deem appropriate as per rule in the matter vide President’s Secretariat U.O. No. 10(106)Dir(HD)/2010(11), dated 21.04.2011 (Annexure-B). 2. Scrutiny Committee was constituted under Condition No.8(1)(b) under Statement of Conditions and in its meeting held on 18.05.2011 (Annexure-C), the Karachi and Association of Builders and Developers of Pakistan (ABAD). After thorough deliberations, the Committee has recommended the following categorization of land and market price for next three years as provided under the said condition:- i) Categorization of Government land for allotment of various purposes was recommended as under:- Category A- 1: Area upto 200 meters falling along with both sides of National, Super and Provincial Highways and other roads having widths of 30 feet CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 37 metaled area. Note: This category will not be applicable for the allotment of industrial purpose. Category A: Area upto one kilometer beyond the area of Category-A-1. Note: Industrial plot falling on Highway/Super Highway shall be charged rates of Category “A”. The definition of industrial sites may include amusement parks, tourist resorts, hotels and cold storage etc which have commercial potential. Category B: Area upto one kilometer beyond the area of Category-A. Category C: Area upto one kilometer beyond the area of Category-B. ii) Keeping in view the current market prices, the prices for the different dehs were recommended by the Committee as under :- “GADAP TOWN” Sr. No . Name of Deh Description Categ ory A-I Categ ory A Categ ory B Categ ory C 1. Bund Murad Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 36 Lac 25 Lac 25.2 Lac 24 Lac 18 Lac 18 Lac 14 Lac 12 Lac 12 Lac 8 Lac 6 Lac 6 Lac 2. Allah Phihai Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 25 Lac 25 Lac 20 Lac 18 Lac 18 Lac 12 Lac 12 Lac 12 Lac 6 Lac 6 Lac 6 Lac 3. Khadej i Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 25 Lac 15 Lac 18 Lac 15 Lac 10 Lac 15 Lac 12 Lac 7.5 Lac 8 Lac NIL - NIL 4. Abdar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 10 Lac 15 Lac 15 Lac 7.5 Lac 10 Lac 10 Lac 5 Lac 8 Lac NIL - NIL 5. Chuha r Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 20 Lac 20 Lac 20 Lac 25 Lac 15 Lac 15 Lac 15 Lac 10 Lac 10 Lac NIL - NIL 6. Jam Chakr o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 30 Lac 25 Lac 20 Lac 15 Lac 15 Lac 10 Lac NIL NIL CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 38 2011 Rates recommended by Scrutiny Committee in 2011. 25 Lac 15 Lac 10 Lac - 7. Boil Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 15 Lac 15 Lac 15 Lac 10 Lac 10 Lac 10 Lac 8 Lac 8 Lac NIL NIL 8. Narath ar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 20 Lac 20 Lac 20 Lac 12 Lac 12 Lac NIL 10 Lac 10 Lac NIL NIL - 9. Mitha Ghar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 10 Lac 15 Lac 15 Lac 5 Lac 10 Lac 10 Lac 4 Lac 7 Lac 7 Lac NIL NIL - 10. Mai Garhi Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 25 Lac 25 Lac 20 Lac 15 Lac 15 Lac 15 Lac 8 Lac 8 Lac NIL NIL - 11. Tore Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 50 Lac 50 Lac 75 Lac 40 Lac 40 Lac 60 Lac 30 Lac 30 Lac NIL NIL - 12. Konker Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 50 Lac 20 Lac se Lac 40 Lac 15 Lac 20 Lac 30 Lac 10 Lac 15 Lac NIL NIL - 13. Kharkh aro Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 70 Lac 35 Lac 35 Lac 50 Lac 25 Lac 25 Lac 40 Lac 20 Lac 20 Lac NIL NIL NIL 14. Mandr o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 10 Lac 8 Lac 8 Lac 8 Lac 5 Lac 6 Lac 6 Lac 4 Lac 4 Lac NIL NIL NIL CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 39 Rates recommended by Scrutiny Committee in 2011. 15. Surjani Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 60 Lac 60 Lac 60 Lac 50 Lac 50 Lac 50 Lac 30 Lac 30 Lac 30 Lac NIL NIL NIL 16. Metan Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 20 Lac 25 Lac 20 Lac 12 Lac 15 Lac 15 Lac 8 Lac 10 Lac NIL NIL NIL 17. Gada p Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 8 Lac 8 Lac - 5 Lac 5 Lac - 3 Lac 4 Lac - NIL 2 Lac 18. Karmat iani Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 8 Lac 8 Lac - 6 Lac 6 Lac - 4 Lac 4 Lac - 2 Lac NIL 19. Shahi Chip Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 20 Lac 20 Lac - 10 Lac 10 Lac - 8 Lac 6 Lac - 3 Lac Nil 20. Huder wah Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 15 Lac 15 Lac - 10 Lac 10 Lac - 7 Lac 7 Lac - NIL NIL 21. Bolhari Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 8 Lac 8 Lac - 6 Lac 6 Lac - 4 Lac 4 Lac - 2 Lac Nil 22. Langh eji Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 10 Lac 10 Lac - 6 Lac 6 Lac - 4 Lac 4 Lac - 2 Lac Nil CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 40 23. Malh Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 40 Lac 50 Lac - 30 Lac 40 Lac - 20 Lac 20 Lac - Nil Nil 24. Bazar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 30 Lac 30 Lac - 15 Lac 15 Lac - 10 Lac 10 Lac - Nil Nil 25. Darsan o Chano Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 20 Lac 25 Lac - 15 Lac 20 Lac - 10 Lac 10 Lac - - Nil 26. Taiser Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 70 Lac 80 Lac 70 Lac 50 Lac 70 Lac 50 Lac 40 Lac 60 Lac 40 Lac Nil Nil Nil 27. Bijar Buthi Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 60 Lac 70 Lac 70 Lac 50 Lac 50 Lac 50 Lac 40 Lac 40 Lac 40 Lac Nil Nil Nil 28. Nagan Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 60 Lac 60 Lac - 50 Lac 50 Lac - 40 Lac 40 Lac - Nil Nil 29. Mokhi Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 7.475 million 70 Lac 70 Lac 6.25 million 50 Lac 50 Lac 5.175 million 40 Lac 40 Lac Nil Nil Nil 30. Mangh opir Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 50 Lac 50 Lac - 40 Lac 40 Lac - 30 Lac 30 Lac - Nil - 31. Halkan i Rates Notified by Govt. in 2006 50 Lac 40 Lac 20 Lac Nil CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 41 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 25 Lac 35 Lac 17 Lac 25 Lac 12 Lac 15 Lac Nil - 32. Thadh o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 35 Lac 35 Lac - 25 Lac 25 Lac - 15 Lac 15 Lac - Nil - 33. Kathor e Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 50 Lac 60 Lac - 40 Lac 40 Lac - 20 Lac 20 Lac - 10 Lac 10 Lac 34. Amilan o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 5.75 million 40 Lac 45 Lac 4.6 million 30 Lac 35 Lac 3.45 million 25 Lac 25 Lac 1.15 million - Nil 35. Shah Muree d Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 25 Lac 25 Lac - 15 Lac 17 Lac - 10 Lac 10 Lac - Nil Nil 36. Mahyo Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 30 Lac 25 Lac 25 Lac 20 Lac 20 Lac 20 Lac 12 Lac 15 Lac 15 Lac 6 Lac 10 Lac 10 Lac 37. Lohark o Langh Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 8 Lac 8 Lac 8 Lac 6 Lac 6 Lac 6 Lac 4 Lac 4 Lac 4 Lac Nil Nil Nil “BIN QASIM TOWN” Sr. No . Name of Deh Description Categ ory A-I Categ ory A Categ ory B Categ ory C 1. Khanto Rates Notified by Govt. in 2006 Rates proposed by ABAD in 1 Crore 90 Lac 70 Lac 60 Lac 50 Lac 30 Lac Nil Nil CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 42 2011 Rates recommended by Scrutiny Committee in 2011. 90 Lac 60 Lac 40 Lac Nil 2. Pipri Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 60 Lac 60 Lac 70 Lac 40 Lac 40 Lac Nil 30 Lac 30 Lac Nil Nil Nil 3. Dhabe ji Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 10 Lac 20 Lac - 6 Lac 15 Lac 5 Lac 4 Lac 10 Lac - Nil 6 Lac 4. Bakra m Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 55 Lac 60 Lac 70 Lac 45 Lac 50 Lac Nil 25 Lac 30 Lac Nil Nil Nil 5. Joreji Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 80 Lac 80 Lac 70 Lac 50 Lac 60 Lac 50 Lac 30 Lac 40 Lac Nil Nil Nil 6. Landhi Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 80 Lac 90 Lac 70 Lac 40 Lac 70 Lac 40 Lac 25 Lac 40 Lac Nil Nil Nil 7. Ghagh ar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. Nil Nil 20 Lac 15 Lac 15 Lac 15 Lac 10 Lac 10 Lac 10 Lac Nil 5 Lac 6 Lac 8. Koterir o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 50 Lac 40 Lac 40 Lac 40 Lac 30 Lac 30 Lac Nil 20 Lac 20 Lac Nil Nil Nil 9. Ibrahi m Hyderi Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 1 Crore 70 Lac 70 Lac Nil 50 Lac 50 Lac Nil 25 Lac 25 Lac Nil 15 Lac 15 Lac CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 43 Rates recommended by Scrutiny Committee in 2011. 10. Rehri Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 1 Crore 70 Lac 70 Lac 70 Lac 50 Lac 50 Lac 50 Lac 25 Lac 25 Lac Nil 15 Lac 15 Lac 11. Gangi aro Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 80 Lac 70 Lac 70 Lac 60 Lac 50 Lac 50 Lac Nil 40 Lac 40 Lac Nil 30 Lac 30 Lac 12. Dhand ho Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. Nil Nil 15 Lac 10 Lac 10 Lac 10 Lac Nil 8 Lac 6 Lac Nil Nil Nil 13. Khakh ar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 15 Lac 15 Lac - 8 Lac 8 Lac - 5 Lac 5 Lac - 4 Lac 4 Lac 14. Sanehr o Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 20 Lac 20 Lac - 15 Lac 15 Lac - 8 Lac 10 Lac - Nil Nil “KEAMARI TOWN” Sr. No . Name of Deh Description Categ ory A-I Categ ory A Categ ory B Categ ory C 1. Allah Bano Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - Nil 10 Lac 12 Lac 8 Lac 8 Lac 8 Lac 6 Lac 6 Lac 6 Lac 4 Lac 4 Lac 2. Lal Bakhar Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 40 Lac 30 Lac 30 Lac 30 Lac 25 Lac 25 Lac 10 Lac 15 Lac 15 Lac 7 Lac 5 Lac 10 Lac 3. Maindi Rates Notified by Govt. in Nil 12 Lac 8 Lac 6 Lac CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 44 ary 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. Nil 10 Lac 8 Lac 8 Lac 6 Lac 6 Lac 4 Lac 4 Lac 4. Moach Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 40 Lac 40 Lac 40 Lac 30 Lac 30 Lac 30 Lac 20 Lac 20 Lac 20 Lac Nil Nil Nil 5. Gabo Pat Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. Nil Nil 20 Lac 15 Lac 12 Lac 15 Lac 10 Lac 8 Lac 10 Lac - Nil Nil 6. Moach ko Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 40 Lac 40 Lac 40 Lac 30 Lac 30 Lac 30 Lac 20 Lac 20 Lac 20 Lac Nil Nil Nil 7. Gundp ass Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. 40 Lac 30 Lac 35 Lac 30 Lac 20 Lac 25 Lac 20 Lac 15 Lac 15 Lac Nil Nil Nil 8. Chath ara Rates Notified by Govt. in 2006 Rates proposed by ABAD in 2011 Rates recommended by Scrutiny Committee in 2011. - 10 Lac 10 Lac - 5 Lac 8 Lac - 3 Lac 6 Lac - 2 Lac 4 Lac 3. It is proposed that the market price of the land as recommended by the Scrutiny Committee in respect of above Dehs may be approved, so that the same may be notified as per Condition No. 8(3) of the Statement of Conditions and Categorization of state land 4. It is further proposed that permission may also be accorded to apply revised rates for the cases processed and cleared by Scrutiny Committee from 1st April, 2011. 5. The Honourable Chief Minister Sindh, may like to pass orders on Para 2, 3 and 4. Sd/- SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 45 6. Sd/- SENIOR MEMBER. 7. Sd/- SECRETARY FINANCE. 8. Sd/- MINISTER FINANCE. 9. Sd/- CHIEF SECRETARY. 10. Sd/- CHIEF MINISTER SINDH.” The table reproduced above shows that the prices in 2006 were much higher than those fixed in 2011. They, in certain cases, are not even half of what they were in 2006. This phenomenon is amazing and even intriguing because every passing day brings a manifold increase in the prices of the land, but here in this case the clock rolled back and prices witnessed a marked decline in 2011. The learned ASC for the Board of Revenue explained the aforesaid phenomenon by stating that no Town Builder in view of the prices fixed in 2006 came forward to invest in this enterprise but this statement is against the inexorable current trend of the market which admits of no exception. The in no case stay static or step down. They, as a matter of fact, get multiplied in days let alone weeks, months and years. What procedure has been prescribed for determination of market price has been highlighted in paragraph 8 of the notification No. 09-294-03-SO-I/336 dated 25.2.2006 reproduced as under: “8. Procedure of determination of market price. –(1) There shall be appointed – (a) a price committee consisting of the Executive District Officer (Revenue) to be the convener, Executive District Officer Finance, District Officer (Revenue), District Registrar, Deputy District Officer (Revenue) and two nominees of the local Chamber of Commerce and Industries, one of them shall be from the real estate business shall propose the market price; CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 46 (b) a scrutiny committee consisting of the Senior Member Board of Revenue as convener, Secretaries of the Land Utilization, Finance and concerned Department of the Government, Chairman Investment Cell Chief Minister’s Secretariat and two representatives of Karachi Chamber of Commerce and Industry, one of them shall be from the real estate business, to process the market price proposed by the Price Committee and make recommendations to the Government in this behalf. (2) The Price Committee shall propose the market price in the District after taking into consideration:- (i) the price of land transferred in the same area for similar use during the past twelve months; (ii) the valuation table notified by the Board of Revenue, Sindh under the Stamp Act, 1899 for the purpose of levy of stamp duty at the time of registration of a sale-deed in respect of sale of similar land; and (iii) such other modes as deemed fit provide a fair basis for assessment of such price. (3) The Price Committee shall submit its recommendation to the Scrutiny Committee which shall after such further enquiry as deemed fit submit its recommendation to Government for determination of the market price. (4) The market price determination under section 8(3) may be reviewed at least after every three years.” Reduction in prices, thus, cannot be said to have been based on any reliable, rational or realistic data. It rather appears to have been contrived and conjured to the advantage of the builders and disadvantage of the government. Even the committee constituted in this behalf has not cited any tenable reason to justify reduction in prices. What mode was adopted for determining market price under paragraph 8(2)(i)(ii)&(iii), reproduced above, is a question which went unanswered. Why the land was not granted through an open auction in view of para 4(a) of statement of condition issued in 2006 notwithstanding the Board and the MDA knew all along that it would be used for commercial purposes at the end of the day is a riddle which went unsolved. We, therefore, do not agree with the aforesaid CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 47 reduction nor do we tend to accept it as rationalization of price in any sense of the word. 16. This Court anticipated all this when it passed the order on 28.11.2012 restraining the Sindh Government from dealing with the State land. The relevant part of the order is reproduced as under: "7. Under these circumstances, we are constrained to direct that the Deputy Commissioner/District Coordination Officers of Sindh, to ensure that immediately the entire revenue record of all the district is kept in the custody of Muthtiarkar in terms of the directives contained in the aforesaid judgment of the High Court and shall not be removed from the office of the Mukhtiarkar to any other place. Moreover mindful of rampant corruption and organized crime of land grabbing, particularly, regarding prime state land, and mismanagement/forgeries in the revenue record, we hereby, until further orders restrain the Government/Revenue Department from mutation, allotment, transfer and or conversion of any state land and or keeping any transaction or entry in the record of rights in this regard in revenue record of Sindh or till the entire revenue record in Sindh is reconstructed. The conversion of lease for 30 years or of any term up to 99 years shall also be stopped immediately as by this mode the state land is being sold out at a throwaway price without participation of public at large, which the law does not permit. Any further conversion or mutation of state land in the record of rights from today onwards would be deemed nullity and would expose the Deputy Commissioner/DCO of the relevant districts/dehs besides others to contempt proceedings. A statement was made by the learned Sr. ASC representing the Senior Member Board of Revenue and Ch. Aitzaz Ahsan, learned Sr. ASC representing the Bahria Town that the aforesaid restraining order was modified by a three-member bench of this Court but it sounds strange because a three-member bench could not modify an order passed by a five-member bench. Even otherwise, this contention was repelled by this Court in its order dated 01.08.2016 by observing as under: “8. Today, the learned Counsel representing the Senior Member, Board of Revenue, and Ch. Aitzaz Ahsan, learned Sr.ASC, have submitted that the aforesaid restraining order was modified, by order dated 23.06.2014, passed by a three- member Bench, relevant portion of the said order is also reproduced hereunder:- CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 48 Learned Advocate General, Sindh, submits that the order of this Court regarding stay of allotments, mutations, transfer and conversion of any state land is being complied with in letter and spirit. 6. We may at this stage clarify that this order staying the allotment/grant of leases was meant to ensure that the land is not either leased out or allotted for reasons other than bona fide and to land grabbers and this would not prevent the competent authority in the Federal or Government of Sindh to allot or lease out land for a project approved by the concerned authority which is directed towards establishment of any industry or automotive plant or power generating plant or any other initiative in public interest and in accordance with law and the relevant rules. The learned Advocate General, Sindh, shall convey this order to the Chief Secretary and all the provincial secretaries to ensure that the earlier order is not misconstrued and no such project is held up on that account. 9. We may clarify that the aforesaid order dated 23.06.2014 was obtained by misleading the Court on the pretext that re-writing/reconstruction of the record has been completed by the Sindh Government. Today, the Senior Member, Board of Revenue, concedes that the reconstruction and rewriting of the record has not been completed till date. We hold that the order dated 28.11.2012, passed by a five Member Bench of this Court, was never modified and holds the field 10. This Application is allowed, subject to all just exceptions. 11. Copy of this order be faxed to the Chief Secretary, Government of Sindh, D.G, MDA, the Prosecutor General, NAB, Ch. Aitzaz Ahsan, learned Sr. ASC and Mr. K.A Wahab, AOR (C.M.No.502-K of 2016).To come up after two months.” When the order restraining the Sindh Government from dealing with the state land in any manner till the reconstruction of the entire revenue record was passed no property could be exchanged, adjusted or alienated but the Board, the MDA and Bahria Town having shown scant regard to the orders of the Court exchanged the land, took possession of a great deal of property and raised CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 49 construction thereon. Anything thus done cannot be allowed to endure even for a while. It even on this score cannot be granted any legitimacy. 17. A detailed analysis of the case irresistibly drives us to the conclusion that nothing has been done in accordance with the policy, plan and pattern projected by the relevant enactments. Everything appears to have been justified on the ground that it is a fait accompli. Damage done to the people and loss caused to the coffers of the state is sought to be offset by offering to pay the differential between the price of the government land and that of the private land it was exchanged for, but the things having gone irrevocably too far leave no scope for acceptance of such an offer. It is rather a case of its own specie where the Board bypassed the command of law and chose to dance at the drumbeats of a business tycoon without caring what the law provided and what the Supreme Court asked of it. The Malir Development Authority too chose to follow the dictates of the business tycoon without caring what the dictates of the MDA Act were. How the project can be said to have been carried under the umbrella of Malir Development Authority when the entire government land has been sold to the Bahria Town for a paltry sum or exchanged for a land lying scattered in far-off areas? What was the magic, the marvel and the miracle that dazed and dazzled the Board and the Authority to bypass the law and the rules? What was the impetus, the incentive and the inciting force that lent a lightning speed to the Board and the Authority to cover the distances of years in days, hours and minutes? Such rapidity may have been seen in movies but not in the real life. How the builders like the Bahria Town could cater for incremental CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 50 housing schemes when the project it launched attracted the people rolling in billions? We do not understand how the Chief Minister, the Chief Secretary and persons at the perch of the Board of Revenue became privy to an individual project where public purpose, public betterment and public welfare cannot be seen even through a microscopic eye. The argument of the learned Sr. ASC for the respondent addressed on the strength of the judgements rendered in the cases of Government of Punjab. Vs. M/s Crescent Textile Mills (supra) and Dr. Akhtar Hassan Khan and others. Vs. Federation of Pakistan and others (supra) would thus sound inane and unconscionable. We needed to be assisted and enlightened by the Learned Senior ASCs for the Board, the MDA and the learned Advocate General Sindh with an element of independence but all the three have rather projected the case of the Bahria Town than that of the Board and the Authority. Provisions of Colonization of Government Lands Act and Malir Development Authority Act have been designedly interpreted as if they were enacted for the project launched by the Bahria Town. The mode and manner of doing the things prima facie show that the entire hierarchy of the Executive, the Board of Revenue and the Malir Development Authority conspired to cede valuable public property to an individual for a handful gain. We have been witnessing such nefarious activities in the past at a small level, but we have not even dreamt of such activities at such a huge, massive and colossal level. We, thus, cannot sit with our eyes shut, hands folded and legs crossed. Inaction would be disastrous and devastating for the state when the watchdogs of the public property allow the grabbers to grab it for a bone or a piece of flesh. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 51 18. Having thus considered, we are constrained to declare that the grant of the land to the MDA, its exchange with the land of the Bahria Town and anything done pursuant thereto being against the provisions of COGLA 1912 and statement of conditions are void ab initio and as such have no existence. The government land would go back to the government and the land of the Bahria Town exchanged for the government land would go back to the Bahria Town. Since a great deal of work has been done by the Bahria Town and a third-party interest has been created in favour of hundreds of allotees, the land could be granted to the Bahria Town afresh by the Board of Revenue under the provisions of COGLA 1912. What would be the terms and conditions of grant, what would be the price of the land, whether it would be the one at which the Bahria Town sold the land to the people by and large, how much of government land and how much of the private land has been utilized by the Bahria Town, and what Bahria Town is entitled to receive in terms of money on account of development of the land are the questions to be determined by the implementation bench of this Court. We, therefore, request the Honorable Chief Justice of Pakistan to constitute a bench for the implementation of this judgement in its letter and spirit. Bahria Town shall not sell any plot, built-up unit, apartment etc after the announcement of this judgement. Any allotment made after the announcement of this judgement shall be void. As a huge amount on account of allotment of plots, built-up units and commercial buildings is still outstanding against the allottees, some makeshift arrangement has to be made to facilitate the recovery and secure it. We, therefore, direct the Additional Registrar of the Karachi Registry to open a special account where CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 52 the outstanding amount against the allotments be deposited. All the outstanding amount against allotment of plots, built-up units and commercial buildings shall henceforth be deposited by the allottees with the Additional Registrar of the Karachi Registry of this Court through pay orders, demand drafts or cross-cheques. The NAB shall pick up the thread from where it left and take its investigation to its logical end. The investigation report which was submitted in the Court and sealed under its order may now be collected for further action. The investigation be completed within a period of three months from the date of announcement of this judgement and a reference be filed in the Accountability Court against all those who are found responsible for causing loss to the state exchequer. We have been told that government land has also been allotted to DHA and many other societies on cheaper rates as compared to the rates in this case. If so, we would request the Honourable Chief Justice of Pakistan to take Suo Moto action in this behalf so that like be treated alike. 19. While parting with the judgement, we would thank Barrister Sohaib Shahid, the Law Clerk who rendered valuable assistance in this case. JUDGE I had the privilege of going through the judgement authored by my learned brother Justice Ejaz Afzal Khan, but have not able to persuade myself to agree with the same and would therefore respectfully add my dissenting note annexed herewith. JUDGE JUDGE Announced in open court at Islamabad on ______________________ JUDGE Approved for reporting Barrister Sohaib Shahid CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 53 MAQBOOL BAQAR, J.- The question that is to be addressed in the present proceedings is as to whether the lands granted to Malir Development Authority (“MDA”) by the Board of Revenue (“BOR”), Government of Sindh (“GoS”), were exchanged by MDA with privately owned lands, lawfully or otherwise. 2. In order to address the above issue properly, we firstly need to examine the powers, authority and functions of MDA and its relationship with the subject lands. MDA was created by Malir Development Authority Act, 1993 (“the Act”), for the purpose of development of certain areas of Karachi Division as enumerated in its schedule. Amongst its various functions, as specified through section 8 of the Act, are “to consolidate any land in such manner as may be prescribed by rules”. [Section 8(1)(iii-a)]. To “dispose of any land or other property vested in it by sale, lease, exchange or otherwise”. [Section 8(2)(iii)]. To “perform such other function as may be considered necessary for achieving the objective of the authority or as assigned to it by the government”. (Section 8(1)(xxi). Chapter-III of the Act deals with the power of MDA regarding declaration of controlled area, preparation of master CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 54 programmes, and schemes, and their execution. In terms of section 14 of the Act, MDA may by notification, declare any area under its jurisdiction to be a controlled area, and to proceed to prevent haphazard growth, encroachments, unauthorized constructions or operations in such area, and take steps for the planned growth therein. As per section 15 of the Act, neither can any building be erected, nor can any material external alteration in, or addition to, be affected in any building without the permission of the authority. MDA, in terms of section 16 of the Act, is obliged to prepare Master programme(s) for the development, improvement, expansion and beatification of such area, or such sectors of economy, as in its opinion, or in the opinion of Government need to be developed, improved, expanded and beautified, and submit such programme for approval of Government. MDA, as laid down by section 17(1) of the Act, may also prepare specific scheme or schemes for a controlled area, or a part thereof, either on its own accord or when so directed by the government. In terms of sub-section 2 of section 17 of the Act, MDA also may, on the request of any local council, government agency, society, person or body of persons, assist in preparation of, or caused to be prepared, any scheme on such CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 55 terms and conditions as may be settled between them. The scheme prepared by MDA, in terms of clause (d) of sub-section 4 of section 17 of the Act, may, among other things, contain “public or private property or such interest affected by the scheme and the proposal to deal with such property or interest”. As provided by section 31 of the Act, MDA “may by purchase, lease or exchange, acquire any moveable or immovable property or any interest therein by entering into agreement with the party concerned”. 3. As regard the legality and propriety of the subject transaction, the learned counsel appearing for the various parties argued the case almost on similar lines. They thus submitted that MDA in order to carry out its statutory functions, to prepare and execute scheme(s) within its jurisdiction of authority, required a vast stretch of land, clear of all physical and legal obstructions, and encumbrances. In this regard it was imperative for MDA to declare such area to be its controlled area, so that it may prevent haphazard growth, encroachments or unauthorized construction therein (section 14). MDA thus in its meeting held on 12.1.2008, unanimously resolved to declare two areas falling within its jurisdiction, one compromising of two dehs, namely, Ghaghar, CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 56 Dhabeji, and the other comprising of seven Dehs, namely, Allah Phihai, Shah Mureed, Narathar, Konkar, Tore Mohyo and Shahi chib, as controlled areas for its development schemes, by the name of, new Malir Housing Project, MDA Scheme-I, Phase-II, and Taiser Town Phase-II. The above nine dehs were thus, through a notification dated 25.2.2008, declared as controlled area. MDA in its meeting held on 4.2.2013, resolved to expand its controlled area by including thirty seven (37) more Dehs within such area, to enable it to “prepare a master programme for development of planning infrastructure and land use plan”. Through notification dated 20.5.2013, the aforesaid thirty seven (37) dehs also were thus declared as controlled area. On 23.7.2013, MDA floated a summary for the Chief Minister Sindh seeking his permission for “survey and preparation of road network/land use plan” of the notified Dehs and for the “adjustment of affected private survey lands” to enable MDA to develop the area and launch its new housing scheme(s). The summary was routed through proper channel, and was, after scrutiny, allowed by the Chief Minister on 05.11.2013. A notification in pursuance of the above, granting permission to MDA for physical survey and preparation of “road network/land use plan” of the controlled area “and CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 57 adjustment of affected private/acquired state land required for development purpose” was issued on 26.12.2013. A detailed master programme, titled, “Master Programme Scheme-1 (Phase-I- comprising of 32 dehs out of 43 dehs), (MPS-I), and preparation of PC-I of schemes, or schemes for execution of the master programme”, was unanimously approved by MDA in its meeting held on dated 24.1.2014. The authority in its said meeting also approved “the proposal for consolidation/ adjustment/exchange of the affected private/acquired state land” in the controlled area. The approval was duly notified by MDA through notification dated 28.1.2014. 4. The learned counsel further submitted that, since throughout the controlled area there were stumbling blocks in the way of the execution of the MPS-I, by way of private land holdings, which holdings were essentially required by MDA for implementation/execution of the scheme, and for acquiring such lands MDA was required, either to pay to the private owners, the price of the lands, or to give to the owners some lands in exchange thereof, but MDA was under severe financial crunch, and had no funds to pay for the purchase of the land, nor was the Government in a position to finance the purchases. In fact as noted by the consultant in their MPS-I CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 58 Report, the scheme so prepared was a self-financing scheme and was not included in the than five years plan, or the provincial annual development plan. However, as noted earlier, MDA, in terms of the various provisions of the Act, also have had the option of acquiring such land(s) by way of exchange, but though the land comprising the aforesaid 43 Dehs fell within its jurisdiction, and was also declared its controlled area in terms of section 14 of the Act, still, for MDA to give any land in exchange, such land was required to be transferred in its name. MDA therefore, through letter dated 01.1.2014, requested the Board of Revenue Sindh (BOR) to reserve some land(s), to enable MDA to exchange the same with the private land holding coming in the way of implementation of its development scheme(s). The matter was ultimately placed before the Chief Minister Sindh and was then referred to a scrutiny committee. The scrutiny committee, which was headed by the Chief Secretary Sindh, with the Secretaries, law, Land Utilization, Finance, Local Government, Government of Sindh (GoS), Senior Member BOR, Commissioner Karachi, and Deputy Commissioner, Malir, amongst others, as its members, in its meeting held on 23.1.2014, recommended reservation of 14617 acres of land in favour of MDA at the market price to be CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 59 determined in accordance with law. The Chief Minister Sindh allowed the recommended reservation in favour of MDA, such is evident from the endorsement on the relevant summary, and also from the letter dated 24.1.2014, addressed by Secretary, Land Utilization Department (“LUD”), GoS, to Deputy Commissioner Malir, Karachi. 5. The LUD, accordingly reserved 14617 acres of land in favour of MDA. Through letter dated 28.1.2014, DC, Malir asked MDA to approach the LUD “for payment of the market price”, market price, it may be noted had already been notified for various categories of land in the controlled area through notification dated 29.6.2011. However, at the request of MDA for reduction in the price, the Chief Minister Sindh, in view of the fact that the land was granted for public purpose, and also keeping in view the financial health of MDA, allowed MDA to pay the price of the land at 25% of the market price. By 07.3.2015, MDA deposited a total of Rs.1.668 Billion, being the price of 11068 acres of the reserved land, and thus secured such land with entries in the revenue record in its favour as a “transferee/new owner” thereof. Having become the owner of the land, MDA through public notices in various daily newspapers, including the daily “Jang”, invited all those who CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 60 held lands in the controlled area, to exchange their lands with MDA for the purpose of consolidation. In response five individuals, namely, Waqas Riffat, Shahid Mehmood, Mohammad Awais and Wasim Riffat, (the private owners), who owned an aggregate 9407 acres of land in the controlled area, came forward for exchange and consolidation offered by MDA. In order to verify the veracity and genuineness of the said respondents’ title to the land, MDA referred their documents to DC, Malir/Revenue Department, and also invited public objection as required by regulation 5(2) of the Malir Development Authority (Consolidation/Adjustment/Exchange of private survey lands and state regulation 2, 3), thus MDA upon satisfactory verification, and there being no objection, proceeded to undertake the exchange(s). However since not all the lands exchanged with each other were equal in value/market price, the private owners paid to the MDA the differential amount, such was done on the basis of the market price of the subject lands prescribed in terms of section 10- B(1) of the COGLA through a notification dated 29.6.2011. As per the learned counsel the total market value of the land given by MDA in exchange for the land it acquired from the private owners was Rs.6.12 billion, whereas the total value of CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 61 the lands received from the private owners in exchange, was Rupees 5.589 billion, and thus the difference in value between the two comes to Rs. 2.60 billion, out of which MDA had already received Rs.2.40 billion, whereas .20 billion are to be paid. 6. The learned counsel contended that from the foregoing narrations of facts and in view of the relevant provisions of law as discussed earlier, it can clearly be seen that there has not been any illegality in the subject exchanges and the transactions were/are absolutely lawful. They submitted that in addition to receiving the enormous amount by way of differential in the market price of the land exchanged, MDA has also earned an amount of Rs. 8889.064 million on account of consolidation/adjustment/exchange charges, scrutiny fee, publication/advertisement charges, town planning fee, and outer development charges, etc. Out of which it has received an amount of Rs. 3754.136 million, and the balance of amount of Rs. 4134.928 million is outstanding to be paid. 7. M/s Aitzaz Ahsan and Ali Zafar, learned counsel for the private owners, with whom MDA has exchanged the land, and the Bahria Town (Pvt.) Ltd (“Bahria Town”), respectively, CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 62 submitted that MDA and the GoS have not only benefited from the subject exchanges in terms of cash receipts, as noted above, but on account of the high quality conceptualization, planning, designing, and development of the Bahria Town, which undoubtedly can be ranked as one of the best town developments, at least in Asia, has, apart from providing employment to thousands of skilled and unskilled labourers, Engineers, designers, planners and several other categories of professionals, has also provided business to a large number of contractors, manufacturers, suppliers, vendors, transporters and service providers. The project according to the learned counsel has given a heavy boost to the building/construction related industry, and has also generated massive business and commercial activities in the town itself. The learned counsel submitted that the project development work and its ancillary activities are also a major source of revenue for the Local, Provincial and Federal Governments, and above all the successful and impressive development in the Bahria town has also attracted and incentivized others to come forward and invest in the area, and develop it at a compatible level, which has resulted in exponential appreciation in the value of land at least within fifteen (15) kilometers of the scheme all around, CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 63 which runs into hundreds of billions of rupees. According to the learned counsel the value of the land in the area, since after the commencement of the Bahria Town has appreciated at least eight to ten times. According to the learned counsel, Bahria has set a bench mark for the others, in terms of planning, designing, execution and implementation of town planning and development, and in respect of various amenities and sustainable facilities, that a full-fledged and self-contained modern town should offer for pleasant, safe, healthy and convenient modern living. Highlighting, some important features of the Bahria town, the learned counsel submitted that the infrastructure built in the town is of such a nature and strength that it shall last for about 200 years. The town has a theme park which is second of its kind in Asia, the earlier being in Singapore. No developer has built or developed a night safari park like the one in Bahria town. State of the art hospital of European standard, with transplant facilities, is now fully functional in Bahria town. Apart from, a top standard school fully functioning, a university by the name of Abdul Sattar Edhi shall soon be inaugurated. The town has its own cinemas open to public. A dancing foundation has been built in the town at a cost of 39 Million euros. The town CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 64 contains a 37 hole golf course constructed by a British company at a cost of US Dollar forty million. A cricket stadium with a capacity of forty eight thousands spectators shall soon be completed. A world class five star hotel is under construction. Garbage collection and management is fully functional. Water treatment plants have been installed and are operational. Internal clear water plants also are operational. According to learned counsel Bahria town has invested Rs. five billion to develop and construct an access /approach from express way to the Bahria town and has already paid an amount of Rs. one billion to the Frontier Work Organization for necessary permission. They submitted that more than 150,000 people, who earlier had no job, are now engaged in property related jobs on account of Bahria town and further that 3,000 families have already settled in the town and are living therein, the learned counsel further submitted that more than 90,000 people have invested with Bahria. As per the learned counsel percent 1,2,4,5,6,7-20,24,25 and 35 of the town have already been delivered to the owners. 8. The learned counsel contended that there was no legal impediment in the way of exchange of the land and referred to the various provisions of the law discussed in the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 65 earlier part of the judgment. They further submitted that for the purposes of implementation and execution of their schemes, namely, (1) Shah Latif Town, Scheme 25-A, (2) New Malir Housing Project and (3) Taiser Town, Scheme 45, also, MDA has undertaken exchange/adjustment/consolidation as in the present case and that even Karachi Development Authority (“KDA”), the predecessor of MDA has in respect of its various housing schemes such as, (i) Gulshan-e-Iqbal, Scheme 24, (ii) Surjani Township, Scheme-43 and (iii) Hawksbay, Scheme-42 exchanged state land with privately owned land. They claimed it is not only for its schemes that MDA has exchanged lands but it has also exchanged lands with private individuals/ entities for the latter’s projects like, (a) Roti Corporation, (b) Sindh Employees CHS, (c) Omema Construction Co. (Pvt.) Ltd., (d) Wedfry (Pvt.) Ltd., (e) Institute of Engineers Housing Society, (f) Garden City, (g) Muslim City, (h) Model City. Learned counsel further submitted that in fact huge parcels of land have been allotted to entities like, Defense Housing Authority (DHA), Fazaia, in close proximity, with the Bahria town by the LUD, at rates far cheaper than the market price as determined under the law. As per the learned counsel LUD has allotted 19,640 acres of land to DHA at a rate as low CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 66 as Rs.1000/- per acre. Such land they emphasized lies within the controlled area of MDA. 9. Indeed in terms of subsection (2A) of section 10 of the Colonization and Disposal of Government Land Act, 1912 (“the COGLA”), land granted under section 10 by the LUD, is not exchangeable with private or Kabuli land, however such restriction, as evident from the provisions of section 17 of the COGLA, is applicable only where the land is held by the grantee as a tenant, whereas the status of a tenant, in terms of section 15 of the COGLA, persists with the grantee only till the time the entire amount of purchase money is paid by him and other conditions set forth in the statement of conditions are fulfilled. The grantee’s status of a tenant is thus converted into that of an owner upon his paying the purchase money, and fulfilling the relevant conditions, thereby removing the impediment/ restriction imposed by section 10(2A) of COGLA. In any view of the matter, MDA being a statutory body, is governed by its Act, which act and the Rules and Regulations framed thereunder, as ordained by section 47 of the Act, overrides all other laws, rules and regulations, and thus, as rightly emphasized by M/s. Farooq H. Naek and Rasheed A. Rizvi, Advocates, the above said restriction does not apply to CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 67 MDA, more so in the facts and circumstances of the case. The Act, it may be noted, fully empowers, authorizes and enables MDA to exchange land for the purpose of consolidation. Section 8(1)(iii-a), thus specifically provides that, “subject to the general or special directions of Government”, MDA shall “consolidate any land in such manner as may be prescribed by rules”. Whereas the MDA (Consolidation/Adjustment/ Exchange of private survey lands and state lands) Regulation 2013, through its regulation No.3 and 5, prescribes an elaborate procedure for such consolidation/ adjustment/ exchange, including for calling public objection, and for mutation of the consequential transfer, which have been duly complied with in the present case. 10. The act of “consolidation of land” has been described by clause (ff) of section 2 of the Act, as “adjustment of plots in a scheme by way of exchange or otherwise for the purposes of the scheme”. The above definition/description does not give way to any confusion regarding the fact that exchange and consolidation takes place before the implementation and execution of a scheme, it is rather a step towards such implementation. However, in order to have a clearer perception, it may be noted that the word “plot” used in section CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 68 2(ff) of the Act, has not been defined by the Act, and is therefore to be read, understood, and construed in its ordinary literary sense. The word has been defined by the Black’s Law Dictionary, as a measured piece of land, a lot, a track of land especially one having specific boundaries, or being used for a given purpose. The meanings assigned to this word by Merriam Webster dictionary are, a small area of planted ground; a vegetable plot; a small piece of land in a cemetery, a measured piece of land. Whereas Chambers 21st Century Dictionary has defined the word “plot” as a piece of ground for any of various uses. It can therefore be seen that the literary/dictionary meanings of this word also fully reconciles, and are in harmony with the purpose and spirit of the concept “Consolidation/Adjustment/ Exchange” as envisaged by the Act, and goes well with the scheme of law, being the consolidation of land for the purpose of a scheme. It hardly needs to be mentioned that it is only after the consolidation of land, by way of exchange and adjustment, that various residential, commercial, amenity and/or industrial plots are carved out, created and demarcated through a layout plan/site plan, according to the scheme, and not before the consolidation, and therefore, the word “plot” as employed by CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 69 section 2(ff) of the Act, cannot be said to mean, “a residential plot, residential cum commercial plot, industrial plot, or a flat site in any scheme”, which meaning has been assigned to the word by Rule 2 (j) of the MDA Disposal of plot Rules 2006, which definition, as is patently clear, even from the nomenclature of the said Rules, has been given to the word, in the limited context of disposal of plots and is also not exhaustive. The definition does not exclude the ordinary/ literary meanings of the word, it merely specifies the kinds of plots that can possibly be created and allotted in a scheme, and cannot be borrowed to be read into the definition of consolidation under section 2(ff) of the Act. It may also be relevant to recall here that the subject exchange/ adjustment/consolidation, has in fact been permitted by the Government for the purposes of implementation and execution of the scheme proposed through the master programme. Whereas the Master Programme provides for the subject exchange/ adjustment/ consolidation, accordingly, which plan also has been approved by the government, a voluminous report of which programme (titled, the Master Program Scheme-I, Phase-I, in respect of 32 dehs, within the controlled area where exchanges have taken place), contains all the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 70 necessary information and details regarding the essential features of the Master programme and matters ancillaries thereto. Whereas section 17(4) (d) says that the scheme(s) prepared by MDA, shall among other things contain, inter alia, public and private property or such interest affected by the scheme and the proposal to deal with such properties or interest. In other words, while preparing a scheme MDA is required to suggest and provide for the ways, means and manner in which it propose to deal with any property, which may be affected by the scheme, and has in the present case accordingly provided for the exchange and consolidation of such property/land, which was duly approved by GoS, and has accordingly been implemented in consonance with the relevant provision of law. 11. MDA’s power to exchange land(s) is further reinforced and fortified through clause (iii) of sub-section (2) of Section 8 of the Act, which says that “the authority may dispose of any land or other property vested in it by sale, lease, exchange or otherwise”, which provision is fully applicable to the present case, as upon making payment of the market price and execution of lease deeds of the subject lands in favour of MDA by LUD, GoS, for ninety nine (99) years, the title of the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 71 land vested in MDA, enabling it to exchange the land as mandated by the government. 12. It may be relevant to note here that the subject reservation/transfer/grant of land was not a transfer or a grant in favour of a private individual, or a private or commercial entity, but was in favour of a statutory body, discharging functions of the State under the control of the Government. The land was so granted for carrying out the mandate of law by development of a housing scheme, and thereby uplifting the entire area consisting of thirty two (32), dehs, measuring about 406071.16 acres, (mostly barren), which certainly is a public purpose. In fact by reserving and transferring the subject lands, GoS has in fact put the land to a use for carrying a public purpose, through MDA. The grant of land under discussion was/is immune from the restriction contained in section 10(1) (2-A) for this reason also. 13. As to how and why Bahria is undertaking the development work within the controlled area, it may be observed that firstly, the lands wherein Bahria is developing its town has not been granted or allotted to it by GoS or MDA, but the same have been acquired by it by way of exchange through the five private owners who originally also owned CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 72 lands within the controlled area and gave away the same for the present lands to achieve mutual/reciprocal consolidation, secondly, the Act does not necessarily require even a master programme, or the Scheme(s) thereunder to be executed by MDA itself, on the contrary the various clauses of section 8 (1) & (2), more particularly clauses (xii) to (xv) of sub-section (2), envisages the development/ execution of the scheme(s), being undertaken by parties other than MDA also, in fact the Malir Development Authority (Consolidation/ Adjustment/ Exchange of private survey lands and state lands) Regulation, 2013, through its regulation 4(4), provides for issuance of development permits within the notified development scheme and controlled areas. The said regulation also prescribes a procedure therefor. Thirdly, the approved master programme itself provides for development by private housing societies and land(s) have been reserved for such purpose accordingly. Fourthly, the development being carried by Bahria is in consonance with the purpose and mandate behind the creation of MDA. Bahria is thus promoting a public purpose. It is now well settled that acquisition of land for developing a township or residential or commercial plots is a public purpose. Such an undertaking by a non-governmental concern is a norm rather CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 73 than an anomaly, and according to the learned counsel for Bahria even in the controlled area, and the area notified for the Master Programme, various concerns, developers, builders and housing societies have, and are undertaking such development, and to some of them like DHA and Fazaia, BOR itself has granted lands within the controlled area. As per learned counsel such allotment to DHA is made at a rate(s) far less than those applied in case of Bahria. 14. It is indeed true that the market price(s) notified on 29.6.2011, on the basis whereof the differential amount in the value of the subject exchanges were calculated were mostly lower than those fixed in the year 2006. However, the said prices of the year 2011 which were applicable at the relevant time, were fixed, approved and notified on the recommendation of a Scrutiny Committee constituted under condition No.8 (1)(b) of the relevant statement of conditions. The scrutiny committee was headed by the Senior Member BOR, with Secretary LUD, two representatives of Karachi Chambers of Commerce and Industry (KCCI), Executive District Officers of Karachi, Hyderabad and Jamshoro, as its members, and as evident from the minutes of its meeting dated 18.5.2011, the committee made such recommendations, after lengthy CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 74 deliberations in a series of meetings, wherein the proposal of the district price fixation committee were analyzed, thoroughly and the representative of KCCI apprised the committee that the rates of the government lands fixed in the year 2006 were three to four times higher than the real market price, which excessive rates discouraged investment in the industrial sector, hampered its growth, and diverted investment towards other venues, causing a heavy dent to the economy. According to him, due to recession, the market rate of lands had dropped to almost 50%. The KCCI representative supported the rationalization of rate done by ABAD and the District Price Committee, which were found to be in consonance with the than prevailing market prices. Similarly, the Chairman ABAD, apprised the committee that private owned lands were available for sale at rates below the rates notified in the year 2006, and suggested 35% to 50% reduction in such rates. The EDO (Revenue), Karachi also informed that prices recommended by the District Price Committee were in consonance with the prevalent market rates, which rates according to him, were mostly lower than the rates notified in the year 2006. He apprised the scrutiny committee that the bench marks recommended through condition No.2 of the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 75 relevant statement of conditions notified on 25.2.2006, being, (i) the prices of lands transferred in the relevant locality for similar use during the past twelve months and (ii) the valuation table notified by the BOR, Sindh, in respect of similar lands, under the stamps Act, 1899, were kept in view, and all other appropriate means and method were employed by the district price fixation committee while assessing and recommending the market price. The scrutiny committee, in view of the foregoing and after taking into consideration the other relevant parameters, and collecting market intelligence, recommended four different categories of lands being category A-1, A, B, C, and also recommended fixation of per acre price of each such category of lands in different dehs, as per the than prevalent market price, which recommendations were duly approved and were notified on 29.6.2011. It may be noted here that before recommending the categories of lands as noted above, the scrutiny committee considered the recommendation of a sub-committee constituted under the members LUD, for the purpose, in that regard. 15. From the forgoing it is now abundantly clear that the subject exchanges have been affected in accordance with the law and that there has been no illegality in the process. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 76 The exchanges were made to promote and facilitate the cause, purpose and intent behind the creation of MDA, being the development, improvement and beautification of the area. The development of a town that was made possible by the subject exchanges/consolidation of lands, has not only brought huge revenue and created opportunity for such generation with a much greater proportion in future also but has given to the port city of Pakistan, a new town with massive infrastructure, utilities and amenities and has also resulted in creation of jobs and business opportunities for good number of people. This development of the project has also largely contributed to the enormous appreciation in the value of the land in the area, which land is mainly owned by GoS and has given boost to the development activities around it. It is also likely to contribute to the economic and social wellbeing of the people who have been living in the area of the town and around it since before its development, which area until only a few years before was a desolate barren place. 16. Indeed it is one of the prime obligation of the State, the Government and the MDA, to provide for housing for lower and middle income group, however, looking at the level of capacity, capability, competence, conviction and commitment CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 77 of our public sector organization, and the lack of resources they suffer from, it cannot be said with any degree certainty that the controlled area would have been better-of without the subject exchanges and development that has taken place on the lands consolidated in consequence thereof, more so keeping in view the fact that MDA which was created in the year 1993 has till date not been able to make any substantial or significant development and has not been able to initiate any housing scheme since after its three schemes mentioned earlier, which too cannot be taken as example to emulate. 17. As regards the fact that many of the lands in exchange whereof the five private owners/Bahria were given the present lands were far away from the highway, it may be noted that in the first place it was only the owners of the said land who came forward for the offered exchange/consolidation and further that in the area where these private individual/Bahria have been given land in exchange, they in fact also own lands other than those they obtained in exchange and thus this area also was not free from private holdings, to enable MDA to develop its own scheme there. Furthermore the exchange and consolidation has been done for the mutual benefit of both the parties, by way of compaction and CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 78 consolidation of their lands. In fact the value and utility of the lands which were far away may also have improved substantially for the reason that the development and growth in the area in the shape of Bahria town and the development that has followed it, the said distant lands have become closer to the well developed and well grown areas, which has prompted further growth and development around it. 18. The above does not at all mean that the State/Government and the authorities and organizations working under it should abdicate their legal and constitutional role to develop, construct, and provide for housing and other amenities for the lower and middle income group. The GoS and MDA should therefore work towards enhancing their capability by employing/engaging competent and committed personnel with sincerity of purpose. They should provide funds for developing townships for lower and middle income group, keeping in view their welfare and betterment, and for self- contained, comfortable, sustainable, environmental friendly living with fast, convenient, economical and sustainable access and mobility, and with all other necessary facilities and amenities like, water, gas, electricity, parks, playgrounds, educational institutions and complete health care system. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 79 19. It may be noted that Malir District which is under the jurisdiction of MDA comprises of 631848 acres of land and therefore there is no dearth of space or land for the planning and development of such schemes as envisaged above, and if done with proper planning, prudence, honesty, sincerity, and with professional approach some land can also be used for lawful commercial exploitation for generating funds for the proposed development. 20. However, since as noted above, the subject exchanges have been done lawfully and did not suffer from any blemish and there is not even a prima facie evidence of any malafide in that regards, nor has it been alleged that any officer involved in the exercise, made any personal gain out of it, the matter therefore does not call for any interference. Minor deviation of rules and regulations, if any, would not justify the judicial review of the subject decision made by the competent authority. It is now well laid down that where a competent authority makes a lawful decision, it would not be just and proper to interfere therewith as the decision made in accordance with the mandate of law falls within the domain of the executive. It is not for the courts to determine as to whether a certain policy or a particular decision in pursuance CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 80 of such policy is fair or appropriate. The power of judicial review should be exercised by the Courts in furtherance of public interest and it is only in cases where it would be in the larger public interest. 21 However, since some of the lands received by MDA in exchange from the private owners are distantly located, and though it is claimed that the differential amount charged is based on the market price lawfully determined, by keeping in view all relevant factors, but, since not much material in respect of such claim has been placed before us and the learned counsel for Bahria has himself offered reevaluation of the lands involved and to pay any further amount thus found due and payable, we therefore find it appropriate to constitute a Committee comprising of the following persons:- Mr. Nasir Mahmood Khan Khosa, Ex-Chief Secretary, Punjab, Lahore Chairman Mr. Shabbar Zaidi, Managing Partner, AF Ferguson & Co., Chartered Accountant, Karachi Member Secretary, LUD, GoS Member Secretary, Finance, GoS Member Mr. Arif Hassan, Architect, Visiting Professor, NED University, Karachi, Chairman Orangi Pilot Project, Research and Training Institute, Karachi Member Mr. Kaiser Bengali, a prominent economist, Karachi Member CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 81 Mr. Jamil Yousef, Chainman TPL Corporation Ltd., former Chairman CPLC, Karachi Member Mr. Karamat Ali, Executive Director, Pakistan Institute of Environmental and Labour Research, Karachi Member One (01) member from KCCI, to be nominated by the Chairman in consultation with the president KCCI who should preferably be from real estate business. Member The Committee shall assess and evaluate the market price(s) of the lands exchanged between MDA and the five private owners/Bahria that prevailed at the time of the exchange(s), by first bifurcating the lands into different categories, keeping in view the relevant characteristics of the various parcels of the lands in terms of their distance from super highway and those other approaches that were available at the relevant time. The other factors that shall be kept in mind in effecting the above categorization shall be the distance of each portion of the land from the general post office, Karachi, or from any other land- mark found appropriate, its contiguity, contours and topography, and may be its geology, if and where relevant. The exercise shall be carried out with the assistance of the senior most officer from the Survey of Pakistan and also with CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 82 assistance of such officer from the Survey Department of Government of Sindh, qualified and competent to conduct and/or supervise the same. The committee shall on the recommendation of Mr.Arif Hassan, Architect, Member of the Committee, also engage independent experts/professionals from amongst the best in the field, in terms of qualification, experience and integrity, to be part of the survey and demarcation Team. Upon the above categorization the Committee shall proceed to assess and evaluate the market price of each of the said categories for a development project with reference to the relevant time. In doing so the Committee shall keep in view the location of each category, its contiguity, its distance from the super highway, and also from all other approaches that existed during the relevant time and also the quality, width and motorability thereof. The other determining factors should also include the availability, nature and distance of potable water, gas and electricity, the estimated cost of providing basic amenities to the said categories/zones with reference to the relevant time and the price at which similar category/nature and sizes of lands were sold in the vicinity, or similar vicinities during one year of the relevant time. Information regarding the relevant market price shall CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 83 also be gathered from independent Estate dealers of high repute and integrity, who have been operating in the area since before 2014 and had worked as such at least upto the year 2015. Such information should be duly verified and authenticated in the safest possible manner. The Committee shall also seek assistance from some highly reputable property evaluators/assessor, from amongst the panel nominated by the State Bank of Pakistan and the scheduled banks in the country. The future potential that the land promised at the relevant time shall also be kept in mind. The Committee shall also adhere to the other recognized principles and practices in vogue for the requisite assessment/evaluation. All material containing the relevant information, and/or on the basis whereof the Committee and/or any of its member rely, for its analysis and evaluation, shall form part of the report. Before submitting its report the Committee shall also hear an accredited representative of Bahria Town. Since the Committee comprise of Economists, Chartered Accountants, Architects, businessmen, Government Officials and other persons of eminence from different fields, they also may, on their own, or with the assistance of such professionals/experts whom they find suitable, prescribe the evaluation CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 84 criteria/formula, and the ways and means for conducting and carrying out the above exercise. The Malir Development Authority, Karachi Development Authority and all the departments/functionaries of the GoS particularly, the Local Government Department, Commissioner Karachi, Board of Revenue, Land Utilization Department, The Municipal Commissioner, Karachi, Secretary Finance, Government of Sindh, Home Secretary, Government of Sindh, who may be called upon by the Committee to facilitate and to provide assistance to the Committee in carrying out the above mandate, shall readily and promptly meet the requisition. The IGP, Sindh as well as DG Rangers shall provide adequate security to the Committee Members during the conduct of the above task, as and when required by them. Bahria Town shall bear all expenses incurred in the above exercise, including the remuneration of the professionals/ staff/field staff engaged by the Committee for the task, and shall also provide to the Committee and its field staff the required transport. The fee of the Members of the Committee shall be determined by the Court keeping in view the volume of work done and the time consumed. Bahria Town shall within four days from today deposit with the Nazir of the High Court of Sindh an amount of CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 85 Rs.20,00,000/- (rupees Two hundred thousand only) towards the expense that may be incurred by the Committee and shall, deposit such further amount as and when may be required by the Committee. The amount so deposited shall be released by the Nazir as and when requested by the Chairman of the Committee to enable the committee to meet its expenses towards its task. The committee shall conclude the above assigned task within two (02) months from today and submit its report to the Court so that appropriate order be made by this Court accordingly. The Registrar of this Court shall instantly inform the Chairman and Members of the Committee about the instant order and send to them copies of the order so that a preliminary meeting of the committee be convened by the Chairman at the earliest and the committee may proceed to comply with the orders at a fast pace. (Justice Maqbool Baqar) CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 86 Faisal Arab, J.- I have had the privilege of going through the judgment proposed by my learned brother, Ejaz Afzal Khan, J and am in respectful agreement with his opinion. However, I wish to discuss certain aspects of the case as I look at them. 2. The record produced on behalf of Malir Development Authority (MDA) reflects that in the meeting held on 30.01.2013, a decision was taken to provide 2500 low-cost housing units in all MDA schemes in line with the Prime Minister’s Housing Program. On that very day thirty-seven Dehs of Karachi were notified as controlled area of MDA. The number of notified Dehs was later raised to forty- three on 20.05.2013. Minutes of MDA’s meeting held on 23.07.2013 show that Director General, MDA has sent a summary to the then Chief Minister seeking approval of MDA’s own housing schemes described as Schemes No. 2 to 4. This summary was followed by another summary for revival of Malir Development Authority Act, 1993 which at that time was not in force. On 27.11.2013, Malir Development Authority (Revival & Amending) Ordinance, 2013 was promulgated reviving Malir Development Authority Act, 1993 with retrospective effect. After such revival, the then Chief Minister of Sindh on 26.12.2013 approved the proposals made in the summary dated 23.07.2013 for launching MDA’s schemes No.2 to 4 and for this purpose MDA’s governing body i.e. the Board needed to be constituted which was accordingly done on 20.01.2014 and on the very next day i.e. 21.01.2014, the newly constituted Board convened its meeting and sent a summary to the Government of Sindh to reserve nine out of forty-three Dehs for its housing schemes. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 87 3. The record of this case also reflects that while all this was being done, Bahria had already emerged on the scene on 25.09.2013 and through extensive publicity invited applications from the general public for grant of membership against payment of Rs.15,000/- as only members were to become eligible for making bookings in its three schemes namely ‘Bahria Icon Tower’ in Clifton, ‘Bahria Tower’ on Tariq Road and ‘Bahria Town, Karachi. The location of the last mentioned scheme, which is the subject matter of these proceedings, was however not disclosed at that point in time. On 26.01.2014, through another cycle of advertisements, Bahria for the first time disclosed to the public the approximate location of its scheme ‘Bahria Town Karachi’ as 9 KM from Karachi Toll Plaza on the Super Highway and a 25-minute drive from Jinnah International Airport. The advertisement offered for sale (i) residential plots measuring 2000, 1000, 500, 250 and 125 square yards, (ii) commercial plots measuring 250, 200 and 125 square yards, (iii) built-up houses on plot sizes 125 and 200 square yards and (iv) apartments having 2, 3 and 4 bedrooms. Residential plots were priced between Rs. 8,600/- per square yard to 14,250 square yards. Commercial plots were priced between Rs.99,600 to Rs,100,000/- per square yard. In February, 2014 an overseas block of the scheme was also launched offering plots to non-resident Pakistanis at rates charged in US dollars, which were relatively higher than what were offered to the general public. Bahria then started developing its scheme in Dehs that were part of MDA’s notified area and that too in absence of any lawful agreement to launch its scheme with MDA. Thus Bahria expanded its scheme in five Dehs falling within MDA’s controlled area namely Deh Bolhari, Deh Langhaji, Deh Konkar, Deh Kharkharo and Deh Kathore. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 88 Several copies of the minutes of MDA’s Board meetings of 2013 and 2014 have been filed but none of them reflect that Bahria was granted permission to launch its scheme on the land falling within MDA’s controlled area. On the contrary at that point in time MDA had sent another summary dated 21.01.2014 to the then Chief Minister wherein nine Dehs of controlled area were identified for launch of MDA’s own housing schemes. In the said summary there was no mention of allowing Bahria to launch its own scheme in any Deh falling in MDA’s controlled area. 4. While the work on Bahria Town scheme was underway on the land on which MDA on papers was planning to launch its own schemes, Bahria set out four of its agents on a shopping spree to purchase whatever land they could find in other Dehs falling in MDA’s controlled area with the sole intention to exchange the same for the land in Dehs on which Bahria had already launched its scheme. These four agents then claimed to have succeeded in ‘purchasing’ 7068 acres of small and medium sized scattered parcels of land located at scores of far flung locations of thirty-nine notified Dehs. It has come on the record that in many cases, title of owners who had sold their land to the agents of Bahria was either not complete as their co-owners had not agreed to sell their share or the title of certain lands was not duly verified. However, Bahria’s agents very conveniently and in no time succeeded in exchanging the land they claimed to have lawfully purchased with the land which Bahria had already occupied and commenced work on its scheme since January, 2014. Thus, it is apparent that the Bahria Town Scheme was launched at a time when Bahria’s agents had not even completed CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 89 their task of purchasing lands, which could be exchanged with MDA. Satellite imageries of the township also confirm that Bahria had started development work on the ground by constructing roads and carving out plots soon after inviting applications from the general public in January, 2014 i.e. much before the agents of Bahria had completed their task to purchase land in far flung areas which were to be offered in exchange. Thus, it has become quite apparent that Bahria entered upon MDA’s controlled area for launching of its own scheme without any written authorization in this behalf from MDA. It is for this reason that no demarcation of the land that was to be assigned for Bahria’s scheme was ever carried out. One cannot imagine that MDA would allow Bahria to invite applications from the general public and enter upon a very vast expanse of land falling within its controlled area starting right from main Super Highway without any backdoor understanding. 5. From the minutes of several meetings held by MDA’s Board and the summaries sent to the then Chief Minister in the years 2013 and 2014, it is evident that Malir Development Authority Act, 1993 was revived in November, 2013 and its Board constituted to facilitate launching of its own schemes in eleven out of forty-three Dehs falling within its controlled area. For such purpose, MDA also hired services of Logix Private Limited on 03.09.2014 for a hefty fee of Rs.280 million to act as its consultant in the preparation of master program Scheme No. 2 to 4. It is also astonishing to note that MDA hired services of yet another consultant namely ECIL in the same year i.e. 2014 for another hefty fee of Rs.280 million to act as its consultant in the preparation of master program No.1, Scheme 1 on the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 90 remaining thirty-two Dehs falling within its controlled area. The entire paperwork of MDA’s intentions to launch its own schemes after engaging two consultants for a hefty consultation fees of Rs.560 Million as is evident from several minutes of the meetings and summaries sent to the then Chief Minister seems to be was just a hoax, an eye wash. The quiet understanding was to allow Bahria to launch its own housing scheme in five Dehs and derive whatever benefits it can. Thus most prized piece of land in MDA’s entire controlled area located near the developed area of Karachi was quietly allowed to go into the hands of Bahria merely on the pretext of exchange for scores of scattered parcels of lands located in the remote parts of thirty-nine Dehs, title of which too was not entirely free form doubt. 6. Malir Development Authority (MDA) as the name suggests, is an entity entrusted with the obligation to plan, develop and execute housing schemes in its controlled area. It was argued that MDA allowed Bahria to launch its scheme on account of its financial constraints. The MDA’s record show that the main reason that prompted MDA to launch its housing schemes in the year 2013 was to generate funds to ameliorate its precarious financial condition. This object could have only been achieved had MDA itself sold plots to the general public and not by giving up land in its prized five Dehs to Bahria, which then went on to occupy 12157 acres of land. What a pity that MDA with the largest government land available at its disposal in the city of Karachi which would have made it the most financially viable public sector development authority of the province, squandered the opportunity in favour of CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 91 Bahria at a stage when it was a cash strapped entity. Record also reflects that MDA has benevolently worked out the value of 7068 acres of most priced land in MDA’s controlled area at Rs.6.12 Billion. This value for land located in the city which is commercial hub of the country is ridiculously low. This reminds me of the value of land having the potential to be utilized for housing that was prevalent at about the same time i.e. four or five years ago in Matli, District Badin, Sindh where I am from. There the value of land on the outskirts of Matli Town for its utilization for housing at that time was around Rs.5,000,000/- (five million rupees) per acre. Matli is only a town, it is not even a district. 95% of the readers of this opinion would not even know whether any town by this name exists. Here we are dealing with land located in Sindh’s largest city which is not only a port city but the commercial hub of the entire country. 7. It is also surprising to note that in the written arguments counsel for Bahria has claimed that apart from the price of 7068 acres of land, Rs.8889.064 Million, in other words Rs.8.89 Billion are also payable to MDA towards various charges, scrutiny fee, advertising charges, town planning fee etc. out of which 3754.136 Million have been paid and the balance Rs.5134.928 Million is outstanding. This can’t be correct. It is unimaginable that above referred charges could be to the extent of Rs.8889.064 Million or Rs.8.89 Billion exceeding even the value assessed by MDA for 7068 acres of its land. The quantum of such charges appear to be misleading. Considering the stature of the counsel who have stated so in his written submissions, hopefully such misleading figures may not have CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 92 been deliberately stated and could be on account of some typographical mistake. 8. It is claimed that Bahria is presently in occupation of 12156 acres of land, well beyond 7068 acres occupied in exchange for scattered parcels of lands located in the thirty-nine Dehs. Let us as an example work out an approximate financial worth of atleast these 7068 acres only, which can be done on the basis of facts and figures that have come on the record. When 40% of 7068 acres i.e. 2,827 acres are excluded on account of its utilization for amenities such as roads, pathways, mosques, parks and other public places etc., the remaining 60% area i.e. 4241 acres could safely be presumed as marketable land, having the potential of being offered for sale as residential and commercial plots, built-up houses and apartment buildings or put to other revenue generating enterprises of Bahria Town itself. The area of 60% of marketable land translates into i.e. 20,525,472 square yards. 7% of this marketable area could safely be said to come under commercial use and the remaining 93% under residential. The average price for commercial plot fixed by Bahria itself in its advertisements in the year 2014 was Rs.99,600/- per square yard. This commercial rate for 7% of marketable land (1,436,783 square yards) at the advertised rate translates into Rs.143,103,591,000/-. The remaining 93% of marketable land (19,088,689 square yards) at an average rate at which Bahria sold residential plots to the general public i.e. Rs.10,000/- per square yard translates into Rs.190,886,890,000/-. Both these estimates of residential and commercial use are for 60% of 7068 acres only. The value of the remaining 40% land has not been taken into consideration as the CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 93 same is allocated for various public amenities such as roads, pathways, mosques, parks and other public places etc. It may be clarified here that Bahria’s financial gains from constructed built-up residential houses, apartment buildings as well as other revenue generating facilities in the scheme have not been taken into consideration in the above estimates as profits made therefrom does not relate to estimating the financial worth of the marketable land out of 7068 acres of land. This value on the basis of above computation can be summed up as follows: - Value of commercial utilization of land: Rs.143,103,591,000/ - Value of residential utilization of land: Rs.190,886,890,000/- Total value of both the above: Rs.333,990,481,000/- From the above revenue estimate of approximately 334 billion rupees following estimated expenses can safely be deducted to arrive at the net gain which Bahria would have eventually made from marketable land only. In Billions Rupees Estimated revenue as worked out above: 334 Less: planning and consultancy charges etc.: 2 20% of revenue for infrastructure/ amenities: 67 Management, admin expense: 7 10% of total revenue for Bahria as its role of property developer: 33 Total deductions from gross earnings from land only: 109 109 Net estimated gain from marketable land: 225 CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 94 9. From the above estimate of net gain it is quite apparent that Bahria could exclusively make a whopping 225 Billion Rupee from 7068 acres of land at the cost of MDA surrendering its role as a real estate development authority. Had MDA launched its own schemes on the land in question with all sincerity and honesty and had hired services of experienced and reputable real-estate consultants and land developers or for that matter even entrusted the development and planning works to Bahria for a hefty fee even then notwithstanding the incompetency and lack of vision of its management, the net gain for MDA would have atleast been somewhere around 150 Billion Rupees as against the 225 Billion Rupees of net estimated earnings which Bahria was going to make from 7068 acres of land. What a charity on the part of MDA at the state expense to say the least whose own job is to plan, develop and execute such schemes and not to barter away land which it obtained from the Board of Revenue at concessional rates for launching its own schemes. What a pity that MDA, with the largest government land available at its disposal in the city of Karachi and with it came the opportunity of becoming the most financially viable public sector development authority of the province threw the opportunity out of the window and continue to remain a cash- strapped entity not having sufficient funds even to pay for the salaries of its employees in time. 10. MDA had the chance to generate a huge amount of money which would have been used for developing other areas falling under its controlled areas but it squandered the opportunity. The functionaries of MDA and Government of Sindh very graciously CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 95 allowed its most prized land located in its controlled area near the developed area of Karachi to be occupied by Bahria and to justify such occupation got it exchanged for scattered parcels of lands located in the most remote parts of thirty-nine Dehs was used in defence. Even if it is presumed that wrong decision on the part of MDA and the Government of Sindh was on account of their inefficiency and incompetency, if not for anything else, all this has caused a colossal financial loss to MDA which cannot be ignored and must be probed into. The exchange in question even otherwise is prohibited under Section 17 of the Colonization of Government Lands Act, 1912 and there is a sound reason for that. The status of Qabooli land is that of a freehold property. Its ownership is in perpetuity, hence vests in the person who owns it in absolute terms. The reason behind imposing prohibition on exchange of Qabooli land with the land granted by government on lease is that land granted on lease, be it for 30 years, 99 years or any other term, becomes a source of income for the government. Upon expiry of lease period the same becomes renewable only on payment of lease money. If such land is exchanged with Qabooli land then the person who has surrendered Qabooli land for leased land may claim that his title to the exchanged land be also treated the same i.e. in perpetuity as was held by him in the Qabooli land which he gave in exchange. The legislature did not intend to allow such a claim to arise as it would close a perpetual source of income for the government upon expiry of lease period, which is necessary to augment financial resources to runs its affairs. It is for this reason that prohibition on exchange with Qabooli land has remained in force on CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 96 land that is granted under the provisions of Section 10 of the Colonization of Government Lands Act, 1912. 11. Bahria Town Scheme no doubt has a dynamic modern design and its layout gives a spectacular look and is also being well organized by its management but does that mean that this should be one of the considerations in overlooking the illegality committed in the transfer of MDA’s land in its favour. From the voluminous record of MDA placed on record it is established that no Board meeting of MDA was held in which decision was taken as to what land from its controlled area was to be handed over to Bahria for its scheme, what to speak of settling the terms and conditions on which it was to be handed over. It is for this reason that no site plan was prepared to show on what date, how much land, from which Dehs and with what boundaries is being handed over by MDA to Bahria. Presently Bahria is in occupation of 12157 acres in the above referred five notified Dehs which MDA had acquired from Board of Revenue at concessional rates for launching its own schemes. It is really astounding that Bahria first occupied most valuable land available in MDA’s controlled area without any legal process and straight away launched its scheme and later requested MDA to exchange the land under its occupation for several parcels of land which Bahria at its own convenience had purchased through its agents in far off scattered locations of thirty-nine Dehs and MDA and Government of Sindh bent backwards in obliging it and quietly abandoned the launch of MDA’s housing schemes on such land. Bahria may have the reputation of being one of the leading property developers of Asia but then it should do its business on legitimately acquired land. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 97 Bahria’s remarkable reputation as property developer cannot weigh in when the validity and legality of the state land that it had occupied is examined. I, therefore, entirely agree with the comprehensive and well-reasoned opinion of my learned brother, Ejaz Afzal Khan, J declaring the whole transaction between MDA and Bahria to be nullity in the eyes of law. JUDGE Dated: 4th of May, 2018. CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011. 98 ORDER OF THE COURT With the majority of two by one, the final order of this Court is recorded in paragraph 18 above of the majority judgement. JUDGE JUDGE JUDGE Islamabad 04 May 2018 Barrister Sohaib Shahid

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam C.M.A No.376-K OF 2014 IN SMC No.16 OF 2011 (Application against the illegal adjustment in Revenue Record Land is being given to Bahria Foundation, filed by Syed Mehmmod Akhter Naqvi) C.M.A No.450-K OF 2014 IN SMC No.16 OF 2011 (Objection in CMA no.408-K/2014 filed by Syed Mehmood Akhtar Naqvi) C.M.A No.275-K OF 2014 IN C.M.A No.376-K OF 2014 (Written arguments on behalf of the Senior Member Board of Revenue, Sindh) CRL.O.P. No.20-K OF 2014 IN C.M.A No.376-K OF 2014 (Syed Mehmood Akhtar Naqvi Vs. Malik Israr, Sr. Member Board of Revenue Sindh) CRL.O.P. No.21-K OF 2014 IN C.M.A No.405-K OF 2014 (Syed Mehmood Akhtar Naqvi Vs. M. Ali Shah, Dy. Commissioner, West Karachi) CRL.O.P. No.22-K OF 2014 IN C.M.A No.406-K OF 2014 (Syed Mehmood Akhtar Naqvi Vs. Muhammad Qazi, Dy. Commissioner, Malir) CRL.O.P. No.23-K OF 2014 IN C.M.A No.408-K OF 2014 (Syed Mehmood Akhtar Naqvi Vs. Muhammad Sohail, DG, MDA. Karachi) C.R.P. No.32-K OF 2015 IN C.M.A.376-K OF 2014 (Muhammad Sohail Vs. Syed Mehmood Akhtar Naqvi and another) For the Petitioner : Syed Mehmood Akhter Naqvi (in-person) For Respondents : Mr. Farooq H. Naek, Sr.ASC. for BOR. Ch. Aitzaz Ahsan, Sr.ASC, for Private Respondents. Mr. K.A Wahab, AOR. (C.M.A.502-K/16) Dr. Raana Khan, AOR, (Crl.O.P.6-K/16). Mr. Zameer Ghumro, A.G, Sindh. Mr. M. Siddiq Memon, Chief Secretary, Sindh. Mr. Rizwan Memon, Sr.Member, BOR. Mr. Waqas Qadeer Dar, P.G, NAB. Mr. Imtiaz Tajwar, Acting Chairman, NAB. Mr. Naeem Siraj, DG, NAB Sindh. Syed Amjad Ali Shah, DPG, NAB. Mr. Qamar Abbasi, Deputy Director, NAB. Dr. Muhammad Usman Chachar, Secretary, Services, Sindh. Mr. Baqaullah Unnar, Secretary, Local Govt CMA.376-K/2014 etc 2 Mr. Imran Atta Soomro, D.G, M.D.A. Mr. M. Irfan, Law Officer, M.D.A. Date of hearing : 01-08-2016. O R D E R The Prosecutor General, NAB, has filed interim report dated 25.07.2016 (confidential), alongwith a copy of the survey report dated 20.07.2016, prepared by the Ministry of Defence, Directorate of Survey of Pakistan. It is contended by the learned Prosecutor General, NAB, that after the order dated 24.05.2016, passed by this Court, the Survey of Pakistan, was approached by the NAB, for demarcation of the land in actual possession of the Bahria Town. 2. The Director of Survey of Pakistan responded to the request of the NAB and after notices to the Board of Revenue Sindh, Survey and Settlement Department, Sindh, Malir Development Authority (M.DA.), Deputy Commissioner, Malir, and the Bahria Town Karachi, conducted joint survey in presence of the representatives of the aforesaid organizations and compiled report, copy of which was supplied to the NAB authorities and has been placed before us. The Senior Member, Board of Revenue, states that they have not received any copy of the said report. We direct the NAB authorities to supply copies of the survey report to the Senior Member, Board of Revenue, Mr. Aitzaz Ahsan, learned Sr.ASC, for officials of Bahria Town, Mr. K.A Wahab, AOR for the Bahria Town and Syed Mehmood Akhter Naqvi, the Applicant, who request to file their objections if they CMA.376-K/2014 etc 3 deem it appropriate. The confidential report dated 25.07.2016 submitted by the NAB, shall be kept in sealed envelopes by the office. 3. According to the survey report, the M.D.A has exchanged/ consolidated 9140.260 Acres of land to Bahria Town. The survey report contains a portion of green colour with black lines, reflecting that M.D.A has consolidated a piece of land measuring 244.925 Acres which the Bahria Town has not yet developed. The survey report further shows that the total land consolidated by the M.D.A and handedover to the Bahria Town is 9385.185 Acres. The portion marked with pink colour as “A” reflects that the Bahira Town has developed 386.276 Acres of land which has not yet been consolidated by the M.D.A. The portion of survey report in pink colour marked as “B” reflects that Bahria Town has developed an area of 1975.059 Acres which though developed by the Bahria Town has not been consolidated by the M.D.A. Another portion of the survey report marked as “C” in pink colour shows that the land measuring 410.444 Acres has been developed by the Bahria Town, but has not been consolidated by the M.D.A. The survey report shows that total land developed/under development but not consolidated by the M.D.A comes to 2771.79 Acres. In this respect, total area of land of Bahria Town reflected in the survey report comes to 12156.964 Acres. 4. We have inquired from the Chief Secretary, Senior Member, Board of Revenue, and the Advocate General, Sindh, to satisfy us under which law the M.D.A is competent to exchange private CMA.376-K/2014 etc 4 lands with the lands falling in the area which is reserved as corridor area, they could not offer any explanation and submit that no such powers are available with the M.D.A to allot or exchange the private land with the State land. It has come on record that no portion of the land pertaining to the subject matter has ever been allotted and or part in possession under Section 10(4) of the Colonization of Government Lands Act, 1894, by the Sindh Government to the M.D.A, which fact was confirmed by the Senior Member, Board of Revenue and incorporated in the order of this Court dated 09.03.2016, which reads as under: - “We are informed by the Chief Secretary, Sindh that the Sr. Member, Board of Revenue has proceeded to Islamabad on account of some family emergency and will be back by today evening. Since the matter relates to the Board of Revenue, therefore, we deem it necessary that he should appear before the Court tomorrow before any Order is passed in this matter. We are further informed that in compliance with the Order passed yesterday, Mr. Muhammad Sohail who was assigned the look after as D.G. MDA has been de-notified. The Sindh Government is directed to appoint any officer of their choice, eligible for the post of D.G. MDA, within one week. In the intervening period, the Secretary, Local Government will have the additional charge. 3. We restrained the MDA from allotting and/or dealing with the land in any manner whatsoever till further orders. The Sr. Member, Board of Revenue yesterday, while present in Court, has disputed the authority of the MDA to allot or otherwise deal with the land with anyone as, according to him, the land was neither allotted nor given possession to the MDA. According to the Sr. Member, Board of Revenue, the land within MDA is fully owned by Sindh Government. Beside the aforesaid reason, this Court on 28.11.2012 has passed restraining order restricting the powers of authority from allotting state land to anyone. This restraining order also applies to all the authorities under Sindh Government who claimed their title from the state/Board of Revenue.” 5. After going through the survey report dated 20.07.2016, we, in order to safeguard the public interest and to avoid multitude of proceedings, are constrained to pass the following interim order:- CMA.376-K/2014 etc 5 (i) the Bahria Town is restrained from undertaking any development activity in the area demarcated with green colour with black lines on it measuring 244.925 Acres and or to deal with this portion of land with any person or organization in any manner whatsoever; (ii) the Bahria Town is further restrained from undertaking any development activity on the portion marked as “A” with pink colour measuring 386.276 Acres, which is not consolidated by the M.D.A, with further restriction to deal with this portion of the land in any manner whatsoever; (iii) the Bahria Town is restrained from undertaking any development activity on the area marked as “B” with pink colour measuring 1975.059 Acres, which as per survey report has not been consolidated by the M.D.A and to deal with the land in any manner whatsoever; (iv) the Bahria Town is further restrained from undertaking any further development activity on the area marked as “C” with pink colour measuring 410.444 acres and or to deal with the land in any manner whatsoever; (v) the Bahria Town is further restrained from raising any further development activity in area measuring 2771.779 Acres, which has not been consolidated by the M.D.A and to deal with the land in question in any manner whatsoever; (vi) the M.D.A is restrained from consolidating any further portion of the private land of the Bahria Town or any other private enterprise under the CMA.376-K/2014 etc 6 garb of exchange of land in exercise of their powers conferred on them under the M.D.A Act or the Rules framed thereunder; (vii) We further restrict the Board of Revenue, Government of Sindh, from dealing with the land of M.D.A or any other Authority which is subject- matter of these proceedings in any manner whatsoever in defiance of the order of this Court passed by a five Member Bench of this Court on 28.11.2012; (viii) the M.D.A is restrained from dealing with the land which are subject-matter of survey report either with Bahria Town or with any other organization in any manner whatsoever; (ix) defiance of the interim orders passed hereinabove by any of the organization whether public or private shall expose them to contempt proceedings. 6. In order to ensure that no further construction or development activity is carried out on the land specified hereinabove, we direct the NAB authorities through the Prosecutor General that they should immediately if possible by tomorrow obtain google earth maps/images of the entire land stated to be in possession of the Bahria Town as per the survey report and submit the same for record 7. In fact on 28.11.2012, a five member Bench of this Court, has initially passed an order restraining the Sindh Government from dealing with the State land, relevant portion of which is reproduced hereunder:- CMA.376-K/2014 etc 7 “7. Under these circumstances, we are constrained to direct that the Deputy Commissioners/District Coordination Officers of Sindh, to ensure that immediately the entire revenue record of all the district is kept in the custody of Mukhtiarkar in terms of the directives contained in the aforesaid judgment of the High Court and shall not be removed from the office of the Mukhtiarkar to any other place. Moreover, mindful of rampant corruption and organized crime of land grabbing, particularly, regarding prime state land, and mismanagement/forgeries in the revenue record, we hereby, until further orders restrain the Government/Revenue Department from mutation, allotment, transfer and or conversion of any state land and or keeping any transaction or entry in the record of rights in this regard in revenue record of Sindh or till the entire revenue record in Sindh is reconstructed. The conversion of lease for 30 years or of any term upto 99 years shall also be stopped immediately as by this mode the state land is being sold out at a throwaway price without participation of public at large, which the law does not permit. Any further conversion or mutation of state land in the record of rights from today onwards would be deemed nullity and would expose the Deputy Commissioner/DCO of the relevant districts/dehs besides others to contempt proceedings. 8. Today, the learned Counsel representing the Senior Member, Board of Revenue, and Ch. Aitzaz Ahsan, learned Sr.ASC, have submitted that the aforesaid restraining order was modified, by order dated 23.06.2014, passed by a three Member Bench, relevant portion of the said order is also reproduced hereunder:- Learned Advocate General, Sindh, submits that the order of this Court regarding stay of allotments, mutations, transfer and conversion of any state land is being complied with in letter and spirit. CMA.376-K/2014 etc 8 6. We may at this stage clarify that this order staying the allotment/grant of leases was meant to ensure that the land is not either leased out or allotted for reasons other than bona fide and to land grabbers and this would not prevent the competent authority in the Federal or Government of Sindh to allot or lease out land for a project approved by the concerned authority which is directed towards establishment of any industry or automotive plant or power generating plant or any other initiative in public interest and in accordance with law and the relevant rules. The learned Advocate General, Sindh, shall convey this order to the Chief Secretary and all the provincial secretaries to ensure that the earlier order is not misconstrued and no such project is held up on that account. 9. We may clarify that the aforesaid order dated 23.06.2014 was obtained by misleading the Court on the pretext that re-writing/re- construction of the record has been completed by the Sindh Government. Today, the Senior Member, Board of Revenue, concedes that the reconstruction and rewriting of the record has not been completed till date. We hold that the order dated 28.11.2012, passed by a five Member Bench of this Court, was never modified and holds the field. C.M.A.No.502-K of 2016. 10. This Application is allowed, subject to all just exceptions. Crl. Original Petition No.6-K of 2016. 11. The Secretary, Local Government, Sindh, states that Sohail Ahmed Khan, who was previously D.G, M.D.A, was appointed initially in BS-16 in the Sindh Local Government Department. This fact has been confirmed by the Secretary, Services, Government of Sindh, CMA.376-K/2014 etc 9 therefore, in terms of judgments of this Court reported as Contempt proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), he shall be denotified and shall report back to his parent department. He, however, shall be entitled to the seniority with his batch-mates as determined by the judgments of this Court referred to hereinabove. Likewise, any other official/officer working on deputation or otherwise absorbed in the M.D.A shall immediately report back to his parent department, failing which the D.G, M.D.A, and the Secretary, Local Government, who is the administrative head of the M.D.A, shall be exposed to contempt proceedings besides the beneficiary, who is still continuing in the M.D.A. 12. Copy of this order be faxed to the Chief Secretary, Government of Sindh, D.G, M.D.A, the Prosecutor General, NAB, Ch. Aitzaz Ahsan, learned Sr.ASC and Mr. K.A Wahab, AOR (C.M.No.502-K of 2016). To come up after two months. Judge Judge Islamabad the, 01-08-2016 Not approved for reporting. Sohail/**

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{'id': 'C.M.A.376-K_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Iqbal Hameedur Rahman Constitution Petition No.33 & 34 of 2005 (Regarding sudden increase in petroleum products on 13.06.2013 due to increase in sales tax) And Civil Misc. Application No.3821 of 2013 Engineer Iqbal Zafar Jhagra Senator Rukhsana Zuberi …Petitioners Versus Federation of Pakistan and others …Respondents For the petitioners: Mr. M. Ikram Ch. ASC (in Constitution Petition No.33/05) Nemo (in Cons.P.34/05) For the Federation: Mr. Munir A Malik, Attorney General for Pakistan Assisted by: Mr. Faisal Siddiqui, Adv. Mr. Dil Mohammad Alizai, DAG Raja Abdul Ghafoor, AOR For FBR: Dr. Rana M. Shamim, ASC Mr. Arshad Ali Chaudhry, AOR Mr. Muhammad Aaqil, Member (Legal) Mr. Raza Baqir, Member Mr. Ashfaq Tunio, Chief Sale Tax For OGRA: Mr. Salman Akram Raja, ASC Const.P.33-34/05 2 Mr. Saeed Ahmad Khan, Chairman Mr. Abdul Basit, Law Officer Ms. Misbah Yaqoob, JED(F) For M/o Petroleum: Ch. Akhtar Ali, AOR For M/o Finance: Nemo For M/o Climate Change: Mr. Dilawar Khan, Dy. Director For OCAC: Nemo Date of hearing: 19/20/21.06.2013 ORDER Iftikhar Muhammad Chaudhry, CJ.— For the reasons to be recorded later, it is declared and held as under: - (i) The Government is not authorized to impose or increase Sales Tax from 16% to 17% on the value of taxable supplies, i.e. by inserting in the Finance Bill (Money Bill) 2013-14 a declaration under section 3 of the Provisional Collection of Taxes Act, 1931 [hereinafter referred to as ‘the Act, 1931’] as such declaration neither has the status of legislation nor sub-legislation, therefore, it has no force of law. AND Immediate recovery of Sales Tax from 16% to 17% on the value of taxable supplies w.e.f. 13.06.2013 is unconstitutional being contrary to Articles 3, 9, 24 and 77 of the Constitution; (ii) Under proviso to rule 20(2)(c) of the Sales Tax Special Procedures Rules, 2007, 9% in addition to the Sales Tax Const.P.33-34/05 3 prescribed under section 3 of the Sales Tax Act, 1990 imposed or recovered from the consumers on CNG is unconstitutional and contrary to Articles 3, 9, 24 and 77 of the Constitution as well as section 3 of the Sales Tax Act; (iii) Section 4 of the Act, 1931 as a whole is declared unconstitutional being contrary to Article 70 of the Constitution, which lays down the procedure for legislation; (iv) Section 5 of the Act, 1931 does not lay down parameters for the purpose of refund of the recovered taxes to the consumers, as such, in absence of any workable mechanism, it is not enforceable in its present form; (v) As a consequence of above declaration, the Federal Government has no lawful authority to levy, impose and recover Sales Tax @ 17% from 13.06.2013 on the value of taxable supplies made in course or furtherance of any taxable activity until passing of the Finance Bill (Money Bill) 2013-14, which has already been tabled before the Majlis-e-Shoora; (vi) The excess amount equal to 1% (17%-16%) of the Sales Tax recovered on the petroleum products/CNG or any other taxable supplies w.e.f. 13.06.2013 onwards, thus is refundable to consumers and concerned authorities accordingly are directed to deposit it with the Registrar of this Court subject to passing of the Finance Bill (Money Const.P.33-34/05 4 Bill) 2013-14 by or under the authority of the Majlis-e- Shoora; If the Sales Tax is imposed by the Majlis-e-Shoora to be recovered with retrospective effect, same shall be paid to the Government, otherwise appropriate orders will be passed for its disbursement; (vii) The Government is also directed to deposit 9% out of 26% of the Sale Tax on CNG as per notification dated 13.06.2013 in the same manner as it has been noted above; (viii) A statement shall also be filed by the Government showing the amount of Sales Tax recovered @ 9% under proviso to rule 20(2)(c) of the aforesaid rules 2007 on value of the CNG from the consumers in addition to declared Sales Tax of 16% imposed under section 3 of the Act, 1990 as this amount is also to be refunded to the consumers, for which appropriate order shall be passed subsequently; (ix) As prices of essential commodities mentioned in the Sixth Schedule to the Act, 1990 have exorbitantly increased according to the media reports, therefore, Federal Government and the Provincial Governments are directed to take action under sections 6 and 7 of the Price Control and Profiteering and Hoarding Act, 1977 to keep the prices consistent as per the Sixth Schedule under section 13(1) of the Act, 1990 (Essential Commodities); Const.P.33-34/05 5 (x) Pending passing of the Finance Bill (Money Bill) 2013-14, Sales Tax shall be recovered from consumers on the taxable supplies including petroleum products and CNG at the rate prescribed under section 3 of the Sales Tax Act; and (xi) The OGRA shall issue revised notification fixing prices of CNG as per above observations forthwith recovering Sales Tax @16% on taxable supplies till passing of Finance Bill (Money Bill) 2013-14 by the Majlis-e-Shoora. The titled Civil Miscellaneous Application is disposed of in the above terms. Chief Justice Judge Judge Islamabad, the 21st June, 2013 Nisar/*

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Iqbal Hameedur Rahman C.M.A.No.3854/14 in SMC No.3/09 (Implementation of the order dated 5.06.2013 passed in SMC 3/09) AND C.M.A. No.4341/14 in CMA No.3854/14 in SMC No.3/09 (Concise statement on behalf of respondent-Bahrai Town () Voluntary Appeared: Malik Muhammad Shafi, In person Dr. Shafiq ur Rehman, In person On Court’s Notice: Mr. Razzaq A. Mirza, Addl.A.G. Mr. Nadee, Ashraf, Sr. Member, BOR Mr. Muzaffar Mehmood, Member, BOR Mr. Sajid Zafar, DCO, Rwp. Mr. Arif Raheem, ADC, Rwp. Mr. Tasneem Ahmad Khan, A.C. Rwp. Cap. (R) Jahanzeb Khan, Secy. Forests Mr. Iftikhar Ahmed, Conservator, Rwp. Mr. Ejaz Ahmed, DFO, Rwp. South Mr. M. Maqsood, Gardawar Mr. Kala Khan, Gardawar Mr. M. Ishfaq, Gardawar Malik Noor Zaman, Tehsildar Mr. Mustansar Ali Gill, Tehsildar Malik Mumtaz Ahmad, Naib Tehsildar Malik Nisar, Naib Tehsildar Mr. Waqar Ahmad, Naib Tehsildar Mr. M. Safdar, Naib Tehsildar Mr. Sajid Mahmood, Naib Tehsildar Mr. Abdul Shakoor, Naib Tehsildar Mr. Ameer Anwar, Patwari Mr. Tariq Mehmood, Patwari Mr. Mehmood Ahmad, Patwari Mr. Abdul Aziz, Patwari For Bahria Town: Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Khan, ASC (on behalf of Syed Ali Zafar, ASC) Raja Zafar Khaliq, ASC (on Court call) Raja Abdul Ghafoor, AOR Date of Hearing: 31.03.2015 ORDER Jawwad S. Khawaja, J. The case has been called in the supplementary cause list at Sr. No.1. Mr. Aitzaz Ahsan, learned Sr. ASC has informed us that Syed Ali Zafar, learned ASC who is out of country has told him firstly, that he is on general adjournment and CMA No.3854/14 in SMC 3/09 2 secondly, that he has moved an application to Hon’ble the Chief Justice of Pakistan. Our Office shows that presently there is no such application pending with the Office, although there appears to be some application which has been provided to the press which has reported in respect of such application in today’s newspapers. An inquiry from the Office has revealed that an application was filed but was returned to Raja Abdul Ghafoor AOR for Bahria Town on 28.3.2015 with Office objections and has not been refilled after removal of objections. A copy of the application has now been supplied to us in Court by Mr. Aitzaz Ahsan Sr. ASC. 2. Let the matter come up after 11:30 am. 3. It is now 1:30 p.m. when the matter is again being taken up. On 25.03.2015, this matter i.e. CMA No.3854/14 & 4341/14 in CMA No.3854/14 came up for hearing and an order was passed wherein we noted that almost two years ago, on 5.06.2013 we had directed that the Collector, Rawalpindi being the competent functionary of the Punjab Province shall proceed promptly in accordance with law to assert/secure such rights as according to him are vested in the Province. We also noted that proceedings which were pending before the civil and revenue forums shall be decided by the competent forums expeditiously. A report was also sought within thirty days from 5.06.2013. Thereafter through a chamber order we were constrained to note that our order of 5.06.2013 had not been complied with and as a result the report sought had not been submitted. An order dated 18.12.2013 was then passed in chambers by Mr. Justice Ejaz Afzal Khan wherein it was recorded that “we do not understand why demarcation of property is procrastinated [sic] on one pretext or another. Issuance of stay order or its refusal will not have much bearing on the determination of demarcation of boundaries. We are also at a loss to understand as to why the spade work facilitating the resolution of the dispute, is avoided. Let show cause notices to all concerned be issued requiring them to explain their position in this behalf. ” A period of more than 16 months has elapsed since the aforesaid chamber order. It is for this reason that when we had ascertained that action had not been taken in compliance with our order of 5.06.2013 we directed that the matter be fixed in Court. 4. On the last date of hearing i.e. 25.03.2015 we were informed by Mr. Gohar Ali Khan, ASC that Syed Ali Zafar, learned ASC for M/s Bahria Town was unavailable because he was on general adjournment. We noted that no request for general adjournment was before CMA No.3854/14 in SMC 3/09 3 us but nonetheless, we extended courtesy to Mr. Gohar Ali Khan, ASC although he was not counsel in this mater, and adjourned the case for today in order not to cause any prejudice to Syed Ali Zafar’s client. We may record that because the request for general adjournment was not before us and we were not even informed that the general adjournment had been granted, that we directed that this matter be listed for hearing today i.e. 31.03.2015. Today Raja Abdul Ghafoor, who is AOR and has instructed Syed Ali Zafar, learned ASC in the matter, is present. He was not present on 25.03.2015 but stated that he was in the Court room but could not hear when the case was called. We accept this submission as a statement made at the Bar but what is still not understandable is as to why the application for general adjournment had not been placed before us. This aspect of the case is being dealt with in some detail because Ch. Aitzaz Ahsan, learned Sr. ASC has appeared on behalf of Syed Ali Zafar, learned ASC and informed the Court that he had received telephonic instructions from Syed Ali Zafar, ASC in which he stated firstly, that he was on general adjournment and secondly, that an application had been filed by him addressed to Hon’ble the Chief Justice. 5. At this point we have to take note of the fact that reference to the said application addressed to the Chief Justice had appeared in various newspapers and was noticed by some functionaries of the Supreme Court this morning. We find this to be somewhat surprising because firstly, Rule 164 of the Legal Practitioner and Bar Councils Rules, 1976 states that “publications in newspapers by an advocate as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prejudice the due administration of justice. Generally they are to be condemned”. We, however, will not comment further on this aspect of the case because Syed Ali Zafar, ASC is not present today and only he may be able to explain this circumstance. Let him submit his explanation. 6. We also inquired and were informed by the Office that no such application is pending as it was returned to the AOR on 28.3.2015. Something may now be said about the aforesaid application itself. Para-8 of the said application being relevant is reproduced as under:- “8. That it is an established principle of law that “justice must not only be done but seen to be done”. The CM of the M/s Bahria Town in which the M/s Bahria Town is challenging the very jurisdictional basis in law CMA No.3854/14 in SMC 3/09 4 under which the court is conducting these post decision proceedings and wherein the M/s Bahria Town is submitting that this honourable court does not have any jurisdiction in law to direct the respondent to take action against the M/s Bahria Town without a fair trial which is pending and has to be first decided, yet the honourable judge Justice Jawad S. Khawja again and again directed and threatened the officer concerned of the Government to take action against the M/s Bahria Town otherwise his service may be harmed. This has created reasonably in the mind of the M/s Bahria Town as a litigant that the learned judge has already made up his mind to dismiss/has effectively negated the CM filed by the M/s Bahria Town and is proceeding with the case regardless. This coupled with the fact that the Hon’ble Judge Mr. Justice Jawad S. Khawaja refused to accept the general adjournment of undersigned and has passed various observations and even passed order and also fixed the next date of hearing as 31st knowing that undersigned is not available, all of which has serious impact on the final decision. The M/s Bahria Town has serious apprehension that the Hon’ble Judge has already made up his mind to decide the case against the M/s Bahria Town in the absence of the its counsel and hence it is in the interest of justice if the case is put up before another Bench. The learned judge even at one stage remarked that he will not record the order of direction to the government officials and the oral observations should be sufficient.” (emphasis supplied) 7. We find it extremely disconcerting that so many wrong assertions have been made in the application, probably on the basis of some hearsay which someone or the other may have conveyed to Syed Ali Zafar, ASC who is abroad. The first thing which we need to comment on is the statement that the Judge has already made up his mind. On what basis this assertion has been made is noted in the excerpt of the application reproduced above but it is quite baseless as it does not even remotely mean that the Court has made up its mind to dismiss the CMA filed by the M/s Bahria Town. The second patently false assertion is that Justice Jawwad S. Khawaja refused to accept the general adjournment of the undersigned (Syed Ali Zafar) and that the hearing was adjourned to 31.03.2015 CMA No.3854/14 in SMC 3/09 5 knowing that Syed Ali Zafar is not available. This is a patently false assertion causing aspersion not only on the Judge but the entire Court and judiciary of this Country. The order passed on 25.03.2015 shows that neither Syed Ali Zafar, ASC was present nor was the learned AOR Raja Abdul Ghafoor and there was definitely no application for general adjournment placed before the Court on that date. It is only as a matter of courtesy which the Court extended to a member of our Bar that information given by Mr. Gohar Ali Khan was noted in our order of 25.03.2015 to the effect that Syed Ali Zafar, ASC was on general adjournment. Mr. Gohar Ali Khan, ASC did not give any indication as to when the general adjournment of Syed Ali Zafar would end. We, therefore, directed that in order not to prejudice the client of Syed Ali Zafar, ASC the case be adjourned to 31.03.2015 (today). It is only today that we have been informed that Syed Ali Zafar, ASC will not be available till 1.04.2015. Ch. Aitzaz Ahsan, Sr. ASC stated that the Court should have extended a further courtesy to the absent advocate and should on its own initiative have inquired from the office if there indeed was an adjournment application and the date upto which adjournment had been allowed. With great respect to the learned Sr. ASC, this is wholly untenable and unjustified and is also not in conformity with the Rules and practice of the Court. Courtesy is always extended to the members of the Bar, as it was extended in this case to Mr. Gohar Ali Khan, ASC. However, it is always for the party or the ASC to ensure presence of the AOR at the hearing and it is for the AOR to inform the Court that the learned counsel is on adjournment or at the very least to file an application giving intimation of the general adjournment. Ch. Aitzaz Ahsan, learned Sr. ASC then pointed out that in the order of 25.03.2015 it had been recorded that State land be recovered although the report itself relating to demarcation was inconclusive. He also stated that the order of 25.03.2015 was prejudicial to M/s Bahria Town client of Syed Ali Zafar, ASC. Syed Ali Zafar, ASC shall have the opportunity to explain the patently false and scurrilous assertion made in his application. Let him do so. We may however, reiterate that in our order of 5.06.2013, we had stated as under:- “Since, we are not to record evidence and make a determination in these proceedings as to the respective rights/title of the parties in the land in question or as to the criminal liability of delinquent individuals, the Collector, Rawalpindi who, as noted above, is the competent functionary of the Punjab Province shall proceed promptly in accordance with law to assert/secure such rights as according to him are vested in the CMA No.3854/14 in SMC 3/09 6 Province. The pending proceedings before the Civil and Revenue forums shall be decided by the competent forums expeditiously and a report of the status of these proceedings be submitted for our perusal within 30 days. SMC No. 3 of 2009 stands disposed of.” The third allegation in the application of Mr. Ali Zafar is the most egregious and scandalous. When the Court comes to the conclusion that its order which was passed almost two years ago and which had directed that the Collector, Rawalpindi shall proceed promptly in accordance with law has not been compiled with, it becomes incumbent upon the Court to take action as has been done in the present case. Ensuring compliance of our order of 5.6.2013, two years after the same was passed or our chamber order of 18.12.2014 after the lapse of almost 16 months is necessary for the effective enforcement and execution of Court orders. No person can feel threatened by the efforts made by the Court to ensure compliance of its orders. We may also add that the government functionaries, in particular Mr. Sajid Zafar, Collector Rawalpindi was directed to comply with our orders. Referring to this effort on the part of the Court as a threat to the officer concerned, is wholly uncalled for. 8. On the last date of hearing also, we had directed that the Collector shall make sure that action according to law is taken and our orders are complied with. We may also at this point note that it was as far back as 5th June, 2013 almost 22 months ago that we had passed our order and it is only because of non-compliance thereof that we had passed the chamber order of 18.12.2013 and had also directed the issuance of show cause notices to all concerned requiring them to explain their conduct in this behalf. Only one of the persons has filed a reply to the show cause notice i.e. respondent No.2 namely, Sher Alam Mehsood. It is for this reason that in Crl. P. No.110/14 notices were issued to the respondents other than respondents Nos.2,5,6 &23. Ch. Aitzaz Ahsan, learned Sr. ASC then emphasized that according to Syed Ali Zafar, ASC the application addressed to Hon’ble the Chief Justice has been received in the office. In this behalf we have already ascertained from the Office as noted above. 9. Coming back to the aforesaid application addressed to Hon’ble the Chief Justice and the extract therefrom which has been reproduced above, it has been stated by Syed Ali Zafar, ASC that the action of Justice Jawwad S. Khawaja “has created reasonably in the mind of CMA No.3854/14 in SMC 3/09 7 the M/s Bahria Town as a litigant that the learned judge has already made up his mind to dismiss/has effectively negated the CM filed by the M/s Bahria Town and is proceeding with the case regardless.”. This apprehension on the part of the M/s Bahria Town has been repeated further in the extract of the application reproduced above. We may note that the M/s Bahria Town is merely a corporate entity and it has no mind of its own and can have no apprehension of its own. It only acts through natural persons such as its directors, chief executive etc. Syed Ali Zafar, ASC may therefore, explain to the Court as to who has the apprehension and on what basis. In any event prima facie, there appear to be some significant breaches of the Supreme Court Rules, 1980 and of the Code of Conduct prescribed for Advocates under the Legal Practitioners and Bar Councils Act, 1973. These apparent violations include violation by an Advocate “to uphold at all times the dignity and high standing of his profession as well as his own dignity and high standing as a member thereof”. 10. It may be added that an Advocate is not a tool or a puppet in the hands of his client, obliged to pander to the desires of the client, right or wrong. Rule 156 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 states that “nothing operates, more certainly to create or foster popular prejudice against Advocates as a class, and to deprive the profession of [the] public esteem … which belongs to the proper discharge of its duties”. The Rule further stipulates that “the Office of an Advocate does not permit, much less does it demand of him … the violation of any law or any manner of fraud or chicanery. In doing his professional duty to his client he must obey the voice of his own conscience and not that of his client”. An honest, upright and ethical Bar is absolutely essential for the just dispensation of justice, particularly in our adversarial legal system. This has to be ensured at all cost if an independent Bench and Bar are to be maintained. 11. We may also point out at this stage that this Court has been hearing a number of cases involving M/s Bahria Town or its directors. It can be recalled that 4, 5 or even more cases were filed against the M/s Bahria Town by various individuals. Syed Ali Zafar, ASC was representing the M/s Bahria Town in those cases also. A number of those cases were decided in favour of the M/s Bahria Town and no apprehension was ever expressed at that time although some cases were decided in a manner not strictly in accordance with the wishes of the M/s Bahria Town. The office shall trace those cases also and place the same on record. CMA No.3854/14 in SMC 3/09 8 12. Since Syed Ali Zafar, ASC is on general adjournment till 01.04.2015, let this matter be listed for hearing on 2.04.2015. Syed Ali Zafar, ASC will be given full opportunity to give his explanation in respect of the matters noted above so that appropriate orders can be passed. Judge Judge ISLAMABAD 31st March, 2015 (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 Munib Akhtar Mr. Justice Syed Hasan Azhar Rizvi Mr. Justice Shahid Waheed C.M.A. NO. 3932 OF 2023 IN CONSTITUTION PETITION NO. 14 OF 2023 AND CONSTITUTION PETITION NOS. 14 to 17 OF 2023 (Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973) Abid Shahid Zuberi, Advocate Supreme Court of Pakistan (in Const. P. 14 & CMA 3663/2023) Muqtedir Akhtar Shabbir (in Const. P. 15 of 2023) Imran Ahmad Khan (in Const. P. 16 of 2023) Riaz Hanif Rahi, Advocate Supreme Court of Pakistan (in Const. P. 17 of 2023) …Petitioner(s) Versus Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others (in Const. P. 14/23 & CMA 3663/23 & Const.P.15 of 2023) Federation of Pakistan through its Secretary Cabinet, Pak Secretariat, Islamabad and others (in Const. P. 16 of 2023) Government of Pakistan through Secretary Cabinet Division, Islamabad and another (in Const. P. 17 of 2023) …Respondent(s) For the petitioner(s) : Mr. M. Shoaib Shaheen, ASC Mr. Abid Shahid Zuberi, ASC Mr. M. Umer Lakhani, ASC assisted by: Agha Ali Durrani, Adv. Ms. Minahil Malik, Adv. Ms. Amna Khalili, Adv. (in Const. P. 14/23) CMA No.3932/2023 2 Mr. Shakeel-ur-Rehman, ASC Mr. Muqtedir Akhtar Shabbir, ASC (in Const. P. 15/23) Nemo (in Const. P. 16/23) In-person (in Const. P. 17/23) For the Federation : Mr. Mansoor Usman Awan, Attorney General for Pakistan Ch. Aamir Rehman, Addl. AG Raja M. Shafat Abbasi, DAG Assisted by: Barrister Maryam Ali Abbasi, Adv. Mr. Saad Javaid Satti, Adv. Ms. Maryam Rasheed, Adv. Ms. Mehwish Batool, Adv. Mr. Rashdeen Nawaz Kasuri, Addl. AG For PEMRA : Mr. Amanullah Kanrani, ASC For PTA : Mr. Afzal Khan, ASC Date of hearing : 06.06.2023 J U D G M E N T UMAR ATA BANDIAL, CJ: This judgment shall decide the Federal Government’s CMA No.3932 of 2023 (“recusal application”), filed in Constitution Petition No.14 of 2023, which seeks the recusal of three learned Members of the Bench, namely, Chief Justice Umar Ata Bandial (“CJ”); Justice Ijaz ul Ahsan; and Justice Munib Akhtar. However, as will be explained later in the judgment the prayer in the recusal application was ultimately confined only to the extent of the CJ. Factual Background 2. The events leading up to the recusal application are that on 14.01.2023 and 18.01.2023 respectively the CMA No.3932/2023 3 Provincial Assemblies of Punjab and Khyber Pakhtunkhwa were dissolved. Article 224(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) mandates: “224. Time of Election and bye-election. … (2) When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.” (emphasis supplied) Under the said constitutional direction it was imperative for the General Elections to the Punjab Assembly to be held on or before 14.04.2023 and to the Khyber Pakhtunkhwa Assembly on or before 18.04.2023. However, despite the strict deadline no progress was made by the authorities responsible for holding the General Elections to announce the date of the same. As a result, writ petitions were filed in the Lahore High Court and the Peshawar High Court for a direction to these authorities to announce the date of General Elections to the Punjab and Khyber Pakhtunkhwa Assemblies. The Lahore High Court vide its judgment dated 10.02.2023 declared the Election Commission of Pakistan (“ECP”) as the competent authority to give the date of election. This judgment was immediately challenged by the Governor, Punjab and the ECP through Intra Court Appeals. The writ petition filed in the Peshawar High Court, however, remained pending. 3. Taking stock of the 90 day constitutional deadline expiring in mid-April for holding the General Elections and CMA No.3932/2023 4 the indifference of the concerned authorities to fix the date for such election, a two Member Bench of the Court comprising Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on 16.02.2023 recommended the CJ to take Suo Motu notice of the delay in the holding of the General Elections to the Provincial Assembly of Punjab.1 The CJ was collecting relevant information on the subject from the respective High Courts when two days later on 18.02.2023 the Speakers of the Punjab and the Khyber Pakhtunkhwa Assemblies jointly filed a Constitution Petition in the Court seeking the fixation of date of the General Elections to the two dissolved Provincial Assemblies. At that time the facts of note were that the custodians of both the Provincial Assemblies had approached the Court for relief; that a strict constitutional deadline for holding the General Elections was in the field which required compliance; and that the information from the two High Courts showed that the pending proceedings were not progressing. In the above circumstances, the CJ following the rule laid down in SMC No. 4 of 2021 (PLD 2022 SC 306) accepted the recommendation made by the two learned Judges of the Court advising Suo Motu notice of the delay in announcing the election date. He accordingly invoked Suo Motu jurisdiction on 22.02.2023 and constituted a 9 Member Bench to hear the matter on 23.02.2023. 1 CP No.3988/2022 <https://www.supremecourt.gov.pk/downloads_judgements/c.p._3988_2022.pdf > CMA No.3932/2023 5 4. Meanwhile on 16.02.2023 a Twitter account with the name of indibell released three audio recordings of alleged telephonic conversations between the following persons: i. Mr. Chaudhary Pervaiz Elahi, ex-Chief Minister, Punjab and Mr. Arshad Jhoja, ASC; ii. Mr. Chaudhary Pervaiz Elahi and Mr. Abid Zuberi, ASC, President Supreme Court Bar Association of Pakistan, the petitioner in Constitution Petition No.14 of 2023; and iii. Mr. Chaudhary Pervaiz Elahi and Justice Sayyed Mazahar Ali Akbar Naqvi, a sitting Judge of the Supreme Court. Over a period of two months or so thereafter, more audio recordings of alleged telephonic conversations concerning known personalities or their families were released by indibell. Amongst these audio leaks a recording allegedly involving the mother-in-law of the CJ (“Relative”) was released by indibell on 23.04.2023. Without verifying either their authenticity or the identity and credibility of their leaker the Federal Government immediately endorsed the audio recordings to denounce the Judges mentioned therein for compromising the independence of the Judiciary. Accusatory press conferences were held by incumbent Federal Ministers citing the audio recordings as proof that the Superior Judiciary was prejudiced against the Government of the day. 5. Such vilification of Superior Court Judges by elected Government functionaries continued before the media and sometimes even in Parliament. Finally action in the matter was taken by the Federal Government on 19.05.2023. CMA No.3932/2023 6 On this date in exercise of its power under Section 3 of the Pakistan Commissions of Inquiry Act, 2017 the Federal Government formed a three member Inquiry Commission (“Commission”) vide SRO No.596(I)/2023 (“impugned notification”) with the mandate, inter alia: “6… (i) to inquire into the veracity of audio leaks allegedly concerning including the Judiciary; (a) call between ex-Chief Minister Punjab and an advocate regarding a sitting Judge of the Supreme Court of Pakistan, (b) between ex- Chief Minister, Punjab and an advocate regarding fixation of some cases before a particular Bench of the Supreme Court of Pakistan, (c) between ex-Chief Minister Punjab and a sitting Judge of the Supreme Court of Pakistan, (d) between Retired Chief Justice of Pakistan and a senior lawyer, (e) between a lawyer and a journalist on the outcome of a case before a particular Bench of Supreme Court of Pakistan, (f) between former Prime Minister of Pakistan and his party colleague about their links in the Supreme Court of Pakistan, (g) between mother in law of the Chief Justice of Pakistan and wife of a lawyer regarding cases in the Supreme Court of Pakistan and hoping for un-constitutional rule[,] (h) between son of a former Chief Justice of Pakistan and his friend mentioning his father in a political role; … (iii) to determine violation, if any, of integrity of the process of administration of justice, independence of Judiciary, right to fair trial and equality of citizens; … (v) to determine as to whether any disciplinary proceedings are attracted; … (viii) if the stated audios are fake or fabricated, to inquire into and fix responsibility with regards, as to who is making these and recommend action to be taken in this regard;…” (emphasis supplied) 6. It is clear from clauses 6(i), (iii), (v) and (viii) set out above that the Federal Government desired the CMA No.3932/2023 7 Commission to first inquire into the veracity of the audio recordings. If the same turned out to be genuine and their content disclosed the violation of ‘integrity of the process of administration of justice and the independence of the Judiciary’ then the Commission was to determine whether disciplinary proceedings are attracted. Prima facie the impugned notification does not give the Judges of the Superior Courts named in the audios immunity from such proceedings. On the other hand, if the Commission concluded that the audio recordings are fake or fabricated then under clause 6(viii) action was to be recommended by it against the persons responsible for making the audios. 7. The persons selected by the Federal Government for carrying out these functions of the Commission are serving Superior Court Judges, namely, Justice Qazi Faez Isa, Senior Puisne Judge of the Supreme Court (Chairperson); Justice Naeem Akhtar Afghan, Chief Justice of Balochistan High Court (Member); Justice Aamer Farooq, Chief Justice of Islamabad High Court (Member). It is a matter of record that the Federal Government did not inform, consult with or obtain the consent of the CJ before constituting the Commission. On 22.05.2023 the Commission held its first hearing and passed an order on the same date (the details are not relevant for present purposes). 8. Soon thereafter the titled Constitution Petitions bearing Nos.14 to 17 of 2023 (“Const P Nos.14 to 17 of 2023”) were filed in Court challenging the vires of the CMA No.3932/2023 8 impugned notification. These were duly registered and listed for hearing before the present Bench. On the first date of hearing of the titled petitions i.e., 26.05.2023 the learned counsel for the petitioner in Constitution Petition No.14 of 2023 formulated the common questions of law requiring determination in the petitions. These are: i. Whether the impugned notification violates the fundamental constitutional principle of separation of powers by vesting the Executive with the power to investigate alleged judicial misconduct through a Commission comprised of Superior Court Judges and in case of its proof to recommend appropriate disciplinary action; ii. Whether the mandate of the Commission encroaches into the exclusive jurisdiction conferred on the Supreme Judicial Council by Article 209 of the Constitution (which lays down the process for and grounds of accountability of Superior Court Judges); iii. Whether the impugned notification negates a salient feature of the Constitution, namely, the independence of the Judiciary by interfering with its functioning in bypassing the CJ for unilaterally picking Superior Court Judges as Members of the Commission; and iv. Whether in the absence of a law allowing for the surveillance and recording of private communication between citizens, the audios are a breach of Article 14 of the Constitution (right of privacy of home) and the dictum of the Court laid down in Benazir Bhutto Vs. President of Pakistan (PLD 1998 SC 388). During the course of the same hearing the learned Attorney General for Pakistan (“AG”) made an oral request to the Bench that one of us, namely, the CJ may consider recusing CMA No.3932/2023 9 himself from the Bench for the reason that one of the audio recordings selected for probe by the Commission allegedly contains a conversation of his Relative that mentions him. The order dated 26.05.2023 disapproved this oral request of the learned AG for failing to refer to any implicating conversation of the Relative and/or to the particulars of the allegation levelled against the CJ. However, as important constitutional questions of law were raised and explained by the learned counsel for the petitioner in Constitution Petition No.14 of 2023 the said order of 26.05.2023 granted the interim relief sought by him in CMA No.3663 of 2023 in the following terms: “8. CMA NO.3663 OF 2023 IN CONST.P.14 OF 2023. Learned counsel for the petitioner also prayed for interim relief since the Commission has already started functioning and has made an order on 22.05.2023 and the next meeting of the Commission is scheduled for 27.05.2023. In the circumstances, till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19.05.2023 issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed.” (emphasis supplied) The matter was adjourned to 31.05.2023 when the learned AG pressed the freshly filed recusal application on which notice was issued to the parties for arguments of the learned counsel on 06.06.2023. Submissions of Counsel CMA No.3932/2023 10 9. At the outset before commencing his submissions on the recusal application the learned AG recorded two preliminary points: i. First, that he would not be pressing for the recusal of either Justice Ijaz ul Ahsan or Justice Munib Akhtar; and ii. Second, that the sole ground for seeking the recusal of the CJ is his alleged conflict of interest in the matter on account of his Relative. Our judgment is therefore confined to the prayer made for the recusal of the CJ from continuing to sit on the Bench hearing Const P Nos.14 to 17 of 2023. 10. In support of the recusal application, the learned AG primarily relied on clause 1 of Article IV of the Code of Conduct for Judges of the Supreme Court and High Courts (“CoC”) which reads: “A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend.” He argued that allegedly the Relative of the CJ was conversing in one of the audio recordings which had been selected for probe by the impugned notification. The vires of that notification are under challenge in Const P Nos.14 to 17 of 2023. Therefore, to avoid a conflict of interest and to maintain the appearance of impartiality the CJ should recuse himself from the Bench. More so when the rule of necessity did not require his presence on the Bench because even after his recusal there would be a sufficient number of Judges available for a reconstituted 5 Member Bench to hear and CMA No.3932/2023 11 decide the said petitions. He cited Suo Motu Case No.5 of 2012 (PLD 2012 SC 664) to demonstrate that in the past Judges of the Court did not preside over or sit on Benches that were hearing matters involving the interests of their relatives. That in furtherance of the said practice the CJ should disassociate from the Bench. However, he reiterated in categorical terms that it was not the assertion of the Federal Government that the CJ was either biased or that he had any pecuniary or proprietary interest in the decision of Const P Nos.14 to 17 of 2023. 11. In response, the learned counsel for the petitioner in Constitution Petition No.14 of 2023, Mr. Shoaib Shaheen, ASC submitted that the recusal application should be rejected. Otherwise its acceptance would validate a practice of harassing Judges by first maliciously uploading their unverified audios, recorded secretly and unlawfully, anonymously on an unregulated social media platform and then by relying on those audios to seek the recusal of such Judges from hearing cases. He also referred to the decisions rendered in Justice Qazi Faez Isa Vs. President of Pakistan (2019 SCMR 1875); Independent Media Corporation Vs. Federation of Pakistan (PLD 2014 SC 650); Federation of Pakistan Vs. Muhammad Nawaz Sharif (PLD 2009 SC 284); The President Vs. Mr. Justice Shaukat Ali (PLD 1971 SC 585) to show that Judges of the Court have been reluctant to recuse from cases on mere allegations of bias which is a more serious allegation than conflict of interest. In rebuttal, the CMA No.3932/2023 12 learned AG emphasised that in this matter conflict of interest, and not bias, has been alleged therefore the judgments quoted by Mr. Shoaib Shaheen, ASC are inapplicable. 12. After hearing the learned counsel for both sides the Bench reserved its judgment. Our decision on the recusal application and reasons for arriving at the same are given below. Conflict of Interest and Bias 13. During his arguments, the learned AG relied on Article IV of the CoC (produced above in para 10) to emphasise the principle of conflict of interest mentioned therein. Clearly, the said principle would be attracted if any interest of the CJ or that of his Relative was indicated in the lis. However, the Court’s query as to what interest of the CJ or his Relative is involved in Const P Nos.14 to 17 of 2023 was neither answered nor explained by the learned AG. He candidly admitted though that no pecuniary or proprietary interest of either the CJ or his Relative was tied with the fate of the said petitions. When asked to explain the term ‘conflict of interest’ the learned AG merely clarified that as a ground of recusal it was distinct from ‘bias.’ The latter being an allegation that the Federal Government had not raised. The diffidence of the learned AG to respond to the Court’s questions denotes that the objection of the Federal Government may have been raised nonchalantly, possibly to delay a decision on the merits or to harass the concerned Judge. Nevertheless, to consider the Federal Government’s CMA No.3932/2023 13 vague plea with utmost solemnity an effort has been made to understand it. For this purpose the meaning and scope of the term ‘conflict of interest’ and its difference, if any, from ‘bias’ have been examined. Relevant passages from two treatises are produced below for reference: “Corpus Juris Secundum (Volume 48A) §109: The words “bias” and “prejudice”, as used in connection with the disqualification of a judge, refer to the mental attitude or disposition of the judge toward a party to the litigation and not to any views that he might entertain regarding the subject matter involved. Bias and prejudice mean a hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one. This requires antagonism or animosity toward the affiant or his counsel or favoritism towards the adverse party or his counsel… §120: Ordinarily, the interest of a judge, in order that he may be disqualified, must be in the subject matter of the litigation, and not merely in a legal question involved… The interest in the subject matter of the litigation which disqualifies a judge is a direct pecuniary or property interest, or one which involves some individual right or privilege, whereby a liability or pecuniary gain must occur on the outcome of the suit. The interest that disqualifies a judge is a personal interest… American Jurisprudence, 2nd Edn §98: It is well settled that a judge is disqualified to sit in an action where he has any pecuniary interest in its result, or owns property that will be affected by its outcome. A disqualifying pecuniary or property interest is an interest in the event or subject matter of the action or in the judgment to be rendered therein such that by the judgment the judge will be directly affected by a pecuniary gain or loss. According to some of the cases, the interest which will disqualify a judge must be pecuniary in its nature, or must be a pecuniary or property interest in the action or its result. But other courts have held that the interest need not necessarily be a pecuniary one, but that it may be a personal one to the judge… §167: The words “bias” and “prejudice” refer to the mental attitude or disposition of the judge toward a party to the litigation, and not CMA No.3932/2023 14 to any views that he may entertain regarding the subject matter involved. Bias and prejudice mean a hostile feeling or spirit of ill will against one of the litigants or undue friendship or favoritism toward one…” (emphasis supplied) 14. The afore-quoted excerpts show that conflict of interest and bias are indeed two distinct grounds on which a party may seek the recusal of a Judge from hearing a case. Whilst conflict of interest is related to the Judge’s interest in the subject matter of a particular case, bias is concerned with his state of mind and his feelings towards the parties appearing before him. Since the learned AG confined his submissions to the ground of conflict of interest only and not on bias, it is clear that the Federal Government does not anticipate any prejudice from the CJ. Conflicts of Interest Entailing Disqualification 15. As noted above, a conflict of interest is related to the subject matter of the litigation. This means that the Judge, whose recusal is being sought, must have a direct pecuniary, proprietary or personal interest in the litigation. A classic example of a Judge having a pecuniary interest in a litigation is Dimes v Grand Junction Canal Proprietors [10 ER 301 (1852) (HL)]. In that case the (then) Lord Chancellor, Lord Cottenham, owned a substantial shareholding in Grand Junction Canal which was an incorporated body. In a suit filed by Grand Junction Canal the Vice-Chancellor granted the relief sought. The appeal came before the Lord Chancellor who affirmed the decision of the Vice-Chancellor. The matter then came before the House of Lords which reversed the CMA No.3932/2023 15 decree of the Lord Chancellor and Lord Campbell, in what is now regarded as the classic formulation on disqualification on the basis of interest, held: “ …No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest…” (emphasis supplied) 16. It is not the case of the Federal Government that the CJ or his Relative have any direct pecuniary and/or proprietary interest in the present matter (refer para 7, pg.5 of the recusal application). Instead it alleges, as noted above in para 10, that because the CJ’s Relative is involved in one of the audio recordings selected for probe by the Commission, therefore, he has a direct personal interest in the outcome of these Constitution Petitions. Consequently, he ought to recuse himself from hearing the case. Personal interest has been defined in Halsbury’s Laws of England (Volume 61A, 2018) as follows: “33. …The most obvious form of direct personal interest is a financial interest… However, financial interests are merely one form of direct personal interest. The rule also applies if the adjudicator's decision will lead to the promotion of a cause in which he is involved together with one of the parties.” (emphasis supplied) Apart from pecuniary (financial) interest of a Judge, which has already been ruled out because the same was neither alleged nor pressed, the afore-noted comment in Halsbury’s CMA No.3932/2023 16 Laws explains that non-pecuniary interests are also included in personal interests. The ‘promotion of a cause’ has been cited as an example of one such interest. This particular ground was created by the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) ([2000] 1 AC 119) for setting aside its earlier decision wherein Lord Hoffman and two other Judges (by a majority of 3:2) had held that Augusto Pinochet, being the former Head of State of Chile, was not entitled to immunity and could be arrested, extradited and prosecuted for his alleged crimes against humanity. In this earlier decision of the House of Lords Amnesty International (“AI”) was an intervener and argued in support of the proposition that Pinochet was not entitled to immunity. After the earlier decision was released information came to light that Lord Hoffman was a director of Amnesty International Charity Ltd (“AICL”), a registered charity which undertakes charitable works for AI. As a result, Pinochet lodged a petition in the House of Lords with the prayer that either the earlier decision be set aside or the opinion of Lord Hoffman be discarded. Ultimately, the House of Lords granted the former relief. Lord Browne-Wilkinson, speaking for the Bench, observed: “ …Hitherto only pecuniary and proprietary interests have led to automatic disqualification… …My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil CMA No.3932/2023 17 litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.” (emphasis supplied) 17. The principle laid down above by the House of Lords treats the promotion of a cause by a Judge to be in conflict with his constitutional duties. However, the learned AG did not even specify, let alone elaborate, what cause, if any, the CJ may be interested in promoting by sitting on the Bench hearing Const P Nos.14 to 17 of 2023. The failure of the learned AG to identify the specific cause and hence the interest of the CJ or of his Relative that may be affected by the said petitions renders the allegation of the Federal Government against the CJ fanciful. Moreover, the Relative of the CJ is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the Court. In these circumstances, Article IV of the CoC has no application to the present case. Therefore, it appears that an illusory claim of conflict of interest has been alleged against the CJ by the Federal Government to prima facie postpone a decision in the instant Constitution Petitions. Such an object appears to be consonant with the Federal Government’s strategy, discussed later in the judgment, of CMA No.3932/2023 18 blocking or delaying the Court’s decisions on questions of law requiring the interpretation of constitutional principles. 18. There is a possibility that the Court’s decision on the questions of law raised in the titled petitions (refer para 8 above) may result in the impugned notification being struck down. That result would relieve the Judges implicated in the said notification from being scandalised in the public without the authenticity of the audios and the identity and credibility of their leaker being established or any allegation of wrongdoing being levelled against them. It becomes apparent then that in the present petitions the Court is acting solely to safeguard the public cause of upholding the cherished values of separation of powers, the independence of the Judiciary and the Fundamental Rights of privacy and dignity of persons. Accordingly, no personal interest of the CJ can inhere in the subject matter of these petitions that pertain only to the determination of constitutional questions of public importance. In fact, to even assume a personal interest of the CJ in the titled petitions a cause promoted by him or a benefit or liability accruing to him would need to be positively identified in the subject matter of the petitions. However, the learned AG has failed to do that. Therefore, the CJ cannot be expected to abandon his constitutional duty as a Judge hearing Const P Nos.14 to 17 of 2023 on the basis of an unknown and imaginary interest. The law is clear that for an CMA No.3932/2023 19 interest to attract the disqualification of a Judge from a case, the same needs to be direct and certain: “American Jurisprudence, 2nd Edn S99: To work a disqualification of a judge, the interest must be a direct, certain, and immediate interest and not one which is indirect, contingent, incidental, or remote… Corpus Juris Secundum (Volume 48A) S120: …Although it has been broadly stated that a judge should not sit in any case in which he is directly or indirectly interested, to disqualify a judge, his interest in the subject matter of the litigation, must be direct, real, and certain, and not one which is merely incidental, remote, contingent, or possible, speculative, unreal, or merely theoretical.” (emphasis supplied) Necessity 19. On account of his inability to disclose any direct and certain interest of the CJ or of his Relative in Const P Nos.14 to 17 of 2023 the learned AG took the plea that the Federal Government’s request for the CJ’s recusal from the Bench would not offend the rule of necessity. That the CJ’s withdrawal will not prevent the formation of a new 5 Member Bench to hear and decide the titled petitions. Whether the learned AG’s argument has any relevance to the prayer made in the recusal application requires firstly, understanding the meaning of the term ‘necessity’ and secondly, ascertaining the purpose of and the circumstances in which the said principle can be invoked in the context of judicial proceedings. The rule was explained in the case of Justice Shaukat Ali (supra) in these words: “ …“the rule of disqualification must yield to the demands of necessity, and a Judge or an CMA No.3932/2023 20 officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest… if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a termination of the proceeding” (vide American Jurisprudence, Vol 30, page 770)…” (emphasis supplied) This dictum was subsequently quoted with approval by the Court in the cases of Federation of Pakistan Vs. Muhammad Akram Shaikh (PLD 1989 SC 689) and Parvez Musharraf Vs. Nadeem Ahmed (Advocate) (PLD 2014 SC 585). 20. The above passage shows that even when a Judge suffers from a valid disqualification, the rule of necessity permits him to sit on the Bench if his jurisdiction is exclusive or if no substitute is provided by the law in his place. However, as held above there is no direct and certain interest of the CJ in these Constitution Petitions. Therefore, in the absence of a valid ground for disqualification necessity has no application to the present matter. It may also be observed that the learned AG’s submission ignores another crucial aspect of the rule of necessity, namely, that it constitutes a defence for a disqualified Judge to remain a part of the Bench hearing a case rather than being a means for reinforcing a litigant’s challenge to the presence of a Judge on the Bench. For these reasons, the learned AG’s plea of necessity lacks force and is therefore refused. Islamic Perspective on Recusal CMA No.3932/2023 21 21. Whilst the law of the land grants a Judge discretion to recuse from a case if his disqualification is sought, the Holy Quran provides the criteria for guiding the exercise of such discretion: “Surah An-Nisa, Verse 135 O ye who believe! stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” (emphasis supplied) (Translation by Yusuf Ali) The Holy Quran makes it explicit that believers are expected to uphold the scales of justice even if such a course of action goes against their own interest or that of their parents or relatives. This is because of the higher duty to be impartial and to remain uninfluenced by any interest whilst dispensing justice that is owed by a Muslim to the Almighty. Therefore, there is no rule of Islamic Law requiring a Judge to refrain from administering justice in matters in which his personal interest or that of his relatives is involved. The Judge is nevertheless under the onerous obligation that he must not be swayed by any extraneous considerations when deciding a matter. This duty is also reflected in the Oath of Office taken by a Superior Court Judge: ‘[t]hat I [Judge] will not allow my personal interest to influence my official conduct or my official decisions’ (ref: Third Schedule to the Constitution). It is evident from the above discussion that even if an interest of the CJ had existed in the subject matter of Const P Nos.14 to CMA No.3932/2023 22 17 of 2023 that would still not prohibit him from sitting on the Bench hearing the said Constitution Petitions.2 22. In this respect, Pakistani jurisprudence also leaves it to the discretion of the Judge to decide whether he will be able to perform his legal duty of administering justice in a particular case where either conflict of interest or bias (or both) is alleged against him. Reliance in this regard is placed on Independent Media Corporation (supra) at para 13; Federation of Pakistan Vs. Muhammad Nawaz Sharif (PLD 2009 SC 284) at para 27; Islamic Republic of Pakistan Vs. Abdul Wali Khan (PLD 1976 SC 57) at pg.188. In these cases the following allegations were levelled against the Judges of the Court: i. In Independent Media Corporation (supra) the recusal of Justice Jawwad S. Khawaja was sought on account of his sister-in-law’s brother being involved in the case before the Court. ii. In Muhammad Nawaz Sharif (supra) the recusal of Judges who had taken oath under the Provisional Constitution Order, 2007 was sought on the basis that the petitioner had expressed strong reservations against such acts. iii. In Abdul Wali Khan (supra) the recusal of two learned Judges was sought on the ground that they were previously associated with the case being prepared for the banning of the National Awami Party which was headed by the petitioner, Abdul Wali Khan. However, rejecting the contentions of the parties seeking recusal in each of the above cases, the Court observed that it 2 The only exception would be if a Judge is unable to dispense justice impartially on account of his/her interest CMA No.3932/2023 23 was for the respective Judge(s) to decide whether to continue to sit on the Bench or not. For reference, the Court’s observation in the case of Independent Media Corporation (supra) is produced below: “13. … It is the conscience of the Judge himself which must determine his decision to sit on a Bench or not.” Therefore, apart from failing on both the facts and the law, the Federal Government’s objection to the CJ’s presence on the Bench disregards the Quranic command to a Judge i.e., to dispense justice impartially; a rule that is also echoed in the Oath of Office administered to Judges under the Constitution. It is accordingly refused for lacking merit. Conduct of the Federal Government 23. Before parting with this judgment we consider it only fair to reflect on the Federal Government’s inimical treatment of the Court and some of its Judges ever since the recommendation for Suo Motu notice was made by a two Member Bench of the Court to the CJ on 16.02.2023. This exercise is helpful for understanding the likely purpose of the Federal Government in filing the present recusal application because there is a chain of events in which the Federal Government and/or Federal Ministers have sought to erode the authority of the Court and to blemish the stature of some of its Judges with the object of blocking, delaying or distorting the result of the judgments of the Court on the constitutional right of the people to be governed by an elected government. CMA No.3932/2023 24 24. As already mentioned the crucial point in time is 16.02.2023. On that date, as noted above in para 3, Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi recommended the CJ to take Suo Motu notice of the delay in holding General Elections to the Punjab Assembly. Curiously, this is also the date on which the first three audio recordings (noted above in para 4) were leaked by indibell. Without confirming the veracity of the audios or ascertaining the identity of the person who uploaded them, Federal Ministers on the same day lent support to the news of the leaked audios on national media. Shortly after on 18.02.2023, a Constitution Petition was filed by the Speakers of the Punjab and Khyber Pakhtunkhwa Assemblies in Court. Acknowledging that it was the custodians of the two dissolved Provincial Assemblies who had petitioned the Court, the CJ fixed their Petition and connected matters (“Speakers Petition”) for hearing before a 9 Member Bench on 23.02.2023. 25. At the very outset of the proceedings one of the learned Judges objected to the presence of Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the Bench. It was urged that by recommending the CJ to take Suo Motu notice of the delay in announcing the date of General Elections to the Punjab Assembly the two learned Judges had ‘already expressed their opinion by stating that elections “are required to be held within 90 days” and that there was CMA No.3932/2023 25 “eminent danger of violation” of the Constitution.’3 On the same day, before any arguments on the merits could commence another two learned Judges in their separate notes dated 23.02.2023 dismissed the Speakers Petition.4 26. Capitalising on the disorderly proceedings, the ruling coalition parties sought the recusal of Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the next day i.e., 24.02.2023 from the Bench hearing the Speakers Petition. The basis of the objection was that the two learned Judges had already disclosed their minds on the question in issue. Under the practice of the Court the CJ may commence Suo Motu proceedings against the alleged violation(s) of Fundamental Rights on the recommendation of a Bench of the Court. This mode of invoking Suo Motu jurisdiction has been recognised and upheld by a larger Bench in SMC No. 4 of 2021 (supra). Consequently, in rejecting the recommendation of the two learned Judges the ruling coalition parties lost sight of this judgment of the Court affirming its settled and declared practice. 27. The apparent purpose of the Federal Government for seeking the recusal of the two learned Judges through an ill-conceived objection was to disrupt or otherwise delay the proceedings in the Speakers Petition. Due to the turbulent hearings of both 23.02.2023 and 24.02.2023 the nine Hon’ble Judges on the Bench met in Chambers on 27.02.2023 to discuss the means for restoring harmony in the proceedings. 3 Separate Note to Order dated 23.02.2023 <https://www.supremecourt.gov.pk/downloads_judgements/s.m.c._1_2023_23022023.pdf > 4 Ibid CMA No.3932/2023 26 Ultimately, all nine Judges unanimously resolved vide order dated 27.02.2023 that the CJ should reconstitute the Bench. Pursuant to the said order a 5 Member Bench was constituted to hear the case. The Federal Government did not oppose the reconstituted Bench and therefore the matter proceeded and was decided by a majority of 3:2 through short order dated 01.03.2023. The three Judges in majority declared that the Speakers Petition was maintainable and directed, inter alia, that the General Elections to the two Provincial Assemblies must be held within 90 days of their dissolution as mandated by Article 224(2) of the Constitution. The two learned dissenting Judges held the Speakers Petition to be not maintainable and therefore dismissed the same. The said decision displeased the Federal Government which rejected it by proclaiming that the Speakers Petition had actually been dismissed by a majority of 4:3 (after taking into consideration the separate notes earlier authored by the two learned Judges on 23.02.2023 as part of the original 9 Member Bench).5 On that pretext the Federal Government refused to accept and implement the short order dated 01.03.2023. 28. The Federal Government repeated its above mantra of dismissal of the Speakers Petition by 4:3 during the hearing of a subsequent election matter. In Constitution Petition No.5 of 2023 the order of the ECP dated 22.03.2023 was challenged for unilaterally extending the date of General 5 Press Conference of the Law Minister, Mr. Azam Nazeer Tarar, and the then learned Attorney General held on 01.03.2023 <https://www.youtube.com/watch?v=1YcS2IPZGTQ&ab_channel=SAMAATV> CMA No.3932/2023 27 Elections to the Punjab Assembly from 30.04.2023 to 08.10.2023. The Federal Government hampered the progress of the proceedings in that case under the false guise of dismissal of the Speakers Petition by an alleged majority of 4:3. However, in doing so it ignored the important fact mentioned above that all 9 Members of the Bench vide order dated 27.02.2023 requested the CJ to reconstitute the Bench hearing the Speakers Petition. The CJ accordingly formed a 5 Member Bench. At no stage was a 7 Member Bench constituted to return a 4:3 verdict on 01.03.2023 in the Speakers Petition as contended by the Federal Government. The order of the ECP dated 22.03.2023 challenged in Constitution Petition No.5 of 2023 was set aside by the Court on 04.04.2023 for violating the constitutional command to hold General Elections to a Provincial Assembly within 90 days of its dissolution. Nonetheless, the Federal Government chose not to comply with this order of the Court. Instead it insisted, rather inexplicably, that the short order issued by the 5 Member Bench of the Court on 01.03.2023 had rejected the very maintainability of the Speakers Petition by 4:3. The consequence is that two out of four Provinces continue to be governed by unelected caretaker governments without any end in sight. 29. The resistance of the Federal Government and its coalition parties to our proceedings and judgments has also expanded to hurling threats6 and making scathing attacks 6 Press Conference of Minister of Information and Broadcasting, Ms. Marriyum Aurangzeb, held on 11.05.2023 <https://www.youtube.com/watch?v=Qr8x0aFuVRM&ab_channel=GNN> CMA No.3932/2023 28 against certain Judges of the Court ever since the audio recordings were leaked.7 An extreme example of a personal attack on Judges was witnessed on 15.05.2023 when the Court was hearing the review petition filed by the ECP against the order of the Court dated 04.04.2023 passed in Constitution Petition No.5 of 2023 directing the General Elections to the Punjab Assembly to be held on 14.05.2023. On that day certain political parties forming part of the ruling coalition staged an aggressive demonstration outside the Court threatening the CJ of serious consequences in the event of the Court taking coercive action for securing compliance with its order dated 04.04.2023.8 However, the disturbing aspect of the said demonstration was the assistance given by the Federal Government to its coalition parties to gather and protest against the Court in the Red Zone area of Islamabad where such protests are strictly prohibited. The government machinery facilitated the entry of the horde of protestors and remained a silent spectator to their slander, the discernible purpose of which was to pressurise the Court and its Judges into giving a favourable decision or no decision at all. The power show assisted by the Federal Government was a direct attack on the independence of the Judiciary. Although the freedom of speech guaranteed to the people of Pakistan by Article 19 of the Constitution is a Fundamental Right, this right is subject to reasonable 7 Press Conference of the Interior Minister, Mr. Rana Sanaullah, held on 23.04.2023 <https://www.youtube.com/watch?v=7zyjomRnkc8&ab_channel=HUMNews> 8 <https://www.dawn.com/news/1753570> in Dawn Newspaper dated 16.08.2023 CMA No.3932/2023 29 restrictions imposed by the law. One such restriction exists in Article 19 itself: “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 relation to contempt of court... (emphasis supplied) Despite the afore-noted constraints under Articles 19 and 68 of the Constitution on discussing the conduct of Judges, it is regrettable that amongst others, Cabinet Members also flouted these constitutional limits. Judges were assailed in harsh and intemperate language to justify the defiance of decisions that were perceived to be detrimental to the Federal Government and/or its interests in the matters of the General Elections. 30. In the face of the Federal Government’s uncooperative stance the Court exercised restraint for the negation of its judgments notwithstanding its constitutional power to punish any person for disobeying any order of the Court. Such control was exercised on account of the pending review filed by the ECP against the order of the Court dated 04.04.2023 which fixed 14.05.2023 as the date for elections to the Punjab Assembly. Some questions of constitutional importance deserving our attention had been raised by the ECP in its review petition. The Court considered that the prevailing hostile political environment called for the finality of its judgment for which purpose the ECP review had to be decided. For this reason the Court fixed that review petition for hearing on 15.05.2023 and decided to await its outcome CMA No.3932/2023 30 before alleging non-compliance and therefore disobedience of its orders by the Federal Government and the ECP. 31. Be that as it may, we note that the Federal Government has by various machinations and stratagems managed to delay adjudication by the Court and also discredited its judgments: i. This happened when our order dated 01.03.2023 was reinvented to have dismissed the Speakers Petition by a majority of 4:3 thereby denying its true legal effect. ii. Then without challenging the order dated 04.04.2023 the Federal Government took refuge behind the ECP’s review petition filed against that order to justify its inaction. iii. Subsequently, Parliament enacted the Supreme Court (Review of Judgments and Orders) Act, 2023 which came into effect on 26.05.2023. The said Act changed the scope and form of review. As a result, the proceedings in the partly heard review petition filed by the ECP were stalled pending adjudication of the vires of that law. That Act has since been found and held to be ultra vires the Constitution. iv. The Federal Government has repeatedly sought recusals of certain Judges from Benches hearing constitutional cases, including of the CJ in the present matter, on unknown and unspecified grounds of conflict of interest and/or bias. v. Federal Ministers have also routinely made incendiary statements on public platforms against Judges of the Court sitting on Benches hearing Constitution Petitions pertaining to elections to the Provincial Assemblies to lend strength to the agenda of the Federal Government noted above in sub-point (iv). CMA No.3932/2023 31 The Court has faced all such actions of the Federal Government with tolerance, forbearance and restraint. However, it goes without saying that any refusal to implement a final and therefore binding judgment of the Court can be visited with consequences laid down in the Constitution. Conclusion 32. In light of the above factual position and the law regarding the recusal of a Judge from a Bench hearing a lis, the instant recusal application filed by the Federal Government is declared to be devoid of merit and legal force. Its object lacks good faith for aiming to harass a Member of the Bench without cause in order to avoid adjudication on the constitutional failings pointed out in the impugned notification by Const P Nos.14 to 17 of 2023. To our minds the recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the Judiciary. In view of the foregoing the recusal application is dismissed. Sd/- Chief Justice Sd/- Judge Sd/- Judge CMA No.3932/2023 32 Sd/- Judge Sd/- Judge Announced in open Court at Islamabad on 8th September, 2023. Sd/- J. NOT APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN C. M. A. NO. 3986 OF 2017 IN C. M. A. NO. 2939 OF 2017 IN CONST. P. NO. 29 OF 2016 ETC. (Application by Hussain Nawaz Sharif) In attendance: Kh. Harris Ahmad, Sr. ASC. Mr. Wajid Zia, Head of JIT. Mr. Aamir Aziz, Member JIT. Mr. Bilal Rasool, Member JIT. Mr. Irfan Naeem Mangi, Member JIT. Brig. M. Nauman Saeed, Member JIT. Brig. Kamran Khurshid, Member JIT. Mr. Ashtar Ausaf Ali, A. G. for Pakistan. Rana Waqar, Addl. A. G. Date of Hearing: 14.06.2017 (Order Reserved). O R D E R EJAZ AFZAL KHAN, J.- This CMA has been moved on behalf of Hussain Nawaz Sharif one of the respondents for issuance of an appropriate order directing the JIT to stop the video recording of the proceedings relating to examination and interrogation of witnesses and to constitute an independent Commission of a retired or sitting Judge of this Court to inquire into the circumstances leading to the leakage of his image. 2. The learned Sr. ASC appearing on behalf of the applicant contended that where Sections 161 and 162 of the Cr.P.C. have prescribed a manner for examination of witnesses supposed to be acquainted with the facts and circumstances of the case, any other manner of their examination would be against the law. He next contended that where even signing of such statement by its maker has been prohibited by the legislature, on the ground that it tends to bind the witness and impair his freedom to speak the truth in the Court, recording of such statement by C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017 2 audio-video electronic means which is more circumscribing than signing such statement, cannot be permitted. To support his contentions the learned Sr. ASC placed reliance on the cases of P. Sirajuddin, etc. Vs. State of Madras, etc (1970 (1) Supreme Court cases 595), Ch. Razik Ram. Vs. Ch. Jaswant Singh Chouhan and others (1975) 4 Supreme Court Cases 769), Tahsildar Singh and another. Vs. State of U.P. (AIR 1959 Supreme Court 1012 (V 46 C 137) and Pakala Narayana Awami. Vs. Emperor (AIR 1939 Privy Council 47). 3. The learned Attorney General appearing on behalf of the Federation of Pakistan contended that modern electronic devices have liberated man from exhausting physical labour and made the things easier but where a statute requires a thing to be done in a particular manner that be done that way or not at all. Even otherwise, the learned Attorney General added, the Court cannot read in a statute what is not there. Recording of police statement by audio-video electronic means, the learned Attorney General maintained, would thus be out of question. 4. We have considered the submissions of the learned Sr. ASC for the applicant and those of the learned Attorney General for Pakistan. 5. Before we answer the question it is worthwhile to refer to Sections 161 and 162 of the Cr.P.C. which read as under :- “161. Examination of witnesses by police. (1) Any police officer making an investigation under this Chapter or any police officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case: ……………………… (2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records. C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017 3 162. Statements to police not to be signed; use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether In a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused, be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by 'section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: Provided, further that, if the Court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused.] (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 [or to affect the provisions of section 27 of that Act].” 6. A reading of Section 161 Cr.P.C. would reveal that a police officer investigating the case may examine any person supposed to be acquainted with the facts and circumstances of the case. Such person shall be bound to the answer the questions relating to the case except the questions whose answers tend to expose him to a criminal charge, penalty or forfeiture. While reading of Section 162 Cr.P.C. would reveal that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record, be used except C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017 4 for the purpose of contradicting its maker in terms of Article 140 of the Qanoon-e-Shahadat Order. Signing of such statement by its maker is prohibited because it tends to bind its maker and impair his freedom to speak truth in the Court. Recording of such statement by audio video electronic means could be treated at par with a statement which has been signed by its maker, inasmuch as it hampers his freedom to testify in the Court. But in any case use of audio or video devices to facilitate the recording of such statement cannot be said to have been prohibited by any interpretation of the provisions reproduced above when the finished product to be used in the Court to confront the witness is the statement reduced to writing and not its audio or video recording. Since the statement so transcripted or reduced to writing cannot enlarge its scope or its probative worth it could possibly have on its proof. The concerns voiced by the applicant being paranoiac appear to be more of form rather than substance. In the case of State of Rajasthan. Vs. Teja Ram and others ((1999) 3 Supreme Court Cases 507) the Supreme Court of India after examining a string of judgments went so far as to hold that even the signature of the witnesses on such statement cannot contaminate or vitiate its worth in the words as under :- “If any investigating officer ignorant of the said provision secured the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the Court would, therefore, become contaminated or vitiated, the Court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.” 7. In the age of computer where almost everything is communicated and even business of every type is transacted online, emphasis on the form of doing a thing as it used to be done in 1898 would amount to putting at naught the dynamics of scientific and technological advancements which have not only liberated man from exhausting labour but also made the things easier. Law in many countries of the East and the West has been changed and even re-enacted. Addition of the word ‘truly’ C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017 5 in sub-Section 2 after the word ‘answer’ and insertion of the proviso to sub- Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India, providing for recording of such statement by audio-video electronic means is an illuminating example on the subject. Alright, audio or video recording cannot be admitted into evidence for the proof of such statement till the law is amended, as it has been amended in India and the other countries, but its use to facilitate recording of such statement cannot be discouraged on the basis of so pedantic an interpretation of Sections 161 and 162 of the Cr.P.C. The cases of P. Sirajuddin, etc. Vs. State of Madras, etc, Ch. Razik Ram. Vs. Ch. Jaswant Singh Chouhan and others, Tahsildar Singh and another. Vs. State of U.P. and Pakala Narayana Awami. Vs. Emperor (supra) being related to admissibility of the statement signed or recorded through audio-video electronic means do not appear to have any relevance at this stage. 8. In view of what has been discussed above, we don’t feel persuaded to countenance the request thus made. The other prayer of the applicant cannot be attended to at this stage as the response of the learned Attorney General for Pakistan has not been received so far viz-a-viz the inquiry report as to the leakage of the image. JUDGE JUDGE JUDGE Announced in Court at Islamabad on ________________________ JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE YAHYA AFRIDI C.M.A.4053/2018 in C.A.637/2018 and C.A.637/2018 (On appeal from the judgment dated 13.2.2018 passed by the Islamabad High Court, Islamabad in RFA No.166/2013) Mst. Samina Riffat & others (In both cases) …Applicants/Appellants VERSUS Rohail Asghar & others (In both cases) …Respondents For the applicants/ appellants: Mr. Haroon Irshad Janjua, ASC Mr. Mehmood A. Sheikh, AOR Respondent No.1: Mr. Junaid Iftikhar Mirza, ASC Syed Rifaqat Hussain Shah, AOR Respondent No.4: Ch. Riasat Ali Gondal, ASC Raja Abdul Ghafoor, AOR Date of Hearing: 4.5.2020 ORDER MUSHIR ALAM, J-. This appeal arises out of the impugned judgment dated 13.2.2018, passed by the Islamabad High Court, Islamabad, in RFA No. 166/2013. Respondent No. 1, on 4.1.2005, filed a suit for specific performance of sale agreement dated 4.10.2004 before Civil Judge. Suit was contested by the Appellant (Defendants No. 2 and 3), filed written statement on 7.03.2005 it was specifically pleaded that they are ‘Pardah Nasheen’, defendant No.1 being their brother took undue advantage of relationship, struck the deal to their disadvantage. It was specifically pleaded that since the plaintiff failed to pay balance consideration within period stipulated therein. It was pleaded that through notice dated 08.12.2004 and reply dated 28.12.2004 to plaintiff notice deal was C.M.A.4053/18 in C.A.637/18, etc 2 cancelled and, earnest amount in terms of clause 6 of the agreement was forfeited. In paragraph 4, again it was specifically pleaded that the agreement dated 4.10.2004 for failure to pay balance consideration, within stipulated period, is cancelled and earnest money stand forfeited. Defendant No. 1, who is brother of appellant, filed a conceding written statement favouring the Plaintiff. 2. Alongwith the suit an application under Order XXXIX Rules 1 & 2 read with Section 151 CPC was filed by Respondent No. 1, seeking restraining order against the appellants not to sell/transfer the suit property. The learned trial court on 19.7.2005 while deciding the application on merits directed the respondent No.1/vendee “to deposit the balance sale consideration amounting to Rs.1,50,00,000/- (in terms Clause 3 of the sale agreement) within one month otherwise the stay granted in favour of Plaintiff shall be deemed to be cancelled”. It is matter of record the balance sale consideration, as directed was not deposited. 3. The suit proceeded on merits and Khalid Mehmood, duly appointed special attorney of Plaintiff Rohail Asghar, was examined as PW-1. In cross examination, he admitted that contesting Defendants (appellants herein) are ‘Purdah Nasheen’ ladies. They did not sign the agreement in their presence; and their signatures were procured later by the Defendant No.1. He narrated in vivid detail how the earnest money through pay order was paid to the appellants here in. However, He could not furnish any details of payment of Rs. Twenty lacs to Defendant No.1, though the witness denied the suggestion that the sale agreement was procured from the Defendants No.2 and 3 C.M.A.4053/18 in C.A.637/18, etc 3 (appellant herein) in concert with their brother at value much below the market price and no advance was paid to their brother. He admitted in cross examination that the “present market value of the suit property is 4 to 5 crores” he declined to purchase the property at the current market value. As regard time fixed for performance and clause providing for forfeiture of earnest money he deposed as follows. ہدہاعم رگا ہک ےہ دوجوم طرش ہی ںیم EX-P.2 " وت یئگ یک ہن ادا مقر ہیقب ردنا ےک ےنیہم ود ےک ےہ تسرد ہی ۔یگ ےئاج وہ طبض مقر یئگ یک ادا ہن مقر دقن ایاقب ےن ںیم ےدہاعم ردنا ےک ہام ود ہک ید ےک ںوصح ےک ںویئاھب نہب ںونیت ےھجم ۔یھت مکح ٰیوعد نارود ۔ےہ ہن مولعم ںیم ےراب قباطم ےک ہلصیف ےک تساوخرد یک یعانتما تلادع مقر ایاقب ےن ںیم مقر ایاقب یگیئادا طرشب "۔ےہ یئاورک ہن عمج ںیم It may be observed that the Defendant No.1 did not cross examine the plaintiff’s witness nor adduced any evidence. 4. Mst.Samena Riffat, appellant /Defendants 2 appeared as DW-1 and was cross examined by the Plaintiff only. In her cross examination she categorically stated that “we sisters are still ready to sell the property to the Plaintiff at present market value” 5. After recording the evidence, suit was dismissed by the learned trial court on merits with cost of Rs.10,000/- vide judgment dated 7.10.2013. Which Judgment came up for scrutiny in Regular First Appeal No. 166 of 2013. Learned Division bench of the High Court though maintained the judgment and decree of dismissal of the suit for specific performance. In paragraph 13 of the impugned judgment, returned with a conclusion that “It is admitted position that the appellant could not show compliance with the said order. We are of the view that had the appellant C.M.A.4053/18 in C.A.637/18, etc 4 been in a position to pay the balance sale consideration within a period of two months from the date of execution of sale agreement or even prior to the filing of the suit , he would have shown compliance with the order of the court dated 19.07.2005 passed by the learned civil Court by depositing Rs. 1,50,00,000/- in court within a period of one month from the date of passing of said order. Before or even after the institution of suit, the appellant did not show his bonafide by making pay order or drawing a cheque in favour of the Respondents No.1 and 3 (appellant herein) for an amount equivalent to the balance consideration. As regards the Appellant’s plea that the Respondents No.1 to 3 was supposed to obtain an NOC from the CDA for transfer of suit house, there is no such obligation imposed on respondent No. 1 to 3 under the terms of the agreement to sell”. Learned Bench of the High Court under the given fact and circumstances of the case while relying on the case of Mst. Gulshan Hamid v. Kh. Abdul Rehman1 came to a conclusion that that the time was essence of the contract, maintained the dismissal of suit and appeal was dismissed. However, in the concluding paragraph 18 of the impugned judgement held: - “In view of the above, we do not find any merit in this appeal, which is accordingly dismissed with no order as to costs. Since no notice was served by respondents No.2 and 3 on the appellant that the earnest money would be forfeited if the balance sale consideration was not paid within the time stipulated in the agreement to sell, it is ordered that respondents No.2 and 3 shall return the earnest money received by them alongwith profit as would be payable on defense saving certificates of the National Savings to the appellant. Respondent No.2 (Mst. Samina Riffat), appeared as DW-1, and deposed that she and her sister had each received Rs.10,00,000/- from the appellant. As regards 1 2010 SCMR 334 C.M.A.4053/18 in C.A.637/18, etc 5 respondent No.1, since he in his written statement had expressed his willingness to perform the agreement, he is directed to return the earnest money amounting to Rs.20, 00,000/- without profit.” 6. Learned counsel for the appellants contends that the appellants alongwith their brother inherited the suit property, which was negotiated for sale by their brother through agreement noted above, for a total sale consideration of Rs.1,90,00,000/- out of which Rs.20,00,000/- (twenty lacs) was statedly paid to Shahid Mehmood respondent No. 2 (brother of the appellants), and ten lac each (i.e. 5.26% of total sale consideration) to the appellants herein. Balance consideration in terms of the agreement to sell dated 4.10.2004 was to be paid within two months in terms of Clause-3 of the agreement. Per Clause-5 and 6, on failure of vendors to transfer the property in terms of agreement they were liable not only to refund the advance together with equivalent sum as compensation and correspondingly on failure of the vendee to pay the balance sale consideration, the vendors were entitled to forfeit the earnest amount paid in advance. 7. It appears that respondent No. 1, instead of coming forth to perform his part of reciprocal obligation to pay the balance sale consideration within period stipulated, through notices called upon the appellants to comply with certain conditions, which were not the part of the agreement. Later on, respondent No. 1 filed a suit for specific performance on 4.1.2005; alongwith the suit, he filed an application under Order XXXIX Rules 1 & 2 CPC seeking ad- interim injunctive relief. 8. Learned trial court on 19.7.2005 directed the plaintiff/respondent “to deposit the balance sale consideration of C.M.A.4053/18 in C.A.637/18, etc 6 Rs.1, 50, 00,000/- within one month in the court. Otherwise stay granted today in favour of plaintiff/respondent shall be deemed to as cancelled”. It is a matter of record that during trial of suit or even during pendency of RFA, balance consideration was neither offered nor deposited. Consequently, suit was dismissed, which was maintained in appeal. However, the learned Bench of the High Court deemed appropriate to direct refund of the earnest money and so also burdened them with payment of profit on the earnest amount as would be payable on Defense Saving Certificates to the respondent No.1 in terms of the last paragraph of the impugned judgment as reproduced hereinabove. 9. Learned Counsel for the appellant argued that it was concurrently held by both the court that it was the Plaintiff/Respondent No. 1 who was at fault and committed breach of the contract. It was urged that the learned bench on one hand relied upon the case of Ghulam Hamid2 to conclude that “By failing to pay the balance sale consideration in accordance with the said agreement or in compliance with the said order, the appellant cannot be considered to have done equity. This conduct of the appellant stripped him from bonafides and disentitled him for grant of equitable relief.” It was argued that once both the courts were at unison that the breach, if any, was on the part of Plaintiff, the defendant were justified to forfeit the earned amount which was well within the contemplation of the same agreement. 10. Learned counsel for the respondent No. 1 has appeared and defended the impugned para noted above. It is stated that since breach was on the part of the Petitioners/defendants 2 and 2 2010 SCMR 334 C.M.A.4053/18 in C.A.637/18, etc 7 the Respondent No.1/Plaintiff was not obliged to pay the balance sale consideration, the unless the Defendants procured the requisite NOC was obtained from the CDA. 11. In rebuttal it was urged by the learned Counsel for the Appellant that issue of NOC was raised merely to buy time and delay payment of balance consideration, which became due and payable within two (2) months from the date of execution of sale agreement dated 4.10.2004 within the contemplation of Clause 3 of the sale agreement. Respondent No.1 even failed to comply with the directions as contained in the order dated 19.7.2005 passed by the learned trial court. He further contends that unless, breach of contract on the part of petitioner/vendor was established; they cannot be burdened with return of forfeited amount that too with profit. It was urged that the direction contained in paragraph 18 of the impugned judgment is against the spirit of the agreement between the parties. 12. We have heard the arguments and perused the record. Entire controversy revolves around the terms of the agreement for sale and the bargain struck between the parties. Clauses 1, 3,5 & 6 being relevant stipulated as follow: - 1. That all the liabilities, dues to the said property shall be cleared, paid by the sellers. 2. That the purchaser has agreed to pay the remaining sum of Rs.1,50,00,000/- (Rupees One Crore Fifty Lac Only) to the sellers after Two months from the date of signing this agreement at the time of execution of sale deed in favour of purchaser or any of his nominee(s). 3. That if the Sellers withdraw from this deal or not to transfer the said property in favour of the purchaser or any of his nominee(s) then they shall pay back the entire sale consideration already received from the purchaser along with an equal amount as compensation, or purchaser C.M.A.4053/18 in C.A.637/18, etc 8 will have the full right to get transferred the said property through the court of law, at the risk and cost of the sellers, in his own name or any of his nominee(s). 5. That if the Sellers withdraw from this deal or not to transfer the said property in favour of the purchaser or any of his nominee(s) then they shall pay back the entire sale consideration already received from the purchaser along with an equal amount as compensation, or purchaser will have the full right to get transferred the said property through the court of law, at the risk and cost of the sellers, in his own name or any of his nominee(s). 6. That if the Purchaser backs out from this deal or fails to pay the remaining consideration within prescribed period, then this deal will be considered canceled and the received earnest money will be forfeited.” 13. Clauses as reproduced do not contemplate any obligation on the part of the appellants to obtain NOC, as rightly noted by the learned trial as well as the High Court. Learned counsel for the respondent No. 1 was not able to demonstrate from record that any dues against the property were outstanding. The respondent No.1 to avoid making payment of balance sale consideration cannot import or press any condition extraneous to the conscious bargain struck between the parties. Generally, in respect of sale of immovable property, time is not considered as of the essence of the Contract. However, parties may consciously strike a deal to make time essence of the contract by providing certain consequences for breach of reciprocal obligation casted upon them, in such cases, time is treated as essence of the contract3. In instant case, as could be noted that, where vendor backs out from the deal and avoid to execute conveyance deed, clause 5 of the agreement stipulated that “then they shall pay back the entire sale consideration already received from the purchaser 3 Mst.. Gulshan Hamid v. Kh. Abdul Rehman 2010 SCMR 334 Paragraph 15. C.M.A.4053/18 in C.A.637/18, etc 9 along with an equal amount as compensation.” Likewise for failure of the vendee to perform his part of the obligation in terms of clause 6 “in event he backs out from this deal or fails to pay the remaining consideration within prescribed period, then this deal will be considered canceled and the received earnest money will be forfeited”. In terms of Section 51 of the Contract Act (IX of 1872); where a contract is dependent on discharge or performance of reciprocal promise or obligations to be performed or discharged. The Promisor need not perform his part of promise or obligation, unless the promisee, (here in this case the vendee) “is ready and willing to perform his reciprocal promise.” In cases arising out of sale of immovable property, a vendee seeking specific performance has to demonstrate his readiness and willingness to perform his part of reciprocal obligation as to payment of balance sale consideration. The question what is readiness and willingness to perform a contract was attended to by a learned division bench of the West Pakistan High Court (Karachi) in the case of Abdul Hamid v. Abbas Bhai- Abdul Hussain.4 It was held5 that “In the first place, willingness to perform ones contract in respect of purchase of property implies the capacity to pay the requisite sale consideration within the reasonable time. In In the second place, even if he has the capacity to pay the sale consideration, the question still remains whether he has the intention to purchase the property. On consideration of all the facts it appears that the appellant was not in a position to pay the balance sale consideration. At any rate, the appellant was not willing, even if he had the capacity to pay the money, to have the sale deed 4 PLD 1959 (WP). Karachi 629 5 Ibid 632 C.M.A.4053/18 in C.A.637/18, etc 10 completed.” As noted above, the learned trial court vide order dated 19.7.2005 was indulgent in giving one months’ time beyond the period agreed in the sale agreement, to deposit balance consideration, which was not availed nor any attempt was made to deposit the amount during the pendency of the appeal. Since there is nothing on record to show, that the Appellants/Defendant 2 and 3 committed any breach, mere observation of the appellate court that since the Defendants 2 and 3 did not issued any notice making time essence of the contract is not justified under facts and circumstances of the case, even if it is presumed no notice to such an effect was issued, very fact specific plea was raised in the written statement that for failure to make the payment of the balance sale consideration within stipulated period rendered the agreement rescinded and earnest amount forfeited is sufficient notice, such fact coupled with fact that the Plaintiff on one hand failed to offer sale consideration within agreed period, secondly did not tendered the amount despite order of the learned trial Court dated 19.7.2005 and even after the suit was dismissed on 7.10.203 no effort was made to deposit the balance consideration what to speak of making any offer. The Appellant in cross examination agreed to sell the property at the current market value. The Respondent No.1 not only conceded that consequence for not making payment in time would result in forfeiture of the earnest money. He declined the offer of the appellant to purchase the property at current value. In a recent case6 this court approved the forfeiture of the 3.5 % earnest amount, where the bidder failed to make the balance payment within time. In the instant case 6 Space Telecommunication (Pvt) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 C.M.A.4053/18 in C.A.637/18, etc 11 earnest amount paid to the appellant represent merely 5.26% of total sale consideration. 14. At this stage, learned counsel for the appellants on instructions states that out of sheer benevolence appellants are prepared to refund 50% of the earnest amount received by them i.e. Rs.5,00,000/- (five lac) each to the respondent No.1 as a humane consideration. We record our appreciation for the conduct of the appellant, displaying grace toward the Respondent No.1, to which he was not otherwise entitled under the facts and circumstances of the case. We would, therefore modify the impugned judgement to the extent that appellants shall refund Rs.5,00,000/- (five lac) each to the respondent No. 1 through pay order within 45 days from the date of receipt of this order. Appeal allowed, with partial modification as noted herein. In view of the above CMA 4053/2018 also stand disposed of. Judge Judge Judge Islamabad, 4th May, 2020 Sarfraz /- ‘Approved for reporting’

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IN THE SUPREME COURT OF PAKISTAN (Original/Appellate Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed Mr. Justice Maqbool Baqar CIVIL MISC. APPLICATION NO.4109 OF 2015 IN CONSTITUTION PETITION NO.77 OF 2010 (Application of ECP seeking directions to the Federal Government to expedite the passing of the bill and framing of rules in order to enable ECP to hold Local Government Elections in ICT) President, Balochistan High Court Bar Association … Applicant (s) Versus Federation of Pakistan and others … Respondent (s) & CIVIL PETITION NO.1413 & 1455 OF 2015 1. Qamar Mustafa and others (In CP No.1413 of 2015) 2. Muhammad Saleem and others (In CP No.1455 of 2015) … Petitioner (s) Versus The Election Commission of Pakistan through the Secretary and others … Respondent (s) & CONSTITUTION PETITION NO.39 OF 2015 Syed Zafar Ali Shah … Applicant (s) Versus Election Commission of Pakistan and others … Respondent (s) For the applicant(s) : Mr. Muhammad Arshad, Addl. DG, ECP Mr. Abdul Qayyum, DD (In CMA No.4109/2015) Constn. P. No.77-2010 etc ICT elections - 2 - 2 For the petitioner(s) : Mr. Mobeenud Din Qazi, ASC (In CP No.1413 of 2015) Sardar Muhammad Aslam, ASC (In CP No.1455 of 2015) Syed Zafar Ali Shah, Sr. ASC (In person) (In Constn. P No.39 of 2015) For the Federation : Mr. Salman Aslam Butt, AGP (In Chamber hearing) Mr. Aamir Rehman, Addl. AGP Date of Hearing : 08.07.2015 ORDER Jawwad S. Khawaja, J.- When we had taken up this matter at Sl. No.1 first thing in the morning, Mr. Aamir Rehman, learned Addl. AGP stated that there is a meeting in progress on this matter and if the case can be taken up after 12:00 noon, he will be able to place complete information before the Court. At 11:15 a.m., we have exhausted the cause list. In these circumstances, let the hearing of this matter continue in Chambers at 12:00 noon. In Chambers at 12:00 noon 2. The learned Attorney General for Pakistan is also now present. He states that the matter in the Senate has passed the Committee Stage on 30.6.2015. The proposed legislation has now been placed in the current session of the Senate on 6th July, 2015 and there is a reasonable expectation that the Senate will take a decision on the matter during the current week. 3. The reason for our concern in this matter is that the citizens of the Islamabad Capital Territory still appear to be waiting Constn. P. No.77-2010 etc ICT elections - 3 - 3 for Local Government Elections. The last such elections were held in the Islamabad Capital Territory in 1992 and already a period of 23 years has elapsed since then. The urgency in the matter and the need to provide elected Local Governments at the grass-roots level, at the earliest, cannot be gainsaid, particularly in view of the fact that Local Government Elections have already been held in Balochistan, KPK and in the Cantonment Boards while such election in Sindh and Punjab are scheduled for mid-September. 4. Needless to say, in view of the fact that the expected legislation is not as yet in place, the Election Commission of Pakistan may notify a revised schedule for the said elections if this becomes necessary on account of delays in Parliament. We may note that the National Assembly passed the Local Government Bill on 26.3.2015 and since then it is pending with the Senate. 5. To come up on 03.8.2015 when we may consider the possibility of Local Government Elections under previously existing legislation, so that the citizens of ICT are not discriminated against and receive their right to elect their local bodies. Judge Judge Islamabad, the Judge 08.07.2015 Safdar/*

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IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA. MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. C. M. A. NO. 4343 OF 2014 IN S. M. C. NO. 1 OF 2005. (Matter regarding publishing/printing incorrect version of Section 23 of Contract Act, 1872 in the Book titled “The Contract Act, 1872, 2nd Ediction/2011” by M. Mahmood, Advocate). AND C. M. A. NO. 5436 OF 2014 IN S. M. C. NO. 1 OF 2005. (Matter regarding Miss printing of Section 7(1)(e) and Section 7(4)(d) and (e) of the Patent Ordinance, 2000 in the Book titled “Manual of Intellectual Property Laws”). AND C. M. A. NO. 5869 OF 2014 IN S. M. C. NO. 1 OF 2005. (Matter regarding Section 2(K)(i) of Punjab Consumer Protection Act, 2005 and Manual of Consumer Protection Laws by Raja Nadeem Haider, ASC Published by Punjab Law House (Edition 2009). On Court’s notice: For the Federation: Kh. Ahmed Hussain, DAG with Mr. Muhammad Raza Khan, Secretary M/o Law For Govt. of Balochistan: Mr. Muhammad Farid Dogar, AAG with Mr. Safdar Hussain Secy. Law For Govt. of KPK: Mr. Abdul Latif Yousafzai, AG Mr. Muhammad Aarfin, Secretary Law For Govt. of Punjab: Mr. Mudassar Khalid Abbasi, AAG with Mr. Mohsin Abbas Syed, Addl. Secy./Director (Law & PA) For Govt. of Sindh: Mr. Muhammad Qasim Mirjat, Addl. AG Mir Muhammad Sheikh, Secretary Law For Pakistan Bar Council: Nemo. For Punjab Bar Council: Nemo For KP Bar Council: Nemo For the respondents: Nemo (In CMA-4343/14) Nemo. (in CMAs-5436) Mr. Muttaqi Raza, Manager (in CMA-5869 of 2014) Date of hearing: 28.01.2015. J U D G M E N T Jawwad S. Khawaja, J. The present case highlights a serious issue viz. the non availability, whether on an official website or in hard form, of the laws of Pakistan in the form of a consolidated code. Making the applicable laws readily available to the public is a CMA-4343/14 in SMC No.1/05 2 responsibility of the state about which there can be no two opinions. Discharging this responsibility is one of the primary functions of the Federal and Provincial Law Departments, a function which they did perform in the past, as we will discuss later in this opinion. Yet, now, it appears as if through deliberate effort the law has been shrouded in a cloak of secrecy. Regardless of whether this state of affairs has arisen on account of a glaring omission or a deliberate act, it has serious consequences for state governance and for judicial adjudication of cases. It adversely effects the rights of the people of Pakistan and contributes towards the perpetuation and spread of lawlessness in the country. 2. Initially Suo Moto Case (‘SMC’) No.4 of 2004, SMC Nos. 1, 2, 6 & 7 of 2007 and SMC No. 17 of 2007 were taken up when it was noticed that a number of law books privately published and cited in court contained glaring mistakes committed by authors and publishers in the text of the statutes. Even bare Acts of statutes were erroneously printed. These cases received the attention of the Court and notices were issued to the Bar Councils as well as to certain authors and publishers of books containing errors. The aforesaid suo moto cases were disposed of on 9.5.2013 in the following terms: “Iftikhar Muhammad Chaudhry, CJ.- In these cases, notices have been served in respect of the glaring mistakes committed by the authors and publishers in bare acts and law books. It is pointed out that the matter has already been referred to the respective Bar Councils to look into the matter. Since the matter relates to the printing of the law books, etc. therefore, the respective Bar Councils within their permissible jurisdiction under the Legal Practitioners and Bar Council Act, 1973, shall be free to take action if such material is provided to them, therefore, the above-said petitions are disposed of.” 3. It is apparent from the discussion which follows that the Bar Councils or even the Federal and Provincial Governments did not attend to the important legal issues mentioned above because no action whatsoever appears to have been taken since the disposal of the above noted cases on 9.5.2013. It was on 25.2.2014 while hearing a case (CP No. 102 of 2014) it came to our notice that a vital omission had been made in section 23 of the Contract Act published by Al Qanun Publishers and authored by Mr. M. Mehmood Advocate. We may CMA-4343/14 in SMC No.1/05 3 add that the potential financial impact of this case and an erroneous adjudication based on the aforesaid publication would have run into billions of rupees. 4. We, therefore, directed the Librarian of this court to examine the issue and submit a report. He has done so, whereafter the case was ordered to be put up in court. It was pointed out by the Court Librarian that the issue of gross negligence in the publication of law books had been dealt with in the earlier cases noted above. Notices, therefore, were issued to the various Bar Councils and also to the Federal and provincial governments. When the governments entered appearance, it was disconcerting to note that they had not undertaken any measures to address the dire situation and nor had the Bar Councils done so despite the order dated 9.5.2013, reproduced above. We had in particular noted that the Bar Councils were supposed to look into this matter which seriously undermines the administration of justice and results potentially in immense loss to litigants. On 24.10.2014, therefore, we once again issued notices to the five Bar Councils as well as the Federal and provincial law departments. On 19.11.2014, we also asked the learned Attorney General to inform us if there is any effective mechanism or legislation in place to ensure that the publication of law books is properly regulated. He was also asked to ascertain if there was any law which would impose a civil and/or criminal liability on publishers, authors etc. responsible for publishing law books with such errors. It appears that there is no law on the statute book because none was cited before us. The learned Attorney General, however, stated that according to his information the entire statute book of the Country in the form of the Pakistan Code was available on the website of the law department, but on 19.11.2014 he sought time to confirm if this indeed was so. 5. Even today and as reflected in the orders passed on the previous dates of hearing, it appears that there is in effect, no serious interest evinced in the matter by the concerned authorities. Neither the Bar Councils (who have since the past few dates of hearing stopped appearing in this case) nor the Federal or provincial governments have shown any seriousness of intent in addressing what clearly is a major issue. We find it to be quite extraordinary that there is in fact no official publication whether in hard form or on the internet which can provide an accurate and error free version of the laws of Pakistan in one easily accessible compendium. As such there are no easy and user-friendly means available CMA-4343/14 in SMC No.1/05 4 to the people of Pakistan to enable them to find out what the statute book contains. The abysmal state of affairs was amply demonstrated in a few hearings of this case, firstly, when it was found out by our research staff sitting in Court that when they tried to access the website of the Ministry of Law it was unavailable because of shutdown; secondly, when the Pakistan Constitution was not easily accessible on the website of the Ministry of Law, it could conveniently be accessed through the website of the Library of the United States Congress in Washington. Even today when our research staff attempted to access the website of the federal Ministry of Law, Justice and Human Rights, although the main page of the website opened, but the link namely “Laws” was not accessible and the caption appeared that “This web page has a redirect loop”, but the user was not redirected anywhere nor provided any further information about how to gain access. 6. Furthermore, during the hearing of one of the cases in Court on 27.01.2015 we had observed that different versions were available regarding Section 420 of the Pakistan Penal Code, 1860 being bailable or not. “The Code of Criminal Procedure, 1898” by M. Mahmood (Edition 2005) stated the offence was bailable. On the other hand the “Code of Criminal Procedure, Bare Act”, by S.A. Abid (Edition 2012) described it as not-bailable. Such glaring errors and mistakes are obviously misleading legal practitioners and judges too and are creating uncertainty in the administration of law. It should be obvious that the non- availability of an easily accessible official version of the Pakistan Code is principally responsible for contributing to this Kafkaesque situation. 7. We are dismayed to note that even the website of the Ministry of Law is grossly inadequate and no effort or initiative has been taken to bring it up to date. It is only when this matter was taken up by this Court and the governments and their law departments were reminded of their duties and obligations that there was some movement to rectify the matter. One fact apparent from the hearings in this case is that the Federal Government had a very effective system for compiling the Pakistan Code till 1966 when the last compendium comprising of 16 volumes of Federal laws was published in a proper and user friendly form containing a chronological as well as alphabetical index of the laws on the federal statute book which included the amendments made from time to time so that any CMA-4343/14 in SMC No.1/05 5 lawyer, judge, researcher or man on the street could ascertain the state of the law applicable in the country. 8. On 8.1.2015, we were informed by our Librarian and later also by the learned DAG, that the last official publication is a book titled “Pakistan Code” which has been published by the Manager of Publication, Government of Pakistan, Karachi in the year 2010. A cursory examination of said book shows that it is not the statute book in the form of a Code and is unhelpful because whilst it has a chronological index of statutes most of these have not been printed in the said book, secondly, there is no alphabetical index as was the norm until the publication of the Pakistan Code in proper format was discontinued after 1966, thirdly, there are no marginal notes or cross referencing of a statute to provisions in another connected statute and, fourthly, there are no foot-notes mentioning the amendments made from time to time. Therefore, the said book mentioned by the DAG does not constitute the Pakistan Code. It has not been explained to us why the manner in which the Pakistan Code was published until 1966 was discontinued. 9. The provinces also appeared to be in a similar state of disarray. This was not always so. In Sindh there used to be a publication known as the Sindh Code but the last printing of the Sindh Code occurred in 1956, thereafter and till the present day, there is no compendium of the provincial laws in Sindh in the form of the Sindh Code. In Balochistan, there was a publication by the provincial law ministry which purported to contain the laws of the province last published in 1990, but the said publication is also not helpful as it does not contain an alphabetical index as was done in the Pakistan Code until 1966. In Khyber Pakhtunkhwa we were informed that the provincial code had been published until 1988 and thereafter the laws of 2013 and 2014 had been published in two volumes and that the gap years (1988 to 2013) will be filled by working backwards from 2013. It is not clear whether such publication will contain an alphabetical index, which as stated above is the most effective and utilitarian feature of any statutory compendium. The Punjab province appears to be ahead of the other three provinces and the Federation because it has brought the Punjab Code up to date although the Additional Secretary of the Punjab Law Ministry has acknowledged that the Code contains errors and omissions which are in the process of being rectified. CMA-4343/14 in SMC No.1/05 6 10. Neither the Provinces nor the Federation have undertaken the exercise of codifying the subordinate legislation made pursuant to rule-making powers given to the respective executives by legislation and nor is there any codification of notifications or other statutory instruments. At present only the Punjab Government appears to have in mind a second phase of its Code which will comprise of subordinate legislation and a third phase which will comprise of notifications and statutory orders. The Federation and the Provinces claimed to have the laws of the Federation and Provinces respectively on their websites. We, however, note that what is displayed on the respective websites is not a Code. The Pakistan Code which was modified upto 31st December, 1967 and published by the Manager of Publications, Government of Pakistan provides the template of a Code. It can be very substantially improved and made user friendly by use of the latest technology. It is clear that none of the online publications mentioned by the Law Officers of the Federation and Provinces can be considered the same as a Code. 11. On 8.1.2015, we were constrained to direct the law secretaries of the Federation and the four provinces to make sure that at least the statute book is made available both in hard form and on the website of the law departments of the Federation and the four provinces. We had noted in our order of the said date that the situation represented by this case is alarming and could be one of the contributory causes of the lawlessness which prevails in the country today. It is obvious that where applicable laws are not available, there can be little expectation or likelihood that the law will be abided by. 12. At this juncture, it is important to bear in mind that copyright in the laws is vested in the governments which have made such laws. This is also reflected in the Rules of Business of the Federal and the provincial governments made under the Constitution. It, however, appears that the books published in print and available for sale in the country are authored and published incorporating the statutes of the Federation and the provinces, but without the permission of the concerned government, being the owners of the copyright. In view of the distressing situation which is reflected from the above narrative, it is for the governments to rectify the situation, if necessary, by enforcing their copyrights or by CMA-4343/14 in SMC No.1/05 7 legislation so that publishers of law books can be dealt with and penalized if they publish erroneous books. 13. Here it is also important to emphasize that in any civilized system of government, the first and foremost obligation of the government is to make sure that all applicable laws are made easily available to citizens in easily understandable language. It was, therefore, a matter of great concern to us that the laws, whether Federal or Provincial, had not been translated into the national language which is a requirement of Article 251 of the Constitution or publicized in provincial/local languages if considered appropriate, in line with the constitutional provision in Article 28 of the Constitution. Section 78 of the Stamp Act 1899 enacted in the pre-independence period provided that, “every Provincial Government shall make provision for the sale of translations of this Act in the principal vernacular languages of the territories administered by it at a price not exceeding twenty five paisa per copy“. If the colonial dispensation could be sensitive to the need for dissemination of laws through inexpensive translations, we donot see why this is not being done post Independence. 14. Because of the inadequacy of the functioning of the Federal and provincial law departments, we gave extensive hearing to this case on 19th, 21st and 22nd of January, 2015. In view of the lack of assistance received by us from the concerned Government functionaries, we were constrained to direct the Federal and provincial law secretaries to appear and to let us know why the laws of the Federation and the provinces had not been made available to the people of Pakistan as was the norm in the Federal Law Ministry till 1966 and in the provinces. There being no explanation forthcoming, the five law secretaries were asked to submit reports setting out targets to be met by the five governments and timelines within which such targets are to be met. Reports were submitted by the governments from which it appears that the governments of Sindh, Balochistan and the Federation are not currently equipped with or in a position to publish whether online or in hard form their respective law codes. As noted earlier, only the Punjab Government appears to have made some progress and has published on the official government website, the statutes applicable in the Province in the form of a Code. The progress and direction of the KPK Government also indicates that a Code of all laws applicable in the Province may become available in the near future. CMA-4343/14 in SMC No.1/05 8 15. In view of the fact that the five governments were unable to give any satisfactory explanation for their glaring omissions which have far reaching consequences, we directed our own research staff to examine the state of affairs in India, Bangladesh and in the United Kingdom. In India there is a complete chronological and alphabetical index both in English and in Hindi and all laws are available in both the said languages on the internet ('Indian Code' (India Code ) <http://indiacode.nic.in/> accessed 28/01/2015) and in printed book form. In addition the ‘FreeText Search’ on the web page can be used by typing in any word(s) and all laws containing the said word(s) are shown. This enables any citizen, lawyer, judge or researcher to have immediate and easy access to the laws applicable in the country. Similarly each of the provinces (known as States in India) have their own websites which publish the applicable laws in easily accessible ways. Bangladesh also has the Bangladesh Code in Bengali and in English with chronological and alphabetical indices. As for the United Kingdom, there is a complete website for UK and Scottish legislation. 16. Samples from the extracts of the above were printed and paper books of the same were supplied by the Court to the law secretaries of the five governments and their law officers. We are constrained to emphasize that this extensive exercise which had been undertaken by the Court was in fact the responsibility of the governments and only because the governments had failed to fulfill this duty the Court had to expend its own resources for this purpose. We may mention that it did not take long for our young and relatively inexperienced (for this task) researchers to produce their output. Based on the current situation, we are not satisfied that the five Governments will have the willingness and/or the capacity to undertake the relatively simply exercise of preparing the Pakistan Code and the Provincial Codes in the form of one consolidated compendium of laws in hard and in soft form. 17. Therefore, after hearing the Law Officers and the Law Secretaries of the five Governments and taking into account the reports which have been submitted on behalf of the respective Governments in the present matter, we direct and order as under: (i) The complete Pakistan Code (‘the Code’) shall be compiled and displayed on the website of the Federal Law Ministry. CMA-4343/14 in SMC No.1/05 9 (ii) Bound hard copies of the Code shall be made available for sale throughout the country so as to be easily accessible to the public, at inexpensive prices. (iii) An alphabetical consolidated word index containing the words in the title of a statute and words defined in the provisions of a statute containing definitions shall be included in the alphabetical index. (iv) As a sample of the required consolidated word index, the consolidated index appearing at the end of volume 16 of the Pakistan Code published by the Manager of Publications, Government of Pakistan, Karachi (1968) may be used as a rudimentary sample. Improvements in the sample must be made by use of technology and by benefiting from the Codes published by common law jurisdictions in the subcontinent and elsewhere. (v) The Code shall include in foot-notes, particulars of amendments made from time to time in the various statutes published in the Code. (vi) Marginal notes shall be made to cross reference the provisions of one statute with related provisions in another statute. The sample of the Pakistan Code published by the Manager of Publications (1968) may be adapted and improved. (vii) Translation into the national language shall be completed and displayed in easily understandable form at inexpensive prices. (viii) Translations of the Code into provincial/vernacular languages where deemed appropriate by provinces shall be made by the Provinces. (ix) Subordinate legislation in the form of rules and regulations framed under statutory powers shall be compiled in the form of a Code. This shall also contain a consolidated word index. (x) A compendium of all statutory orders and notifications shall be compiled and shall be made available to the public at inexpensive prices. (xi) A legislative and/or administrative regime shall be prepared with effective enforcement and prosecution mechanisms to ensure that law publications for sale to the public are error free and, where applicable, have the permission of the Government owning copyrighted material. CMA-4343/14 in SMC No.1/05 10 (xii) The Provinces shall follow the same pattern of publication of soft and hard copies of laws, rules and notifications as has been ordered for the Federation. 18. The matter shall now be listed for hearing on 17.02.2015 on which date the five Governments shall come prepared so that the Court can settle timelines within which each of the directives and orders in the preceding paragraph shall be complied with. A copy of this judgment shall be sent to the five Governments through their Chief Executives and Law Secretaries. A copy shall also be sent to the Secretary of the Law and Justice Commission (LJCP) with notice for 17.2.2015 so that within the mandate of the LJCP under the Law Commission Ordinance, 1979, it can monitor the work being done by the five Governments and ensure that the quality and usefulness of the publications to be made as ordered above, are best suited for the public need. Judge Judge Judge ISLAMABAD. A. Rehman Announced on _______________ APPROVED FOR REPORTING.      (    )                 1/2005     4343/2014       23   1872               2011     The Contract Act 1872          (Matter regarding publishing/printing incorrect version of Section 23 of Contract Act, 1872 in the Book titled "The Contract Act 1872, 2nd Ediction/2011" by M. Mahmood, Advocate). 1/2005     5436/2014        (Manual of intellectual Property          "        7(4) (d) (e)    2000     Laws   (Matter regarding Miss printing of Section 7(1)(e) and Section 7(4)(d) and (e) of the Patent Ordinance, 2000 in the Book titled "Manual of Intellectual Property Laws")  1/2005     5869/2014           2009 "   "        2(k)(i)   2005           (Matter regarding Section 2(K)(i) of Punjab Consumer Protection Act, 2005 and Manual of Consumer Protection Laws by Raja Nadeem Haider,ASC Published by Punjab Law House(Edition 2009).                                                                                                           4343/2014        5436/2014         5869/2014       28.01.2015                                            (Pakistan Code)                                                                                                                             621     2004 4  (suo motu)      .2     2007 17   (suo motu)    2007 7                                            (Bare Acts)                                                        09.05.2013                    "                            (Bare Act)                                                                        1973                  "                        .3                         09.05.2013   (CP 102/2014)    25.02.2014     (Contract Act)                        23                                                               .4                                                                               09.05.2013                                                                                      24.10.2014                                                                                                                                  ( P a k i s t a n C o d e )              19.11.2014                     .5                                                                                                                                                                                                             (United State Congress)                   "  "              "            "                                 27.01.2015        .6    420             1898                         2005         2012                                                          (Kafkaesque)                    .7                                                                             1966               16                                                                                    08.01.2015  .8      "                  2010       " (Pakistan Code)"                                                                       (Pakistan            1966                     Code)                           (Cross Refrencing)                                                          "    1966            "                 .9                 "   "                 1956                                               1990               1966         1988               2014  2013          2013                      2013     1988                                                                                          .10                                                                                                                31                              1967                                                                      08.01.2015  .11                                                                                                        .12            (Copy Right)                                                                                                                                        .13                                                      251     28                   78    1899                      "                    25                        "                                    .14         2015   22  21 19                                                   1966                                                                                                                                                             .15                                      )                      (Indian Code) <http//indiacode.nic.in/> )    (Free Text Search) "   "                                                                                                       .16                                                                                                                                               .17                     (Pakistan Code)       .i                        .ii                          .iii                 16   (1968)       .iv                                                              .v                         .vi                       (1968)                  .vii                 .viii                  .ix                                       .x                     .xi                                                          .xii                                      17.02.2015   .18                                                 (LJCP)                      17.02.2015        1979                                         2015  10         

{'id': 'C.M.A.4343_2014.pdf', 'url': ''}

{'id': 'C.M.A.4343_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED C.M.A. NO. 4581 OF 2013 IN C.M.A. NO. 3470 OF 2013 IN CIVIL APPEAL NO. 409 OF 2010 (Fake degree case) Application by Muhammad Younis against Arif Mehmood, MPA In Attendance: Raja Amir Abbas, ASC a/w applicant Mr. Hamid Khan, Sr. ASC a/w respondent Arif Mehmood For HEC Mian Muhammad Hanif, ASC Raja Abdul Ghafoor, AOR For BISE, Faisalabad Mr. Fida Hussain Shah, Assistant Controller (Record) Mr. Abdul Rehman, Assistant (Record Branch) Mr. Muhammad Arshad, Junior Clerk (Legal Section) Ch. Akhtar Ali, AOR Date of Hearing: 09.04.2014 ORDER TASSADUQ HUSSAIN JILLANI, CJ.- We have heard learned counsel for the applicant and respondent Arif Mehmood and have also perused the record produced by the Assistant Controller (Record) of the Board of Intermediate and Secondary Education, Faisalabad. 2. Applicant’s learned counsel read out the detailed statement of Assistant Controller (Record) of the Board of Intermediate & Secondary Education, Faisalabad dated 22.4.2013, according to whom, the FA certificate of the respondent was fake because on the date of FA examination, the respondent Arif Mehmood purportedly appeared at two centers i.e. at one as a private candidate and at the other as a regular candidate. The admission form as a private candidate bears pink colour whereas the admission form of regular students is yellowish white. 3. Learned counsel for the respondent submitted that the only evidence against the respondent is the statement of Mr. Fida Hussain, Assistant Controller (Record) whereas a close look at the admission forms would indicate that in the pink form (private admission form) his metric roll number is correctly written as 11592 and his name also has been correctly written as Arif Mehmood. However, in the yellowish white admission form (regular admission form) the matriculation roll number is incorrectly written as 18592 and even the name has not been correctly written i.e. Arif Mehmood Gill. Adds that in the degree of Bachelor of Arts of respondent regarding which there is no dispute, his name is written as Arif Mehmood. He lastly submitted that in 2003 pursuant to the direction issued by the learned Lahore High Court in a petition filed by some other objector, a detailed inquiry was carried out by the Board of Intermediate & Secondary Education and the FA degree of the respondent was found to be genuine. 4. We have examined the record to which reference has been made by learned counsel for the respondent with the assistance of Board official and find that the submissions made by respondent’s learned counsel prima facie are not without substance. But in these proceedings no conclusive finding can be given. If applicant still wishes to challenge the authenticity of the FA degree of the respondent, he may take recourse to other remedy, if available under the law. 5. In the afore-referred circumstances, the suo moto notice issued to the respondent as also the order of suspension of his membership from Provincial Assembly seat dated 25.9.2013 is withdrawn. This CMA is disposed of in terms noted above. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 9th of April, 2014 Not Approved For Reporting Khurram

{'id': 'C.M.A.4581_2013.pdf', 'url': ''}

{'id': 'C.M.A.4581_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed CMA No.4671 of 2012 in HRC No.19 of 1996 (News item published in Daily Express Tribune, Partner of International Herald Tribune, on 14.03.2012 under the following Caption “Misappropriation:- Government withdrew Millions from Intelligence Bureau’s Account) On Court Notice : Attorney General for Pakistan (Absent) For Express Tribune : Mr. Asad Kharal, Reporter For I.B. : Ms. Naveeda Noor, AD (L) Date of Hearing : 02.01.2013 ORDER In response to order dated 17.12.2012, reply has been submitted, which is found to be unsatisfactory. Let the D.G. (IB) furnish comprehensive fresh reply, however, he should keep in mind that he is the incumbent DG, therefore, he has access to the record and he should not conceal anything from the Court. He may also keep in mind that if the amount as alleged by Mr. Asad Kharal, was withdrawn for toppling of Government of Punjab in the year 2009 is not correct, atleast he should disclose that what was the other object of withdrawal of this huge amount and details of its expenditures as atleast record must have been maintained that to whom the amount was distributed. It would be appreciated and kept secret, if object and purpose of spending CMA No.4671 of 2012 in HRC No.19 of 1996 - 2 - huge tax payer amount is also disclosed. If reply seems satisfactory, direction shall be issued to Mr. Tariq A. Lodhi, former DG (IB), for his personal appearance to testify on the basis of record and in such situation, if he appears and confirms the fact at that time, the incumbent D.G (IB) has to face some embarrassment. It is noteworthy that Mr. Tariq A. Lodhi was holding charge for two months, in his earlier reply had not denied the withdrawal of the amount except stating that it was not for toppling of the Punjab Government. So, prima-facie, inference can be drawn that the amount was withdrawn and there should not be any reason for the incumbent DG to conceal the facts from the Court. We expect full cooperation from him, being a responsible officer and head of one of the most important intelligence organizations of the country. Dr. Muhammad Shoaib Suddle, former D.G. (IB) has not sent any reaction, therefore, the instant order be also sent to him through the Registrar to inquire as to whether if he had any information, he should communicate before the next date of hearing in writing through the Registrar of this Court. The Secretary Finance, Government of Pakistan is also directed to trace the record on the basis of which sanction was made for withdrawal of amount referred to in the earlier orders, with details of transferring the same in the account of IB as well as communication for such withdrawal must be with the Finance Department, through some treasury/bank. Notice to Mr. CMA No.4671 of 2012 in HRC No.19 of 1996 - 3 - Masood Sharif, former DG (IB) be also repeated in pursuance of earlier order dated 28.11.2012. 2. Adjourned to 8th January, 2013. The sealed envelope containing replies of former DG’s (IB) Mr. Aftab Sultan and Mr. Javed Noor has been opened and perused and is ordered to be re-sealed, as confidentiality has been claimed. 3. When we have dictated the above order Mr. Asad Kharal, petitioner as well as Ms. Naveeda Noor, A.D (Legal) IB have left the courtroom. The Registrar of this Court has sent a sealed envelope received by him from Dr. Muhammad Shoaib Suddle, the same was opened in the Court. The assertions made in the letter by Dr. Muhammad Shoaib Suddle, prima facie, confirm the allegations put forward by the petitioner Asad Kharal. However, to the extent of withdrawal of huge amount of Rs.40 crore, during the years 2008-09 but not for the purpose of toppling the Punjab Government, as he has considered it a farfetched phenomenon. The report received from him is ordered to be re-sealed and kept in safe custody. 4. In view of the contents of report, we direct Mr. Tariq A. Lodhi through the DG (IB) to appear in person on the next date of hearing, already fixed as 8th January, 2013. However, implementation of the earlier portion of the order as directed therein is required to be made in the same manner except further communicating Dr. Muhammad Shoaib Suddle, as his reply has CMA No.4671 of 2012 in HRC No.19 of 1996 - 4 - been received. This order be communicated to the DG (IB) during the course of day, enabling him to establish contact with Mr. Tariq A. Lodhi, to appear in person on the next date. CJ. Islamabad J. 02.01.2013 *Hashmi* J.

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v-r—,-,..n.yrdlemstv.ntxt,rersly`.16747IRLMIXE,'",, For ETPB: Mr. M. Ikram Ch., Sr, ASC. Dr. Aainir Ahmed, Chairman ETPB. Mr. Tariq Khan Wazir, Addl. Secy., (Shrines) ETPB. For Govt. of KP: Mr. Shumail Ahmed Butt, A. G. KR Mr. Qasim Niaz, Chief Secy., KP. Mr. � M. � Rafiq, � Addl. � Asstt. Commissioner, Kohat. Mr. Tayyab Khan, RPO, Kohat. Mr. M. Naeem, Deputy Secretary, H.E. KP. IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, I-ICJ MR. JUSTICE IJAZ UL ANSAN MR. JUSTICE SAYYED lvIAZAHAR AL1 AKBAR NAQVI CMA No.4821 of 2018 in S.M.C. No.01 of 2014. (Human Rights Commission of Pakistan through Chairperson, Dr. tvlehdi Masan and others. v. Federation of Pakistan through Ministry of Education and others). AND CNIA No.516 of 2019 in Const. Petition No.62 of 2017. (Pribhu Lai, etc. v. Government of Pakistan, etc.) AND Constitution Petition No.62 of 2017. (Pribhu Lal, etc. v. Government of Pakistan, etc.) AND Constitution Petition No.63 of 2017. (Leo Roderick Paul, etc. v. Government of Pakistan, etc.) In Attendance: � Mr. Sohail Mehmood, Addl. AGP, Mr. Shoaib Suddie, Chairman of Corn mission. • Mr. M. Saqib jillani, Member of Commission. Dr. Ramesh Kumar, Member of Conn mission. For Govt. of Punjab: Ch. Faisal Fareed, Addl. A. G. Punjab. Mr. Ibad Ullah Sajid, Social Welfare Office, Govt. of Punjab. 1.1wriuu.,v,Isnneuranrcuarr . -74rTSZTI7EMI.„17SM...Ma. � • • � . CW.6111124,021 of 2018 enM.cNo.Qj of 201 S. eic. For ICT: For Govt. of Balochistan: Fed. Department: Mian Zahid Mehrnood, Law Officer, H.R. Punjab, Rizwana Naveed, Addl. Secy., H.R. Punjab. Mr. Amir Riaz, Director, PCTB, Lahore, Dr. Sohail Sarwar, Deputy Director, PCTB, Lahore. Mr. Shehzad Manzoor, DSP, Multan. Mr. Wajid Ullah Kundi, Secretary 1&C, Punjab. Mr. Niaz Ullah Niazi, A. G. Islamabad. Mr. Ayaz Khan Swati, Addl. A. G. Balochistan. Mr. Iftikhar Ahmed, S.O. M/o Religious Affairs. Mr. Sohail Aijaz, Dy. Director Litigation M/o Federal Education. Mr. M. Rafig Tahir, J.E.A. M/o Federal Education. Mr. Kamran IVIurtaza, Sr. ASC (via video-link from Quetta) Mr. Peter Jacob, E.D. CSJ/Chairperson PCMR. For Govt. of Sindh: � Ms. Leela Kalpana, Addl. A. G. Sindh (via video-link from Karachi) Mr. Abdul Hadi, Secretary Minorities Affairs, Sindh. (via video-link from Karachi) Date of Hearing: � 15.02.2021. ORDER In our last order dated 08.02.2021, there is a reference of Rupees Thirty Eight Million to be paid to Pakistan Hindu Council by the Evacuee Trust Property Board rETPB"), It is stated that an amount of Rupees Two Million has already been paid by Government of Khyber Pakhtunkhwa for reconstruction of the Samadhi at Karak. So far the claim of Dr. Rornesh Kumar for payment of Rs.38 million by the ETPB is CAM No.4821 012018 in S.A{C. No.01 012011, etc 3 concerned, it is stated by the learned Additional Attorney General as well as learned ASC for the ETPB that no account has been submitted by the Hindu Council in response of said claiM and that in case the Hindu Council submits the account of such amount of Rs.38 million, the ETPB shall consider the same and deal with it appropriately and in case any amount is due to be paid by the ETPB to Hindu Council, the same shall be paid. In . this view of the matter, Dr. Ramesh Kumar may submit appropriate accounts to the Chairman, ETPB. 2. �As regards the criminal cases initiated against the persons who are alleged to have caused damage to the Samadhi in Karak, it is stated by Mr. Kamran Murtaza, learned Sr.ASC appearing before us through video link from Quetta that the cases are not proceeding before the criminal Courts and on this account the arrested persons are facing difficulties. On this, the learned Advocate General, Khyber Pakhtunkhwa has stated that there is no obstruction from the side of KP Government for proceeding with the cases of arrested persons and that the cases are being proceeded. He however makes a statement: that he will seek instructions with regard to the complaint made and ensure that the cases are proceeded expeditiously. In view of such statement made by the learned Advocate General, KP the learned counsel (Mr. Kamran Murtaza) for the arrested persons states that his above query stands satisfied. CALA No.-7822 or 2028 io 17.M.G No.02of2014, ofd � 4 3. So far Prahlad Mandir at Multan is concerned, no satisfactory report has been received from the Government of Punjab and even the Chief Secretary, Punjab is not in attendance despite the fact that it was directed to him to ensure that restoration of the Mandir is made in order to facilitate Hindu ComMunity of Pakistan to hold Holi festivals in said Mandir on 28th March of 2021. 4. Once the Court had passed an order, it was the duty of the Chief Secretary, Punjab to ensure its compliance. We note that despite meeting of the 'One Man Commission' appointed by this Court with the Chief Secretary, Punjab so also by Dr. Romesh Kumar nothing has been done by the Chief Secretary and this Court takes serious note of such conduct of the Chief Secretary, Punjab. In the circumstances, the Chief Secretary, Punjab is directed to ensure that compliance of this Court's order dated 08.02.2021 is made in letter and spirit and such compliance report be submitted before this Court on the next date of hearing, when the Chief Secretary, Punjab shall also be in attendance. Two weeks' time is granted for this purpose. 5. Mr. Muhammad Ikram Chaudhry, learned ASC appearing for the ETPB- states that through notification dated 12.06.2006 management of Katas Raj Temple Complex in District Chakwal was transferred by the Federal Government to the Provincial Government Punjab for its maintenance with immediate effect and until further orders. We are infoimed that rmaxaasza.e..aaaraalevaaraartaaareparap,10.0.`[.•Sl � Srr.TS.SF.InTOWZ.V.I.a.161 -SSITa.M1. -W7.1.71,,,,::=,,,ZI772,;;;Z=KpaZ,,,,_ • 4 OSA No.4821 of 2018 In 2 M.C. No.01 of 2014, etc. � 5 the maintenance which was required to be made in the year 2006 has already been done by the Punjab Government and now the purpose of said notification dated 12.06.2006 stands served and Katas Raj Temple Complex in District. Chakwal has to be reverted back to the ETPB. In this regard, let Federal Government issue necessary notification(s) and ensure that Katas Raj Temple Complex in District Chakwal is returned back to the ETPB to be dealt with under the Evacuee Trust Properties (Management & Disposal) Act, 1975. Such an exercise will be completed by the Federal Government within a period of two weeks. 6. A report has been submitted on behalf of Secretary, Ministry of Federal Education and Professional Training which is not signed by the Secretary himself rather it is signed by Deputy Director (Literacy) of said Ministry. Such report is not in compliance of our order dated 05.02.2021 and as such the same is returned with direction to the Secretary, Ministry of Federal Education and Professional Training to submit a report duly signed by him to the Court and he shall also be in attendance on the next date of hearing. The report shall be made available by him within a period of two weeks. 7. The Chairman, ETPB has handed over to the learned 'One Man Commission' in Court a USE Drive containing full details of all Evacuee Trust Properties as well as details of all Iviandirs, Samadhies and Gurdawaras, etc. The learned 'One Man Commission' shall examine such material .11111.S.A.VarMIT.M.T.S.ASTATIS. tw27331, Vra".=. No.9821 of 2018 in .9 tie 1ln.0? of2014. an � 6 • contained in the USB as supplied to him by the Chairman ETPB and thereafter, if deemed necessary, submit his response to the same. 8. �However, the Chairman, ETPB has been informed that none of the properties of the ETPB can be utilized by the Board for its own employees nor the same can be sold out/transferred to any person and in case leases of such properties have been made, the Chairman shall give full details of the same as well as the amounts which the Board is receiving from the lessees. He shall also in the report mention the rates which were initially fixed as lease amounts and the present rates of lease amounts which are being paid to the ETPB by the lessees. The duration of the teases shall also be indicated from the initial stages uptill now and the persons to whom such leases have been granted. This report shall be made available by the Chairman, ETPB to this Court within a period of two weeks and he shall also be in attendance before us on the next date of hearing. Adjourned to a date in office after two weeks. --‘_ (c;\) ISLAMABAD. 15.02.2021. ZR/* 'Not Approved For Reporting'

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SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE MUSHIR ALAM MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE IJAZ UL AHSAN C. M. A. NO.490 OF 2021 IN CONSTITUTION PETITION NO.20 OF 2013 (Action against Distribution of Development Funds to MNAs/MPAs by Prime Minister) IN ATTENDANCE: For the Federation : Mr. Khalid Jawed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, Addl. AGP For Govt. of Punjab : Barrister Qasim Ali Chohan, Addl. A.G. Punjab Khalid Mehmood, Addl. Secretary Finance, Punjab Shehbaz Ahmed Sheikh, Law Officer, Finance, Punjab For Govt. of KPK : Mr. Shumail Ahmed Butt, A.G., KP Mr. Aftab Ali Khan, Addl. A.G., KP Atif Rehman, Secretary Finance, KP Amir Sultan Tareen, Secretary, P&DD, KP For Govt. of Balochistan : Mr. Arbab Muhammad Tahir, A.G., Balochistan Mr. Muhammad Fareed Dogar, Assistant A.G., Balochistan For ICT : Mr. Niaz Ullah Khan Niazi, A.G., Islamabad For Govt. of Sindh (via video link from Karachi) : Mr. Salman Talib ud din, A.G., Sindh Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Sindh Sikander Hassan, D.S. Finance, Sindh Date of Hearing : 11.02.2021 CMA.490/2021 IN CONST.P.NO.20/2013 2 ORDER GULZAR AHMED, CJ.— The learned Attorney General for Pakistan has filed a report by way of CMA No.751 of 2021, signed by the Secretary, Finance Division, Government of Pakistan, Islamabad. The above report, inter alia, submits as follows: “iii) There is no discretionary allocation at the disposal of the Prime Minister, Federal Minister, Parliamentarian, or any other person, under the existing budgetary system. As such, expenditures incurred are never person specific. Rather they are Demand-specific, duly approved by the National Assembly.” It was observed in Court that the Prime Minister enjoys protection for his person under Article 248 of the Constitution, nevertheless he has in deference to our last order also signed the above report with the following endorsement: “It is submitted that no public funds are being distributed to Parliamentarians by the Federal Government and any report to the contrary in media is incorrect. No money will be handed over to the legislators to carry out development schemes.” 2. The learned Additional Advocate General, Punjab, has also submitted a report by way of CMA No.719 of 2021, signed by the Finance Secretary and the Chief Secretary, Government of the Punjab, where responding to query (b) in para 4 of the order of this Court dated 03.02.2021, it is stated as follows: “Public funds are allocated by the Provincial Assembly in terms of Articles 120 to 124 of the Constitution of the Islamic Republic of Pakistan. Expenditure against aforesaid budgetary allocations is made in accordance with the rules made under Article-119 of the Constitution. There is no provision in the rules ibid to hand over funds to legislators. The Government of Punjab has neither handed over funds to legislators, nor is it in the process of handing over funds to legislators, and nor does it intend to hand over funds to legislators. Under the Annual Development Program 2020-21 prepared by the Planning & Development Board, Government of Punjab, no funds have been allocated at the sole disposal / discretion of the Chief Minister or Provincial Minister or any member of the Provincial Assembly. The execution of various development schemes is made by the respective authorities mentioned in the above referred rules, which empower the concerned authorities mentioned therein to incur expenditure up to the limits prescribed under these rules. Furthermore, the development schemes are project specific and no person specific.” CMA.490/2021 IN CONST.P.NO.20/2013 3 whether the Federal and provincial governments had handed over or intended to hand over monies to the legislators and/or carry out development works identified by them.” 3. The learned Advocate General, Sindh, while appearing through video link from the Supreme Court Branch Registry, Karachi, has informed that the Government of Sindh has also filed its report by way of CMA No.750 of 2021, signed by the Secretary Finance as well as the Chief Secretary, Government of Sindh, in response to the order of this Court dated 03.02.2021. The response of the Government of Sindh to the query (b) of para 4 of the order of this Court dated 03.02.2021, it is stated as follows: “In response to query at Para-4(b) of the Order dated 03.02.2021 passed by the Honourable Supreme Court of Pakistan, it is submitted that the Government of Sindh has not allocated/disbursed any Development funds to any MNA/MPA or notable in the Annual Development Plan (ADP-2020-21). It is further submitted that the Government of Sindh will make all allocations in accordance with the provisions of Constitution of Islamic Republic of Pakistan and the guidelines provided by this Honourable Court in its judgment (action against distribution of Development Funds by the Ex-Prime Minister, PLD 2014 Supreme Court 131) referred to in the order dated 03.02.2021.” 4. In our order dated 10.02.2021, we have noted that the Government of Khyber Pakhtunkhwa by way of CMA No.568 of 2021 so also the Government of Balochistan by way of CMA No.613 of 2021, have already submitted their replies where the categorical statements have been made that no development fund is going to be given to any of the MPAs/Ministers/Notables of their respective Provinces and that the development funds shall be used and spent as per the constitutional mandate and the rules framed by the respective Governments for utilization of the development funds, provided in their annual budget. 5. The report of the Federal Government (CMA No.751 of 2021) submitted by the learned Attorney General for Pakistan in Court today, the relevant paras whereof have been reproduced above, amply demonstrate that none of the development funds shall be CMA.490/2021 IN CONST.P.NO.20/2013 4 handed over to any of the Federal Ministers, Parliamentarians or any other person under the existing budget and that whatever budgetary provisions have been made in the annual budget, the same will be utilized in the manner, as is provided in the Constitution and other applicable laws and regulations. The reports of the Government of the Punjab so also Government of Sindh, in specific terms, have responded that no development fund is going to be given to any of the MPAs/Ministers/Notables of their respective Provinces and that the development funds shall be used and spent as per the constitutional mandate and the applicable rules framed by the respective Governments for utilization of the development funds provided in the annual budget. 6. At this stage one of us (Qazi Faez Isa, J.) sought to place on record photocopies of certain documents statedly received by him from some anonymous source through a WhatsApp message. Copies of such documents were handed over by the Hon. Judge to other Hon. Members of the Bench. A copy was also handed over to the learned Attorney General for Pakistan. The Hon. Judge also stated that he was unsure if the documents were genuine. The learned Attorney General for Pakistan submitted that since the authenticity of the documents was questionable, the same may not be taken on record. He further submitted that in any event the Hon. Judge would become a complainant in the matter and in that capacity it would not be appropriate for the Hon. Judge to hear the matter. The Hon. Chief Justice of Pakistan, therefore, observed that in these circumstances it would not be proper for the Hon. Judge to hear the matter considering that he had already filed a petition against the Prime Minister of Pakistan, in his personal capacity. Therefore, to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the Hon. CMA.490/2021 IN CONST.P.NO.20/2013 5 Judge should not hear matters involving the Prime Minister of Pakistan. 7. In view of the above position on record, it appears that the queries raised by this Court in the order dated 03.02.2021 have been responded/addressed by all the respective Governments and thus, we see no reason to further proceed with the matter. Accordingly, the Civil Miscellaneous Application No.490 of 2021 in Constitution Petition No.20 of 2013 is disposed of.

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IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA. MR. JUSTICE KHILJI ARIF HUSSAIN. MR. JUSTICE EJAZ AFZAL KHAN. CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. (Regarding putting of two Govt. Officers namely Hassan Waseem Afzal and his wife Farkhanda Waseem Afzal as OSD). For the applicant: Mr. Hassan Waseem Afzal and his wife Farkhanda Waseem Afzal in person. For the respondents: Mr. Dil M. Khan Alizai, DAG. Malik Sher Afzal, Joint Secretary. Mr. Abdul Latif, Dy. Secy. Mr. Sarfraz Durrani, Dy. Secy. Mr. Shahbaz Kirmani, SO (Legal). Establishment Division. Date of hearing: 26.04.2013. J U D G M E N T EJAZ AFZAL KHAN, J. - In the case of “Syed Mahmood Akhtar Naqvi and others. Vs. Federation of Pakistan and others” commonly known as Ms. Anita Turab case (PLD 2013 S.C. 195), this Court ruled as under :- “OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.” 2. A news item in daily “The News” was flashed with the heading “The OSD couple, waiting for God’s or SC help”. This Court’s while taking its notice on 31.12.2012 observed as under :- “Notice was taken on a news item appearing in the daily ‘News’ wherein it has been stated that two senior civil servants namely Hassan Wasim Afzal and Farkhunda Wasim Afzal who are officers in BS-21 are posted as officers on special duty (OSD) by the Establishment Division since CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 2 16.6.2008 and 15.11.2011 respectively. This prima facie constitutes a violation of the judgment of this Court in Constitution Petition No.23/2012 (Anita Turab Vs. Federation of Pakistan). Let notice issue to the Secretary Establishment Division for 2.1.2013 to explain as to why contempt proceedings should not be initiated against him and others responsible for violating the Court order. 2. Likewise, notice shall issue to the Chief Commissioner Islamabad to explain as to why orders in the case of Ms. Rabia Aurangzeb were issued by him in violation of the aforesaid judgment in Constitution Petition No.23/12. Furthermore, the Secretary, Ministry of Interior shall explain as to why similar proceedings as noted above for violating the Court orders in Constitution Petition No.23/12 should not be initiated against him in relation to orders for premature transfer/posting of Dr. Khurram Rashid and Maryam Khan. 3. Let this application and connected matters arising from Constitution Petition No.23/12 and CMA 4848/12 be listed for hearing on 2.1.2013”. 3. Its follow up culminated in the order dated 2.1.2013 which reads as under :- “A report has been submitted by the Chief Commissioner Islamabad. The officer Ms. Rabia present in Court has gone through the report and states that facts have not been properly set out in the same. She needs some time to state the correct factual position. Let this be done within this week. 2. Mr. Shahid Hameed, Additional Secretary, Interior is present. The Secretary Interior who is statedly busy in a meeting in the Election Commission, has submitted a report which is perfunctory and unsatisfactory. It does not give full details as to the letter surrendering the services of Dr. Khurram Rashid, SP shortly after he was posted as SP Industrial Area. Likewise, the report in respect of Ms. Maryam Khan sought from the Secretary Interior is unsatisfactory. The Court needs information as to the reasons why the law enunciated in the case of Anita Turab (Constitution Petition No. P.23//12) was not adhered to. A report in this behalf shall be submitted by the Secretary Interior within this week. 3. A report had been sought from the Secretary Establishment Division as to why Mr. Hassan Wasim Afzal and Mrs. Farkhanda Wasim Afzal, both BS-21 officers had been CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 3 continued as OSD even after the enunciation of law on the subject vide our order of 12.11.2012 in the case of Anita Turab (supra). The report submitted is wholly unsatisfactory because it merely informs the Court that the two officers have been given posting on 1.1.2013. This report does not respond to the notice issued to the Secretary Establishment Division to show cause why proceedings should not be initiated against him for not complying with the above referred judgment of this Court dated 12.11.2012. A report in this behalf shall be submitted by the Secretary Establishment within this week. 4. CMA No.8/2013 has been filed by Dr. Shafi ur Rehman for being impleaded as a party in this matter. Let it be listed with other matters. Adjourned for 8.1.2013”. 4. On 9.1.2013, this Court observed as under :- “When the case was first called for hearing in the earlier hours of the day, we were informed by Mr. Khayal Zada Gul, Dy. Secretary, Establishment Division that a notification dated 1.1.2013 had been issued appointing Mr. Hassan Waseem Afzal as Director General Pakistan Museum of Natural History and Mrs. Farkhanda Waseem Afzal as the M.D. National Trust for Disabled. However, we were surprised to note that the aforesaid notification had not actually been delivered/served on the petitioners and as a consequence, they remained uninformed officially of their postings and resultantly did not report for duty at the notified positions. We, therefore, asked the Deputy Director, Establishment Division to file a statement giving reasons as to why the officers named above, were not given any postings and were instead made OSDs since 2008 and 2011 respectively. The statement does not appear to be satisfactory inasmuch as the details of official action since 2008/2011 has not been given and also because there is no reasonable explanation as to why these officers were not given postings until 1.1.2013 or that they have not been given intimation of their postings even after 1.1.2013. For ease of reference, the statement submitted by the Deputy Secretary in Court is reproduced as under:- “Notification in respect of Mr. Hassan Wasim Afzal (PAS/BPS-21) and Mrs. Farkhanda Wasim Afzal (PAS/BPS-21) to their posting as Director General (BPS-21), Pakistan Museum of Natural History and MD (BS-21) National Trust for Disabled were issued on 1st January, 2013, in late hours. CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 4 Accordingly the signed notifications were issued to all concerned on 2.1.2013. As per practice, the notifications to the individual officers are sent to the Organization where they are posted and also sent on their last posting address. In the instant case the posting orders have been sent to the Organization where they have been posted and delivered to Admin Wing on 02.01.2013. However, the same could not be further communicated to the officers concerned at their postal address. This is not a deliberate action on the pasrt of any individual official or the Establishment Division, rather a lapse pointed out by any officer for the first time. As per past practice in all such cases the official concerned contact the Establishment Division, obtain their posting orders and relinquish the charge of the post of OSD for processing issuance of Last Pay Certificate (LPC) for regularization of their pay in the other organization (where posted) and taking charge in that organization. On taking notice by the Hon’ble Supreme Court of Pakistan on 8.1.2013to the Non-delivery of notifications to the officers concerned, the Establishment Division, took immediate action to send the notifications on home addresses of the concerned officers through UMS/TCS on 08.01.2013. The Establishment Division further shall take serious cognizance of this incident and improve system regarding intimation of posting orders to the officer concerned at their available postal addresses. (KHALIL ZAD GUL) Deputy Secretary Establishment Division.” It is a matter of concern that it is only after this Court’s notice in the matter, on the basis of a press report, that action appears to have been initiated by the Establishment Division and clear directions in the judgment dated 12.11.2012 (Anita Turab’s Case) appear to have been violated. We, therefore, would be justified in issuing notices to concerned government functionaries as to why contempt proceedings should not be initiated against them. However, before doing so we direct the two officers namely Hassan Wasim Afzal and Farkhanda Wasim Afzal to file their statements setting out particulars and identifying the causes/persons who may have been responsible for the failure to give them substantive postings. The incumbent Secretary Establishment Division and the Secretaries of the Establishment Division since 16th June, 2008 shall also submit CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 5 their concise statements setting out their reasons as to why these officers were made OSDs and why they were not given substantive postings. The incumbent Secretary Establishment Division shall also file relevant documents including all noting/correspondence which he may consider relevant during this week. The matter shall be listed for hearing on 15.1.2013”. 5. On 16.1.2013, this Court after hearing the parties at some length observed as under :- “We had noted that the two officers Hassan Wasim Afzal and Mrs. Farkhanda Wasim Afzal both in BS-21 had been made OSDs since 2008 and 2001 respectively. We had, therefore, directed the Secretary Establishment Division and the Secretaries of the said Division since 16.6.2008 to submit their concise statements setting out their reasons “as to why the aforesaid officers were made OSDs and why they were not given substantive postings”. The incumbent Secretary Establishment has filed a concise statement (CMA-173/13). The said concise statement, however, does not contain explanations as to why the aforesaid officers have been kept as OSDs. Furthermore, there were six civil servants who occupied the position of Secretary Establishment from 16.6.2008 till the present incumbent was posted to the position on 28.6.2012. We have inquired about the status of these six persons. It is surprising that four out of these six persons have attained superannuation and have been re- employed on contract basis. This has happened even though the two officers namely Hassan Wasim Afzal and Mrs. Farkhanda Wasim Afzal are OSDs and are being paid their salaries/emoluments out of the public exchequer, although no official work has been assigned to them since 2008 and 2011 respectively. 2. The six persons whose names appear on page 100 of CMA. 173/13 shall again be served notice. The office and the Establishment Division shall be responsible for effecting service on them. These persons shall file their concise statements giving details as to why during their tenure no effective steps were taken for postings of the above named two officers. The case shall be listed for hearing on 31st January, 2013”. 6. On 27.3.2013, this Court again heard the matter and summed up in paragraph Nos. 3 and 4 which read as under :- CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 6 “3. We have gone through the aforesaid summary which, as its subject indicates, was moved for the purpose of appointing one Mr. Abdul Latif Leghari as Additional Secretary, Capital Administration and Development Division. It has been stated in para 2 of the summary that the “Establishment Division proposes a panel of the following BS-21 officers for posting as Additional Secretary, Capital Administration and Development Division”. Thereafter the 3 officers and the summaries in respect of them have been recorded as follows:- “Foregoing in view, Establishment Division proposes a panel of the following BS-21 officers for posting as Additional Secretary, Capital Administration and Development Division. (i) MR. ABDUL LATIF LEGHARI (Secretariat Group/BS-21) He joined Government service on 2.9.1980. Presently, he is posted as Senior Joint Secretary, Capital Administration and Development Division. Earlier, he remained posted as Joint Secretary, Capital Administration and Development Division, Joint Secretary, Industries and Production Division; Director General, Pakistan Public Administration and Research Centre; Joint Secretary, Cabinet Division, Director General, National Archives of Pakistan Deputy Secretary, Finance Division and Deputy Secretary, Economic Affairs Division. He is Sindh domiciled and will superannuate on 12.7.2004. (ii) MR. HASSAN WASEEM AFZAL (PAS/BS-21) He joined Government service on 8.3.1978. Presently, he is posted as OSD, Establishment Division. Previously, he remained posted as Principal Secretary to the Governor Punjab; Deputy Chairman, NAB Lahore; Secretary, Home Department, Government of the Punjab; Secretary, Health Department Government of the Punjab; Director NIPA Lahore, MD Pakistan Housing Authority, Islamabad; Joint Secretary, Prime Minister’s Secretariat; Additional Director General EPB, Lahore and Consul General Montreal. The officer is Punjab domiciled and will superannuate on 26.4.2013. (iii) MR. SHAHZAD IQBAL (SECRETARIAT GROUP/BS-21) He joined Government service on 15.11.1980. Presently, he is posted as Senior Joint Secretary, Inter Provincial Coordination Division. Previously, he CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 7 remained posted as Joint Secretary, Inter Provincial Coordination Division, Director General, Privatization Commission, Joint Secretary, Information Technology and Telecom Division, Deputy Secretary, Commerce Division, Deputy Secretary, Environment Division, and Deputy Secretary, Housing and Works Division. The officer is Punjab domiciled and will superannuate on 18.10.2013. The proposal at para 2 above is submitted for kind approval of the Prime Minister. 4. This summary which has been mentioned above prima facie, does not conform with the judgment in the case of Ms. Anita Turab supra, because it does appear to be incomplete inasmuch as it has not been stated therein that Mr. Hassan Waseem Afzal has remained OSD for a period of 5 years starting 16.6.2008. And, even after our judgment on 12.11.2012 in Anita Turab’s case, the situation was not rectified. We, therefore, require the Secretary Establishment to submit an explanation in terms of section 3 of the Contempt of Court Ordinance, 2003 read in the light of Article 204 of the Constitution. This should be done within 10 days from today. Thereafter based on our consideration of the explanation, we shall consider further action ”. 7. Today when we took up this case for hearing, it was again noted that Mr. Hassan Waseem Afzal had been posted OSD ever since 2008 and Mrs. Farkhanda Waseem Afzal. Their cases were forwarded for promotion but were deferred on the sole ground that they could not earn any PERs because of their being posted as OSDs. When we inquired as to what called for such treatment, no answer much less satisfactorily has been given by the persons at the other end. In fact the two officers of the Ministry, present in Court have accepted that the treatment given to the applicants is not in conformity with the accepted norms. We ourselves also scanned the record but could not find anything which could call for such treatment. Had their past performance or integrity been below the mark, they could have been treated as such but there is nothing of that sort. We were rather amazed and even appalled to see them treated in this way. Yes, as per minutes of meeting dated 02.08.2011, 25.11.2011 and 12.04.2012, they could not earn any PERs one way or the other because of CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN CONSTITUTION PETITION NO. 23 OF 2012. 8 their posting but this could not be construed to their detriment under any cannons of law and propriety. The more so when their past record had been outstanding throughout. They initiated a contest in the High Court, but called it off when the respondents on the other end assured the High Court that they would be considered for promotion. But nothing in black and white was done towards what was assured, in spite of the fact that this order was also upheld in intra court appeal. We have been told that Mr. Hassan Waseem Afzal is going to retire in a day or so while his spouse is going to retire in a year in grade 21. Their promotion to the next higher scale has been denied for want of PERs and PERs have not been complied on account of their posting as OSDs which is not an act of their own doing. “Let them suffer” may be a command of expediency but we cannot approve it when, “give them their due” is a command of justice, which prima-facie appears to have been denied to them out of indignation and ill will of the high ups. It appears to be a typical case of political victimization, where even a moment’s delay could cause irreparable harm and immeasurable loss to the officers whose merit lacks intercessional props and pillars. We have, therefore, no alternative but to direct the Secretary Establishment to convene a meeting of HPSB DSC for passing an appropriate order after considering the aforesaid officers for promotion to the next higher scale but before the sunset today. Judge Judge Judge Islamabad. 26.04.2013. MAZ/* ‘NOT APPROVED FOR REPORTING’

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IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED MR. JUSTICE MUHAMMAD ATHER SAEED CMA NO. 5144 OF 2011 & CIVIL REVIEW PETITION NO.129/2010 IN CONST. P. 76/2007 & CMAs No. 1427/2011 [Against the judgment dated 16.12.2009 passed in Constitution Petitions No. 76 to 80 of 2007] Federation of Pakistan through Secretary M/o Law, Justice and Parliamentary Affairs, Islamabad vs. Dr. Mubashir Hassan, etc. For the applicant/petitioner: Mr. Mahmood A. Sheikh, AOR [CMA 5144/11 & CRP 129/10] Mr. Masood Chishti, Secretary, Ministry of Law & Justice. On Court notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan For the respondent No.1: Mr. Salman Akram Raja, ASC [CRP 129/2010] Mr. Mehr Khan Malik, AOR Date of hearing: 25.11.2011 … O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - On 24.11.2011, Dr. Babar Awan, learned Sr. ASC concluded his arguments. In the meanwhile, he had filed CMA no. 5234/2011 and insisted for permission to rely upon the same. As it is settled principle of law that ordinarily at the review stage, a document is not allowed to be produced unless it is very much relevant to do complete justice. Initially request was not entertained, but subsequent thereto, after giving a second thought, we formed the opinion to allow the learned counsel to refer to and read the said documents. However, when we assembled in the second half, he was not present. Message was sent to him through the Court staff, but he did not turn up. In the meanwhile, learned Attorney General for Pakistan was asked to convey him to appear in Court today because otherwise except the case of Syed Nasir Ali Shah, all the listed matters including the instant CMA/Review Petition have been concluded. 2. It seems that in the late hours a request was sent by him to the Registrar for adjournment, which was not entertained and the same was returned. When the hearing of the case opened today, Mr. Masood Chishti, Secretary, Ministry of Law & Justice, Government of Pakistan, who himself had drafted the Review Petition at the time when he was practicing law, was asked to read the documents instead of arguing the same because we are of the opinion that the learned counsel to whom directions have been made out of sheer respect, he should have made himself available before the Court, but the Secretary, despite our clear direction as well as expressing displeasure, except reading only one letter dated 02.09.1997 declined to read other documents. However, the learned Attorney General for Pakistan, in such a situation, was asked to read documents through and through. In compliance with the order, all the documents, which pertained to the years 1997 to 1999 in respect of investigation of the cases against Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto pending before the Swiss Courts were considered in his presence. 3. It may be observed that this Court is seized with the matter relating to review of the judgment dated 16.12.2009 in pursuance whereof, the National Reconciliation Ordinance, 2007 was declared void ab initio, being ultra vires and violative of certain Articles of the Constitution, therefore, to be deemed non est from the day of its promulgation. However, after hearing the learned counsel for the petitioner from 21 to 24th November, 2011 at length and having gone through the documents as well as considering all the aspects of the case relating to the Review Petition filed under Article 188 of the Constitution to review the judgment dated 16.12.2009, we are of the considered opinion that no case is made out for the review of the said judgment. Resultantly, the Review Petition and CMA No. 5144/2011 are dismissed with no order as to costs. The concerned authorities are hereby directed to comply with the judgment dated 16.12.2009 in letter and spirit without any further delay. 4. The reasons for this order shall be recorded later on. Islamabad, the 25th November, 2011

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI Mr. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE AMIR HANI MUSLIM CIVIL MISC. APPLICATION NO.5216 OF 2012, CONST. PETITION NO.6 OF 2011 AND HUMAN RIGHTS CASE NO.48012-P/2010 AND CIVIL MISC. APPLICATION NO.1720 OF 2011 CMA.5216/2012 (Against appointment of Raja Azeemul Haq as Executive Director of the World Bank) CONST.P.6/2011 Syed Mubashir Raza Jaffary and another … Petitioner VERSUS Employees Old Age Benefits Institutions … Respondent (EOB) thr. its President. CMA.5216/2012 (Application by Tajamal Hussain) Attendance On behalf of Mr. Afnan Karim Kundi, ASC Raja Azeen-ul-Haq : : Raka Azeem-ul-Haq On Court Notice : Shafi Muhammad Chandi, DAG Mr. Ahmed Bakhsh Lehri, Secy. Estb. Mr. Akhtar Nasir JS. Establishment. Mr. Abdul Latif, DS. Date of hearing : 06-06-2013 O r d e r It is a part heard case which was adjourned for today. In response to our earlier orders, the Secretary Establishment Division has appeared in Court. For our perusal he has produced the original record containing summery to the Prime Minister regarding appointment of Muhammad Azeem-ul-Haq Minhas as Executive Director/Alternate Executive Director of the World Bank and other CMA.5216/2012 2 relevant correspondence. Original file is returned to him with the direction that a complete photostate copies set of this file be provided to the office within three days. 2. Muhammad Azeem-ul-Haq Minhas, is present in Court. His counsel Mr. Afnan Karim Kundi, ASC, has filed a statement in writing which reads as under : - 1. I have complete faith in this august Court that it is open to conviction and will do complete justice in the matter. 2. This august Court was very kind to accommodate my request for fixing the matter of yesterday to enable me to personally appear and assist the Court, for which I am grateful. 3. This august Court was also very gracious in giving me a patient audience and going through my past service record, which enabled me to explain that I have been a career civil/government servant. 4. Yet like any other case, I am cognizant of the fact that this case could have a favourable outcome or otherwise for me. 5. Keeping in view my age and future prospects (life permitting), I would like to avoid any controversy and have thus tendered my resignation from the position of AED to the Executive Director (EDS-06) at World Bank this morning. 6. Also since the said position represents my homeland Pakistan and six other friendly countries, I would not like any embarrassment caused to Pakistan in any manner. 7. I would most humbly request this august Court that the Suo Motu Notice in my case (CMA .5216/2012) may kindly therefore be discharged as having become infructuous. 3. Alongwith the above statement he has also placed on record a copy of his resignation dated 6.6.2013 and a Fax transmission confirmation print. CMA.5216/2012 3 4. Further hearing of Civil Misc. Application No.5216/2012 is adjourned to a date in office after two weeks. Meanwhile, in case, Muhammad Azeem-ul-Haq Minhas receives confirmation regarding acceptance of his resignation from the World Bank a copy thereof may be placed on record. J. J. J. Islamabad 06-06-2013 Saeed/**

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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 C.M.A. NO.5602/2021 IN C.M.A. NO.4821/2018 IN S.M.C. NO.1/2014, C.M.A. NO.4821/2018 IN S.M.C. NO.1/2014, C.M.A. NO.516/2019 IN CONST.P. NO.62/2017, CONST.P. NO.62/2017, CONST.P. NO.63/2017, C.M.A. NO.1507/2021 IN C.M.A. NO.4821/2018 IN S.M.C. NO.1/2014 C.M.A.5602/2021 in C.M.A.4821/2018 in S.M.C.1/2014 Human Rights Commission of Pakistan, through Chairperson, Dr. Mehdi Hasan and others v. Federation of Pakistan through Ministry of Education and others AND C.M.A.4821/2018 in S.M.C.1/2014 Human Rights Commission of Pakistan, through Chairperson, Dr. Mehdi Hasan and others v. Federation of Pakistan through Ministry of Education and others AND C.M.A.516/2019 in Const.P.62/2017 Pribhu Lal, etc. v. Government of Pakistan, etc. AND Const.P.62/2017 Pribhu Lal, etc. v. Government of Pakistan, etc. AND Const.P.63/2017 Leo Roderick Paul, etc, v. Government of Pakistan, etc. AND C.M.A.1507/2021 in C.M.A.4821/2018 in S.M.C.1/2014 Human Rights Commission of Pakistan through Chairperson, Dr. Mehdi Hasan and others v. Federation of Pakistan through Ministry of Education and others In Attendance: Federation & Department Mr. Sohail Mehmood, Addl. Attorney General for Pakistan Muhammad Shabbir, C.M.A.5602/21, etc - 2 - Deputy Secretary, M/o Religious Affairs Muhammad Rafiq Tahir, Joint Secretary Curriculum Miss. Farah Hamid, Secretary, Ministry of Federation Education Commission Mr. Shoaib Suddle, Chairman Mr. M. Saqib Jillani, Member Dr. Ramesh Kumar, Member KP Mr. Shumail Ahmed Butt, AG KPK Barrister Qasim Wadood, Addl. AG KPK Mr. Atif Ali Khan, Addl. AG KPK Khayam Hassan Khan, Secretary Minorities, KPK Javed Marwat, Commissioner, Kohat Zafar Khan, RPO, Kohat Rai Babar Saeed, DIG HQ, KPK Balochistan Mr. Ayaz Khan Swati, Addl AG, Balochistan Mathar Rana, Chief Secretary, Balochistan ICT Mr. Niaz Ullah Khan Niazi, AG Islamabad For ETPB Mr. Muhammad Ikram Ch., Sr. ASC Dr. Amir Ahmed, Chairman Punjab Ch. Faisal Fareed, Addl. AG Shahid Abbas, DSP, Multan Naveed Ahmed Goraya, Sr. Law Officer HR & MA Muhammad Aslam Sipra, DS Punjab Curriculum & Text Book Board Muhammad Afzal Bashir, DS Home Department Shah Manzar Fareed, Director Sports Sindgh Ms. Leela Kalpana, Addl. AG Javed Ahmed Abro, Addl. Secretary Muhammad Abdul Hadi Bullo, Secretary Minorities Riaz Hussain Sahi, Sahito, Addl. Secretary Raheem Bukhsh Matlo, District Registrar Board of Revenue Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Sindh (through Video Link from Karachi) Applicant Ms. Hina Jillani, ASC Mr. Kamran Murtaza, Sr. ASC Mr. Samual Payara, Chairman IMRF Peter Jacot, ED/CSJ, Chairperson PCMR C.M.A.5602/21, etc - 3 - O R D E R GULZAR AHMED, CJ.- C.M.A. No.5602 of 2021: The one man Commission has filed this application with the prayer that the allocation of funds be made to it because earlier funds of Rs.7 million allocated to it vide order dated 19.02.2020, has already been spent and rather some liabilities have also accrued. In the application, the Commission has prayed for granting of an amount of Rs.14.994 million for clearance of outstanding liabilities and also for allocation of budget for the year 2021-2022. Notice of this application be issued Ministry of Religious Affair and Interfaith Harmony and also to the Attorney General for Pakistan. In the meanwhile, the amount of Rs.14.994 million be disbursed to the Commission. For allocation of new budget, let a proper response be filed by the Ministry of Religious Affairs and Interfaith Harmony. We, however, be noted that one man Commission shall ensure to maintain proper accounts for the moneys disbursed to it and spent by it for the purpose of implementation of the Commission. 2. The learned counsel for the applicant in Civil Misc. Application No.4821 of 2018, states that the very Commission created by the Ministry of Religious Affairs and Interfaith Harmony is not in accordance with law for the reasons that it has been constituted through an executive order and no law to support such a Commission has been passed. She contends that the functioning of the Commission constituted by the Ministry is, C.M.A.5602/21, etc - 4 - therefore, not legal and the Ministry should ensure that the Commission be constituted with proper support of law. Let submissions on such points be made on the next date of hearing. Adjourned to a date after the summer vacations. 3. Dr. Ramesh Kumar, Co-opted Member of the Commission, states that the property on Plot No.32, NP-04 Napier Quarters Saddar Town-I, Karachi, measuring about 716 Sq. Yards was a Dharam Shala and placed before the Court photographs of such building, which is being demolished for making way for a new construction of a commercial plaza. He states that this property has been leased out by the Evacuee Trust Property Board to some private person and he is in the process of demolishing the Dharam Shala and raising of a new building. It is stated by the Chairman, Evacuee Trust Property Board that the matter regarding the very Dharam Shala has been decided by the High Court of Sindh, where it has allowed the Evacuee Trust Property Board to lease it out, have it demolished and raised new construction. Such an order of the High Court of Sindh is not before us. The very photograph apparently shows that the building is of Dharam Shala constructed in the year 1932, which can be read from the marble slab affixed on the building and must be a protected heritage building. Let notice be issued to the Secretary Heritage, Government of Sindh to file its report regarding the building. In the meantime, no demolition activity of the said building shall be conducted by anyone and possession of the building and the land shall be taken over by the Commissioner Karachi, who shall manage the same and not allow C.M.A.5602/21, etc - 5 - any person to enter upon it. No demolished material shall be allowed to be removed. This be done by the Commissioner Karachi today and report, in this respect, be submitted to the Office of the Supreme Court. The office of this Court shall communicate this order to the Commissioner Karachi, today. CHIEF JUSTICE JUDGE Bench-I Islamabad 11.06.2021 ‘NOT APPROVED FOR REPORTING’ Mahtab/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Ejaz Afzal Khan Mr. Justice Maqbool Baqar CMA No.592-K/13 in SMC No.16 of 2011, CMA No.423-K/14, Cr.O.P.24-K/14, CMA No.634-K/14, CMA No.359-K/14, Cr.O.P.Nos.25-K and 26-K/14, CMA No.360-K, 373-K, 382-K, 389-K and 394-K of 2014 (For taking action against the Govt. of Sindh thr. IGP, Sindh on entering into contract for purchase of the APC Armed Personnel Carrier at an exorbitant rate without calling open tender in deviation of Sindh Public Procurement Rules). Syed Mahmood Akhtar Naqvi … Applicant(s) Versus Govt. of Sindh, etc. … Respondent(s) Applicant: Nemo. On Court‟s notice Mr. Irfan Qadir, ASC For Govt. of Sindh Mr. Meeran Muhammad Shah, Addl. A G Sindh For the Chief Secretary Mr. Farooq H. Naek, Sr.ASC. On behalf of IGP, Sindh: Mr. Ghulam Haider Jamali, IGP. Dr. Mazhar Ali Shah, AIG (Legal) For HIT: Nemo. Date of hearing: 26.03.2015 ORDER Jawwad S. Khawaja, J.- When this case was called, we adverted to our previous order dated 12.3.2015. In that order we have noted the fact that there was no authorization in favour of Mr. Irfan Qadir authorizing him to appear in the case and nor was there any „vakalatnama’ of an AOR on record on behalf of IGP Sindh. We can advert to our previous order wherein we had raised the query and asked the learned Additional Advocate General Sindh to inform us as to how and under what arrangement Mr. Irfan Qadir was representing the IGP Sindh. In our order, it has also been noted that Mr. Irfan Qadir had been appearing in this case for the last 12 dates of hearing. Considering that he has no authorization from any Advocate on Record, it is apparent that Rule 6 of Order IV of the Supreme Court Rules, 1980 has been violated. The said Rule stipulates that “no Advocate CMA-592-K/2013, etc. 2 other than an Advocate-on-Record shall appear or plead in any matter unless he is instructed by an Advocate-on-Record”. Rule 15 of the said Order directs that “no Advocate other than an Advocate-on-Record shall be entitled to act for a party in any proceedings in the Court”. Instead of acknowledging this short coming, Mr. Irfan Qadir conducted himself in a manner (discussed below) which indicates that he has been guilty of misconduct and conduct which is unbecoming of an Advocate. Through an earlier order we had provided an opportunity to Mr. Qadir to explain his position but he has chosen not to do so. 2. On 11.3.2015 we were constrained to note that when we commenced hearing of the case, “Mr. Irfan Qadir ASC purported to represent IGP, Sindh”. When he was questioned as to whether Sindh Police was an entity recognized under Article 137 of the Constitution or the Rules of the Business of the Sindh Government under Article 139, instead of addressing the question, he raised his voice and starting saying loudly that he would not argue before this Bench. We were, therefore, compelled to note that this sort of behaviour is not conducive to the proper administration of justice and is also prohibited by the Legal Practitioners and Bar Councils Act, 1973. It is quite apparent that the conduct displayed by Mr. Irfan Qadir is also violative of Order IV Rule 30 of the Supreme Court Rules. Mr. Irfan Qadir stated as noted above, that he would not be arguing this matter before the Court. Despite this he once again interrupted Court proceedings today and launched into a harangue and tirade which has been recorded and the Office has been directed to prepare a transcript of the recording and place it on record. The persistent objectionable behaviour of Mr. Irfan Qadir provides good cause for taking strict action against him however, for the sake of ensuring fairness we had also given him notices to explain his conduct which, as noted above, he has not availed. This was quite sufficient to justify issuance of a notice to Mr. Irfan Qadir under Order IV Rule 30 of the Supreme Court Rules. The loud and unbecoming tone of his uncalled for and irrelevant interruptions can only be gathered from the audio recording. The Office shall save such recording as a part of the record. 3. Our staff have traced the record of some other cases from which it is apparent that Mr. Irfan Qadir may have been guilty of misconduct or conduct which is unbecoming of an Advocate. The first such case is of Ch. Muhammad Ashraf Gujjar vs. Riaz Hussain (2013 SCMR 161). In the cited case, it has been held at the very outset that a query was made from the Attorney General [Mr. Irfan Qadir] as to “whether it would be possible for him to conduct the CMA-592-K/2013, etc. 3 proceedings of this case, fairly, justly, honestly and in accordance with law when he at some stage remained counsel for the respondent [contemnor]”. The reply of Mr. Irfan Qadir was that “inspite of that [he] would be able to conduct the prosecution of this case fairly, justly, honestly and in accordance with law”. When the Court suggested that propriety demands that he should lay his hands off this case, Mr. Irfan Qadir replied by saying that “when he was on the Bench as a Judge of the Lahore High Court, he declined to hear one of the cases of the respondent on the said score but since the Attorney General being persona designata, is alone to conduct the proceedings in such matters, the fact that he at some stage remained counsel of the respondent can conveniently be ignored”. The Court also had occasion to comment on the evident misconduct of Mr. Irfan Qadir as Attorney General by observing as to “how the Chief Justice of Pakistan could figure as a witness in the list of witnesses submitted by the Attorney General when he neither filed a complaint in his individual capacity nor submitted an affidavit”. It was also noted by the Court that “even if it were so, the Chief Justice could not have been examined as a witness in view of the proviso to section 17 of the Contempt of Court Ordinance, notwithstanding the desire of the contemnor to cross examine him”. Thereafter a very significant finding was recorded that Mr. Irfan Qadir as Attorney General was “acting more as a defence counsel than a prosecutor. … His concerns, as far as it can be gathered from his conduct in the Court, aim at turning the table on the Court rather than preserving its dignity”. It was also observed that “his partial and partisan attitude with pronounced leaning towards the respondent cannot be conveniently ignored”. The partiality of Mr. Irfan Qadir as Attorney General as Prosecutor was duly noted and it was observed that such partiality was “patent on the face of the steps he has taken thus far during the proceedings”. 4. The next case which has been traced by our research and office staff is that of Bank of Punjab vs. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109). In the cited case a three Member Bench of this Court noted that the Judges “were … bemused rather shocked, at the grievance rather vociferously raised, not by the accused persons of this case but by the learned Prosecutor General Accountability, Mr. Irfan Qadir that the … intervention by this Court in the investigation of the case in question, was an illegal and an unconstitutional interference by it which was likely to cause prejudice to the cause of the accused persons”. It was also noted in the cited case that Mr. Irfan Qadir “admitted that he had been a counsel for the accused persons … and that the said case was presently under investigation with none other than the NAB itself with Ministry of CMA-592-K/2013, etc. 4 Law as their Administrative Ministry and with him [Irfan Qadir] as its Prosecutor General”. The submission of Mr. Irfan Qadir was noted that “he was the one who had filed all the cases on behalf of the accused persons of the said fraud case in the Lahore High Court and even in this [Supreme] Court”. The Court also recorded in the judgment that “he [Irfan Qadir] was the one who had engaged some other senior Advocates also to represent the said accused persons in the High Court and in this Court at that time not because he wanted so to do but because the said accused persons had desired that he should also associate some senior Advocates with him who enjoyed influence with the Judges of the High Courts and of the Supreme Court and that it was in deference to the said desire of his said clients that he had engaged Syed Sharifuddin Pirzada, Mr. Waseem Sajjad and Mr. Babar Awan, Advocates to represent the said accused persons in the said cases. He, however, denied the allegation that he had taken any money from his said clients for any collateral purposes or that he had misappropriated any part of any money given to him by his said clients for onward payment to the said learned Advocates”. To put it mildly, this type of conduct brings the noble profession of lawyers into disrepute and undermines honour, prestige and dignity of the two institutions of the Bar and the Courts. 5. There is yet another case reported as Arsalan Iftikhar vs. Riaz Hussain (PLD 2012 SC 903). A number of instances showing Mr. Irfan Qadir as being prima facie, guilty of misconduct or conduct unbecoming of an Advocate are evident. The first 10 paragraphs of the cited judgment which highlight such conduct are being reproduced to the extent relevant, for ease of reference:- ” … 2. Our judgment dated 14.6.2012 had been passed after considering the concise statements submitted by the parties and after hearing their learned counsel. The relevant part of our judgment on which the hearing of this petition is mainly focused is para 22 which, for ease of reference, is reproduced as under:- “While this suo moto action has been brought to an end in view of the material considered above, [Mr. Irfan Qadir] the learned Attorney General who has assisted us in this case is fully abreast of all aspects of this case. It is our expectation that he will set the machinery of the State in motion so that all those who may have committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan, Salman Ali Khan etc. are pursued and brought to book with the full force and rigour of the law”. 3. It has been brought to our notice through the present proceedings that [Mr. Irfan Qadir] the Attorney General wrote a letter to the Chairman, NAB on 18.6.2012, purporting to be in furtherance of para 22 our judgment of 14.6.2012. CMA-592-K/2013, etc. 5 Learned counsel for the petitioner has taken us through the said letter which was placed on record by the learned Deputy Attorney General. According to learned counsel, instead of abiding by para 22 ibid [Mr. Irfan Qadir] the learned Attorney General has transgressed the terms thereof and has exerted illegal and unwarranted influence over NAB. The contents of the letter dated 18.6.2012 written by [Mr. Irfan Qadir] the Attorney General will be considered shortly. It may be noted that the [Mr. Irfan Qadir] learned Attorney General was not a contesting party in the case and was only assigned the limited function, as an officer of the Court and as the principal law officer of the Federation, of setting the machinery of State in motion. 4. The main allegation leveled by the petitioner against [Mr. Irfan Qadir] the Attorney General is that he acted in a partisan manner and influenced NAB to favour the respondent Malik Riaz Hussain. To support his contention, learned counsel for the petitioner drew our attention to Writ Petition No. 258 of 2007 which was filed in the Lahore High Court by nine petitioners against a number of respondents including Malik Raiz Hussain who was arrayed as respondent No. 7. The Writ Petition and other documents filed in the case have been placed on record. Mr. Irfan Qadir (now Attorney General) represented Malik Riaz Hussain in the said Writ Petition. He filed parawise comments and appeared in Court on various dates of hearing on behalf of Malik Riaz. The learned DAG, upon being questioned, stated that as per his information, [Mr. Irfan Qadir] the Attorney General did act as counsel for the respondent Malik Riaz Hussain in the said Writ Petition. Learned counsel representing Malik Riaz Hussain interjected at this point and contended that there was nothing wrong or improper if Mr. Irfan Qadir represented the respondent as his client in the case. … 5. There is indeed no impropriety if an Advocate represents a client in any given case. Learned counsel for the respondent is, however, missing the point of the petitioner’s objection. The objection is not to the fact that [Mr. Irfan Qadir] the Attorney General, in his private professional capacity represented the respondent. The allegation being made is that neither during the course of hearing of SMC No.5 of 2012 nor when our judgment was announced in Court on 14.6.2012 nor at any time thereafter [Mr. Irfan Qadir] the Attorney General disclosed to the Court his association or professional relationship with the respondent. It is quite clear that we would not have tasked [Mr. Irfan Qadir] the Attorney General with any responsibility in this matter if he had made disclosure to us as to his professional association with the respondent Malik Riaz Hussain. It is of concern to us that [Mr. Irfan Qadir] the learned Attorney General did not make the requisite disclosure. 6. Learned counsel for the petitioner contended that the above facts provide substantiation in respect of a number of allegations which have been made against [Mr. Irfan Qadir] the Attorney General in this petition and which were reiterated during the course of arguments. The primary objection in this respect is that [Mr. CMA-592-K/2013, etc. 6 Irfan Qadir] the learned Attorney General through his letter of 18.6.2012 sent to NAB, went much beyond the scope of our order of 14.6.2012 and this amounted to interference with and unlawful influence on the inquiry by NAB and also constituted failure on his part, to abide by our order. … 7. … 8. The foregoing facts which are floating on the surface of this record provide prima facie evidence that NAB may have wilted under the outside influence of [Mr. Irfan Qadir] the Attorney General and may, therefore, not be in a position to conduct an impartial inquiry in the matter. We may add that when we passed our order dated 14.6.2012, we had no reason to believe that [Mr. Irfan Qadir] the Attorney General will go beyond the simple and limited act of “setting the machinery of the State in motion”. It is, therefore, disturbing to see that he chose to write a letter in terms reproduced above thus overstepping the remit of our order. 9. In addition to the above, the unusual conduct of [Mr. Irfan Qadir] the learned Attorney General in these proceedings has previously been subject of comment by us. In our order dated 24.7.2012, we noted that Mr. Shafi Muhammad Chandio, learned DAG had undertaken on 17.7.2012 that he will file in Court the letter sent by [Mr. Irfan Qadir] the learned Attorney General to the Chairman, NAB. The DAG failed to file the same despite the lapse of several days. We also noted that such failings impeded the administration of justice and could not be approved. Expressing our disappointment, we had asked Mr. Chandio, learned DAG to appear and inform us of the reasons, if any, for not abiding by his undertaking, but were informed that he was unavailable. We, therefore, recorded in our order that we were “surprised and somewhat taken aback when [Mr. Irfan Qadir] the learned Attorney General became agitated at this and made remarks that the Court was taking undue interest in this case, implying that this was not appropriate. In the same agitated state he also remarked that there were sensitivities to this case. We are in particular surprised at the attitude of [Mr. Irfan Qadir] the learned Attorney General because he was not present on the last date of hearing. Instead of putting his own office in order, it is clear that he had not been briefed by the learned DAG in respect of what transpired at that hearing”. We had also commented that [Mr. Irfan Qadir] “the learned Attorney General may be careful in maintaining the decorum of these proceedings being an officer of the Court in addition to being the principal law officer of the Federation”. Perhaps the above facts which have now been brought to our attention, can help explain [Mr. Irfan Qadir] the Attorney General’s unusual conduct in the case. 10. The effect prima facie, of the foregoing circumstances whether taken independently or cumulatively is that there is a reasonable and well founded prima facie basis for the petitioner’s allegation that [Mr. Irfan Qadir] the Attorney General did not act fairly and impartially while purporting to act in furtherance of para 22 ibid reproduced above. Since these are matters of serious concern to us and also would be to [Mr. Irfan Qadir] the Attorney General as a member of our bar, it CMA-592-K/2013, etc. 7 would be in the interest of fairness and justice if he is provided an opportunity of hearing to explain his conduct. The office shall, therefore, create a file and issue notice to [Mr. Irfan Qadir] the Attorney General”. 6. We are quite surprised that although we had directed Mr. Irfan Qadir as Attorney General to “set the machinery of State in motion” against persons such as Malik Raiz Hussain, Dr. Arslan, Salman Ali Khan etc. so that they are pursued and brought to book, Mr. Irfan Qadir chose not to disclose to the Court that Malik Riaz Hussain had been his client and as such in Writ Petition No. 258 of 2007, Mr. Irfan Qadir had represented Malik Raiz Hussain. It is because the requisite disclosure of such relationship had not been made that the Court entrusted him with a sensitive job. We duly noted that “we would not have tasked [Mr. Irfan Qadir] the Attorney General with any responsibility in this matter if he had made disclosure to us as to his professional association with the respondent Malik Riaz Hussain”. 7. To date Mr. Irfan Qadir has chosen not to respond to the notice issued to him and to explain the behaviour which, on the face of it, is unethical. We can, therefore, justifiably proceed on the basis that he has no explanation to offer. This should particularly be of concern to both Bar and Bench as any dispassionate and objective analysis of the situation will demonstrate that such conduct cannot be conducive for an effective and fair justice system. 8. From the above instances, it is evident that Mr. Irfan Qadir has made it a habit to indulge in misconduct or conduct unbecoming of an Advocate. In the interest of fairness and justice, we had provided an opportunity of hearing to Mr. Irfan Qadir to explain his conduct. Although this was done as far back as 28.8.2012, and once again on 12.3.2015 Mr. Irfan Qadir has chosen not to give any explanation in writing or otherwise. From this we can only assume that he has in fact no valid explanation to give. 9. In addition to the above, in the case of Hamid Mir vs. Federation of Pakistan (Constitution Petition No.105/2012), we had passed an order wherein we noted as under:- “[The petitioner] drew our attention to CMA No. 4041/2012 which was submitted by the Ministry of Information and Broadcasting. Page 2 of this CMA bears a heading “Supplementary grants allocated to the M/o Information and Broadcasting for financial year 2011-12”. The petitioner then adverted to the first column of table appearing under the above heading and submitted that the original grant in the various heads described in the table was Rs.4,080,076,000/-. This figure when written in words comes to Rupees four billion, eighty million and seventy six CMA-592-K/2013, etc. 8 thousand and when written in vernacular, the figure comes to Rs. 4 arab, 8 crore and 76 hazar. While the petitioner was addressing the Court, the Attorney General [Mr. Irfan Qadir] interrupted the proceedings and has started contentious argument and a mindless harangue as to the figure. We are surprised at this interjection when the figure being given by the petitioner is absolutely in accordance with the table at page 2 of CMA No. 4041/2012 submitted by the Ministry of Information and Broadcasting itself. 3. We repeatedly informed the Attorney General [Mr. Irfan Qadir] that this was not the way in which cases are to be heard. And we also repeatedly asked him to take his seat. Instead of doing so, he continued with his interruption and obstructed the Court proceedings. This is not something which should be countenanced as it is not conducive to the administration of justice. If such conduct is allowed to continue it will undermine the legal system. We are, therefore, constrained to warn the Attorney General that he should not interrupt the arguments being advanced by the other side and instead he should, in accordance with established norms and practice expected from all members of our Bar, reserve his comments and address the Court on his own turn”. We also noted that valuable time of the Court had been unnecessarily wasted and as a consequence, the aforesaid warning had been given to Mr. Irfan Qadir as Attorney General. 10. The above are persistent acts on the part of Mr. Irfan Qadir which display a pattern and a mindset which is not at all conducive to the honour and dignity of the Court and the Bar. A fair, honest and ethical Bar is essential for dispensation of justice. The Court has shown a lot of patience in dealing with Mr. Irfan Qadir but he has failed to uphold and maintain the dignity of his profession or the Court. Therefore, in order to maintain the honour, respect and dignity of the Bar and the Court, we find ourselves compelled to suspend the practicing license of Mr. Irfan Qadir as an Advocate of this Court and he is also given notice to show cause as to why he should not be removed from practice as an Advocate of this Court. 11. We can now take up the case at hand. The Inspector General of Police, Sindh is in attendance pursuant to our previous order dated 12.3.2015. He has submitted a report (CMA 1445/15). However, still we require additional information as to the deliberations, if any, which may have taken place to justify hiring of Advocates other than the Advocate General and law officers from his office. We have also not been able to ascertain from the IGP or from his report as to the amount which was paid as professional fee. Upon being questioned, the IGP has stated that a total sum of Rs.30 lakhs was agreed to be paid to Mr. CMA-592-K/2013, etc. 9 Irfan Qadir out of which a sum of Rs.20 lakhs has already been paid while the remaining Rs.10 lakhs is outstanding and payable. The Government of Sindh and IGP Sindh shall file copies of all relevant documents showing deliberations and justification for engaging counsel other than from the office of Advocate General Sindh. The case shall be listed for hearing in the 2nd week of April, 2015. On the last date of hearing Mr. Farooq Naek had candidly conceded that the Agreement dated 15.3.2013 was not in accordance with the provisions of the Constitution or the Sindh Rules of Business. Consequently, the Agreement was declared to be null and void. 12. Today CMAs Nos. 423-K and 394-K of 2014 have also been listed for hearing relating to acquisition of Fire Tenders and one helicopter by the Sindh Government. At the request of Mr. Farooq H. Naek, Sr. ASC, these two CMAs shall be delinked from the main case and shall be listed for hearing after 30 days as requested by him. Judge Judge Judge Islamabad, the 26th March, 2015 M. Azhar Malik

{'id': 'C.M.A.592-K_2013.pdf', 'url': ''}

{'id': 'C.M.A.592-K_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Amir Hani Muslim Civil Miscellaneous Application No.5959/2013 (For extension of time in holding elections in Cantonment) IN Constitution Petition No.65 of 2009 Raja Rab Nawaz Vs. Federation of Pakistan and others AND Civil Misc. Application No.5508/2013 in CRP-Nil/2013 (For permission to file and argue the CRP) IN CMA-3258/2013 in Constitution Petition No.65 of 2009 For the petitioner(s): Nemo. For the applicant: Mr. Muneer A. Malik, Attorney General for Pakistan with Mr. Asif Yaseen Malik, Secy. Defence (In CMA-5959/2013) Syed Zafar Abbas Naqvi, AOR (In CMA-5508/2013) For Respondent No.3: Nemo. For ECP: Mr. Abdul Rehman, Addl. D.G. (L) AND Constitution Petition No.77 of 2010 (Only to the extent of holding local government elections) President High Court Bar Association, etc. … Petitioner(s) Versus Federation of Pakistan and others … Respondent(s) For the Petitioner(s): Nemo. For the Applicant: Dr. M. Salah ud Din Mengal, ASC Raja Abdul Ghafoor, AOR (CMA-6723/13) On Court’s Notice: Mr. Muneer A. Malik, Attorney General for Pakistan For the Federation: Mr. Shah Khawar, Addl. AGP For Govt. of Balochistan: Mr. Nazim ud Din, AG Mr. Abdul Latif Kakar, AAG For Govt. of KPK: Mr. Abdul Latif Yousafzai, AG For Govt. of Punjab: Mr. Muhammad Hanif Khattana, Addl. A.G. For Govt. of Sindh: Mr. Qasim Mirjat, Addl. AG CMA 5959/2013 in Const. P.65/ 2009 etc. 2 For ECP: Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Mehmood A. Sheikh, AOR Mr. Sher Afghan, Addl. Secy (Elections) Date of hearing: 05.11.2013 ORDER Iftikhar Muhammad Chaudhry, CJ. By means of instant order, we have to dispose of matters pertaining to the Local Bodies Elections which are required to be held under the command of Article 140(A) of the Constitution relating to:- a) Elections of the Cantonment Boards; b) Islamabad Capital Territory; and c) Khyber Pakhtunkhwa. 2. As far as elections of Cantonment Boards are concerned, a Constitution has been filed under Article 184(3) of the Constitution by Raja Rab Nawaz who is an Advocate of Supreme Court as well as former Member – Vice Chairman of Quetta Cantonment Board. This petition came up for hearing on 3.1.2013 and was disposed of with directions to the Federal Government “not allow further extension in the variation of composition of the Cantonment Boards in terms of Section 14(1)(b) of the Act, after 5th May, 2013 unless conditions noted in these provisions are required to be in service compulsorily and in the meanwhile, steps shall be taken to ensure that the elections of the Cantonment Boards are held after completing the process of delimitations of the wards, etc., as per the Cantonment Ordinance, 2002 read with the Cantonments Local Government (Elections) Rules, 2012, as the Election Commission is also willing and ready to undertake the process of the election”. Unfortunately, despite of passing of above order, elections were not held and in the meanwhile, on 7th May, 2013, CMA No. 3258/13 was filed for the extension of time. This CMA 5959/2013 in Const. P.65/ 2009 etc. 3 application came up for hearing on 2.7.2013 when following order was passed:- “19. Hereinabove are the detailed reasons of our order of even date, relevant paras there from are reproduced hereinbelow:- ‘(2) After discussing the issue at length in presence of Secretary Defence and also seeking instructions from the Election Commission, who is responsible to holds elections, following statement his has been placed on record:- STATEMENT OF SECRETARY DEFENCE/RESPONDENT NO.1 I, the Secretary Defence, respectfully request for extension in time during which elections are to be completed in the Cantonments Boards and undertake that the entire process of the elections in all the Cantonment Boards shall be completed on or before the 15th September, 2013. Sd/- Lt. Gen (Retd) Asif Yasin Malik Secretary Defence/Respondent No.1’ The petitioner also expresses his satisfaction on the above statement. (3) Thus, in view of commitment made on behalf of the Executive, we allow this application and extend the period of holding the elections in the Cantonment Boards up to 15th September, 2013. Copy of this order be also sent to the Election Commission of Pakistan to ensure holding of the elections in terms of Constitutional provisions (Article 32 read with Article 140A) on or before the 15th September, 2013. (4) We extend our gratitude and place on record our thanks to learned Attorney General for Pakistan as on account of his intervention the Executive has agreed to hold the elections of Cantonment Boards, after a period of about 14 years. (5) We may point out that in view of the constitutional provisions and the principles of good governance, local bodies have to play an important role to achieve the welfare and good governance for the citizens of the country. At the same time we are also hopeful that the provincial governments as well as the administration of Islamabad shall also make arrangements as early CMA 5959/2013 in Const. P.65/ 2009 etc. 4 as could be possible to hold local bodies elections in accordance with law.” 3. Detailed reasons of the above order were dictated which now have been published in the case titled Raja Rab Nawaz vs. Federation of Pakistan (2013 SCMR 1629). We have painfully noted that despite of above statement of the Secretary Defence, noted hereinabove, the elections were not conducted. However, CMA No.5959/13 was filed wherein request was made for further extension of time. It may be noted that in this application, plea has been taken that Federal Government contemplates to bring some amendments in the Cantonments Local Government (Elections) Ordinance, 2002, therefore, time may be extended for holding of Local Bodies Elections in the Cantonment Boards. In the meanwhile, Provincial Government of Balochistan, Punjab and Sindh have already made request to the ECP for holding of the Local Bodies Elections in their provinces and they have made respective requests in writing. As far as the Province of Sindh is concerned, on its behalf, it has been desired the elections shall be held on 27th November, 2013 whereas the Provinces of Balochistan and Punjab are ready to conduct elections on 7th of December, 2013. 4. We have asked the learned Attorney General of Pakistan that in such like situation when constitutional provisions have to be followed what would be the effect if the elections in the Cantonment Boards are not held or organized particularly in view of the statement of the Election Commission which has been referred to hereinable from the order dated 2.7.2013 showing its readiness to hold the elections. The learned Attorney General appeared and stated that a Committee has been constituted vide letter No. 2635-SPM/13, dated 10th September, 2013 to examine the proposed amendments in the Cantonments Local CMA 5959/2013 in Const. P.65/ 2009 etc. 5 Government (Elections) Ordinance, 2002 by the Ministry of Defence with a view that public representation in the Local Government is both inclusive and meaningful and has placed on record a draft Bill. However, we have pointed out to him that the contents of the Bill depicts democratic vision of the Government headed by a political party but as far as existing laws are concerned unless the same are in field, it is not possible to cause delay in the enforcement of constitutional provisions (Article 32 read with Articles 17 and 140A of the Constitution). However, the government is always free to make amendments in the laws and can change the composition or constitutionality of the elected bodies, if need be with retrospective effect as well. He himself is of the opinion that this Court had not shown haste in passing any directions as it is evident from the proceedings because petitioner Raja Rab Nawaz has filed Constitution petition No. 65 as far back as in the year 2009 and it came up for hearing in presence of the representatives of the respondents Federation of Pakistan, Director General Military Lands, Cantonment Board on 29.5.2012, 1.6.2012, 7.11.2012, 3.12.2012, 10.12.2012, 17.12.2012 and 18.12.2012. As far as last mentioned date i.e. 18.12.2012 is concerned, on behalf of Ministry of Defence, Commander Hussain Shahbaz appeared and filed CMA 5232/12 wherein it has been stated that “in compliance of the Hon’ble Supreme Court order passed on 7 December, 2012, in the subject petition, it is submitted that Ministry of Defence has submitted a summary to get approval of Prime Minister to request Election Commission of Pakistan to hold election of local bodies in the Cantonment Board all over the country. The approval is awaited. On receipt of the same, the Election Commission of Pakistan will be requested to hold election in accordance with the provision of Rule 8 of Cantonment Local CMA 5959/2013 in Const. P.65/ 2009 etc. 6 Government Election Rules, 2012”. It was further stated “this Ministry has no intention to seek further extension (which is till 04 May, 2013) in the existing Boards sought earlier vide Section 14(1) of Cantonment Act, 1924”. 5. However, subsequently a statement in writing has also been made by the Secretary Defence representing the Federation, for holding the elections on or before upto 15 September, 2013 but despite of it the commitment has not been fulfilled. 6. Reluctance to enforce the constitutional provisions for one or the other reason is not understandable to us. Therefore, having left with no option, we have to issue notice of the Contempt of Court to the Secretary Defence. Such notice shall be dealt with separately. 7. Again it is a matter of surprise for us that the Federation who is responsible to ensure the elections in the Cantonment Boards has raised another issue for the postponement of the elections in the name of amendments in the Cantonments Local Government (Elections) Ordinance, 2002, reference of which has already been made hereinabove. 8. We are of the considered opinion that in the name f the amendment of the laws, constitutional provisions cannot be allowed to be not adhered to. Two or three options are available to the Federation as we have studied the relevant provisions of the law with the assistance of the learned Attorney General namely:- (i) Without any further delay, under the existing laws on the subject, command of the Constitution under Articles 17, 32 and 140A to be fulfilled immediately and as the other Provinces have already expressed their readiness to hold the elections, therefore, the polls must be held either on 27th November, 2013 or on 7th December, 2013 as these two dates have been agreed by the Provinces of Sindh, CMA 5959/2013 in Const. P.65/ 2009 etc. 7 Balochistan and Punjab respectively. It would be an ideal situation and will earn an appreciation for the general masses as they have to be empowered under Article 140A as per its command establishing a Local Government system would devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments and no discrimination to the electors who are residing in the Cantonment Boards shall be permissible qua the electors who are residing in the non-Cantonment Boards where local bodies elections are likely to be held. This decision has to take by the Federal Government as early as could be possible but not later than 7 days. (ii) Otherwise the Court would enforce the provisions of Section 15E of the Cantonments Act, 1924 which reads as under:- “15E. Term of office of members.-(1) Subject to the provisions of this Act, a member of a Board shall hold office for a period of four years from the date of the notification of his election or nomination or from the date on which the vacancy has occurred in which he is elected or nominated, whichever be later: Provided that, notwithstanding the expiry of his term, such member shall continue to function as a member until the election or, as the case may be, nomination of his successor is notified under sub- section (5) of section 13A. (2) The term of office of an ex-officio member of a Board shall continue so long as he holds the office by virtue of which he is such member. (3) The term of office of an elected member who fills a causal vacancy shall commence from the date of his election and shall continue so long only as the member in whose place he is elected would have been entitled to hold office if the vacancy had not occurred”. And despite of reluctance of Federal Government of Pakistan to hold election of Local Bodies, we are of the considered opinion that elected parliamentary government would prefer to devolve the rights upon the electors as it has been noted under the constitutional command so the fresh representation of the local CMA 5959/2013 in Const. P.65/ 2009 etc. 8 government may deal with their affairs instead of following the compelling procedure. (iii) As after 5th of May, 2013, no permission has been obtained to vary constitution of Boards in terms of Section 14(1)(b) of the Act, 1924, therefore, the Court shall examine that under which authority of the law and how the expenditure etc. are being made from the funds of the Cantonment Boards and if satisfactory explanation is not offered, the Court would be free to protect the rights of the general public living in the Cantonment Boards by pronouncing appropriate orders. 9. The Secretary Defence, Government of Pakistan shall submit report on or before 11th November, 2013 about the compliance or otherwise of this Court’s order to the Registrar for our perusal in Chambers and passing appropriate orders, if need be. 10. Turning towards the case of ICT, unfortunately despite of issuing directions to the Federal Government from time to time make arrangements for holding elections in the ICT as it is the requirement of the Constitution, but so far no progress has been made except that a Bill has been prepared which is likely to be tabled before the Assembly or an Ordinance on the subject has to be issued. Suffice it to observe that it is the duty of the State to enforce the Constitution in its letter and spirit and there should not be any discrimination in terms of Article 25 of the Constitution but discrimination amongst the citizen living in different Federating Units is not permissible as if in the Province of Punjab elections are being held but residents of ICT are being deprived from participating in governance at gross roots level. Therefore, we hope that no further delay shall be caused in this behalf and within 7 days as it has been directed in the case of Cantonment Boards, progress report CMA 5959/2013 in Const. P.65/ 2009 etc. 9 shall be sent to the Registrar of this Court for our perusal in Chambers and passing appropriate orders. 11. Now as far as the case of Khyber Pakhtunkhwa is concerned, the learned Advocate General stated that Assembly has already passed the Act. Draft rules of delimitation have been prepared and after getting the assent of the Governor, the Local Government Act shall be enforced. It has been pointed out to him that as it is the duty of the Provincial and Federal Governments to ensure holding of Local Bodies system and devolve political, administrative and financial responsibility and the authority to the elected representatives of the local bodies, thus no departure is possible from constitutional provisions nor any concession can be extended for its enforcement. Therefore, adherence of constitutional provisions has to be made as early as could be possible. The Advocate General shall also submit report in this behalf within 7 days to the Registrar of this Court for our perusal in Chambers and for passing appropriate orders. 12. CMA No.6723/2013. This application has been filed on behalf of applicants by Mr. Salahuddin Mengal, learned counsel. He has stated that the elections of the local bodies should be held throughout the country on the same day and his second grievance is that delimitation has not taken place and further the Election Commission is not being provided stationery etc. by the government. 13. We are not inclined to agree with the contentions of learned counsel because the Provincial Government has already given date for polls keeping in view its convenience to hold elections. As far as delimitation is concerned, as per stand of learned Assistant Advocate General, Balochistan, the Provincial Government is fully geared up to hold elections meaning thereby the process of de-limitation has been CMA 5959/2013 in Const. P.65/ 2009 etc. 10 completed. So far as non providing of stationery etc. is concerned, it is not the job of this Court to give directions to the government in this regard. But, if the applicants have any grievance, they should approach to the Federal Government or the Election Commission of Pakistan for the redressal of such grievance. Instant application is dismissed accordingly. Case stands disposed of. Chief Justice Judge Judge Islamabad, 5th November, 2013 A. Rehman APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and Mohmand Dam by the government of Pakistan. In attendance: Mr. Khalid Jawed Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Addl.A.G.P. Mr. Tariq Bajwa, Governor State Bank. Mr. Arif Ahmed Khan, Secy. Finance. Mr. Saleemullah Khan, Executive Director (Finance State Bank). Dr. Rahim Awan, Secy. Law & Justice Commission Mr. Sanaullah Gondal, Dy. Legal Advisor (State Bank) Syed Ansar Hussain, Assistant Director State Bank Mr. Muhammad Saleem Baig, Chairman PEMRA Ms. Rukhsana Yasmeen, Chairman FBR. Dr. Muhammad Iqbal, Member FBR. Mr. Ali Naseer, Jazz. Muhammad Basharat, Telenor. Muhammad Ayub, Zong. Naveed K. Butt, U-fone) Mr. M. Talib Dogar, D. G. (Service) PTA. Mr. Arif Sargana, Director (PTA) ECO. Mr. Aadil Umer Khalil, Dir (CA) PTA. Mr. Muhammad Khurram Siddiqui, (Dir) Law PTA. Date of hearing: 11.07.2018 ORDER Vide order dated 04.07.2018, passed by this Court, we had emphasized the urgent need for construction of Dams and appealed to the Nation to make its contribution in a fund being established for this purpose by way of donations for this National cause. The State Bank of Pakistan has CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 2 :- accordingly set up an account titled, “Supreme Court of Pakistan – Diamer Bhasha & Mohmand Dams – Fund”. The account has been set up to receive donations from the Nation for the sole purpose of construction of the aforenoted Dams (Diamer Bhasha & Mohmand Dams). 2. Donations can be made at all Branches of the State Bank of Pakistan, all Treasury Offices and Branches of National Bank of Pakistan as well as other Banks including Micro Finance Banks. Such donations can be made in the form of cash, cheques, pay orders, demand drafts, prize bonds deposited either at the counters or through online transfers. The Banks receiving such donations shall provide duly stamped/signed receipts acknowledging receipt of the donations. 3. Branches of all Banks (15000 approximately) across the country receiving such deposits shall prominently display banners on their entry points stating that donations / contributions are being received in these branches for the construction of Diamer Bhasha & Mohmand Dams as ordered by the ‘Supreme Court of Pakistan’. 4. The State Bank of Pakistan has set up a Toll Free Helpline No.021-111-723-273 for answering queries as well as receiving complaints from anyone interested in making a donation. Other Banks shall also set up their separate Helplines which will be notified through their advertisements in the Print and Electronic Media. CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 3 :- 5. An IBAN Number has also been allocated to facilitate receipt of online donations/contributions in the Fund through internet banking and ATMs. This IBAN Number shall be displayed on the websites of the State Bank of Pakistan and the Supreme Court of Pakistan. 6. Persons wishing to make donations through Credit/Debit Cards may do so without any extra charge on payments made through such Cards if these are issued domestically. However, payments made through credit/debit Cards issued outside Pakistan will be subject to charges (if any) applicable in the respective countries. 7. Branchless Banking i.e. Omni/Easy Paisa, etc operated by their approximately 400000 Agents across the country shall be made functional within 48 hours from today. All donations/ contributions received in any form and in any Bank shall within a maximum time of 30 minutes of the transactions be transmitted to the Fund account with the State Bank of Pakistan. 8. Donations/contributions received by Banks through Debit/Credit Cards transactions and Branchless Banking Agents shall be settled with the State Bank of Pakistan within 48 hours. 9. The State Bank of Pakistan shall communicate the amounts received in its account to the Registrar of this Court on hourly basis through its data acquisition portal. CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 4 :- 10. The Pakistani Missions as well as all Branches of Pakistani Banks abroad shall receive donations/contributions. The routing instructions for remittances from abroad shall be displayed on the websites of this Court as well as the State Bank of Pakistan. 11. The Ministry of Foreign Affairs is directed to issue appropriate directions to the Pakistani Missions abroad in consultation with the State Bank of Pakistan for receiving donations / contributions and transmission of the amounts received by them to the designated account of the Fund with the State Bank of Pakistan. 12. Subscribers of cellular mobile phone companies namely Mobilink (Jazz), Telenor, Zong and Ufone wishing to make donations / contributions may dial short code i.e. 8000 which will result in an automatic deduction of Rs.10/-. The amount so received by the said Companies shall be transferred on daily basis to the Fund with the State Bank of Pakistan. All four cellular mobile phone companies shall display on their websites, the amounts received by them which shall be transferred to the Fund account on daily basis. 13. Aforesaid cellular mobile phone companies have voluntarily undertaken to run a media campaign of 5-8 seconds on the Print and Electronic Media publicizing this initiative. CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 5 :- 14. Mobilink (Jazz) and Telenor shall also facilitate receipt of contributions / donations through Jazz Cash and Easy Paisa modes. These companies shall advertise the mode and manner through which contributions/donations through Jazz Cash and Easy Paisa can be made. All amounts received in this regard shall be transferred to the Fund with the State Bank of Pakistan on daily basis. 15. All four cellular mobile phone companies through their respective Banks shall provide details of collections to the Registrar of this Court and shall also display details thereof on their respective websites on daily basis which shall be accessible to the public. 16. The Ministry of Information and Broadcasting has in consultation with the State Bank of Pakistan, Pakistan Telecommunication Authority and Print & Electronic Media Regulatory Authority prepared an advertisement campaign for the media to increase public awareness through the Print as well as Electronic Media which shall be run by all Print and Electronic Media houses/channels/FM Radio Station free of cost as public service messages. 17. PEMRA and the Ministry of Information shall ensure that the media campaign for the Fund run effectively and efficiently and is allocated sufficient time during prime hours for raising public awareness about the, “Supreme Court of Pakistan – Diamer Bhasha & Mohmand Dams – Fund”. CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 6 :- 18. We direct the Ministry of Law & Justice in consultation with Federal Board of Revenue to promulgate an Ordinance for inter alia making appropriate amendments in different laws including the Income Tax Ordinance to ensure that donations/contributions made to the Fund are not subjected to any taxes or deductions. The contributions made to the Fund shall be treated as contributions towards charitable purposes and shall not be liable to any tax/duty whatsoever. The Ordinance shall also cater for the following:- i) Exemption to any income of, “Supreme Court of Pakistan – Diamer Bhasha & Mohmand Dams – Fund; ii) Exemption to the Fund from minimum tax on turn over under Section 113 of the Income Tax Ordinance, 2001; iii) Exemption from withholding tax on payment received by the Fund; iv) All Provincial Governments and their respective Revenue authorities shall provide appropriate exemptions under their respective Laws and if necessary issue appropriate Ordinances; v) Any person making donations /contributions to the Fund shall not be subjected to any inquiry or probe as to the sources of the funds utilized for making contributions/ donations by any Department, authority or person; and vi) The Auditor General of Pakistan as well as all Accountant Generals of the Provinces shall assist the Registrar of this Court in CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016 -: 7 :- maintaining, operating and conducting audits of the Fund from time to time. 19. This Court has not authorized any individual or group, etc to collect donations. 20. We are confident that the systems being put in place on the recommendation of the Governor, State Bank of Pakistan, various Government Departments as well as representatives of the Cellular Mobile Phone Companies and other experts shall operate smoothly and seamlessly towards achieving the objective of this national cause. All concerned have assured this Court that in case any problems are experienced at any stage and of any nature in receipt of contributions, the same shall immediately be resolved. 21. Let this matter be listed for hearing 30.07.2018. CHIEF JUSTICE ISLAMABAD, THE 11th of July, 2018. ZR/* NOT APPROVED FOR REPORTING JUDGE JUDGE JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR Civil Miscellaneous Applications No.6309 & 6332 of 2018 IN Civil Miscellaneous Applications No.6155 of 2018 In Constitution Petition No.57 of 2016 Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and Mohmand Dam by the government of Pakistan. In attendance: Mr. Khalid Jawed Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Addl.AGP. Raja Abdul Ghafoor, AOR/ASC (for SBP) Date of hearing: 13.07.2018 ORDER IJAZ UL AHSAN, J-. These applications (CMA Nos.6309 and 6332 of 2018) seek amendments in our order dated 11.07.2018 to get typographical errors corrected and to remove certain technical difficulties being faced in implementation of the same. 2. It has been pointed out that in paragraph 4 of the order, the correct Toll Free Helpline Number, set up by the State Bank of Pakistan is “021-111-727-723” which has inadvertently been written as “021-111-723-273”. The said correction is accordingly made. 3. In paragraph 5 of the order, the words, “an IBAN Number has” shall be replaced by the words, “IBAN Numbers have”. 4. Paragraph 7 of the order shall be replaced by the following:- Civil Miscellaneous Applications No.6309 & 6332 of 2018 -: 2 :- “Donations can also be made through Jazz Cash / Easy Paisa / Wallet, etc. All such donations / contributions shall be transmitted to the Fund account with the State Bank of Pakistan within 48 hours” 5. It has further been pointed out that in paragraph 12 of the order, the Short Code No.”8000” has been mentioned through which contributions can be made by sending a blank SMS at the said Number. It has been requested that in order to remove technical difficulties, it may be stated in the order as follows:- “subscribers wishing to make donations/contributions may type the word ‘dam’ and send the said SMS at Short Code No.8000”. Further, it is clarified that the amounts received by the Cellular Mobile Companies shall be remitted to the Fund account within 48 hours. 6. In terms of paragraph 13 of the order, it is clarified that the cellular mobile companies shall run media campaigns as per instructions of Pakistan Telecommunication Authority on the print and electronic media publicizing the initiative of this Court. 7. In paragraph 14 of the order, in the second line from the top, the words, “/wallet, etc” shall be added. The amounts so deducted shall be transmitted to the Fund account within 48 hours. 8. The above modifications will be deemed to be an integral part of the order of this Court dated 11.07.2018. Except as hereinabove modified, the order of this Court shall for all intents and purposes continue in full force and effect. Civil Miscellaneous Applications No.6309 & 6332 of 2018 -: 3 :- 9. The listed applications, with the above modifications, are accordingly disposed of. CHIEF JUSTICE ISLAMABAD, THE 13th of July, 2018. ZR/* NOT APPROVED FOR REPORTING JUDGE JUDGE JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed C.M.A. NO.64 OF 2013 IN CONST.P.87 OF 2011 AND C.R.P. NO.191 OF 2012 IN CONST. P.NO.87 OF 2011 Workers Party Pakistan, etc. … Petitioner (s) VERSUS Federation of Pakistan, etc. … Respondent (s) For the Applicant/ Petitioner : Mr. Bilal Hassan Minto, ASC For the Federation : Mr. Irfan Qadir, Attorney General for Pakistan Mr. Dil Muhammad Alizai, DAG For the ECP : Mr. Muhammad Munir Piracha, Sr. ASC Mr. Abdul Rehman, Additional Director General (Elections) Date of Hearing : 30.04.2013 ORDER Learned counsel for the Election Commission of Pakistan (ECP) stated that the ECP has already incorporated directions, observations and suggestions of the Court in the Code of Conduct or the Rules framed under the Representation of the CMA.64/13 in Const.P.87/11, etc. - 2 - People Act, 1976 (ROPA). However, we have noticed that the Executives who are bound to assist the ECP for holding honest, free and fair general elections are required to ensure protection to the life and property of the citizens, voters and candidates throughout the country because a peaceful and congenial atmosphere persuades the voters, citizens and the candidates to show their full participation in the process of general elections throughout the country. There are certain areas where the life and property of the citizens, voters and the candidates, prima facie, seem to be not protected, as has been reported in the media about the incidents of bomb explosions, suicides and murders, etc. Therefore, we direct to the Chief Secretaries of the Provinces and the Chief Commissioner, ICT to ensure complete control of law and order situation throughout the country so the process of the general elections is completed peacefully. 2. The learned counsel stated that the ECP is already focusing on this subject and on its behalf it is being ensured that all possible efforts/steps shall be taken to provide peaceful and congenial atmosphere to the voters, citizens and the candidates so they may run their campaign for the forthcoming General CMA.64/13 in Const.P.87/11, etc. - 3 - Elections and also ensure their attendance at the Polling Stations on the day of polling for exercising the Right of Adult Franchise. 3. Adjourned to a date in Office after two (02) weeks. CJ. Islamabad J. 30th April, 2013. Mahtab/* J.

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IN THE SUPREME COURT OF PAKISTAN (Review/Original Jurisdiction) BENCH Mr. Justice Amir Hani Muslim Mr. Justice Qazi Faez Isa Mr. Justice Sardar Tariq Masood Civil Misc. Application Nos. 687, 719 & 1551 of 2017 (Interim Reports by AIG Legal for I.G. Punjab, Home Department, Govt. of Punjab and Inspector General of Police, Punjab respectively) In Civil Review Petition No. 49 of 2016 AND Crl. Org. Petition No. 33/2017 in CRP. 481/2016 in CA No. 184-L/2013 (For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in CA No. 184-L/2013 and CRP No. 481/16) Khalid Mehmood Afzal Vs Mushtaq Sukhera, IG Police & others AND Crl. Org. Petition No. 55/2017 in CRP. 482/2016 in CA No. 184-L/2013 (For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in CA No. 184-L/2013 and CRP No. 481/16) Malik Muhammad Sabir Vs Mushtaq Sukhera, IG Police AND Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016 (For non-compliance of the orders dated 30.12.2016 passed by this Court in CRP No. 83/16) Awais Malik and others Vs Mushtaq Sukhera, IG Police & others AND Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89/2016 (For non-compliance of the orders dated 30.12.2016 passed by this Court in CRP No. 89/16) Muhammad Haseeb Vs Muhammad Amin Vans and others In Attendance: For Govt. of Punjab : Mr. Shakeel-ur-Rehman, AG, Punjab Barrister Khalid Waheed, Addl.AG, Punjab. For the IG., Punjab : Mr. Kamran Adil, AIG Legal Police, Punjab. C.M.A. No. 687/17 in CRP. 49/16, etc. 2 For Applicants/ Petitioners : Khawaja Haris Ahmed, Sr. ASC Mr. Mehr Khan Malik, AOR (in CMA.457/17 & Crl.MA. 490/17 Crl.O.P.60/17) For the Applicant : Malik Muhammad Qayyum, Sr. ASC (Akhtar Umar Hayat) Mr. Qusain Faisal Mufti, ASC Syed Rifaqat Hussain Shah, AOR (in CMA.1755/17) For the Petitioner : Ms. Ayesha Hamid, ASC Syed Rifaqat Hussain Shah, AOR (in Crl.O.P. 33/17) For the Petitioner : Sardar Ashiq Mehmood Khan Sadozai, ASC Ch. Akhtar Ali, AOR (in Crl.O.P. 55/17) For Petitioner : Ms. Asma Jehangir, ASC (in Crl. O. P. 62/17) On Court Notice : Mr. Talat Farooq Sheikh, ASC Jameel Ahmed (In person) (in Crl.M.As.487-489/17) Dates of Hearing : 27th & 28th March, 2017. JUDGMENT AMIR HANI MUSLIM, J:- These matters emanate out of two reported judgments of this Court, i.e. Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), whereby this Court declared that the concept of out of turn promotions was unconstitutional and against the Fundamental Rights enshrined in the Constitution. The copies of these judgments were ordered to be sent amongst others to the Chief Secretaries of all the Provinces and the Secretary, Establishment Division, Government of Pakistan who were directed to streamline the service structure in the line with the directives contained in these judgments. 2. On 26.01.2016, Civil Appeal No.184-L of 2013, came up for hearing before this Court, when this Court passed the following order: “3. …We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be re- fixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from C.M.A. No. 687/17 in CRP. 49/16, etc. 3 constable to any gazetted officer shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I.G Police Punjab, Home Secretary, Punjab and Chief Secretary, Punjab, shall submit compliance report with the Assistant Registrar of the Court for our perusal in chambers. This order shall be communicated to the I.G, Punjab, Home, Secretary, Punjab and Chief Secretary, Punjab, for their information and compliance and non-compliance of this judgment shall expose the concerned officials to contempt proceedings.” The aforesaid order was challenged through Civil Review Petition No.49 of 2016, etc. by police officers who claimed that they had earned their out of turn promotions on the basis of acts of bravery during their duty or otherwise. The said Review Petitions along-with other applications were dismissed, by the judgment dated 30.12.2016, reported as Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206) (hereinafter the “Shahid Pervaiz case”) . 3. On 20.03.2017, the Home Department, Govt. of Punjab, and the Inspector General of Police, Punjab (“IG”), submitted their separate reports. The IG issued notices to all the police officers and after providing them with an opportunity of a hearing, prepared a comprehensive and voluminous report which dealt with the case of each police officer separately. The Additional Secretary (Police) of the Home Department vide letter dated 16.03.2017 objected to the report of the IG only to the extent that a few of the out of turn promotion cases were “judicially protected”. It appears that these officers were granted out of turn promotion by judicial fora. The learned Advocate General, Punjab supports this letter of the Home Department, and both he and the counsel representing these officers contend that such promotions were also specifically saved by paragraphs 111 and 143 of the judgment in Shahid Pervaiz case. 4. For convenience, the referred to paragraphs 111 and 143 from the judgment of the Shahid Pervaiz case are reproduced hereunder: “111. Yet another anomalous consequence of this argument is that while two identical provincial laws are enacted and acted upon and one province repeals the law while the other continues with its operations. Subsequently, the vires of the law that continues on the statute books is examined by the Court and C.M.A. No. 687/17 in CRP. 49/16, etc. 4 its provisions have found to be inconsistent with the Constitution or Fundamental Rights with the result that the benefits conferred or availed thereunder, unless protected by the category of past and closed transaction, have to be reversed and its deleterious effects undone. This category, quite obviously, consists of the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed. Even otherwise, it does not appeal to logic that in such a situation, while those benefitting from a law which continued to be on the statute book and eventually found to be ultra vires the Constitution would stand deprived of such illegal benefits, those continuing to enjoy the same under the omitted/repealed law in other Province would stand protected. If an illegal benefit was accrued or conferred under a statute, whether repealed (omitted) or continuing, and its benefits continue to flow in favour of beneficiaries of such an unconstitutional Act, and it is declared ultra vires, the benefits so conferred would have to be reversed irrespective of the fact that the conferring Act was still on the statute book or not. Where such an anomalous situation surfaces – i.e. where one province continues to countenance the benefits of an unconstitutional (though repealed/omitted) Act, while the other Provincial statute has been struck down on the same touchstone, and thereby determined whether those enjoying benefits pursuant to the repealed law are entitled to continue to do so, such reversal of benefits is imperative.” “143. For the aforesaid reasons, all the listed Review Petitions and the Applications are dismissed. The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers who were given out of turn promotion alongwith their batch-mates, as if they were never given out of turn promotion. However, the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held without further loss of time and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers. This exercise shall be completed within a period of one month. The Advocate General, Punjab, and the learned Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities.” 5. The Advocate General Punjab (“the AG”) states that there was a conflict between the opinion of the Home Department and that of the Inspector General of Police on the point, whether the out of turn promotions given to some of the police officers were protected by the afore-quoted paragraphs of the judgment in the Shahid Pervaiz case. He relied upon the letter dated 16.03.2017 of the Home Department, Government of Punjab with regard to the out of turn promotion C.M.A. No. 687/17 in CRP. 49/16, etc. 5 granted to the nine police officers mentioned in the said letter which was addressed to the Secretary Services, Government of Punjab, except Shahid Razzaq Qureshi who has since retired. According to the learned AG meetings were held to resolve the said controversy, but till date to no avail. The learned AG stated that there are three categories of persons who would be protected and would be construed to come within the purview of the aforesaid paragraphs 111 and 143, which are: i. Where a Court had directed that a particular officer or official should be given out of turn promotion and a notification to this effect be issued; ii. Where an official or officer had approached a court and it was held that he be treated at par with some other official/officer who was given out of turn promotion since he had also participated in the same operation or encounter; and iii. An officer or official who was given out of turn promotion however later than his colleagues and after he had approached a court the date of his out of turn promotion was ante-dated to the date when his companions were given out of turn promotion. 6. Khawaja Haris Ahmed, learned senior ASC, represented eight officers, namely, Awais Malik, Ijaz Shafi Dogar, Muhammad Umer Wirk, Rana Shahid Pervez, Muhammad Usman Anwar, Naeem ul Hassan Babar, Syed Jammat Ali Bukhari and Karamat Ullah Malik. He states that the orders of cancellation/withdrawal of out of turn promotion of the first four police officers named by the Home department should be recalled. As regards the remaining four officers, the Home Department has not offered any view. The learned counsel contends that the said paragraphs 111 and 143 are very clear and by relying thereon states that, any out of turn promotion which was given to a police officer/official through any court order is protected and this protection extends to the following three categories of officials/officers: i. Those who approached a court and were allowed/granted out of turn promotion; C.M.A. No. 687/17 in CRP. 49/16, etc. 6 ii. Those a court directed to grant out of turn promotion on the basis that the Department had granted out of turn promotion to some of the police officers/officials similarly placed; and iii. Those who the Department did not grant out of turn promotion but once a court had granted out of turn promotion thereafter the Department itself gave out of turn promotions to them in line with the principles laid down in the judgments despite the fact that the persons did not approach the Court. 7. The learned Senior ASC Khawaja Haris Ahmed contends that this Court has specifically held in the said paragraphs 111 and 143, that out of turn promotions made on the basis of a court or tribunal’s order shall remain intact, however, the IG of Police Punjab has done away with even those out of turn promotions. He sought protection of the out of turn promotions granted to Awais Malik, Ijaz Shafi Dogar, Muhammad Umar Virk and Rana Shahid Parvez, stating that on 18.01.1997, Awais Malik alongwith other police officials was deputed to perform security duty and to protect the leaders of Sipah-e-Sahaba who had to appear in the Court of Additional Sessions Judge Lahore where a bomb blast took place and he received injuries alongwith others. The others members of the Police party approached the Lahore High Court, by filing Writ Petition No.17474 of 1997, seeking out of turn promotion and the High Court directed that a formal notification of their out of turn promotion be issued. Awais Malik also filed Writ Petition No.19749 of 1997 for grant of out of turn promotion as he was similarly placed and the learned High Court allowed the Writ Petition in terms of judgment passed in Writ Petition No.17474 of 1997, therefore, his case falls squarely within the parameters of paragraphs 111 and 143. As regards Ijaz Shafi, the learned senior ASC submitted, that he was granted out of turn promotion pursuant to the orders of the Lahore High Court passed in Writ Petition No.1257/2005, whereby it was directed that his case for grant of out of turn promotion be placed before the Provincial Selection Board; consequently, the Provincial Selection Board considered his case and recommended him for out of turn promotion as a Deputy C.M.A. No. 687/17 in CRP. 49/16, etc. 7 Superintendent of Police (“DSP”) and later he was promoted as Superintendent of Police (“SP”), but he has been relegated to the post of DSP. As regards Muhammad Umer Virk, the learned senior ASC contended, that while he was posted as Inspector he had participated in an operation launched by the Police to curb the terrorist activities of Sipah-e-Muhammad, a militant group with its headquarters at Thokar Niaz Beg, Lahore. Since he was not granted out of turn promotion for his said act of bravery he approached the Lahore High Court through Writ Petition No. 17232 of 1997, which was accepted and it was observed that his case be placed before the Provincial Selection Board which shall ensure that his case is treated at par with those who had participated in the incident. As regards Shahid Pervez, the learned Senior ASC contended, that he also participated in the Thokar Niaz Beg incident and he also approached the Lahore High Court through Writ Petition No. 28879 of 1997, on the basis of discrimination, which was allowed and he was granted one step out of turn promotion. The Department assailed the High Court judgment before this Court by filing C.P. No. 259-L of 2000, which was dismissed on 26.04.2000 as it was time barred. 8. Malik Muhammad Qayyum, the learned Senior ASC, appears on behalf of Akhtar Umer Hayat Lalika and in addition to adopting the arguments advanced by Khawaja Haris Ahmed, Senior ASC, contended that the applicant had filed Writ Petition No. 2445 of 1995 for the grant of out of turn promotion on the basis of discrimination, which was allowed on 03.12.1996 and out of turn promotion as prayed for was granted. C.P. No. 656-L/1997 was filed before this Court by the Province of Punjab against the said order of the Writ Petition, but it was dismissed by this Court on 03.02.1998 as it was barred by time. However, the C.P. No. 1446-L/1997 filed by another official against the judgment in the said Writ Petition was dismissed on merits and the Civil Review No. 19-L of 1998 filed in C.P 1446-L of 1997 was also dismissed by this Court on 08.07.1998. He next contended that the promotion of Akhtar Umer Hayat Lalika was a past and C.M.A. No. 687/17 in CRP. 49/16, etc. 8 closed transaction in view of the judgments in his favour upto this Court, therefore, out of turn promotion granted to him is protected in view of the principles laid down in the said paragraphs 111 and 143. 9. Ms. Asma Jehangir, the learned ASC, represents Applicant Muhammad Anjum adopted the arguments of Kh. Haris Ahmed, learned ASC. In addition, the learned ASC submits that the question of seniority was involved in the case of the Applicant and his case was erroneously dealt with by the Department to be a case of out of turn promotion. She contended that the Applicant approached the Punjab Service Tribunal in Appeal No.2094 of 2006, and the Tribunal accepted his Appeal, by its judgment dated 13.10.2006, by remanding his case to the concerned authority for re-consideration of his case for conformation as Assistant Sub-Inspector (ASI) from the date he was due for promotion to the post of ASI, subject to his service record being satisfactory after the period when he would have completed his two years probation period. Therefore, the learned counsel submitted that the orders of the IG in the case of the Applicant are required to be set aside. 10. Sardar Ashiq Mehmood Khan Saddozai, learned ASC, appears for the Petitioner in Criminal Original Petition No.55 of 2017 and contends that the case of the Petitioner is identical to the case of Muhammad Haseeb Anjum. According to him, the Petitioner filed Appeal No.140 of 1998 before the Punjab Service Tribunal, which was allowed, with the observation that he was due for consideration as well as promotion as an Inspector alongwith the confirmed Sub- Inspectors and that he be considered for promotion with effect from 20.08.1995, without prejudice to the seniority of Mohammad Ramzan and Mohammad Nazir whose promotion was deferred for want of requisite record, subject to fulfillment of prescribed requirement. 11. Mr. Talat Farooq Sheikh, learned ASC, appeared for the Applicants, namely Muhammad Sarwar Awan and Muhammad Iqbal who were issued notices by this Court on 20.03.2017. He, on the legal plane, adopted the arguments of Kh. C.M.A. No. 687/17 in CRP. 49/16, etc. 9 Haris Ahmed, learned ASC, and contended that Muhammad Sarwar Awan was given out of turn promotion pursuant to the directions of the Lahore High Court in Writ Petition No.8147 of 1998, on the analogy of the cases of SSP Javed Hussain Shah and SP Umer Virk, to avoid discrimination. The Department challenged the judgment of the Lahore High Court, by filing Civil Petition No.226-L of 2000, which was dismissed on 26.04.2000, by this Court, as it was barred by time. He further submits that the matter had attained finality, therefore, the out of turn promotion granted to Muhammad Sarwar Awan was protected in light of the said paragraphs 111 and 143. As regards Muhammad Iqbal the learned ASC stated, that he was granted out of turn promotion as Inspector with effect from 01.08.1992, by the Additional IG, Punjab. However, in compliance of the judgment dated 15.06.2005, passed by the Punjab Service Tribunal in Appeal No.2548 of 2004, the date of his out of turn promotion was revised as 09.07.1990. The Department filed Civil Appeal No.203 of 2006 before this Court, which was dismissed on 28.05.2007, on the ground that Appeal filed by the said police officer without impleading the Government of the Punjab was not competent. The learned counsel submitted that the case of Muhammad Iqbal is also protected in view of the aforesaid paragraphs 111 and 143. 12. The Applicant Jameel Ahmed appeared in person, pursuant to the notice issued on 20.03.2017. He states that he adopts the arguments of Kh. Haris Ahmed, learned ASC. 13. Ms. Aysha Hamid, the learned ASC, represents the petitioner in Crl.O.P 33/2017 and contends that the present contempt petition is filed under the impression that the Punjab Government which had formed a Committee to look into and remove the so called anomalies in the judgment of this Court in the Shahid Pervaiz case and that the Government intends to recall the orders/letters withdrawing the out of turn promotions given to many police officers/officials. She stated that there are no anomalies in the said judgment and that the real purpose of the Committee, headed by the Law Minister, was to undo the effect of C.M.A. No. 687/17 in CRP. 49/16, etc. 10 the judgment on a pick and choose basis. Learned counsel submits that the IG’s report is based on individual speaking orders and she supports those orders as they are in consonance with the principles enunciated in the judgment in the Shahid Pervaiz case dated 30.12.2016; whereas the opinion of Home Department, Government of Punjab, misconstrues the said judgment, moreover, the Home Department’s opinion also agrees with the IG whereby the out of turn promotions granted to some of the police officers/officials were recalled without mentioning any reason to take a divergent view in respect thereof. She quoted the example of Sarwar Awan, Akhter Umer Hayat Lalyka, Rana Shahid Pervaiz and Awais Malik and contended that Sarwar Awan was granted out of turn promotion twice and his second out of turn promotion was pursuant to Court orders dated 22.06.1999 passed by Lahore High Court, in Writ Petition No.8147 of 1998 on the analogy of SSP Javed Hussain Shah and SP Umer Virk, due to purported discrimination. Akhter Umer Hayat Lalyka was also granted out of turn promotion as DSP, by the Lahore High Court through Writ Petition No.2445 of 1995, on the basis of purported discrimination by citing precedent of Sub-Inspector Waqar Ahmed, who was granted out of turn promotion by the Department and not by the Court, therefore, after the judgment dated 30.12.2016, when the out of turn promotion given to S.I Waqar Ahmed, was recalled, the reason of discrimination on the basis of which Writ Petition of Akhter Umer Hayat Lalyka was allowed no longer remained. Moreover, the earlier recommendation of the Department in favour of the said officer was withdrawn. Rana Shahid Pervaiz was also granted out of turn promotion through Writ Petition No.28879 of 1997, by the Lahore High Court, on the ground of purported discrimination, by holding that the other participants of the Thokar Niaz Beg operation including, inter alia, Javed Hussain Shah and Muhammad Umer Virk, had been granted out of turn promotions. The learned counsel next quoted the case of Awais Malik, who too was granted out of turn promotion on the basis of verdict in Writ Petition No.19749 of 1997, which was based on decision in Writ Petition No.17474 of 1997. As regards Karamatullah Malik, Naeem ul Hassan and Jamat Ali Bukhari, the learned counsel contended, C.M.A. No. 687/17 in CRP. 49/16, etc. 11 that they were not protected by any judicial pronouncement and the cases of Haseeb Anjum and Muhammad Iqbal relate to the issue of seniority and not out of turn promotion. The learned counsel concluded by contending that all the cases which came before this Court were dismissed on the ground of limitation and not on merits, therefore, it would not constitute res judicata or be covered by the afore-quoted paragraphs 111 to 143. 14. Before proceeding to decide the aforesaid matters we want to dispel the notion that we are reviewing the judgment in the Shahid Pervaiz case in general or paragraphs 111 and 143 in particular. The IG of Police, Punjab pursuant to the judgments of this Court looked at each case of out of turn promotion. He issued notices to all concerned and considered their respective comments and thereafter decided each individual case. These matters pertain to the Punjab Police, which is a disciplined force at the apex of which is the IG of Police. The matters of seniority are settled/determined by the designated competent authority and, if any official or officer has any reservation with regard thereto a representation can be preferred to the designated authority and if he/she is still not satisfied an appeal can be filed before the competent tribunal, which in this case would be the Punjab Service Tribunal. Article 212 of the Constitution categorically mandates that such a tribunal has exclusive jurisdiction with regard to all matters relating to the terms and conditions of service. Against the decision of the tribunal an appeal can only be entertained by the Supreme Court provided it involves a substantial question of law of public importance and leave is granted to consider the same (Article 212(3) of the Constitution). 15. The aforesaid officials/officers of the Police were recommended for out of turn promotion either by their superiors or claimed it because similarly placed persons were given it. The recommendations were either not accepted by the competent authority/IG or they were disregarded. They therefore proceeded to file a petition in the High Court or approached the Tribunal. We are clear in our mind that the High Court had no jurisdiction to entertain such petitions under Article C.M.A. No. 687/17 in CRP. 49/16, etc. 12 199 of the Constitution, let alone to issue writs of the nature that were issued. If at all the said petitioners were aggrieved by not receiving out of turn promotion they should have proceeded on the stipulated legal path which has been mentioned above. The learned AG and the learned counsel representing the said officials/officers of Police have made much of the fact that the cases of some of these persons had come before this Court, even though this Court had simply dismissed the petitions on the ground of limitation. Such orders of this Court cannot be categorized as a decision in terms of Article 189 of the Constitution. The issue whether out of turn promotion was legal and whether the High Court could consider the same under Article 199 of the Constitution was not considered either by the High Court or by this Court in any of the referred to judgments/orders. As regards the decision of the Tribunal it was given on the basis that the appellant had been discriminated against vis-à-vis his companions, however, when the companions out of turn promotion too has been withdrawn there remained no element discrimination. The matter in issue before us is also not the same which was in issue before the fora below and, therefore, it would also not constitute res judicata. 16. As mentioned above, the IG of Police, Punjab considered the judgments of this Court with regard to the out of turn promotion cases and after examining each person’s case decided the same. Neither the referred to letter of the Home Department nor the learned AG have pointed out any legal defect in the determination by the IG. They have simply referred to the afore-quoted paragraphs 111 and 143 and stated that the officials/officers, mentioned above, had been declared to be entitled to receive out of turn promotion by the fora below, and that these orders/judgments had not been set aside by this Court, therefore, the case of these individuals would be protected. With respect to the learned counsel we cannot bring ourselves to agree with this contention because it is not based on any legal or constitutional premise. The foundation of the said paragraphs 111 and 143 on which they have erected their case also overlooks both C.M.A. No. 687/17 in CRP. 49/16, etc. 13 the context and wording of the said paragraphs. Paragraph 111 specifically states that out of turn promotions would remain intact, “unless reviewed”, without restricting such review by this Court alone. The IG of Police has reviewed the matter at his end after issuing notices to all concerned and hearing all those who availed of the opportunity of the hearing which was provided to them and thereafter passed separate detailed orders in respect of each individual. As already mentioned the orders of the IG have not been assailed on the ground that the same are contrary to any legal or constitutional provision. We have also examined the same and have not found any illegality therein. On the contrary it is based upon the principles in the cited judgments of this Court. In such a situation, and where the orders passed by the IG conform to the law as has been declared by this Court in the referred to judgments, no exception can be taken thereto. The report of the IG should be acted upon and notifications with regard to withdrawing the out of turn promotions be immediately issued and compliance report in this regard be submitted for our perusal in Chambers within ten days. 17. It should also not be lost sight of that the competent authority/the IG had decided not to grant out of turn promotion to the officials/officers who then went to court/tribunal. At that juncture the Government of Punjab had resisted these cases, but, had belatedly filed appeals before this Court against the orders/judgments granting out of turn promotions. However, now before us the Home Department and the learned AG have taken a complete u-turn and support the very same out of turn promotions that were earlier opposed by them on the pretext of the judgment in the Shahid Pervaiz case. We were not informed by the Government that a Committee headed by the Law Minister was formed to attend to the purported anomalies in our judgments. What the Committee did is also not known. It is a matter of concern that it was not disclosed to us that the said Committee had been set up by the Government, of which we come to know from private parties. The referred to letter of the Home Department also makes no reference to this Committee. C.M.A. No. 687/17 in CRP. 49/16, etc. 14 18. Before departing with this judgment we once again reiterate that the Police is a disciplined force and officials/officers employed in the police should not embark upon unnecessary litigation such as claiming out of turn promotions. If, however, they have a genuine grievance the same should be taken before the forums that the law provides instead of initiating proceedings before the High Court under Article 199 of the Constitution. Not a single one of the judgments, on which reliance is placed by the counsel who represent the said police officials/officers, have discussed how jurisdiction was assumed in a matter which the Constitution clearly does not permit or how the constitutional bar contained in Article 212 was overcome. 19. The listed Applications and Criminal Original Petitions were decided vide order dated 28.03.2017: “For reasons to be recorded later, the listed Applications and Criminal Original Petitions are disposed of in the terms that the view point of the Inspector General of Police, Punjab is correct and the officers shall be de-notified in terms of the speaking orders passed by the Inspector General of Police, Punjab.” The aforesaid are the reasons for the aforesaid order. Judge Judge Judge Bench-III Islamabad: 29.03.2017 Approved for Reporting (Sohail)

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Amir Hani Muslim Civil Miscellaneous Applicaton No.6882/13 in Constitution Petition No.77 of 2010 (Letter by Election Commission of Pakistan dated 12.11.2013) President Balochistan High Court Bar Association … Petitioners Versus Federation of Pakistan and others … Respondent For the Petitioner: Nemo. For the Applicant: Mr. Ishtiak Ahmed Khan, Secretary, ECP (CMA-6882/13) Syed Sher Afgan, Addl. Secretary On Court’s Notice: Mr. Muneer A. Malik, Attorney General for Pakistan Mr. Abdul Latif Yousafzai, AG, KPK Mr. Khalid Javed Khan, AG, Sindh Mr. Muhammad Hanif Khattana, Addl. AG, Pb. Mr. Muhammad Farid Dogar, AAG, Balochistan Date of hearing: 13.11.2013 O R D E R Iftikhar Muhammad Chaudhry, CJ.- In pursuance of letter dated 12.11.2013 by the Election Commission of Pakistan, the instant matter was directed to be listed in the Court. Contents of the said letter are reproduced hereinbelow:- “The Registrar the 12th November, 2013, Islamabad Supreme Court of Pakistan, Islamabad. Subject: REQUEST FOR EXTENSION OF POLL DATES FOR HOLDING LOCAL GOVERNMENT ELECTIONS IN THE PROVINCES AND CANTONMENT AREAS Dear Sir, In continuation of the earlier letter of even date, it is pointed out that on account of certain practical and technical difficulties, the Election Commission of Pakistan has proposed revised poll programme/dates for the Local Government Elections in the Provinces and in the Cantonment areas in terms as follows:- Sr.No. Province/Area Date 1. For the Province of Punjab 30.01.2014 2. For the Province of Sindh 18.01.2014 3. For the Province of KPK and Cantonment Areas In the month of February, 2014 Const.P.77 of 2010 2 2. As far as the Province of Balochistan is concerned, polling shall take place on the date, which has already been fixed i.e. 07.12.2013. 3. This may kindly be brought to the notice of the Hon’ble Supreme Court of Pakistan. 4. This issue with approval of Election Commission of Pakistan. Yours sincerely, -Sd- (Syed Sher Afgan) Additional Secretary” It is to be noted that prior to receipt of the above letter on the even date another letter was received from the Election Commission of Pakistan (ECP) highlighting the difficulties being faced by the ECP in holding the local bodies elections on the date which have already been fixed for the Provinces of Sindh and Punjab. This Court, as back as on 5th April, 2012 while hearing a case relating to the law and order situation in the Province of Balochistan, noted that the main problem of the Province is of socio-economic nature which can only be solved if the general public of the Province is empowered by holding elections of local bodies which otherwise is an constitutional obligation of the Government in terms of Article 32 of the Constitution. As it is obligation of the Government to adhere to the constitution in letter and spirit and no one can be allowed in any manner, to deviate from any of its provisions particularly in view of the fact that the Constitution is a binding document as it has been given by 18 Crore people of this Country to themselves. Therefore, its provisions particularly relating to the general public empowering them politically, administratively and financially through their chosen representatives by establishing the system of the local government in terms of Articles 32 and 140A of the Constitution should be strictly observed. However, preceding to the above observations, orders were repeatedly passed by this Court calling upon the Provincial Governments as well as the Federal Government to hold local bodies elections as early as could be possible as it is the command of the Constitution and no deviation from the Constitution is possible. Const.P.77 of 2010 3 2. In the meanwhile, another petition was filed by Raja Rab Nawaz, learned Advocate of this Court and subsequent thereto directions were issued to the Federal Government of Pakistan to hold elections in the Cantonment Areas. As for the last 18 years election of local bodes have not been conducted in Cantonment areas whereas the Local bodies in the Provinces were dissolved on the following dates, and since then there is no local government in the Provinces despite of mandatory provisions of the Constitution. Sr. No. Name of the Province Date of dissolution of Local Bodies in the Province 1. Balochistan 09.01.2010 2. Khyberpakhtunkhwa (KPK) 30.01.2010 3. Punjab 23.02.2010 4. Sindh 24.02.2010 3. It is to be noted that the Governments of Balochistan, Sindh as well as Punjab had placed on record copies of the following letters, with the request to ECP to hold local bodies elections in their Provinces. 1. Nos.PS/Secy:Law/2013/66-70 dated 24.10.2013 (Balochistan) 2. No.SOR(LG)38-12/2013 dated 23.10.2013 (Punjab) 3. No.RO(LG) 4(18)/2013 dated 23.10.2013 (Sindh) Contents of one of the above letters (at Sr. No.1) read as under:- “The Secretary, Election Commission of Pakistan, Islamabad. Subject: HOLDING OF LOCAL GOVERNMENT ELECTIONS IN BALOCHISTAN Dear Sir, Reference the captioned subject. Government of Balochistan is ready for holding Local Government Elections on 7th December, 2013, as already committed before the Hon’ble Supreme Court of Pakistan. In this regard, the delimitation process of 31 out of 32 Districts has been completed and 28 Districts notified. The delimitation of Quetta has administrative, security and political dimensions and efforts are underway to develop consensus amongst the stakeholders for amicable solution regarding a decision at the higher level. The Local Government Act and related Rules have been framed. (Safdar Hussain) Secretary.” Const.P.77 of 2010 4 It seems that in view of the request made in the above letter, election schedule was fixed by the ECP as on 27.11.2013 for Sindh Province which was subsequently changed to 7th December, 2013 in pursuance of the request so made by the Provincial Government, through CMA-6797/2013 filed before this Court through Advocate General which was sent to the Election Commission of Pakistan for appropriate orders. Contents of the said order reads as under:- “This application has been filed on behalf of the Govt. of Sindh through the learned Advocate General Sindh under Order 33 Rule 6 of the Supreme Court Rules, 1980 seeking change of date from 27th November, 2013 to 7th December, 2013 for holding local bodies’ election. The learned Advocate General, Sindh emphasized, inter alia, that one of the reasons for seeking extension is that the process for holding local government elections has commenced w.e.f. 9.11.2013 and the holidays of Ashora Muharram ul Haram fall on 14.11.2013 to 15.11.2013, therefore, it was constrained to postpone the elections. Similarly, representatives of the Ahle Tashi Community also met the Chief Minister, Sindh and expressed serious constraints and requested the Government to move application for adjustment of date of local government elections in Sindh. He also added that a large number of o ther representative groups from different communities have also met the Chief Minister with the same request. He further added that the Govt. of Sindh is fully committed to honour the orders passed by the Court to observe the constitutional obligations. We have pointed out to the learned Advocate General that the dates for local bodies’ elections are to be fixed by the Commission in pursuance of the request so made by the Provincial Governments. We are of the considered opinion that the Provincial Government had a constitutional obligation to hold local bodies’ election for the purpose of allowing the citizens of the country to show their participation in the political, administrative and financial responsibilities and authority through their representatives of the local government. Therefore, by taking into consideration the request so made by the Provincial Govt. of Sindh, we refer this application to the Election Commission of Pakistan for considering the application and may accommodate them because in the other Provinces like Punjab, and Balochsitan the elections are scheduled to be held on 7th December, 2013. The learned Advocate General may, therefore, appear before the ECP during course of the day with the instant CMA and this order for passing appropriate orders by the Election Commission of Pakistan. The CMA is disposed of accordingly.” However, in the meanwhile no request for change of election schedule has been made either by the Province of Balochistan or by the Punjab Province. As far as the Province of KPK is concerned, despite of knowing its constitutional obligations no request has been filed for holding local bodies elections. 4. Learned Attorney General for Pakistan stated that as far as the local boides election in the Cantonment Areas is concerned, the Federal Government has Const.P.77 of 2010 5 requested to the ECP for holding the elections in the Cantonments and the ECP has asked the Federal Government to fulfill certain requirements and the same will be done in the meanwhile. 5. Needless to observe that as per the provisions of Articles 32 and 140A of the Constitution, as repeatedly emphasized, the Federal Government is duty-bound to hold elections in the Federal Area and Provincial Governments in the Provinces to ensure in the Provinces in order to ensure participation of the general public in the administrative, political and financial affairs of the Government by establishing local bodies system. As far as sub Article 2 of Article 140A is concerned, it cast a duty upon the Election Commission to hold the elections of local bodies in terms of sub Article 140A(1). Therefore, it should always remain prepared to meet the challenge and whenever any request by the Federal or the Provincial Government is made for holding elections, the ECP should comply with the same at the earliest. 6. Be that as it may, as a revised Poll Programme noted herein above has been issued for holding local bodies elections in the Provinces of Punjab, Sindh and KPK and local bodies elections in Balochistan will also take place on 7th December, 2013 as already fixed, therefore, we are of the opinion that the Election Commission and the Provincial Governments have shown their commitment to the Constitution. Thus, without making further observation, instant matter stands disposed of. Chief Justice Judge Judge Islamabad 13th November, 2013 M. Azhar Malik Approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed CIVIL REVIEW PETITION NO.296 of 2020 a/w C. M. A. NO. 7084 OF 2020 & CIVIL REVIEW PETITION NO.297 of 2020 a/w C. M. A. NO. 7086 OF 2020 & CIVIL REVIEW PETITION NO.298 of 2020 a/w C. M. A. NO. 7085 OF 2020 & CIVIL REVIEW PETITION NO.299 of 2020 a/w C. M. A. NO. 7087 OF 2020 & CIVIL REVIEW PETITION NO.300 of 2020 a/w C. M. A. NO. 7169 OF 2020 & CIVIL REVIEW PETITION NO.301 of 2020 a/w C. M. A. NO. 7170 OF 2020 & C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 & CIVIL REVIEW PETITION NO.308 of 2020 a/w C. M. A. NO. 7171 OF 2020 & CIVIL REVIEW PETITION NO.309 of 2020 a/w C. M. A. NO. 7172 OF 2020 & CIVIL REVIEW PETITION NO.509 of 2020. Justice Qazi Faez Isa … Petitioner(s) (in CRP No.296/2020) Sindh High Court Bar Association … Petitioner(s) (in CRP No.297/2020) Mrs. Sarina Isa … Petitioner(s) (in CRP No.298/2020) Supreme Court Bar Association … Petitioner(s) (in CRP No.299/2020) Muhammad Asif Reki President Quetta Bar Association … Petitioner(s) (in CRP No.300/2020) CRP.296/2020, etc. 2 Shahnawaz Ismail, VC Punjab Bar Council … Petitioner(s) (in CRP No.301/2020) Balochistan Bar Council … Petitioner(s) (in CRP No.308/2020) Pakistan Federal Union of Journalists … Petitioner(s) (in CRP No.309/2020) Abid Hassan Minto … Applicant(s) (in CMA No.4533/2020 in CRP No.Nil of 2020) Pakistan Bar Council thr. VC … Applicant(s) (in CRP.509 of 2020) VERSUS The President of Pakistan and others …Respondent(s) (in CRP.296-301& 308-309 & CRP.509 of 2020) The Supreme Judicial Council thr. its Secretary and others … Respondent(s) (in CMA No.4533 of 2020) For the petitioner(s) : Mrs. Sarina Faez Isa (In-person) Mr. Kassim Mirjat, AOR. (in CRP.298/2020 & CMA.7085/2020). Mr. Munir A. Malik, Sr.ASC. (through Video Link from Karachi). (in CRP.296/2020 & CMA.7084/2020) Mr. Kassim Mirjat, AOR. Mr. Rasheed A. Rizvi, Sr. ASC. (through Video Link from Karachi). (in CRP.297/2020 & CMA.7086/2020 & in CRP.309/2020 & CMA.7172/2020) Mr. Hamid Khan, Sr. ASC. (through Video Link from Lahore). (in CRP.299/2020 & CMA.7087/2020 & in CRP.300/2020 & CMA.7169/2020 & in CRP.301/2020 & CMA.7170/2020 & in CRP.308/2020 & CMA.7171/2020) Nemo. (in CMA.4533/2020) Syed Rifaqat Hussain Shah, AOR. (in CRP.509/2020) Ms. Shireen Imran, ASC. (in Addl. Secy. SCBAP) Respondents : Not represented. Dates of hearing : 08.12.2020 & 10.12.2020. * * * * * * * CRP.296/2020, etc. 3 O R D E R We have before us a number of miscellaneous applications, filed under Order XXVI, Rule 8 of the Supreme Court Rules, 1980 read with other enabling provisions. These seek reconstitution of the Bench hearing several review petitions filed against the majority judgment in Justice Qazi Faez Isa Vs. President of Pakistan and others (Const. P 17/2019) and connected petitions. The said Constitutional petitions had been filed under Article 184(3) of the Constitution. These were heard by a ten member Bench of the Court and were disposed of by means of a short order dated 19.06.2020, which is reported as (Mr.) Justice Qazi Faez Isa and 14 others Vs. The President of Pakistan and others (PLD 2020 SC 346) (“Short Order”). Subsequently, five judgments giving reasons were released. Seven members of the Bench were party to the whole of the Short Order, in particular paras 3 to 11 thereof (which portion is the subject matter of the review petitions). They released a common judgment (authored by Justice Umar Ata Bandial) on 23.10.2020 (“majority judgment”). One of them, Justice Faisal Arab, added his concurring judgment. The remaining three learned members, who did not join in the aforementioned paras 3 to 11 of the Short Order, authored their separate minority judgments (“minority judgments”). Justice Yahya Afridi released his minority judgment at the same time as the majority on 23.10.2020, while Justice Maqbool Baqar and Justice Mansoor Ali Shah released their respective minority judgments on 04.11.2020. The decision of the connected petitions under Article 184(3) is therefore reflected in the majority judgment concurred by seven learned members of the Bench and the three CRP.296/2020, etc. 4 minority judgments rendered by three learned members of the Bench. Factual Context 2. The review petitions, disputing paras 3 to 11 of the Short Order subscribed to by seven members of the Bench, were initially posted on 28.10.2020 before a Bench comprising the seven learned Judges who had passed the majority judgment. However, the matter was adjourned on the request of the review petitioners for examining the detailed reasons given in the majority judgment. Shortly afterwards, on 04.11.2020 Justice Faisal Arab retired from his office, necessitating the reconstitution of the Bench to its strength of seven Judges for hearing the review petitions. At this stage, all of the review petitioners filed miscellaneous applications and/or corresponded with the Registrar of the Court seeking the inclusion of the three Judges in the review Bench who had delivered the minority judgements. As the constitution of Benches is the prerogative of the Hon’ble Chief Justice (“HCJ”), these pleas were placed before the HCJ who, vide order dated 11.11.2020, directed that the applications be placed for consideration and decision before a Bench comprising the six remaining Judges who had delivered the majority judgment. Thus, in total eight such applications are fixed before us for rendering our opinion to assist the HCJ in the formation of a review Bench in the matter. 3. In two CMAs, each filed by Justice Qazi Faez Isa (“the learned petitioner”) and Mrs. Sarina Isa (“Mrs. Isa”), the prayer is that the review petitions be listed before a Bench which includes the three learned Judges who passed the minority judgments. In the remaining six CMAs (filed by the Bar CRP.296/2020, etc. 5 Associations/Councils and PFUJ) the prayer is that the review petitions ‘be heard by the same Bench as possible as may be that passed the judgment dated 19th June 2020.’ Reference is also made to what is perceived as the ‘established practice’ of the Court, namely, that the Bench ‘hearing the review [be] of at least the same number of judges as passed the judgment under review.’ It may be added that before these CMAs were fixed for hearing, the learned petitioner filed additional grounds of review in light of the detailed reasons given by Justice Yahya Afridi in his minority judgment. Mrs. Isa also filed additional grounds of review in which she disputed all three minority judgments. Procedure for Review: Legal Context 4. Before examining the pleas raised by the review petitioners, it would be useful to first consider the law vesting review jurisdiction in this Court and the procedure laid down to regulate its exercise: The Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”): “188. Review of Judgments or Orders by the Supreme Court. The Supreme Court shall have power, subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. 191. Rules of Procedure. Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. CRP.296/2020, etc. 6 The Supreme Court Rules, 1980 (“SCR”) framed under Article 191 of the Constitution: ORDER XI CONSTITUTION OF BENCHES “Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice:…” ORDER XXVI REVIEW 1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule I of the Code [of Civil Procedure, 1908] and in a criminal proceeding on the ground of an error apparent on the face of the record. 8. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.” (emphasis supplied) 5. We shall deal with each of these provisions in turn although not necessarily in the sequence that they appear. To begin, Article 188 declares that the power of review has been vested in this Court by the Constitution itself. However, what is significant for our purposes is that the review jurisdiction has been conferred in respect of ‘any’ judgment pronounced or any order made by the Court. But Article 188 does not explain what the term ‘any’ means thereby leaving it for this Court to ascertain precisely which types of judgments are amenable to review. In this behalf, Article 188 provides us with an important guideline: the review jurisdiction of this Court is subject to or regulated by any Act of Parliament or any Rules made by the Supreme Court. At present, there is no such Act in the field but there are Rules, specifically the CRP.296/2020, etc. 7 SCR, which have been framed by the Supreme Court in exercise of its power under Article 191. We shall now examine how these shed light on the meaning of the phrase ‘any judgment pronounced, or any order made’ used in Article 188. 6. At first glance, the provisions of Order XXVI of the SCR are the most pertinent to our inquiry. Indeed, during oral arguments on 08.12.2020 when this matter came up for consideration, Mr. Munir A. Malik, who represents the learned petitioner in his review petition, also relied on Order XXVI, Rule 8 while making his submissions (in CMA 7084/2020). He stated that the judgment of the Court was that of the seven member majority. They were party to the whole of the Short Order including the paragraphs by which the review petitioners are aggrieved. However, for the purposes of Rule 8 that judgment had to be regarded as having been delivered by the ten member Bench. In other words, it was the ten member Bench that was the ‘same Bench,’ in terms of Order XXVI Rule 8 of the SCR, that had ‘delivered the judgment… sought to be reviewed.’ Therefore, the review petitions had to be heard by a Bench that included the learned Judges in the minority as well. Learned counsel referred to a number of decisions of this Court that, according to him, showed that a judgment in review was heard by the same number of Judges who had delivered it. On a query from the Court, learned counsel accepted that the overwhelming majority of the decisions relied upon by him were unanimous verdicts. However, he submitted that two had involved dissents and he relied in particular on one of those cases: Zulfiqar Ali Bhutto Vs. The State (PLD 1979 SC 741) (“the Z A Bhutto case”). CRP.296/2020, etc. 8 7. It will be recalled that (as presently relevant) Mr.Zulfiqar Ali Bhutto and other accused had been tried and convicted by the Lahore High Court. Mr. Bhutto’s subsequent appeal to this Court against his conviction failed. It was heard by a seven member Bench and was dismissed 4:3. The subsequent review petition, decided by the above-cited reported judgment, was heard by the same seven member Bench. It was dismissed unanimously. Two reasoned judgments were delivered. One was by Justice Muhammad Akram, which was agreed with by the three learned Judges who, like him, had dismissed Mr. Bhutto’s appeal. The other was delivered by Justice Dorab Patel, which was agreed upon by the two learned Judges who, like him, had allowed the appeal. Both judgments are relevant to our present inquiry. However, learned counsel relied only on the following paragraph from the judgment of Justice Muhammad Akram: “27. At a subsequent stage a question arose as to the position of the three learned Judges of this Court who had recorded dissenting opinions in regard to the disposal of the petitioner's appeal. Again, relying upon the aforesaid rule 6, we took the view that as they were part of the Bench that delivered the judgment sought to be reviewed, their presence on the Bench was necessary, as they were continuing as Judges of the Supreme Court and were available for the disposal of the review petition.” (emphasis supplied) It was argued that the same situation applied in the present case. It was further submitted that the Z A Bhutto case, having been decided by a seven member Bench, was binding upon us (a six member Bench). On the foregoing basis it was prayed that a suitable declaration or order may be made that the review petitions CRP.296/2020, etc. 9 in the present case be heard by a Bench inclusive of the three learned Judges in minority. 8. At this stage, the attention of learned counsel was drawn to Order X, Rule 2 of the SCR which provides as follows: “2. Subject to the provisions contained in Order XXVI, a judgment pronounced by the Court or by majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.” (emphasis supplied) The context for referring to this provision was, of course, the crucial questions raised in these applications, namely: according to the meaning and for the purposes of Rule 8, what is the judgment that is sought to be reviewed? And which is the Bench that has delivered it? More specifically, a question was put to learned counsel with reference to Order X, Rule 2: since this provision clearly contemplates three different types of judgments, could for example, a minority judgment (such as a dissent) be reviewed? Initially, Mr. Munir A. Malik was inclined to answer this question in the negative. This was on the basis of Rule 1 of Order XXVI, which provides: ‘the Court may review its judgment or order.’ Learned counsel submitted, relying in particular on the word emphasised, that there could be only one judgment of the Court, that of the Bench in its entirety (if unanimous) or its majority, if such be the case. That alone was the judgment that could be reviewed, and none was possible of a minority judgment. Hence, he submitted that Order X, Rule 2 had no relevance for the purposes of review jurisdiction, i.e., Order XXVI. CRP.296/2020, etc. 10 9. It was pointed out to learned counsel that the learned petitioner had, as noted above, also sought a review of the minority judgment delivered by Justice Yahya Afridi. On the position taken by learned counsel such a review would obviously be impossible. In the event, as the hearing proceeded learned counsel reconsidered his position and ultimately accepted that a review of a minority judgment was also possible but submitted that this matter should be settled in a later, more appropriate, case. 10. Next, Mr. Hamid Khan and Mr. Rasheed A. Rizvi, learned counsel who appeared for the other review petitioners (in CMA Nos. 7169, 7170, 7171, 7172, 7086 and 7087, all of 2020), adopted the submissions made by Mr. Munir A. Malik. However, they did not express any view on whether a review of a minority judgment is possible. Mr. Latif Afridi, one of the senior most members of the Bar and currently the President of the Supreme Court Bar Association (which too is a review petitioner), also appeared before the Court and filed written submissions in support of the foregoing. 11. Mrs. Isa, the spouse of the learned petitioner, also filed a review petition and appeared in person. She relied on Order XXVI, Rule 8 to make the same prayer (in CMA 7085/2020). She further submitted that in the additional grounds filed by her in support of her review petition, she has sought review of each minority judgment and therefore, for this reason, the appropriate Bench for hearing the review petitions had to include the three dissenting Judges. 12. We have heard learned counsel for the review petitioners and have considered the record and case law cited, in CRP.296/2020, etc. 11 particular the decision in the Z A Bhutto case. The questions raised by the present applications are surprisingly complex. For reasons that will become clear as we proceed, they have to be approached somewhat obliquely. It is only in this manner that the correct constitutional and legal position will emerge. The Review Bench: Legal Analysis 13. The primary question posed by these applications is: what should be the numerical strength and composition of the review Bench? The answer to this question depends upon two considerations: the judgment sought to be reviewed and matters of practicability (both criteria are given in Order XXVI, Rule 8). These are the primary factors taken into account by the HCJ (in exercise of his power under Order XI), along with the relevant provisions of the Constitution, the SCR, the practice of the Court and the law laid down by it, to guide him in constituting a review Bench. 14. Now as has already been noted, the source of review jurisdiction of the Court can be found in Article 188 of the Constitution. This Article permits the Court to review ‘any’ judgment pronounced or order made by it subject to the provisions of an Act of Parliament or the SCR. Rule 8 of Order XXVI of the SCR is germane to the subject. It links the constitution of a review Bench with the judgment that is sought to be reviewed. Rule 8 does not, however, specify the types of judgments that are amenable to review; therefore it does not curtail the classification of ‘any’ type of judgment given in Article 188 of the Constitution. The term ‘judgment’ has not been defined anywhere in the SCR. However, Order X, Rule 2 in a context similar to Order XXVI Rule CRP.296/2020, etc. 12 8, enumerates three types of judgments: unanimous, majority and dissenting. This provision might be relevant for interpreting the term ‘judgment’ used in Rule 8 for the reason that Order X, Rule 2 itself records its connection with Order XXVI by beginning with the expression ‘Subject to the provisions of Order XXVI.’ A reading of the two Orders of the SCR reveals the cause of their express association: the commonality of their purpose, namely, rectification/correction of a judgment (albeit that whilst Order X deals with minor ministerial errors in a judgment, Order XXVI is concerned with errors in its substantive content). Therefore, the wide and ambiguous term ‘judgment’ used in Order XXVI, Rule 8 can be interpreted in light of the meaning assigned to it in Order X, Rule 2. Such a reading of Rule 8 finds support from the principle of harmonious interpretation, a succinct elaboration of which is found in Mirza Shaukat Baig Vs. Shahid Jamil (PLD 2005 SC 530): “13. No principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in [an] Act. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would-be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence, is the rule of harmonious construction." (emphasis supplied) 15. At this point, a limitation imposed by Order XXVI, Rule 1 of the SCR needs to be stated. The use of the expression ‘its judgment’ in the said Rule suggests that only a judgment of the CRP.296/2020, etc. 13 Court is amenable to review. That would mean a judgment (direction, order or decree) that is enforceable or binding under Article 187 or Article 189 of the Constitution throughout Pakistan. In this respect a minority judgment does not possess the status of being enforceable as a judgment of the Court. Consequently, minority judgments, prima facie, fall outside the purview of review under Order XXVI, Rule 1. However, the other two categories of judgments given in Order X, Rule 2, namely, unanimous and majority judgments issuing directions, orders or decrees possess the attribute of being enforceable throughout Pakistan. Therefore, on a joint reading of Order XXVI, Rule 1 and Rule 8, it is these judgments that are reviewable. This conclusion also finds support in our current legal jurisprudence, particularly in the test of review laid down by the Court which only permits a review petition to succeed if there is a material irregularity in the judgment which has a substantial effect on the result of the case. In this regard, one of the most seminal judgments is that of Chief Justice Cornelius in Lt Col Nawabzada Muhammad Amir Khan Vs. The Controller of Estate Duty (PLD 1962 SC 335). The relevant portion from the judgment is produced below: “… There must be a substantial or material effect to be produced upon the result of the case… if there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgments would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice.” (emphasis supplied) CRP.296/2020, etc. 14 16. This test was subsequently approved by the Court in Abdul Ghaffar-Abdul Rehman Vs. Asghar Ali (PLD 1998 SC 363) at para 17 and has been followed ever since. The relevance of this test is that it expressly states that a review can only succeed if it has a material effect on the result of the case i.e., it changes the outcome of the case. Short of that, even a substantial irregularity in a judgment will not convince this Court to recall its earlier decision. This test, therefore, makes it abundantly clear that a unanimous and majority judgment of the Court can be challenged in review because a correction in these judgments can actually alter the outcome/result of a case. On the other hand, a minority judgment, whatever its content, lacks both enforceability and effect on the outcome/result of a case. As a result, under the present dispensation of the law even though a minority judgment does fall within the ambit of Article 188 of the Constitution and within the classification set out in Order X, Rule 2 of the SCR, prima facie, it does not qualify the test of review. The foregoing suffices for present purposes, and therefore we leave this question open for further consideration in an appropriate case. Accordingly, insofar as the additional grounds of review filed against the minority judgments by the learned petitioner and Mrs. Isa are concerned, the same should not be heard by us i.e., the Bench that has delivered the majority judgment. Consequently, the Office is directed to separate these grounds of review (to the extent that they challenge the minority judgments) and place the same before the HCJ for appropriate orders. 17. We will now consider the main conundrum in this case: what is to be the numerical strength and composition of a review Bench? It is obvious that where the decision of the Court is CRP.296/2020, etc. 15 unanimous and only one judgment is delivered (which invariably happens in the overwhelming number of cases) there is no issue: the Bench that delivered the original judgment and the one for purposes of review in terms of Rule 8 coincide. The real question is the one raised by these applications: what happens when there is a majority decision? In our view, the answer must be that for purposes of Rule 8 one has to look at the judgment that was delivered, and the Judges who actually gave that decision. It is those Judges who (subject to what is said below) can be considered the authors of the judgment and therefore ‘the same Bench’ which ‘delivered the judgment’ under review. 18. At this stage, it would be appropriate to recall the arguments of Mr. Munir A. Malik. His primary submission, during the hearing, was that ‘same Bench’ as used in Rule 8 included all the Judges in the Bench, whether they were in the majority or the minority. This contention was based upon the proposition that a judgment delivered by the Bench is a judgment of all the Judges who comprised the said Bench regardless of whether a minority amongst them dissented. In support of his contention he relied on the Z A Bhutto case wherein this view was approved by the Court (ref: para 27 of that judgment produced above). But that legal position may not be in line with the literal interpretation of Order XXVI, Rule 8. However, we are not in a position to resolve this difference because the decision in the Z A Bhutto case was given by a seven member Bench whereas we are sitting as a six member Bench. As such, the judgment in that case is binding on us unless a larger Bench (comprised of more than 7 Judges) re-examines this matter and arrives at a different conclusion. CRP.296/2020, etc. 16 19. Be that as it may, the question remains: how does the above plain reading of the SCR reconcile with the law enunciated by this Court in the Z A Bhutto case, namely, that the numerical strength of the review Bench and the original Bench has to be identical regardless of whether the judgment under review was passed by majority. This shall become clear in the following section where we will examine the final two legal elements i.e., the practice of the Court and its pronouncements on the subject of constitution and composition of a review Bench. The Practice of the Court A. Practicability 20. A particularly important factor in the practice of the Court is the discretion vested by Order XI of the SCR (reproduced above) in the HCJ to constitute Benches. Order XI lays down one of the paramount duties of the HCJ which is to ensure a smooth functioning of the Court system. The formal requirement under Order XI is that (except where its provisos apply or the law or the SCR direct otherwise) the Benches before which matters are to be placed must comprise of not less than three Judges. Beyond that, the matter is left to the discretion of the HCJ, both as to the number of Judges who are to sit on a Bench and the composition thereof. Such a view has been affirmed consistently by this Court. Reference is made to the decision in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284): “122. … The question of constitution of larger Bench is the prerogative of the Hon'ble Chief Justice of the Court as was held in PLD 2002 SC 939 (Supreme Court Bar Association v. Federation of Pakistan wherein it was clearly laid down as a principle that it was the sole prerogative of the Hon'ble Chief Justice to CRP.296/2020, etc. 17 constitute a Bench of any number of Judges to hear a particular case. Neither an objection can be raised nor any party is entitled to ask for constitution of a Bench of its own choice. 123. While considering the provision of Order XI and Order XXXIII Rule 6 of the Supreme Court Rules, 1980, it was laid down in PLD 1997 SC 80 (In re: M.A. No.657 of 1996 in References Nos.1 and 2 of 1996) that no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice, for it is the duty and privilege of the Chief Justice of the Supreme Court to constitute Benches for the hearing and disposal of cases coming before the Court. In Malik Hamid Sarfaraz v. Federation of Pakistan and another (PLD 1979 SC 991) it was held that no litigant or the lawyer can be permitted to ask that a case be heard by a Bench of his choice. In Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161) it was held that "the qualification to hold the office of the Judge is indeed discretion and has nothing to do with his performance as a Court or a Member of the Court. 124. In PLD 2005 SC 186 (Ch. Muhammad Siddique and 2 others v. Government of Pakistan, through Secretary, Ministry of Law and Justice Division, Islamabad and others) it was held: - "...it was not the right of petitioner/appellant to select the Judge[s], of their own choice---To constitute a Bench was a prerogative of the Chief Justice and the parties could not ask for a Bench of ‘…their choice".” (emphasis supplied) 21. Indeed, even where the SCR direct a matter to be fixed before a Bench of a specific number, they invariably use the expression ‘not less than’. For instance, Order XI directs that any cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the HCJ. However, the first proviso to Order XI also permits appeals from judgments/orders of the Service Tribunal or Administrative Courts to be heard by a Bench of two Judges. Nevertheless, that CRP.296/2020, etc. 18 very proviso expressly allows for the same matter to be laid down before a larger Bench. Similarly, Order XXV requires that applications for enforcement of Fundamental Rights should be heard by a Bench ‘consisting of not less than two Judges.’ Likewise, Order XXXV, Rule 4 states that an appeal against the judgment of the Federal Shariat Court shall be fixed before a Bench of ‘not less than three members’ in the case of an acquittal and before a Bench of ‘not less than two members’ in all other matters. It is thus clear that any direction under the SCR with respect to the number of Judges in a Bench is a minimum figure. Therefore, in all the above cases the SCR leave it within the power and discretion of the HCJ to direct the numerical strength of a larger Bench before which a matter may be placed for hearing. 22. Clearly, in this sense the HCJ is the ‘master of the roster’ and he can form review Benches according to his discretion as structured under guidance provided from four sources, namely, Order XXVI, Rule 8 (the provision most relevant to the present controversy), Order XI, and the practice of and the law laid down by this Court. Rule 8 makes it abundantly clear that practicability is the dominating factor in the constitution of review Benches. A concise definition of the term ‘practicable’ has been provided in Words and Phrases (Volume 33, 1971 at page 251): “If undertaking, procedure, or thing is possible to practice or perform or is capable of attainment or accomplishment, it is “practicable.” An act is “practicable” if conditions and circumstances are such as to permit its performance or to render it feasible.” (emphasis supplied) CRP.296/2020, etc. 19 By subjecting the constitution and therefore composition of a review Bench to what is practicable, Rule 8 by its own terms lays down directory criteria. The HCJ therefore has power to take into consideration such conditions and circumstances that can affect the formation of a review Bench. Therefore, Order XXVI, Rule 8 requires a substantial, rather than strict, compliance with its terms. And whilst it is not possible for us to exhaustively list the conditions and/or circumstances that may influence the strength of the review Bench in each case, a few examples will suffice to suggest the salient factors that may prevail with the HCJ: i. The temporary and/or permanent unavailability of the Judges (e.g., because of retirement of the Judge) who originally heard the matter [ref: Government of Punjab Vs. Aamir Zahoor-ul-Haq (PLD 2016 SC 421) at para 17]; ii. To ensure the smooth and efficient functioning of the Court as a whole [ref: Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 391) at para 4]; iii. The nature of cases e.g., matters that, inter alia, involve complex questions of law or are of significant public importance are placed before a larger review Bench. For instance, in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 664) the strength of the review Bench was increased to five members from the original Bench comprised of three members; likewise in Fida Hussain Vs. The Secretary, CRP.296/2020, etc. 20 Kashmir Affairs and Northern Affairs Division, Islamabad (PLD 1995 SC 701)]; and iv. Deference to the norms of judicial propriety. B. Strength and Composition of Review Bench 23. The flexibility furnished by Rule 8 for the HCJ is a continuation of the discretion vested in him by Rule 6 of Order XXVI of the erstwhile Supreme Court Rules, 1956. This discretionary exercise of the HCJ’s power was later articulated in the Supreme Court Office Order No.P.Reg.99/90 (14)/SCA dated 03.03.1990. It identifies the essential features of Court practice about the numerical strength of a review Bench and about the need to include the author Judge, if available, in such a Bench. The relevant portion from the Office Order is produced below for reference: “…However, the practice of fixing before a Bench in which the author Judge is a member and if he is no more available, before the Bench in which at least one Hon’ble Judge of the previous Bench is sitting can be followed. When none of them is available a new Bench can hear the review. Same applies to the number of Judges on the Bench, if not the same.” 24. The said Order represents a convention in the practice of the Court and was approved in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 391): “4. Moreover, the well settled practice and convention of this Court is that an application for review is ordinarily placed before the Bench of which the author judge or in case of unavailability any other member of the earlier Bench is a Member, so as to ensure that working of that Bench is not interrupted. The Office Order No.P.Reg.99/90 CRP.296/2020, etc. 21 (14)/SCA dated 3-3-1990 of this Court is reflective of this convention. Since two out of the three Hon'ble Judges of the Bench which passed the judgment under review are part of this Bench and as both of them are authors of the same, the mandate of Order XXVI, Rule 8 of the Supreme Court Rules, 1980, stands substantially complied with.” (emphasis supplied) 25. The above view was recently reiterated in Shahzada Aslam Vs. Ch Muhammad Akram (PLD 2017 SC 142) when learned counsel for the review petitioner in that case claimed that only the exact ‘same Bench’ which heard and decided the original matter could hear the review: “8. The contention of the learned Counsel for the Petitioners that this Rule [8] has been interpreted in the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) (at page 253) and this Court has held that "a matter is to be heard as far as possible by the same Bench", is misconceived. Even this judgment, in no way, extends any help to the learned Counsel for the Petitioners, whereas the language of the said Rule and the interpretation given by this Court in the aforesaid case are very much clear and does not mandate that the same Bench should hear the Review Petition. In fact, it states that the same Bench that delivered the judgment needs to hear the matter, but subject to the availability and practicability of the Bench, which in other words suggests that the Review Petition needs to be assigned by the Chief Justice or the office at least before a Bench of which the author Judge is a Member. If the contention of the learned Counsel is accepted, it would lead to anomalous consequences, because hundreds of review petitions are filed and the practice of the nature will deprive the Hon'ble Chief Justice from exercising powers under Order XI, besides it would cause inconvenience to the lawyers and the office. Even the plain reading of Rule 8 of Order XXVI, itself does not suggest so.” (emphasis supplied) CRP.296/2020, etc. 22 It may be noticed from the above-quoted passages that the actual practice of the Court is not a pedantic reading of the terms of Order XXVI, Rule 8. Instead, it captures the spirit of the said provision. So even though the HCJ may constitute a Bench of his choice in a review matter, the exercise of his discretion ought to be guided by two criteria: firstly, the review Bench (at the minimum) should bear the numerical strength of the original Bench. By convention, this practice is followed even in cases where only the majority judgment is under review. Secondly, the composition of the review Bench should include the author Judge. If he is not available then another member of the previous Bench (i.e., a Judge who agreed with the author Judge) may substitute him. Consequently, contrary to the argument of Mr. Munir A. Malik, there is no practice of the Court of forming a review Bench comprised of exactly the same Judges who heard the original matter. As observed in the aforenoted precedent, such a practice would be unworkable leading to anomalous consequences in the hundreds of review petitions filed in the Court. 26. Having read the practice of the Court on the second criterion, the composition of a review Bench contemplated in the Z A Bhutto case needs to be understood in its special context. In that case the Judges who had heard the original matter were also a part of the review Bench. This has been taken by learned counsel for the petitioner to mean that all the members of the original Bench must be included in the review Bench. But before such a conclusion can be drawn it needs to be appreciated that in 1979, when this case was heard and decided, the total strength of Judges in the Supreme Court was nine. However, prior to the hearing of CRP.296/2020, etc. 23 the appeal in the Z A Bhutto case, one learned Judge, Justice Qaiser Khan had already retired. Another learned Judge, Justice Waheeduddin Ahmed, fell ill during the course of the hearing of the appeal. Therefore, only seven Judges decided the appeal. When the matter came up for review, the number of available Judges in the Court was still seven. As per the existing practice of the Court at the time, the numerical strength of the review Bench had to be maintained at seven. Hence, the original Judges had to be a part of the seven member review Bench. Evidence of this can be seen in para 27 of the review judgment where it was observed that the dissenting Judges were sitting in the review Bench because they ‘were continuing as Judges of the Supreme Court and were available for the disposal of the review petition.’ Consequently, this case is good authority for the proposition that a review Bench must bear the numerical strength of the original Bench but it is doubtful that it mandates a review Bench to mirror the composition of the original Bench. In fact, there is sufficient practice after 1979 which rebuts any claim whatsoever to this effect e.g., both the numerical strength and the composition of the review Bench in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 644) and Akhter Umar Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira (2018 SCMR 1218) were revised. Specifically, the size of the two review Benches was increased from three to five, whereas the composition was altered by replacing the Judges who had heard and decided the original matter with different Judges despite the fact that the former were still continuing as Judges of the Supreme Court and were therefore available for disposal of the review petitions. CRP.296/2020, etc. 24 27. Consequently, the following points may be summarised in the light of the foregoing analysis of the practice of the Court: i. The constitution of review Benches (or any Bench) is the sole prerogative of the HCJ under Order XI; ii. The direction in Order XXVI, Rule 8 that review petitions should be posted before the ‘same Bench’ is subject to the requirements of practicability; iii. In constituting a review Bench the HCJ should ensure substantial compliance with Rule 8 of Order XXVI by including the author Judge (if available) in the review Bench. However, where it is not practicable to do so there is no obligation to have exactly the same Judges on the Bench; iv. The numerical strength of a review Bench has to be the same as that of the original Bench, regardless of whether the judgment under review was passed unanimously or by majority; and v. In certain circumstances (as noted above), the HCJ may in his discretion constitute a larger Bench according to the importance of a matter or other considerations of practicability. Exercise of Review Jurisdiction 28. We must now refer again to the Z A Bhutto case to read another valuable judicial observation, namely, the brief judgment of Justice Dorab Patel. His Lordship is regarded as one of the titans of the law and anything that fell from his pen is worthy of, and warrants, close attention. As noted, he had been in the minority in dismissing Mr. Bhutto’s appeal against conviction. CRP.296/2020, etc. 25 In the concluding paragraph of his judgment (in review) Justice Dorab Patel reflected on how a Judge who dissented ought to act if called upon to sit in review of the majority judgment. His words distil the wisdom of the ages: “However, Mr. Yahya Bakhtiar's arguments on the question of sentence were without prejudice to his main submission, which was that the majority judgment suffered from errors apparent on the record which had resulted in the dismissal of Mr. Bhutto's appeal. Now learned counsel had address us for nearly two weeks on this question, but as he has failed to persuade the Judges, who pronounced the majority judgment of the Court, to revise the finding of guilt of the petitioner, it follows that the review petition must be dismissed. In these circumstances, consistently with judicial dignity and the practice of this Court, I do not think it would be proper for me to make any observations on learned counsel's submissions; and I would dismiss the petition for the reasons given herein.” (emphasis supplied) As is clear from the foregoing, Justice Dorab Patel believed that the question whether a case had been made out for the review of a judgment was, in the final analysis, essentially something for the Judges who actually delivered the judgment under review to decide. If those Judges were not so persuaded, then any other Judges sitting on the Bench hearing the review ought to show maximum restraint and maintain judicial dignity and quietude, particularly when they had already expressed an opposite view in the original matter. It is quite obvious that the learned Judge was acutely aware of, and alive and sensitive to, the very real possibility of the Judges, howsoever unwittingly and despite their best efforts, slipping from the exercise of review jurisdiction into regarding consideration of the review petition as but the “second round” in an ongoing litigation. The words and wisdom of Justice Dorab Patel CRP.296/2020, etc. 26 are evergreen and, in our respectful view, merit reflection by all Judges in every generation. 29. Indeed, the views expressed by Justice Dorab Patel were very recently followed by Justice Asif Saeed Khan Khosa in the review filed against the decision in the PANAMA case. That judgment is reported as Imran Ahmad Khan Niazi Vs. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265). In this case the three Judges in majority formed a JIT to probe into the allegations against the then sitting Prime Minister whereas the two minority Judges, including Justice Khosa, ordered the immediate disqualification of the Prime Minister from the National Assembly. Subsequently, the report of the JIT was released pursuant to which the three majority Judges and the two minority Judges by order of the Court jointly declared the Prime Minister debarred from holding public office. Thereafter, a review was filed by the respondent against this decision. The judgment in that case is reported as Mian Muhammad Nawaz Sharif Vs. Imran Ahmed Khan Niazi (PLD 2018 SC 1). During the hearing of the review, learned counsel for the petitioner (previously the respondent) raised an objection against the inclusion of the two minority Judges in the Bench. According to him, the said Judges had become functus officio after rendering their opinions. In the circumstances of the case, Justice Ejaz Afzal Khan, speaking for the whole Bench, repelled this contention of counsel for being academic in nature. 30. Accordingly, the review petitions were heard and dismissed unanimously by the five Judges. Justice Khosa, one of the minority Judges, also added a brief note of his own. This is produced below for reference: “No ground has been taken in these review petitions nor any argument has been advanced at the bar questioning anything CRP.296/2020, etc. 27 observed or concluded by me in my separate opinion recorded in the main case. The other Hon'ble members of the Bench have not felt persuaded to review their opinions already recorded. These review petitions are, therefore, dismissed.” (emphasis supplied) It is evident from His Lordship’s observation that he did not deem it appropriate to comment on the judgment passed by the majority because the majority Judges themselves were not persuaded to review their opinion. Therefore, in these circumstances he dismissed the review petitions simpliciter. At this stage, it must be reiterated that the power of review is limited in scope (ref: Lt Col Nawabzada Muhammad Amir Khan and Abdul Ghaffar-Abdul Rehman). Consequently, it must be exercised by all the Judges sitting in the review Bench in such a manner that it does not overstep into the realm of revisiting or re-hearing the original judgment. Conclusion 31. Accordingly, in light of what has been discussed above, these miscellaneous applications are disposed of as follows: i. Review jurisdiction (at present) can be invoked only in relation to the judgments of this Court, namely, unanimous and majority judgments. ii. As a matter of the current law and practice of the Court: a. for the purposes of Order XXVI, Rule 8, the minimum numerical strength of the Bench that delivered the judgment or order under review is the numerical strength of the Bench which heard and decided the original matter, CRP.296/2020, etc. 28 regardless of whether the judgment under review was passed unanimously or by majority; and b. the review Bench should comprise the author Judge, if still on the Court, as its member, and in case he is unavailable then any other Judge who agreed with the author Judge should be included in the Bench. iii. As a matter of law and settled practice it is for the HCJ, as the master of the roster, to determine the composition of a Bench and he may, for like reason, constitute a larger Bench for hearing the review petition. 32. Therefore, the Office is directed to place the review petitions before the HCJ for such orders as are deemed appropriate. I have read the order. I agree with the conclusion drawn in Para 31(ii)(a) (numerical strength of review Bench). However, I would attach my separate note for remaining findings/observations given in the order. Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Announced in open Court on 22nd day of February, 2021. Sd/- J(2). APPROVED FOR REPORTING.

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IN SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE JAMAL KHAN MANDOKHAIL C.M.A.7139/2019 in Const.P.2/2011, C.R.P.494/2019 in Const.P.2/2011, C.M.A.7894/2019 in C.R.P.NIL/2019 in Const.P.2/2011, C.M.A.7897/2019 in C.R.P.NIL/2019 in Const.P.2/2011, C.M.A.8322/2019 in C.M.A.7897/2019, C.M.A.8251/2019 in C.R.P.NIL/2019 in Const.P.2/2011, C.M.A.11484/2021 IN C.M.A.7139/2019 IN Const.P.2/2011, C.M.A.13353/2021 IN C.M.A.7139/2019 IN Const.P.2/2011, C.M.A.865/2022 IN C.M.A.7139/2019 IN Const.P.2/2011, C.P.1233-L/2015, C.P.665-L/2020, C.P.38-P/2019, C.P.39-P/2019, C.P.41-P/2019, C.P.190/2019, C.P.208-Q/2022, C.M.A.1124-K/2021 in C.R.P.Nill-K/2021 in C.M.A.277-K/2021 in C.R.P.Nill-K/2021 in C.M.A.898-K/2021, C.M.A.1110-K/2021, C.M.A.541-K/2020, C.M.A.630-K/2020, C.M.A.898-K/2020, C.P.420-K/2022. MATTER REGARDING IMPLEMENTATION OF THE ORDER OF THIS COURT DATED 28.6.2019 In C.M.A.7139/2019 in Const.P.2/2011 Mainland Husnain Pakistan Limited v. Ishaq Khan Khakwani and others In C.R.P.494/2019 in Const.P.2/2011 Hassan Naseem v. Ishaq Khan Khakwani and others In C.M.A.7894/2019 in C.R.P.NIL/2019 in Const.P.2/2011 Lt. General(R) Saeed uz Zafar & others v. Ishaq Khan Khakwani and others In C.M.A.7897/2019 in C.R.P.NIL/2019 in Const.P.2/2011 Lt. General (R) Saeed uz Zafar & others v. Ishaq Khan Khakwani and others In C.M.A.8322/2019 in C.M.A.7897/2019 Waqar Yazdani Butt & others v. Ishaq Khan Khakwani and others In C.M.A.8251/2019 in C.R.P.NIL/2019 in Const.P.2/2011 Letter of A.F. Ferguson & Co v. In C.M.A.11484/2021 IN C.M.A.7139/2019 IN Const.P.2/2011 MATTER REGARDING IMPLEMENTATION OF THE ORDER OF THIS COURT DATED 28.6.2019 v. In C.M.A.13353/2021 IN C.M.A.7139/2019 IN Const.P.2/2011 MATTER REGARDING IMPLEMENTATION OF THE ORDER OF THIS COURT DATED 28.6.2019 v. In C.M.A.865/2022 IN C.M.A.7139/2019 IN Const.P.2/2011 Syed Muhammad Munfarid Rizvi v. Federation of Pakistan through Secretary/Chairman Ministry of Railways Government of Pakistan Islamabad, etc In C.P.1233-L/2015 C.M.A.7139/2019 in Const.P.2/2011, etc - 2 - Pakistan Railways through its Chairman, Pakistan Railways, Islamabad, etc. v. Ghulam Sarwar In C.P.665-L/2020 Syed Azhar Ali Shah v. Govt of Pakistan through Ministry of Railway, Pakistan & others In C.P.38-P/2019 Mohsin Zafar v. Govt of Pakistan through Ministry of Railway, Pakistan & others In C.P.39-P/2019 Mansoor Rehman v. Govt of Pakistan through Ministry of Railway, Pakistan & others In C.P.41-P/2019 Mansoor Rehman v. Government of Pakistan thr. M/o Railways, Pakistan & others C.P.190/2019 Ghulam Nabi v. Pakistan Railways Employees Cooperative Society(PRECHS) Quetta and others C.P.208-Q/2022 Federation of Pakistan through Secretary/Chairman Railways v. M/s. Karachi Town Builders (Regarding encroachment over Pakistan Railway Land & revival of KCR) (Tejori Heights/Tower) In C.M.A.1124-K/2021 in C.R.P.Nill-K/2021 in C.M.A.277-K/2021 in C.R.P.Nill-K/2021 in C.M.A.898-K'2021 Application on behalf of Divisional Superintendent thr. Deputy Director Railways against M/s Labaik CNG Station Hyderabad & others v. (Matter regarding encroachment over Railway's Land at Hyderabad) In C.M.A.1110-K/2021 Muhammad Ahmed Khan & others v. Federation of Pakistan & others (Matter regarding Pakistan railway employees co- operative Housing Society) In C.M.A.541-K/2020 Pakistan Railway Employees Co-operative Housing Society Limited. v. Federation of Pakistan & others. (The matter pertains to encroachment over Railway Land on account of Railway Co-operative Housing Society In C.M.A.630-K/2020 Pakistan Railways through Divisional Superintendent v. Federation of Pakistan & others (Regarding Encroachment over Pakistan Railway Land & Revival of KCR C.M.A.898-K/2020 Doctor Moinuddin v. Federation of Pakistan through Chairman Pakistan Railways & others C.P.420-K/2022 Applicant)s)/Petitioner(s) Respondent(s) C.M.A.7139/2019 in Const.P.2/2011, etc - 3 - IN ATTENDANCE: Mr. Rashdeen Nawaz Kasuri, Addl. AG Ch. Aamir Rehman. Addl. AG Barrister Zafrullah Khan, ASC Mr. Sattar Awan, Spl. Prosecutor Iffat Farooq, DG Audit Railways Mr. Kashif Farooq, AO Mr. Zafar Zaman, Sec. Railways Mr. Salman Sadiq Sh. CEO Mr. Arshad Salam Khattak, Sec. Railways Mr. Javed Mehmood Pasha, ASC Raja Qasit Nawaz Khan, ASC (Via video link from Karachi) Mr. M. Ramzan (MHPL) (V.L. Lah.) Mr. Pervaiz Qureshi (MHPL) Mr. Khurram Akbar Khan (AF Ferguson) Mr. Salman Kazmi, LA (Railways) Imran Shaukat, Royal Palm Golf & Country Club Mr. Munir A. Malik, ASC (Via video link from Karachi) Mr. Qasim Mirjat, AOR Ch. Muhammad Hussain, ASC Mr. Faisal Siddiqui, ASC Mr. Ghulam Nabi, In person(Via video link from Quetta) Zulfiqar Memon, Dy. Chief Planning Date of Hearing 26.01.2023 O R D E R UMAR ATA BANDIAL, CJ,-. C.M.A.1124-K/2021 in C.R.P.Nill-K/2021 in C.M.A.277-K/2021 in C.R.P.Nill-K/2021 in C.M.A.898-K/2021: The learned Additional Attorney General for Pakistan and Barrister Zafarullah Khan, ASC have assisted the Court on the business plan submitted pursuant to our last order dated 09.01.2023. The point of importance that has been emphasized C.M.A.7139/2019 in Const.P.2/2011, etc - 4 - before us is that the Railways Organisation in Pakistan owns and controls 169,128 acres of land, out of which 126,426 acres are being utilized for its operational purposes, 16,742 acres are earmarked for future expansion, 9,985 acres have been identified to be under un-authorized possession of the encroachers. Out of the remaining 10,750 acres has been leased out for a number of purposes which generate some revenue for the Railways Organization. It appears that there is an area of some 6,000 acres of land that is under the ownership and control of the Railways Organization but is not described in the business plan. The submission before us today is that such a huge tract of land requires management and protection from encroachment apart from utilization of its potential for generating revenue for the benefit of the Organization and hence the State. Ambitious targets have been disclosed for the commercialization of such land with which we are not concerned presently for that we have no expertise to judge or determine the viability of such proposals. However, it is clear to us that without change in the nature of the land, its use for different purposes without causing harm to the land or the public interest, utilization can be made and revenue be generated for the benefit of the Railways Organization and hence the exchequer. Insofar as the developmental proposals are concerned, the Railways Organization must have legal backing for undertaking such ventures in a form that is authorized by law. As far as the utilization of the land without change of its nature is concerned, we are informed that two orders were passed by this Court. One such order was passed on 04.01.2019 in Crl.O.P.120/2016 C.M.A.7139/2019 in Const.P.2/2011, etc - 5 - (Pakistan Railways through Secy/Chairperson Railways v. Capt. (R) Zahid Saeed & others), allowing the land in the occupation and control of Pakistan Railways to be leased for a period not more than five years and subject to any determination of title to such land in favour of the Federation or the Province. Subsequently, in view of the proceedings taken up at Karachi in respect of urban land in the occupation and control of the Railways Authority, there is an order passed by this Court dated 14.06.2021 in CMAs No.277-K and 278/2021 IN CRP No.Nill-K/2021 IN CMA No.898- K/2020 in Const.P.09/2010 reported as Naimatullah Khan Advocate and others v. Federation of Pakistan and others (2022 SCMR 105). That order directs “that no Railways’ land shall be sold by the Pakistan Railways or transferred, leased or allowed to be occupied by any person and shall be used only for Railways’ operation purposes”. It is the latter order by which the Railways Organization is aggrieved because it put an end to the use of open Railways land inter alia to protect the same from encroachers and unauthorized occupants. In addition, there is potential for such land to generate revenue for the Railways Organization which is beneficial for lessening the burden on the exchequer. Barrister Zafarullah Khan, learned ASC has submitted that insofar as the more developed schemes or proposals for utilization of Railways land is concerned, the Ministry should, in the first place, frame a policy for approval of the Cabinet and thereafter to frame laws whether rules or statutes with the approval of Parliament to support any schemes envisaging the development of land sites by the Railways Organization on its own or in collaboration with C.M.A.7139/2019 in Const.P.2/2011, etc - 6 - interested entrepreneurs. Having heard the learned Addl. Attorney General and the learned counsel for the Railways Organization, we consider that protection of Railways’ land against encroachers and its utilization without changing the nature of the land are beneficial acts which do not harm any existing or claimed interest therein. Such utilization would generate revenue for the Railways Organization and would also clear up the area where such un- utilized land may be put to use by third party interests without regard to the environment or generation of local employment. During discussion it emerges that another aspect of land utilization in the public interest is for public works initiated by the Railways Organization or by other Government bodies. Such utilization by a Government body for public use and benefit is a purpose that is supported by the law. Accordingly, in addition to the grant of leases up to five years as envisaged in our order dated 04.01.2019, for the purpose of utilization of land without changing the nature thereof, it would be beneficial also if such land that is required for public purpose is allowed to be used by the Railways Organization on such terms as it deems fit and proper. With respect to the remaining uses that is disclosed in the latter business plan, the Railways Organization should approach the Federal Government and, if necessary, the Parliament for authorizing the same pursuant to a lawful regulatory regime. 2. A number of connected matters have been fixed for hearing which our order does not touch presently. The learned Addl. Attorney General shall prepare a list of these cases and C.M.A.7139/2019 in Const.P.2/2011, etc - 7 - propose the manner in which the same should be heard by the Court. Civil Petition No.208-Q/2022: 3. Notice. Royal Palm Golf & Country Club, Lahore: 4. Learned counsel for Pakistan Railways, assisted by experts from M/s A.F. Ferguson & Co., informed us that the technical evaluation report has been prepared and submitted to the Railways Authorities. This is subject to comment by the latter. In any event, the evaluation, once approved, will result in prequalification of bidders followed by a grievance procedure and thereafter the opening of the financial bids of prequalified bidders. It is stated that the entire process would conclude by the end of February, 2023. Insofar as the auditing exercise of the accounts is concerned, the same is in progress and we are informed that the entire audit period during which the Club was in the control of the MHPL shall be completed by the end of March, 2023. 5. Learned Addl. Attorney General informs that Rupees 95 million were to be recovered by the Railways Organization from Mr. Asif Shah and Mr. Muhammad Shahrukh Khan. Out of that amount Rs.10.318 million has been deposited while the balance amount is due. 6. Time had been granted to the said persons to file a reply which has not been done. Let the same be done which would C.M.A.7139/2019 in Const.P.2/2011, etc - 8 - also reflect their plea taken in respect of claim of Rs.95 million by the Railways organization. Relist, in the middle of March, 2023. Chief Justice Judge Islamabad 26.1.2023 Sarfraz */ Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE SH. AZMAT SAEED C.M.A. NO. 7546/2013 IN CONSTITUTION PETITION NO. 65/2009 AND C.M.A. NO. 11/2014 IN C.M.A. NO. 6882/2013 IN CONSTITUTION PETITION NO. 77/2010 AND CRIMINAL ORIGINAL PETITION NO. 119 OF 2013 IN C.M.A. NO. 5959/2013 IN CONSTITUTION PETITION NO. 65/2009 1. Raja Rabnawaz (In CMA 7546/2013) 2. Regarding holding of Elections in Islamabad & cantonment Boards (In CMA 11/2014) 3. Contempt proceedings against Mr. Asif Yaseen Malik, Secretary M/o Defence (In Cr.O.P. 119/2013) … Applicants/Petitioners VERSUS Federation of Pakistan etc (In CMA 7546/2013) … Respondents In Attendance: Mr. Shah Khawar, Addl Attorney General Mr. Muhammad Akram Sheikh, Sr. ASc Mr. Ishtiaq Ahmed, Secretary ECP Mr. Sher Afghan, D.G ECP Mr. Salman Aslam Butt, Attorney General Syed Iftikhar Hussain Gillani, Sr. ASC Mr. Asif Yaseen Malik, Secretary M/o Defence Date of Hearing: 06.02.2014 ORDER We have called learned Attorney General for Pakistan to be of assistance. The Local Government Elections in the Cantonment Areas have not been held since 1998 and now the reason being given by the Federal Government for delay is that the Government is contemplating to amend the Cantonment Act, 1924 and the Cantonment Local Government Election Ordinance, 2002. 2. Holding of Local Government Elections is mandated by the Constitution of Islamic Republic of Pakistan in terms of Article 140A and as required by the Principles of Policy enshrined in the C.M.A. NO. 7546/2013 IN CONSTITUTION PETITION NO. 65/2009 etc 2 Constitution (Article 32). In the afore-referred circumstances, we would like learned Attorney General for Pakistan to be of assistance particularly on the following points:- i) what is the consequence of any further delay in holding of Local Government Elections in the Cantonment Areas in terms of the afore-referred provision? and ii) whether the Local Government Elections in Cantonment Areas can be held under the existing law? 3. The question of contempt against Mr. Asif Yaseen Malik shall also be taken up on the next date. Adjourned to 20.2.2014 as requested. CHIEF JUSTICE JUDGE Islamabad, the 6th of February, 2014 Not Approved For Reporting Khurram IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE SH. AZMAT SAEED C.M.A. NO. 18 OF 2014 IN C.M.A. NO. 11 OF 2014 IN C.M.A. NO. 6882 OF 2013 IN CONSTITUTION PETITION NO. 77 OF 2010 & C.M.A. NOs. 517 & 559 OF 2014 (For giving fresh directions to Election Commission of Pakistan as to holding of Local Government Elections in the Provinces of Sindh and Punjab) President Balochistan Bar Association … Petitioner VERSUS Federation of Pakistan and others … Respondents For the ECP: Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Mehmood A. Sheikh, AOR Mr. Ishtiaq Ahmed Khan, Secretary ECP Mr. Sher Afghan, D.G. ECP On Court Call: Mr. Salman Aslam Butt, Attorney General On Court Notice: Mr. Waseem Ahmed Qureshi, Addl. A.G. For the Applicant: Mr. Zahid Yousaf, Addl. A.G. KPK (In CMAs 517 & 559 of 2014) Date of Hearing: 06.02.2014 ORDER Notice to learned Attorney General for Pakistan for 20.2.2014. CHIEF JUSTICE JUDGE Islamabad, the 6th of February, 2014 Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE EJAZ AFZAL KHAN C.M.A. 7679 OF 2013 IN C.R.P. NO. 191 OF 2012 IN CONSTITUTION PETITION NO. 87 OF 2011 (Application on behalf of Mr. Saifullah Nyazee, Additional Secretary PTI for recount of votes in 4 constituencies, after verification of thumb impressions) Workers Party Pakistan through Akhtar Hussain … Petitioner VERSUS Federation of Pakistan and others … Respondents For the Petitioner: Mr. Hamid Khan, Sr. ASC Mr. M.S. Khattak, AOR Mr. Imran Khan, Chairman, PTI For the Respondents: N.R. Date of Hearing: 16.12.2013 ORDER TASSADUQ HUSSAIN JILLANI, CJ.- Through this application, applicant who heads a political party makes a grievance that the directions given by this Court in the judgment reported at Workers Party Pakistan Vs. Federation of Pakistan (PLD 2012 SC 681) have not been complied with; that in the said judgment this Court had made certain declarations/observations and issued certain directions/instructions to ensure that the General Elections are free, fair and transparent; that there had been massive rigging in elections held on 11.5.2013 and the major victim of the said rigging has been applicant’s party while. While arguing the application, learned counsel in particular referred to various incidents / irregularities in four constituencies and submitted that a direction be issued for recounting of the votes CMA No. 7679/2013 in CRP No. 191/2012 in Constitution Petition No. 87/2011 2 cast as it would give a broad / general idea as to the extent of rigging, which according to him has eroded the sanctity of the Elections. 2. On Court query with regard to the maintainability of this application in view of the bar contained in Article 225 of the Constitution and in terms of Article 184(3) of the Constitution under which this application has been filed, learned counsel for the applicant referred to para 32 at page 719 of the afore- mentioned judgment wherein this Court inter alia adverted to the jurisdiction of this Court in terms of Article 184(3) and had observed that the Court would have jurisdiction if the issue raised (a) relates and affects the Fundamental Rights provisions of the Constitution which in the instant case are Articles 17 & 25, (b) if it is public interest litigation; and (c) the proceedings are not adversarial rather are more than in the nature of being inquisitorial. At this stage Mr. Imran Khan sought permission to speak. However, this Court apprised him of the practice of this Court and the fact that he is represented by an able Member of the Bar. He requested for a few minutes and was allowed to speak. According to him the issue raised is not party specific rather it relates to the functioning of democracy which under the Constitution is not possible unless the electoral process is free, fair and transparent and the allegations leveled, according to him, indicate that there was massive rigging. He, however, added that he is conscious and appreciates the concern of this Court qua its jurisdiction but only prays that the Election Petitions pending before various Tribunals qua constituencies subject matter of this CMA No. 7679/2013 in CRP No. 191/2012 in Constitution Petition No. 87/2011 3 application be directed to be decided expeditiously as notwithstanding the mandate of law that Election Petitions are to be decided within 120 days, those have not been decided. Mr. Hamid Khan referred to two cases in which despite direction of this Court the Tribunal did not decide the Election Petition and in yet another case the Tribunal did not comply with the order of the Election Commission wherein direction was issued to decide the application for comparison of thumb impressions within a certain period. 3. We would not like to comment at this stage on the merits of the issues raised. However, in the interest of justice, we direct the Secretary, Election Commission of Pakistan to submit parawise comments. A report shall also be called from Election Tribunals Lahore and Multan to report about the non-compliance of the orders to which reference has been made in constituency numbers NA-125 (Lahore) and NA-154 (Lodhran). The report shall be submitted within a fortnight and the case shall be listed thereafter. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 16th of December, 2013

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT Mr. Justice Faisal Arab Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Civil Miscellaneous Application Nos.7923 & 7617 of 2019 in Civil Miscellaneous Application No. 8758 of 2018, Civil Miscellaneous Application No.1878 of 2020 in Civil Miscellaneous Application No. 7617 of 2019 in Civil Miscellaneous Application No. 8758 of 2018 and Civil Miscellaneous Application No.2012 of 2020 in Civil Miscellaneous Application No. 8758 of 2018 in Civil Miscellaneous Application No. 376-K of 2014 in Suo Moto Case No. 03 of 2009 Application for release of funds to be paid by Bahria Town to the Government of Sindh pursuant to order dated 21.3.2019 CMA No. 7923/19 Application to deposit the entire money deposited by Bahria Town Pvt. Ltd in the public account of Federal Government CMA No. 7617/19 & CMA 1878/2020 Implementation of judgment dated 4.5.2018 in CMA 376-K/2014 CMA 2012/2020 In attendance : Mr. Khalid Javed Khan, Attorney General Mr. Salman Talibuddin, A.G. Sindh Syed Ali Zafar, ASC for BTPL Mr. Farooq H. Naek, Sr. ASC for MDA Date of hearing 29.6.2020 ORDER We have before us four applications, (i) CMA 7923/2019) moved by the learned Advocate General for Sindh, (ii) CMAs 7617/2019 & (iii) 2012/2020 filed by and on behalf of Attorney General for Pakistan, and CMA 1878/2020 filed by Malir Development Authority. We have been ably assisted by the learned Law Officers with regard to the said applications. 2. In terms of the order dated 21.03.2019 Bahria Town have started depositing installments, such that as of today i.e. 2 29.06.2019, an amount of Rs. 52,694,270,554/- has been deposited. By order dated 23.07.2019, it was directed that the installments being deposited be invested (through the National Bank of Pakistan) in T-Bills issued from time to time by the State Bank of Pakistan. We are informed that as of 29.06.2010 an amount of Rs.5,466,940,230/- has been earned by way of profit/markup. 3. The reason why the aforementioned CMAs came to be filed was that the question of how the installments being deposited by Bahria Town and the profit/ markup that has accrued thereon is to be utilized has now arisen. Valuable submissions have been made by the learned Law Officers in this regard. One point on which there is consensus of the Attorney General and Advocate General Sindh is that the disbursement and utilization of the funds be under the supervision of a high powered, “blue ribbon” commission headed by a retired Judge of the Supreme Court of Pakistan hailing from Sindh to be appointed by the Court. However, there is some disagreement as to who should be the other members of the commission. The learned Attorney General is of the view that inclusion of representatives of the Federation would be appropriate. The learned Advocate General Sindh strongly contests this, his view being that the matter is purely Provincial in nature and does not require any involvement by the Federation, which would be inappropriate in the circumstances. 4. We have carefully considered the CMAs and the rival submissions. We are in agreement with the Law Officers that the disbursement of the funds should be in the hands of a high powered commission to be headed by a Chairman and having five voting members permanently residing in Sindh with no political affiliation and six non-voting members taking such position by virtue of their office. The Chairman to be nominated by the Hon’ble Chief Justice of Pakistan on the recommendations of the Implementation Bench. All decisions of the Commission relating to selection of projects, the cost of such projects and all financial matters directly, indirectly or by implication relating to projects to be undertaken shall be subject to approval of the Implementation 3 Bench of this Court. Since, as envisaged, this commission would have to be in operation for a number of years to come, it would have to be established and function accordingly and guidelines for its scope, mandate and funds need to be given. In view of this, we have made detailed provisions regarding the commission and its functioning, as set out in the Annex to this order, which is to be read as an integral part hereof. All the CMAs are disposed of in the above terms. JUDGE JUDGE JUDGE Islamabad, Announced on 20th of October, 2020 Not Approved For Reporting 4 ANNEX 1. The Commission shall consist of the following members: To be appointed by the Court, being either (i) A retired Judge of the Supreme Court of Pakistan hailing from and permanently residing in the province of Sindh or if not available for any reason then (ii) a named individual, an eminent citizen residing in Sindh; or (iii) the holder for the time being of a public office of or relating to Sindh; or (iv) some combination of (ii) and (iii). Chairman One person to be nominated by the Governor of Sindh subject to confirmation by the Implementation Bench, being eminent citizen resident in Sindh, who does not hold any public office and does not have any known political affiliations. Member One person to be nominated by the Chief Minister of Sindh subject to confirmation by the Implementation Bench, being eminent citizen resident in Sindh, who does not hold any public office and does not have any known political affiliations. Member Attorney General for Pakistan Member Advocate General for Sindh Member One woman out of three to be recommended by the Commission in its first meeting who is an eminent and accomplished citizen of Sindh and who does not hold a public office and does not have political affiliation. One of three such recommendees shall be nominated by the Implementation Bench as a member of the Commission. Member NON-VOTING MEMBERS WHO WOULD ATTEND BY INVITATION OF THE CHAIRMAN Chief Secretary, Government of Sindh Member 5 Finance Secretary, Government of Sindh Member and Secretary to the Commission Senior Member, Board of Revenue, Sindh Member Senior most officer assigned to Sindh in the office of the Auditor General of Pakistan Member Senior most officer assigned to Sindh in the office of the Accountant General of Pakistan Member Nominee of the Governor, State Bank of Pakistan, being not below the rank of Deputy Governor Member 2. The Chairman and the first five nominated members shall be voting members of the Commission and are herein after so referred. The other members made by virtue of their office are referred to as the non-voting members. 3. The Chairman and the voting members shall have a term of four years from the date of its first meeting but the Court shall retain always the power at any time to direct and order the replacement of any of them prior to expiry of the tenure. The Chairman or voting member may resign at any time subject to the permission of the Implementation Bench. If the Governor or the Chief Minister fail or refuse to nominate a member (whether in the ordinary course or by way of replacement) within such time as may be granted by the Implementation Bench, then the Implementation Bench may make an appointment instead subject to the other conditions as stated above. No action or decision of the Commission shall stand vitiated by reason of any vacancy in relation to a voting member. The Chairman and voting members shall be entitled to be re-appointed for such period(s) as the Implementation Bench may determine. 4. A valid quorum for any meeting of the Commission shall be and require the attendance of the Chairman and at least other three voting members, of whom one must be 6 the member nominated by the Governor and one the member nominated by the Chief Minister. However, in case two members fail to attend any meeting, the same shall be adjourned for a period not less than seven days. 5. All decisions of the Commission shall be by majority of voting members. In case of equality of voting members the Chairman shall have a second/casting vote. 6. Non-voting members of the Commission must attend such meetings to which the Chairman invites them: provided that the Chairman may, in his discretion, allow at any specific meeting for a non-voting member to be represented by his nominee, who shall be an officer next in seniority to the non-voting member. 7. The Chairman or the Commission may at any time require at any specific meeting the attendance of any officer in the service of the Federation or the Province or the officer of any institution or public body or of the National Bank of Pakistan, and such officer shall be in attendance accordingly. 8. The Commission shall have an office at such location and such physical and other resources and facilities as the Chairman decides on the recommendation of the Commission. It shall, likewise, have officers and subordinate staff assigned to it by the Provincial Government as would be sufficient for the normal and effective functioning of the Commission. The requirements of the Commission shall be communicated by the Chairman to the Chief Secretary, Sindh who shall meet the same in the shortest possible time. All decisions and actions of the Commission must have the concurrence of the Chairman of the Commission. In case of any difference or dispute, the matter shall be resolved by the Implementation Bench. The administrative head of 7 the secretariat and the officers and staff assigned thereto shall be the Secretary to the Commission, to be appointed by the Chairman who shall be answerable and subject to the control of the Chairman. 9. All expenses, other than the cost of the projects, relating to or to be incurred by the Commission or relating to its work shall be met by the Government of Sindh provided that if there are any differences at any time regarding who is responsible to meet / fulfill such requirements the same shall be resolved by the Implementation Bench. 10. By or before 01.12.2020 the Governor and the Chief Minister shall, through the Registrar of the Court, make their nominations for the voting members, through the Advocate General, Sindh. If any nomination is not accepted by the Implementation Bench, then a fresh nomination shall be sought within such time as may be determined by the Implementation Bench. The Chairman and nominated members shall be appointed/confirmed (as the case may be) by an appropriate order of the Implementation Bench. 11. The Commission shall have its first meeting on or before 25.01.2021. The Chief Secretary, Sindh and the Secretary of the Commission shall at all times coordinate with the Chairman so that the establishment of the office and all matters as are or may be required for enabling the Commission to commence its work by 25.01.2021 are concluded in a timely manner. 12. The first meeting of the Commission shall be held at its duly notified office not later than 25.01.2021. The Commission shall establish such standard operating procedures (SOPs) rules/regulations for its internal working that shall be subject to the approval by the Implementation Bench, enable it to have access to the 8 funds and for the disbursement thereof in such terms as are herein after stated. The Commission shall propose and suggest projects for public utility including but not limited to health, education, infrastructure etc for the people of the province of Sindh. The Implementation Bench shall consider and approve the project(s) from time to time and shall allocate such funds from time to time as per requirements of the project as communicated by the Chairman. 13. Once approved by the Implementation Bench, the Commission shall then proceed to start the process for award of contracts and other related matters for implementation of the projects. The Commission shall have the power to approve and disburse periodical payments in accordance with the terms of the contract(s). 14. For each project awarded, the Commission shall establish an appropriate oversight committee which shall be headed by a voting member and shall include such persons as the Commission deems appropriate, being any member of the Commission and/or any officer in the service of the Federation or the Province or the officer of any institution or public body. Each oversight committee shall regularly report to the Commission regarding the projects being overseen by it, in terms of such SOPs as are established for this purpose. More than one project may be entrusted to an oversight committee. Each such committee shall (subject to the overall control of the Commission) be responsible for ensuring the due completion of the projects being overseen by it. 15. All projects undertaken, and being undertaken, by the Commission shall be subject to regular audit in terms of SOPs to be established by the Commission for such purpose. All audit reports shall be placed before the Implementation Bench. A yearly audit shall also be 9 conducted by the Auditor General of Pakistan who shall file his report before the Implementation Bench. 16. Once a project has been completed, it shall be handed over to the Provincial Government for its continuance and operation. For this purpose, the Provincial Government shall, before the handing over of the project, prepare and place before the Commission an appropriate annualized budget for operation and maintenance and all related and ancillary purposes (which shall also include the allocation and appointment of appropriate staff). If the Commission does not accept the budget (or any part thereof) then the matter shall be resolved by the Implementation Bench. For a period of not less than three years (or such longer period as the Commission may deem appropriate) any project handed over to the Provincial Government shall be liable to audit/inspection by the Commission in terms of SOPs to be established by it in this regard. The Provincial Government shall forthwith take all corrective measures as are suggested by the Commission. If corrective measures are not taken, or are taken inappropriately or inadequately, then the Commission shall report the matter to the Implementation Bench for such orders as are deemed appropriate. Each report relating to any audit/inspection carried out by the Commission shall in any case also be placed before the Implementation Bench for such consideration as is deemed appropriate. 17. Without prejudice to the inherent powers and jurisdiction of the Implementation Bench to at any time make such orders as it deems appropriate, the Commission may also at any time, for the removal of any difficulties in relation to anything covered (or that ought to be covered) by this Annex make an appropriate reference to the Implementation Bench, which shall, after notice to all concerned parties, make such orders as it deems fit, 10 whether by way of modification, omission, addition, supplementation or otherwise. JUDGE JUDGE JUDGE Islamabad, Announced on 20th of October, 2020 Not Approved For Reporting

{'id': 'C.M.A.7923_2019.pdf', 'url': ''}

{'id': 'C.M.A.7923_2019.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Ejaz Afzal Khan Mr. Justice Sh. Azmat Saeed Mr. Justice Maqbool Baqar Mr. Justice Ijaz ul Ahsan Mr. Justice Mazhar Alam Khan Miankhel C.M.A.NOS.8215 AND 6171 OF 2016 AND CIVIL APPEAL NO.2144 OF 2016, C.M.A. NO. 6225 OF 2016 AND CIVIL APPEAL NO.2145 OF 2016, C.M.A. NO.6226 OF 2016 AND CIVIL APPEAL NO.2146 OF 2016, C.M.A. NO.6291 OF 2016 AND CIVIL APPEAL NO.2147 OF 2016 AND CIVIL PETITION NO.3101-L OF 2016 (Against judgment dated 19.08.2016 of Lahore High Court, Lahore, passed in Writ Petition No.39291 of 2015). National Engineering Services Pakistan [NESPAK] (Pvt) Limited Applicant/Appellant(s) (In CMA#8215 & 6171/16 AND Civil Appeal No.2144/16) Punjab Mass Transit Authority through its Managing Director, Lahore Applicant/Appellant(s) (In CMA#6225/16 AND Civil Appeal No.2145/16) Lahore Development Authority through its Director General & another Applicant/Appellant(s) (In CMA#6226/16 AND Civil Appeal No.2146/16) Province of Punjab through Chief Secretary, Lahore and others Applicant/Appellant(s) (In CMA#6291/16 AND Civil Appeal No.2147/16) Civil Society Network through its Chairman Petitioner(s) (In Civil Petition No.3101-L/16) VERSUS Kamil Khan Mumtaz & others Respondent(s) (In CMA#8215 & 6171/16 AND Civil Appeal No.2144/16; in CMA#6225/16 AND Civil Appeal No.2145/16; in CMA#6226/16 AND Civil Appeal No.2146/16; and in CMA#6291/16 AND Civil Appeal No.2147/16) Province of Punjab through its Chief Secretary, Lahore Respondent(s) (In Civil Petition No.3101-L/16) For the Appellant(s) : Mr. Shahid Hamid, Sr. ASC with Mr. Mahmood A. Sheikh, AOR assisted by Rabia Hassan, Advocate Lahore Orange Line Metro Train Project 2 Mr. Salman Hafeez, G.M. NESPAK (in CA.2144/2016) : Mr. Makhdoom Ali Khan, Sr. ASC with Mr. Tariq Aziz, AOR assisted by Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Sabtain Fazal Haleem, M.D. PMA (in CA.2145/2016) : Kh. Haris Ahmed, Sr. ASC with Mr. Mustafa Ramday, ASC Mr. Tariq Aziz, AOR assisted by Mr. Zaafir Khan, Advocate Mr. Ahmed Jamal, Advocate Israr Saeed, Chief Engineer, LDA Muhammad Rashid, Dir(Law), LDA Muhammad Hassan, Dy. Dir(E), LDA Hafiz Nisar Hussain, A. Dir(Law), LDA (in CA.2146/2016) : Mr. Shakeel-ur-Rehman, AG, Punjab. Ms. Asma Hamid, Addl.AG Punjab Barrister Qasim Ali Chohan, AAG.Pb. Rao M. Yousaf Khan, AOR (Absent) Mr. Khurram Chughtai, Strategic Counsel (in CA 2147/2016). For the Petitioner(s) : Mr. Azhar Siddique, ASC Mr. M. Ozair Chughtai, AOR (Absent) (in CP#3101-L/16) For the Respondent(s) : Ms. Asma Jehangir, Sr. ASC with Ch. Akhtar Ali, AOR Mr. Kamil Khan Mumtaz assisted by Mr. Noor Ejaz Chauhdry, Advocate Mr. Hamid Azim Leghari, Advocate Ms. Namra Gillani. Advocate Ms. Ayesha Alam Malik, Advocate Mr. Suleman Jahangir, Advocate (in CAs#2144 to 2147/16) Kh. Ahmad Hussain, ASC Mr. M. Ozair Chughtai, AOR (Absent) (No.2 in CAs#2144 to 2147/2016) Mr. Azhar Siddique, ASC Mr. M. Ozair Chughtai, AOR (Absent) Assisted by Mr. Abdullah Malik, Adv. Mr. Hammyun Faiz Rasool, Advocate Mian Shabbir Ismail, Advocate Mr. M. Irfan Mukhtar, Advocate Ms. Parveen Mughal, Advocate Ms. Hifsa Mafia, Advocate (No.3 in CA#2144 AND Nos.3-5 in CAs#2145, 2146&2147/16) Mr. Shakeel ur Rehman, AG Punjab Ms. Asma Hamid, Addl. AG Punjab Barrister Qasim Ali Chouhan, AAG, Pb (Government of the Punjab) Lahore Orange Line Metro Train Project 3 Syed Rafaqat Hussain Shah, AOR (No.17 in CAs#2144 & 2146/16; No.19 in CA#2145/16 & No.16 in CA#2147/16) Dates of Hearing : 3rd to 6th, 10th to 14th & 17th April, 2017 JUDGMENT IJAZ UL AHSAN, J-. Having gone through the proposed judgment authored by my learned brother (Maqbool Baqar, J), I do not find myself in agreement with the same. I, therefore, have recorded my own reasons and conclusions for accepting the appeals and dismissing the petition which are as follows. 2. Through this judgment, we propose to decide Civil Appeals No.2144 to 2147 of 2016 and Civil Petition No.3101-L of 2016 as common questions of law and fact have been raised against a judgment of the Lahore High Court, Lahore. 3. These Appeals with leave of the Court have arisen out of a judgment of the Lahore High Court, Lahore, dated 19.08.2016 rendered in Writ Petition No.39291 of 2015 (Impugned Judgment). Through the Impugned Judgment, the Constitution Petition filed by the Respondents challenging various aspects of a mass transit project commonly known as “Lahore Orange Line Metro Train Project (“OLMT Project”) initiated by Government of the Punjab was partly allowed. 4. Briefly stated the facts necessary for decision of these appeals and the petition are that Government of the Punjab initiated the OLMT Project in order to handle the chronic problem of acute traffic congestion and to meet the present and future transportation Lahore Orange Line Metro Train Project 4 requirements of the citizens of Lahore. The original feasibility study for a mass transit system for the city of Lahore was undertaken by a consulting Firm namely MVA Asia many years ago. The said study recommended a network made up of four lines in the following order of priority:- “i. Green Line: Ferozepur Road (Gajju Matta to Shahdara) 27km (completed). ii. Orange Line: Multan Road to GT Road (Ali Town to Dera Gujjran) 27.1 km (under construction). iii. Blue Line: Jinnah Hall to Green Town 20 km (In future). iv. Purple Line: Data Darbar to Airport 19 km (in future). 5. The orange line (OLMT) as originally recommended was to consist of a 27.1 kilometers track (20.2 kilometers elevated and 6.9 kilometers underground) including 26 stations (20 elevated and 6 underground) at an aggregate cost of US $ 2.00 billion exclusive of cost of land acquisition. The proposed project did not see the light of the day, presumably on account of its prohibitive cost. 6. The Government of Punjab wished to reduce the cost of the OLMT Project. It commissioned NESPAK, one of the best companies in the country in the area of infrastructure development, having vast local as well as international experience, to re-examine the feasibility study prepared by MVA Asia. An addendum to the said study was submitted by NESPAK in the year 2014. According to the proposal submitted by NESPAK, the length of the track as well as its alignment over and under the median of the road remained unchanged. However, in order to reduce the cost of the Project, the underground portion was reduced to 1.7 kilometers which resulted in reduction of the aggregate cost from US $ 2.00 billion to US $ 1.6 billion. It was recommended that out of the total 27.1 kilometers Lahore Orange Line Metro Train Project 5 length of the route 1.7 kilometers would be a cut and cover segment and the remaining 25.4 kilometers would be an elevated viaduct. The viaduct of the OLMT Project consists of ‘U’ shaped girders (two separate channel shaped track ways of pre-stressed/concrete) resting on piers which are 30 meters apart. The viaduct system is supported by piles and a pile cap substructure system. The 1.85 meters thick pile cap consists of 6 piles of 1.2 meters diameter and 18 meters length. Piers of the viaduct are of 1.2 meters diameter. The height of the piers is approximately 13.5 meters. A 10 meter long transom rests over the top of each pier to support the ‘U’ shaped girders. 7. In the 1.7 kilometers cut and cover portion (underground section), the construction methodology is to erect barricades on either side of the road, about 12 meters apart. Holes of a diameter of 0.76 meters are drilled in straight lines on either side of the road. Iron cages are lowered into the holes and these are filled with concrete. Thereafter, the area in-between is excavated to a depth of 3 meters and a reinforced concrete roof 0.8 meters thick is constructed, joining the tunnel formed by the roof and the piles on either side with a clear height of 5.60 meters. Thereafter, a concrete slab of 0.6 meters is laid on the floor of the tunnel. All wall gaps (0.31 to 0.45 meters wide) in between the concrete piles are covered with water proofing and vibration dampening materials. 8. The system is designed to run B1 type trains (according to Chinese standards). Each train consists of 5 bogies. The axel load of a B1 type bogie (loaded) is 140 kN and that of an empty one is 80 kN. The proposed OLMT Project has a total of 26 stations, 24 of Lahore Orange Line Metro Train Project 6 which are elevated while the remaining 2 are underground. The projected ridership is an average of 2,45,000 passengers per day. According to the appellants, more than 46% of the civil works corresponding with the total estimated cost of the Project had been completed till 30th of August, 2016 and another 30 to 40% of the civil works were likely to be completed in the next 6 to 8 months. 9. The main dispute raised before the High Court related to the impact of the proposed OLMT Project on various heritage sites and special premises as defined in the Antiquities Act, 1975 [the Act of 1975] and the Punjab Special Premises (Preservation) Ordinance, 1985 [the Ordinance of 1985], and the NOC’s/permission letters granted by the concerned departments to undertake the OLMT Project. 10. According to the Respondents, the following sites were covered under the Act of 1975 and the Ordinance of 1985, which were likely to be affected in view of their respective distances from various structures of the proposed Project and therefore required protection:- PROTECTED PREMISES (under the Act of 1975) i. Shalamar Garden (approximately 29 meters away from the train track) ii. Gulabi Bagh Gateway (21 meters away from the train track) iii. Buddu’s Tomb (18.1 meters away from the train track) iv. Chauburji (16 meters away from the train tack) v. Zaibunnisa’s Tomb (33 meters away from the train track) SPECIAL PREMISES (under the Ordinance of 1985) i. Lakshmi Building (9.3 meters away from the train track) ii. General Post Office (GPO) (3.6 meters away from the train track) iii. Aiwan-e-Auqaf (Shah Chiragh) Building (20.1 meters away from the train track) iv. Supreme Court, Lahore Registry Building (3.72 meters away from the train track) v. Saint Andrew’s Church (1.9 meters away from the train track) (Not declared as a “Special Premises” under the Ordinance of 1985). vi. Mauj Darya Shrine and the Mosque (4.8 meters away from the train track). Lahore Orange Line Metro Train Project 7 11. It appears that any development scheme within a distance of 200 feet of an immovable antiquity, a protected site or special premises requires sanction by the competent authority. The procedure for obtaining such sanction is provided in Section 11 of the Ordinance of 1985 and Section 22 of the Act of 1975. For ease of reference, the relevant provisions are reproduced below:- “Section 11: Execution of development schemes and new constructions in proximity to Special Premises.— No development plan or scheme or new construction on, or within a distance of two hundred feet of a Special Premises shall be undertaken or executed except with the approval of the Government or a Committee. AND Section 22: Execution of development schemes and new constructions in proximity to immovable antiquity.– Notwithstanding anything contained in any other law for the time being in force, no development plan or scheme or new construction on, or within a distance of two hundred feet of, a protected immovable antiquity shall be undertaken or executed except with the approval of the Director General. 12. The Ordinance of 1985 and the Act of 1975 provide an adequate and effective mechanism and statutory framework to safeguard and protect heritage sites. These also identify the authorities required to enforce these laws. A buffer zone of 200 feet has been created around the heritage sites. However considering that it may not be possible to enforce the 200 feet buffer zone in all cases and under all circumstances, the competent authorities have been empowered to permit development plans, schemes and construction (as the case may be). However, such permission can be granted by the competent authority after due application of mind to the facts, circumstances and nature of each project and after satisfying itself that all necessary steps will be taken to ensure that the heritage site in question will not be destroyed, damaged or adversely affected. Lahore Orange Line Metro Train Project 8 13. The record indicates that the requisite applications alongwith relevant data were filed with the concerned Departments, which issued a ‘No Objection Certificate’ on 16.11.2015 for construction of the OLMT Project along the alignment of five heritage buildings protected under the Act of 1975. Similarly, another ‘No Objection Certificate’ was issued on 30.11.2015 in respect of the aforesaid special premises protected under the Ordinance of 1985. 14. The Respondents inter alia challenged issuance of the aforesaid NOCs. By order dated 28.01.2016, a Bench of the Lahore High Court suspended the said NOCs and restrained the appellants from carrying on any construction activity within 200 feet of the said buildings. Faced with this situation, the matter was referred to and re-examined by an Advisory Committee constituted in terms of the Act of 1975 under the Chairmanship of the Director General, Archaeology. It was decided to request the Lahore Development Authority (“LDA”) to engage an independent structural engineer to evaluate the effect of OLMT Project on the aforesaid buildings during construction and operational phases. The Committee also decided to engage the services of Dr. Ayesha Pamela Rogers to conduct a Heritage Impact Assessment [HIA] of the OLMT Project. 15. Pursuant to the above decision, Dr. Engr. Javed Uppal was appointed as the independent structural engineer for evaluating the effect of the Project on the aforesaid buildings during the construction and operation phases of the Project. He submitted his assessment report on 24.02.2016. Likewise, Dr. Rogers submitted her report on 05.03.2016. The said reports as well as other material, information and data were examined by the Committee. In light of Lahore Orange Line Metro Train Project 9 the said examination of data, reports, recommendations and findings new NOCs/permissions were issued by the competent authorities, which were stated to be in continuation of the earlier permissions. These incorporated stringent conditions and requirements to be fulfilled during various phases of the Project. These were presented before the Bench of the High Court hearing the matters. However, these permissions were also rejected by the Bench holding that the said experts were neither independent nor impartial in view of the fact that they had allegedly undertaken some work at some stage for Government of the Punjab or had been associated, in a professional capacity with the said Government in the past. The Constitution Petition was ultimately accepted in the terms reproduced below:- “i) The original NOCs dated 16.11.2015, 30.11.2015 and all revised NOCs dated 06.05.2016 and all addendum NOCs dated 20.5.2016 under the Act of 1975 and Ordinance of 1985 are set aside being issued without lawful authority and of no legal effect. Consequently, the respondents shall not carry out any construction within distance of 200 feet of protected immovable antiquity and special premises mentioned in para 24 of this judgment. ii) The Director General Archaeology is directed to engage independent consultants consisting of panel of experts of international status preferably in consultation with UNESCO to carry out fresh independent study/report regarding protected immovable antiquities and special premises. iii) The request for permission under Section 22 of the Act of 1975 and under Section 11 of the Ordinance of 1985 will be considered afresh by the competent authorities in the light of study/report by independent experts of international status referred above. iv) To structure the discretion of competent authorities for future permissions under Section 22 of the Act of 1975 and Section 11 of the Ordinance of 1985, the Government is directed to frame rules under Section 37 Lahore Orange Line Metro Train Project 10 of the Act of 1975 and Section 16 of the Ordinance of 1985. v) This petition to the extent of Environmental Approvals dated 09.7.2015 and 09.5.2016 is dismissed being not maintainable. However, the recommendations of Advisory Committee on environment (constituted under section 5(6) of the Act of 1997) in its report dated 07.5.2016 will be implemented in letter and spirit by the authorities concerned”. 16. When the matter came up for hearing before this Court, after a preliminary hearing, it was clear to us that the bone of contention between the parties was the credibility and technical reliability of the original reports submitted by NESPAK. In passing, doubts were also raised about the reports filed by Dr. Uppal and Dr. Rogers, more so, on their impartiality rather than the merit and technical soundness of their respective reports. It was therefore clear and obvious to us that the concerns of the Respondents i.e. the accuracy and technical soundness of the report of NESPAK and credibility of the experts and their reports needed to be verified and counter checked by sending the reports and all relevant technical material and information to an independent expert to seek his opinion on the contents of the report. These had been questioned by the Respondents and discarded by the High Court. In our view the opinion of an independent expert could enable us to resolve this controversy. 17. On our query, the learned counsel for the Respondents quite readily and learned counsel for the Appellants after some hesitation agreed to such course of action. We therefore directed both parties to propose names of at least three independent experts out of whom we could appoint one to undertake this exercise. Both Lahore Orange Line Metro Train Project 11 parties submitted names of different experts. In order to ensure that fairness and impartiality was maintained, we decided to nominate two experts, one out of the three proposed by each side. Accordingly, we nominated Mr. Robin Cunningham, a Professor in the Department of Archaeology, University of Durham, United Kingdom, proposed by the Respondents and M/s TYPSA – Asian Consulting Engineers (Pvt) Ltd. JV (“TYPSA”) proposed by the appellants to undertake an exercise of re-verification and provide us their opinion on various technical aspects of the report of NESPAK. The Government of the Punjab was directed to bear all expenses for both experts and parties were directed to provide all documentation, material, data and information that the experts may possibly require for making their independent assessment/re-verification of the reports submitted by NESPAK. Vide our order dated 14.10.2016 the experts were given 30 days time to finalize their reports and submit the same before this Court. The reports were filed with some delay which occurred on account of logistical reasons but is of no relevance at this stage. The parties were called upon to submit their objections. The parties filed their objections whereafter arguments on the objections as well as the main appeals were heard by us. 18. Despite the fact that the controversy had been narrowed down to re-verification of credibility of the NESPAK reports dated July, 2015 and February, 2016, in the context of Act of 1975 and the Ordinance of 1985, detailed arguments on all aspects of the case were addressed by the parties. Learned counsel for the appellants namely Mr. Shahid Hamid, Sr.ASC (in Civil Appeal No.2144 of 2016); Mr. Makhdoom Ali Khan, Sr.ASC (in Civil Appeal No.2145 of 2016); Kh. Haris Ahmed, Sr.ASC (in Civil Appeal No.2146 of 2016); Lahore Orange Line Metro Train Project 12 and Mr. Shakeel-ur-Rehman, Advocate General Punjab (in Civil Appeal No.2147 of 2017) addressed detailed arguments in support of their respective appeals. They not only defended the reports submitted by NESPAK in July, 2015 and February, 2016 but also reinforced their arguments by the contents of the report submitted by M/s TYPSA - Asia which according to them fully supported, re- verified and confirmed the accuracy and credibility of the reports earlier submitted by the NESPAK. They also pointed out that the report of Professor Robin Cunningham was quite general in nature and dealt more with the legal interpretation of the provisions of the Act of 1975 and the Ordinance of 1985. It did not advert to the technical aspects of the reports of NESPAK, Dr. Uppal and Dr. Rogers and was therefore not of much help with reference to the credibility of the reports which were the subject matter of the controversy before this Court. 19. Learned counsel for the Respondents, including Mrs. Asma Jahangir and Kh. Ahmad Hussain, ASCs on the other hand made half-hearted attempts to challenge the credibility of the reports of M/s TYPSA – Asia as well as NESPAK but unfortunately, without submitting any technical data or information to counter, discredit or dislodge the conclusions and opinions recorded in the said reports. However, owing to the technical nature of the reports and in the absence of any counter report, data or information they could not come up with anything convincing that could persuade us to discard the said reports. As a last resort, they also relied upon the expertise of Mr. Kamil Khan Mumtaz, who was one of petitioners before the High Court. Mr. Mumtaz gave us a presentation on multimedia and also provided hard copies of his presentation for our assistance. We Lahore Orange Line Metro Train Project 13 have carefully examined the material provided by him. We were also shown real time footage made with the help of Drone mounted cameras on multi media and computer simulations of the OLMT Project on projection screens installed in the Court Room. In addition, enlarged recent photographs of the Project and the location and condition of the protected sites were also filed depicting various stages of work in progress at various locations with the object of giving us a clear understanding of the situation on the ground and contextualizing the arguments submitted by both sides. 20. We also granted permission to Mr. Mumtaz to address us. He explained to us that the effect of vibrations (expected to emanate during the construction phase of the Project and operation of the train) on monuments depended on the following factors:- i) Magnitude of vibration produced by a particular action; ii) Distance between vibration source and the vibration receiver; iii) The condition of the monument; and iv) The nature of mediums through which it travels to the receiver (soil and concrete etc). 21. His presentation while useful in an academic sense was helpful in understanding the general concepts but did not, in our opinion, directly address the issue before us. Further, it did not, in any material way, challenge or displace the opinions and conclusions of NESPAK, Dr. Uppal, Dr. Rogers or TYPSA. 22. We have considered the arguments of the learned counsel for the parties and carefully examined the various documents and reports placed on the record. It appears that a Project of this nature involves emanation and transmission of potentially harmful vibrations for old buildings and structures at two stages i.e. the construction phase and the operational phase. At the Lahore Orange Line Metro Train Project 14 construction stage, operation of heavy construction machinery, particularly, drills, pile drivers, excavators pavement breakers and other impact devices create seismic waves that radiate along the surface of the earth and downward into the earth. These vibrations in excess of certain levels have the potential to cause damage to a building as well as its foundation. The manner in which a particular building will respond to such vibration depends on many factors including the type of soil on which the building is founded, the age, type and state of foundation of the building, the mass and stiffness of main structural elements of the building, the condition of the building as a whole and the level and frequency of its maintenance. Assessment of susceptibility to vibration has to be taken into account while setting vibration limits. The operational phase covers all parameters that relate to the operation of trains. Factors such as speed, the condition of suspension system installed on the trains, the condition of the wheels, the quality, material and condition of the rails on which the train will operate and the measures taken to absorb/reduce transmission of vibration to surrounding areas are some of the factors to be kept in mind. 23. The reports submitted by NESPAK, Dr. Uppal and Dr. Rogers suggested that there was no real danger to the protected or special premises which were situated in the vicinity of the Project. However, to be on the safe side they suggested additional remedial and protective safeguards and measures. These were duly incorporated in the NOCs and permission letters issued by the Director General, Archaeology. However, these were rejected by the High Court. In order to determine the validity of the reports and to verify accuracy of the same with the consent of the parties, the same Lahore Orange Line Metro Train Project 15 were sent to independent experts for their objective opinion. The report submitted by TYPSA was found by us to be most relevant. It directly addressed the concerns of the Respondents. Relevant parts of the said report are summarized below:- a) The description of the viaduct is complete and comprehensive as a general description. b) A pile of 13.5 m seems to have been simulated and in the SAP model, which does not include the viaduct desk, the POT bearings and the upper part with the platform, track and other concrete elements such as lateral parapets, the pile is 8m in height approximately. Thus, the modeled pile is significantly smaller than the real ones in any case and since the density of the concrete has not been corrected/adjusted to compensate the geometry difference, the modeled pile is also significantly lighter than the real ones. This assumption gives higher vibration on results than to be anticipated and is considered to be a conservative approach adopted in the report by NESPAK. c) POT bearings are commonly used between viaducts piers and desks and introduce a resonance frequency. These POT bearings are designed to bring a relatively low resonance frequency. Thus, their influence would lead to lower vibration levels. The POT bearings have not been modeled, it can safely be said that more conservative and safe parameters have been used and the vibration values given in NESPAK reports are higher than the expected values during operation of the trains. d) The description of the tunnel is complete and comprehensive. e) The description of the rolling stock is comprehensive, although the speed data is missing in the report. It is very relevant parameter, which affects directly the dynamic loads on the track. It has further been indicated that the modeled speed is 70 km/h as in the Xia paper. It is considered correct, taking into account the maximum speed is 80 km/h and the average commercial speed is 34.6 km/h. It is a conservative assumption, since stations are close by and thus, speed is reduced and vibrations will be lower. FEA MODEL: Lahore Orange Line Metro Train Project 16 The description of the FEA model is comprehensive. a) The viaduct model consists of pier, pile cap, the piles and surrounding soil. The viaduct desk and the track affect the total mass whereas the track usually includes vibration damping elements, mainly the fastening system. NESPAK models include indirectly these elements through the use of the Xia force and thus, the model will be overestimating the real vibrations, which shows a conservative but safe model has been adopted. b) The backup material of the underground part indicates that vibration isolators/dampers will be provided which will lead to lower levels of vibration. Thus, vibration values higher than what would be expected are reported and the approach is safe. c) A 2D model has been used. It is assumed that the geometry is constant and infinite in the longitudinal direction. It is correct in the case of the viaduct, but in a 2D model of a viaduct, the properties of all the modeled materials generally need to be adjusted: the ground or the rails can be considered infinite in the longitudinal direction but not the piers of the viaduct and thus, their properties (mass and stiffness) need to be adjusted. This seems to have been done through the calibration with a 3D model, which is acceptable and safe. d) A module of elasticity of 2000 MPa is indicated for the ground and around 20.000 MPa for the pile concrete. This is a conservative approach that has given higher values of vibration in the report than those expected during operation. e) Vertical force at the top of pier is determined from the dynamic train model of Xia. The result is a load history whose maximum value is 660 kN approximately, which is a high value for a Metro vehicle. However, this force is discretized every 0.25 s and thus, it corresponds to a sample frequency of 4 Hz, which only allows analyzing very low frequencies. f) These calculations are quasi static and valid for structural issues. The viaduct and the tunnel seem to be modeled without any node and the ground is with 4 nodes shell elements with a 1x1 m mesh size in the case of the tunnel and 2x2 m in the case of viaduct. This mesh size allows getting reliable results which would be acceptable. g) As additional safety measures NESPAK indicates that track details will be provided by the Chinese contractor Lahore Orange Line Metro Train Project 17 including dampers, a 600 mm thick flexible sand cushion material under the bottom slab supporting track, and isolating cork material behind the wall in addition to the waterproofing layer. These mitigation measures have not been used in the FEA analysis and act as a further cushion/reserve capacity as safeguard against the actual vibration expected at the heritage and special premises buildings. h) We also fully agree with the suggestion that during the construction and at the commissioning time, noise and vibrations should be measured/monitored to make sure that the vibration and noise remain within the acceptable limits. VIBRATION EFFECTS ON HERITAGE BUILDINGS: The vibration levels have been calculated according to the methodology analyzed before and the results are assessed according to the DIN 4150-3; 1999 and DECC’s standards. German standards have been used by NESPAK for comparison which are one of the most stringent available standards. VIBRATION EFFECTS OF CONSTRUCTION ACTIVITIES: a) The vibration effects of the construction equipment are estimated based on the CALTRAN’s method. This seems to be adequate and it can be assumed that the maximum allowable values are the same as analyzed before for the operation phase according to the DIN 4150-3 standard. The reports state that the vibration levels at underground critical sites are within the allowable limits, which is correct. b) The vibration levels associated separately to each equipment have also been received. This can always be controlled at site by not allowing machines to work simultaneously near the heritage sites. CONCLUSIONS: The NESPAK reports seem to be very serious and complete from structural point of view. It is relevant with respect to safety and stability of buildings both during the construction stage and under train operation. The approach adopted by NESPAK is conservative. The NESPAK reports rightly conclude that the levels obtained by calculation will be within the permissible limits and there will be no adverse effect on any of these sites. It is concluded that the reports of NESPAK are compliant with international codes and standards and the subject studies are comprehensive and complete with reference to the subject and the results are correct and within acceptable limits. Lahore Orange Line Metro Train Project 18 24. We are not experts in the fields of architectural, structural or mechanical engineering, and do not claim any expertise in the field of vibration sciences. We therefore have to rely upon the reports and opinions of the experts submitted before us. These are prima facie credible owing to the fact that they have been confirmed and reconfirmed by independent experts and have by far remained un-rebutted. 25. During the course of arguments and on perusal of the reports, the aspect of visual impairment of heritage sites has also been highlighted. It has been pointed out that in addition to physical impairment of protected or special premises, the aspect of visual impairment of such premises also needs to be factored in. Visual impairment occurs when the proposed development/installation or structure blocks the view of the premises or distracts an onlooker from appreciating the intrinsic beauty of such premises/structure. It has been argued that in the case of some of the sites, which are subject matter of these proceedings, there is a possibility of visual impairment that may have a negative impact on the heritage sites which are sought to be protected. We would, therefore, keep the said factor in mind during the course of our discussion. 26. We would, however, confine ourselves to the examination of material as well as dealing with the arguments advanced by the learned counsels for the parties regarding three major aspects of the case namely, the construction phase, the operational phase and the aspect of visual impairment in the light of opinions of experts in their respective fields. Lahore Orange Line Metro Train Project 19 27. As far as the construction phase of the OLMT Project is concerned, the learned counsel for the appellants have pointed out that other than the 11 sites regarding which a restraining order had been issued by the High Court, a major part of the construction work on the Project has already been completed. This statement has not seriously been contested by the Respondents. This is also evident from the photographs placed on record and the real time footage seen by us. Further, there is no evidence of any damage caused to any building in the vicinity of the line on account of the construction work done so far. We have been informed that 8250 holes were to be excavated/drilled along the 25.4 kilometers elevated track. Out of these 8028 holes have already been drilled / excavated / capped/ filled. A large number of holes falling within 200 feet of the monuments/premises (subject matter of these appeals) had also been drilled before the High Court issued a restraining order. These include 74 out of 164 holes within 200 feet of Shalamar Garden; 39 out of 39 within 200 feet of Gulabi Bagh; 30 out of 30 within 200 feet of Buddu’s Tomb; 19 out of 48 within 200 feet of Lakshmi Mansion; 43 out of 48 within 200 feet of Chauburji; and 10 out of 45 holes within 200 feet of Zaibunnisa’s Tomb. 28. The learned Advocate General, Punjab, has categorically stated that no damage of any nature has been caused to any building on either side of 25.4 kilometers elevated track including the 5 protected and one special premises, as a result of the completed excavation/ drilling/ filling/capping work. This categoric statement has neither been contested nor denied by the Respondent at any stage. Lahore Orange Line Metro Train Project 20 29. With regard to the cut and cover portion of the track, we have been informed that 3693 holes are to be excavated/drilled along the 1.7 kilometers underground track. Each of these holes has a diameter of 0.76 meters i.e. substantially less than 1.20 meters diameter of the holes in the elevated portion. All the excavations are to be undertaken on the road surface i.e. inside the footpaths on either side of the road using highly sophisticated drilling equipment that creates minimal vibration. 1862 holes have already been drilled/ excavated/ filled/concretized and tunnels excavated on either end of the 1.7 kilometers cut and cover length. No damage has so far been caused or reported to any building or structure on either side of the roads on which these 1862 piles have been completed and tunnels excavated/capped. This statement of the learned Advocate General, Punjab too has remained unrebutted. 30. From the material placed before us, which is based on verified data (not seriously contested by the Respondents), it is clear and obvious that so far despite full fledged construction activity no damage has been caused to any building / premises along the entire route of the OLMT Project. The Respondents did produce some photographs showing cracks in the wall of GPO and displacement of some bricks at Chauburji. However, on closer examination and seeking further information from the concerned quarters, it transpired that such damage had occurred on account of age of the building, normal wear and tear because of natural causes, environmental factors, seismic activity and earthquakes, etc which had occurred in the past, much before commencement of the OLMT Project. These had no nexus or connection with the construction activity relating to the said Project. Lahore Orange Line Metro Train Project 21 31. It may be appreciated that most of the protected and special premises are located in the midst of heavily populated areas surrounded by dense, haphazard, unplanned and unregulated, commercial and residential construction. Roads have been constructed in close proximity to these sites on which heavy vehicular traffic including heavily loaded trucks, trailers, buses and other transport vehicles ply throughout the year round the clock. This activity has gone on for decades. Such traffic creates much higher levels of vibration compared to the level of vibrations expected to be created during the construction and operational phases of the OLMT Project. However, no significant damage to any of the heritage sites has been attributed to vibrations emanating from heavy vehicular traffic on these roads. 32. It is common knowledge that ancient buildings suffer damage and decay on account of passage of time, elements of nature, extremities of weather, environmental factors, seismic activity and earthquakes, etc. These cannot be preserved indefinitely unless serious and planned effort is made to constantly repair, maintain, renovate, restore and reconstruct the damaged portions. It is indeed unfortunate that very little serious effort has so far been made to implement and enforce measures to protect, preserve, repair and restore such sites. The matter came to fore and was highlighted once construction work on the OLMT Project commenced. 33. We are constrained to observe that serious efforts need to be made by the concerned departments and agencies to preserve, conserve, restore and protect heritage sites and where Lahore Orange Line Metro Train Project 22 necessary, renovate, not only the sites which are the subject matter of these proceedings but all other sites of historic significance on a continual basis. This can be done by employing experts in their respective fields and allocating the requisite funds generously to finance such projects on long term basis. In this regard, we would issue appropriate directions to the concerned authorities in the later part of this judgment. Suffice it to say at this stage that, on our query, the learned Advocate General, Punjab under instructions, gave an undertaking that a sum of Rupees One Hundred Million would immediately be allocated to the Archaeology Department for the upkeep/maintenance and renovation of the sites which are subject matter of the present litigation. 34. Perusal of the reports submitted by NESPAK and M/s TYPSA – Asia which uses German “DIN” and US “Caltran” standards as benchmarks of acceptable levels of vibrations for old buildings / monuments / structures, with reference to the levels of vibration expected to be generated during the construction as well as operational phases of the OLMT Project indicates that the projected vibration levels expected to emanate during the construction and operation phases would remain within internationally acceptable limits. These levels, according to expert opinions placed before us are highly unlikely to cause any damage or deterioration to the protected and special premises. However, in our view a cautious approach has to be adopted. It has been stated that different pieces of equipment produce different levels of vibration and if various machines are used simultaneously during the construction phase, the aggregate levels of vibration may exceed acceptable limits. We have specifically confronted the learned Lahore Orange Line Metro Train Project 23 counsel for the Respondents as well as the learned Advocate General, Punjab with this observation of the experts. They have, on instructions and in consultation with their engineering experts(some of whom were present in Court), categorically stated that it would be ensured that one piece of equipment is used at any given time while undertaking work in the vicinity of the protected and special premises in question. If more than one item of equipment is required to be used, the aggregate levels of vibration shall not be allowed to exceed the acceptable limits as provided in the afore-noted international standards. 35. It has also been undertaken that technical experts shall constantly be present at the sites when work is undertaken in the vicinity of protected and special premises and all necessary equipment for the purpose of monitoring the levels of vibration, shall be made available to them. It has further been undertaken that if the experts point out any possibility or likelihood of vibration levels exceeding acceptable limits, or any damage being caused to any protected or special premises, on account of the construction activity, work shall immediately be stopped till such time that all necessary remedial measures have been taken to the satisfaction of the experts to ensure that vibration levels remain within permissible limits, and no such damage is caused to any protected or special premises on this score. Further, work shall commence only after experts have given written clearance for resumption. In this view of the matter, we have no reason to disbelieve or doubt the intention of the appellants and their bona fides to undertake work on the Project without taking undue risk of causing damage or deterioration to a protected or special premises. Lahore Orange Line Metro Train Project 24 36. The learned counsel for the Respondents were repeatedly asked to place on record any material showing that the reports of NESPAK, Dr. Uppal or TYPSA were incorrect, erroneous or unworthy of reliance. However, other than making generalized submissions based on apprehensions they were unable to place any credible material on record to discredit the said reports. We notice that the High Court also discarded two of these reports without examining their veracity or merit on the basis of a misconceived and imaginary notion of bias and partiality on the part of NESPAK, Dr. Uppal and Dr. Rogers. We are at a loss to understand how the reports of credible professionals could so lightly be discarded and brushed aside, without an in-depth comparative analysis with independent technical reports to be submitted by the Respondents, which were never submitted. Simply on the allegation that NESPAK, Dr. Uppal and Dr. Rogers had undertaken projects for the Respondents in the past and were therefore partial and biased, the High Court not only discarded the reports casting unjustified doubts about the independence and integrity of the experts but also proceeded to throw out conditional permission letters issued by authorities competent under the law to do so after due deliberation and application of mind to all relevant material. Likewise, the High Court tossed out the revised conditional permission letters issued by the Director General, Archaeology committee set up for the said purpose who were competent to do so, in an offhand, ungracious and dismissive manner without assigning any valid justification and legally sustainable reasoning. It lost sight of the fact that the revised permission letters were issued after examination of all technical data and reports of experts and imposed stringent conditions and Lahore Orange Line Metro Train Project 25 incorporated adequate safeguards to address most of the genuine concerns of the Respondents. Unfortunately, these aspects were not even considered let alone discussed and deliberated upon. We are unable to understand why and how the High Court could discard the opinions of experts and persons mandated by law to take decisions based on such opinions, arrogate such powers to itself and proceed to substitute unchallenged and unrebutted technical opinions of experts with those of its own despite complete lack of training and expertise in the fields of structural engineering and vibration sciences. In our opinion, the High Court erred in law and quite obviously exceeded its jurisdiction in doing so, without assigning valid, cogent, sound and legally sustainable reasons. We are therefore, unfortunately, unable to agree with or uphold the findings of the learned High Court in this regard. 37. As far as the operational phase of the Project is concerned, even the learned counsel for the Respondents have candidly conceded that the vibration levels would be considerably lower than those expected during the operational phase. The experts have also opined that there is hardly any foreseeable danger of occurrence of any damage to the protected or special premises on account of operation of the trains in question, provided all necessary remedial and mitigating measures suggested by them are adopted and put in place. We have further been informed that although the maximum design speed of the train is 80 kilometers per hour, the train would actually operate at an average speed of 34.8 kilometers per hour which would also vary (on the lower side) on account of location of 28 stations (more or less one station every one kilometer) on the route of the OLMT Project covering a distance of 27.1 Lahore Orange Line Metro Train Project 26 kilometers. However, as a matter of abundant caution, we direct and the appellants have undertaken to operate the train on experimental basis for at least two weeks to test, monitor and ensure that vibrations occurring on account of operation of the trains are well within acceptable limits. It has also been undertaken that in case levels of vibrations emanating from running of the trains exceed acceptable limits, operations shall immediately be discontinued and all necessary remedial measures will be taken to ensure that vibrations are brought down to acceptable limits. Under no circumstances shall the train be operated where its operation may possibly cause damage to the protected or special premises. In this context, we also direct that sophisticated and state of the art vibration measuring and monitoring equipment be installed at suitable places in or around the protected and special premises to constantly monitor the levels of vibration created by operation of the train. Further, the Archaeology Department shall constitute special teams consisting of qualified experts which will periodically inspect all protected and special premises to detect any damage or deterioration occurring at the sites for any reason. They shall maintain proper records and logbooks for the said purpose. They shall bring all necessary facts relating to the condition of the antiquities and special premises to the notice of the Director General, Archaeology who will take all steps necessary to ensure safety and long term preservation of the buildings and structures in question. 38. We have also been informed that all requisite information and data relating to the operational phase was verified through state of the art systems using XIA. H. Zang methodology Lahore Orange Line Metro Train Project 27 and alignment analysis was conducted by Finite Element Analysis (FEA). The results which were based on actual verified data show that the vibration levels likely to occur at the operational stage would remain well below internationally acceptable limits. Despite supportive opinions of experts and as a matter of abundant caution, we also direct that the citizens and community may also be involved in the monitoring process; a hotline may be established, telephone number whereof shall be prominently displayed in public areas around all antiquities and special premises. Tourists, visitors and members of the community should be encouraged to report any damage or deterioration observed in the protected or special premises for any reason to the competent authorities. If any such information is received, the same shall be investigated by a team of experts appointed by the Director General, Archaeology within 15 days of such information being reported. The team shall suggest ways and means to repair/restore any damage or deterioration that may have occurred to any antiquity or protected premises for any reason. On recommendations being received, the Archaeology Department shall commence repair/renovation work without any delay and the requisite funds shall be made available by the concerned quarters within 30 days of a request being made. 39. As far as the question of visual impairment is concerned, we note that all protected and special premises are located in heavily populated areas of the city. Unplanned localities and townships have sprung up around and in close proximity to such buildings. Construction has been undertaken haphazardly and without any sort of planning or regulation which has seriously compromised the visual integrity of most of the protected and special Lahore Orange Line Metro Train Project 28 premises. The report submitted by Dr. Rogers suggests remedial measures. These appear to be effective and practical and must be implemented. In a later part of this judgment, we would pass appropriate directions in this regard. 40. We have also been informed that a buffer Zone was proposed around Shalamar Garden many years ago. It was recommended that encroachments in the Zone be removed and it be converted into a green area with proper landscaping to restore and enhance the grandeur, glory and beauty of the Garden. The said recommendations have been lying in cold storage and become victims of procrastination and red tapism. We direct that positive steps may be taken to implement the said recommendations as far as practicable within a reasonable timeframe. 41. The Respondents have primarily raised objections relating to the visual impairment of two sites namely Shalamar Garden and Chauburji. As far as Chauburji is concerned, we have found that some visual impairment many occur because of the alignment of the viaduct which passes at a short distance from the structure. We have carefully examined the possibility of directing alteration of the alignment of the viaduct or directing that the said portion be constructed underground. However, we have been informed by experts (which information has not been rebutted) that realignment is not possible for a host of technical reasons in addition to the fact that the area is densely populated with private properties. Any realignment would entail considerable human cost in the form of large scale cause displacement of families, in addition to prohibitive increase in the cost of the Project. The idea of an underground Lahore Orange Line Metro Train Project 29 tunnel though attractive at first glance is fraught with technical difficulties including the fact that underground streams carrying waste water from various localities of Lahore pass under the proposed alignment. It would therefore be almost impossible to construct an underground tunnel with the available technical and financial resources. There is no other feasible option except to rely on remedial and mitigating measures suggested by Dr. Rogers in her report. We accordingly order that all such measures and steps recommended by her be implemented in letter and spirit. 42. As far as the visual impairment of Shalamar Garden is concerned, we note that there is no significant visual impairment of the said location. This is in view of the fact that the Garden is surrounded by clusters of residential and commercial buildings of all shapes and sizes as well as busy roads. A densely populated township has developed on three sides of the Garden. A busy dual carriage way (GT Road) runs on the fourth side. However, fortunately the Garden has high walls around it. A person standing in the street cannot see inside the Garden from the street level. As such, there is no question of any visual impairment. A person walking in the Garden may possibly be able to see glimpses of the viaduct or the train from certain points. This aspect does not stricto sensu constitute visual impairment. However, even this issue can adequately and effectively be addressed by adopting remedial and mitigating measures recommended by experts. 43. The learned counsel for the Respondents have vehemently argued that the viaduct passes over/at a very close distance from the Hydraulic Tank of Shalamar Garden which is Lahore Orange Line Metro Train Project 30 situated outside the Garden. We have carefully gone through the photographs as well as the structural sketches submitted by both parties. We find that the hydraulic tank is in a state of total disrepair and has undergone considerable deterioration. We have been assured that there is no likelihood of any further damage to the said hydraulic tank by reason of construction of some piers supporting the viaduct, close to it. We would however direct the Archaeology Department as well as the Government of Punjab to ensure that the hydraulic tank is repaired/restored as far as possible to its original position. Such further steps may also be taken, as may be necessary, so that further deterioration or damage is not caused to the structure of hydraulic tanks. 44. In addition to Shalamar Garden, we notice that the elevated track of OLMT passes near some other sites which are subject matter of these proceedings. All these sites exist on thoroughfares and are surrounded (at in some cases hidden) by heavy urban development. None of these sites has a visual landscape integrity. Therefore, the visual impact of construction of the elevated track will be of no material consequence for the purpose of visual landscape obstruction of such sites. 45. The learned counsel for the Respondents were vehement in their assertion that UNESCO had threatened to remove Shalamar Garden from the list of World Heritage sites, unless work on the OLMT Project was immediately stopped. However, the decisions adopted in the 41st Committee Meeting which are available on the website of UNESCO do not support the claim of learned counsel for the Respondents. The emphasis of UNESCO World Lahore Orange Line Metro Train Project 31 Heritage Committee appears to be on control and monitoring of urban encroachments and to discuss measures relating to management and protection arrangements of the Garden. It has nowhere been stated that the Garden will be removed from the list of World Heritage sites if the Project goes ahead. However, considering that Shalamar Garden features in the list of world heritage sites, we direct that every possible effort be made to meet the recommendations of UNESCO by way of taking mitigating and remedial measures. Further, the Appellants in collaboration with UNESCO shall adopt all practicable measures to control and monitor urban encroachments and explore the possibility of creating a buffer zone by coordinating efforts of all concerned departments. 46. It has also been pointed out to us that the OLMT Project will actually improve accessibility to antiquities and special premises for local as well as international tourists. This is in view of the fact that the roads leading to such sites are highly congested making the commute from most parts of the city, time consuming, cumbersome and difficult. Further, the views from elevated vantage points are likely to attract and encourage tourists to visit the sites and appreciate their historic value. 47. We have been informed that Lahore is one of the few cities in the world with population in excess of 10 million which do not have a mass transit train system. London developed its first metro system in 1843. More than 150 cities of various sizes all over the world have had rapid transit train systems for decades. In scores of cities in Asia, Africa and Latin America, such systems are currently under construction. The citizens of Lahore also deserve an Lahore Orange Line Metro Train Project 32 efficient, affordable and environmentally friendly mass transit system to cater for their current and future transportation needs. Even the Respondents admit that a mass transit system is the only viable solution to address the issue of traffic congestion on the roads and absence of adequate and affordable transport facilities for the rapidly increasing population of Lahore. It has been submitted by the Respondents that they do not oppose the Project. Their objection is limited to the mode and manner in which it is being implemented near some of the sites mentioned above. 48. All over the world, where heritage sites are located within cities, the development of the cities is planned in a manner so as to maintain a balance between infrastructural development while retaining/preserving and maintaining the heritage sites. This is often a difficult balance to maintain, but a number of cities all over the world have successfully managed to do so. London, Rome, Istanbul, Beijing, Delhi, Jaipur, etc are but a few examples. We have no reason to believe that this cannot be done in Lahore. There can be no two views about the importance of our historical and heritage sites and the need to preserve and protect them and to safely pass them on to the future generations. But the same need not be at the cost of depriving the citizens of Lahore of an efficient, reliable, dependable and modern mass transit system and to force them to live with an outdated, overstrained, inefficient and expensive system which in addition to all its faults is badly polluting the city pushing air pollution to levels, many times the safe and internationally acceptable limits. Preservation and development are not mutually exclusive and can go side by side complementing each other as has successfully been accomplished in many cities of the world. All it Lahore Orange Line Metro Train Project 33 requires is proper planning and efficient implementation. We, therefore, direct the Government of the Punjab to ensure that every possible effort is made to create and maintain such balance. Further, we direct that in future if any project of this nature is to be undertaken, the Project must be widely publicized through the print and electronic media at least six months prior to the proposed date of commencement. Public hearings should be held and the citizens must be allowed to express their views. All requisite permissions/approvals, licenses and NOCs etc must be obtained from the concerned departments/agencies before actual work on the Project is commenced so that all those who wish to raise objections have adequate time and sufficient information to approach the competent fora in case they have genuine objections. 49. We have repeatedly asked the learned counsels for the Respondents, if they have an alternative workable plan. The only suggestions they could come up with involved either realignment of the route or constructing the line underground for the portion where it passes near the sites in question. This would entail an underground portion of about 6.9 kilometers and an astronomical increase in the cost of the Project. Both proposals are neither financially feasible nor practically workable and would require re- planning and realignment of the routes and revision of the entire mass transit policy for Lahore which envisages a mass transit project described above which has taken years of planning, data collection and designing. The proposals put forth by the Respondents would disrupt and throw into disarray the entire master plan which has been prepared by international experts in the field of mass transit projects a part of which (Green Line) has already been completed Lahore Orange Line Metro Train Project 34 and is presently operational. No valid reason has been pleaded that may persuade us to take such drastic an action. In the facts and circumstances of the present case, it was even otherwise beyond the jurisdictional domain of the High Court in exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to delve into highly technical and purely policy issues which were better left to be dealt with by experts having relevant knowledge, training and expertise in their respective fields and the competent authorities authorized and empowered by law to do so. Reference may usefully be made to Dossani Travels Pvt. Ltd. v. Travels Shop Pvt. Ltd (PLD 2014 Supreme Court 1). 50. We have carefully gone through the reports submitted by NESPAK, Dr. Uppal, Dr. Rogers, M/s TYPSA –Asia and Dr. Cunningham and noticed that the Respondents have not placed on record any authentic technical data / analysis that may reflect negatively on or rebut the accuracy of the reports, opinions and the conclusions drawn by various experts from the data and information made available to them. We are, therefore of the opinion that the conditions imposed and mitigating and remedial measures suggested by the experts if implemented in letter and spirit would adequately address the apprehensions expressed by the Respondents. We, accordingly, endorse and approve the NOCs/permission letters issued by the competent authorities and the recommendations of experts relating to execution, mitigation and remedial measures required to be adopted by the executing agency and allow the Project to proceed subject to the following conditions and directions: - Lahore Orange Line Metro Train Project 35 i) The appellant shall make all necessary arrangements to ensure that the monuments remain stable and undamaged in all respects during the execution of the Project as specified in the HIA and Study of Control of Vibration, Noise and Foundation; ii) Vibration monitoring shall be undertaken as a part of the monitoring plan using the crack measure devices such as Avongard Standard Tell-Tale throughout the construction period and for an additional period of 10 weeks from the date of commencement of commercial operation of the train or such further time as may be directed by the Director General, Archaeology. In case, it is found that vibration levels at any stage of the construction or operation are exceeding safe limits, construction work / operation shall immediately be discontinued and remedial action shall be taken to ensure that such levels are brought down to acceptable limits. Such actions may inter alia include use of one piece of equipment at a time, during the construction phase, adjustment of train speed, addition of buffers and such other remedial and mitigating measures as may be recommended by the experts; iii) Technical experts shall be present at the sites during the construction phase in the vicinity of the antiquities and special premises with all necessary equipment for monitoring vibration levels. In case, vibration levels exceed the acceptable limits, work shall immediately be stopped, remedial measures taken to the satisfaction of experts and further work shall not commence unless written clearance for resumption of work is given by the experts; iv) An independent and experienced Conservation Engineer shall be appointed to monitor the Project, both during the construction and operation phases. He shall submit monthly reports to the Advisory Committee which shall make such further recommendations to the Director General, Archaeology as may be required to ensure that the Lahore Orange Line Metro Train Project 36 Project as a whole is meeting all technical requirements meant to preserve, protect and conserve the antiquities or protected premises; v) On completion of the project, the train shall be operated on experimental basis for at least 2 weeks on the entire length of the route and the vibration levels shall be monitored to ensure that the same are within the acceptable limits. Commercial operation shall not commence unless written clearance is given by the experts confirming that vibration levels have consistently been found to be within acceptable limits; vi) The speed of the Train shall be reduced while passing near the monuments as recommended by the Directorate General of Archaeology from time to time on the basis of data made available to it; vii) State of the art vibration measuring equipments shall permanently be installed at suitable places in and around the antiquities and special premises to monitor levels of vibration created by operation of the train. Records of the same shall be maintained and regularly checked by a responsible officer deputed to do so; viii) Special teams consisting of qualified experts will be set up which will periodically inspect all antiquities and special premises to detect any damage or deterioration at the sites. Proper records and logbooks shall be maintained for this purpose; ix) Any damage or deterioration shall be reported to the Director General, Archaeology in writing who shall take remedial steps necessary to ensure safety of the buildings and structures; x) Recommendations of the Advisory Committee (already set up) shall be placed before the Directorate General of Archaeology, who shall take necessary steps to ensure that the same are complied with in letter and spirit by all concerned agencies, contractors, sub-contractors and operators; Lahore Orange Line Metro Train Project 37 xi) Where excavation is necessary it shall be carried out in a way that it would not affect any structure or foundation of the antiquities or special premises. Where necessary special arrangements shall be made to stabilize and strengthen the structure of the antiquities and special premises. All necessary safety arrangements shall be made in accordance with the best engineering expertise during excavation, construction and execution phases of the Project; xii) The executing agency shall install accelerometers, velocity transducers, noise detectors and vibration measuring equipment near the antiquities and special premises. The appellant shall ensure implementation of additional mitigation and remedial measures as mentioned in vibration analysis report by NESPAK, Heritage Impact Assessment (HIA) as well as in the reports submitted by Dr. Uppal and Dr. Rogers; xiii) Excavation would be carried out in a way that would not affect any of the exposed or buried structure of the Special Premises; xiv) In case of any adverse impact to the antiquities or special premises during excavation, construction or execution, the appellant and all other related agencies shall immediately and forthwith stop and discontinue further work, take all possible actions to protect and conserve the antiquities and special premises and in this regard, involve such experts and consultants as may be necessary to ensure that the causes and effects of the adverse impact are effectively removed; xv) A dedicated hotline shall be set up, telephone numbers whereof shall be prominently displayed in public areas around all antiquities and special premises for reporting damage or deterioration observed by members of the public or tourists; xvi) In case, any information/report is received by the Director General, Archaeology the same shall be investigated within 7 days and after receiving Lahore Orange Line Metro Train Project 38 recommendations (if any) from experts repair/ renovation work shall be commenced within 30 days; xvii) No building material or equipment shall be stored/stockpiled within protected area of the monuments; xviii) No change shall be made in the alignment of the track which brings any part of it nearer to the monuments than the distances set out hereinabove; xix) Dust pollution during construction shall be controlled through extensive sprinkling of water on regular basis and taking such other steps including but not limited to covering the monuments with protective sheets in order to avoid any damage from dust; xx) The design of the viaduct and nearby stations in terms of colour and designing shall be in harmony with the setting and appearance of the monuments; xxi) The Hydraulic Tank of Shalamar Garden shall be restored, as far as possible, to its original position and the surrounding area will be converted into a green area; xxii) Structures on the southern side of the Shalamar Garden shall be camouflaged through construction of a wall in consultation with the Directorate General of Archaeology. All practicable efforts shall be made to create a buffer Zone around Shalamar Garden as per proposal already pending in the Directorate General of Archaeology and other competent forums; xxiii) The decorative motifs of Shalamar Garden would be replicated on the train station near the Shalamar Garden to create harmony with the Garden; xxiv) The tile mosaic motifs of the Gulabi Bagh Gateway would be replicated on the nearby station of the Gateway to create harmony with the historic Gateway; xxv) The area around the Chauburji Gateway would be properly attended and developed into a greenbelt; Lahore Orange Line Metro Train Project 39 xxvi) The decorative motifs of the Chauburji Gateway would be replicated on the nearby station of the Chauburji Gateway to create a harmony with the historic Gateway; xxvii) The area around the Zaib-un-Nisa’s Tomb would be properly attended and developed; xxviii) The decorative motifs of the Zaib-un-Nisa’s Tomb would be replicated on the nearby station of the Zaib- un-Nisa’s Tomb to create harmony with the historic; xxix) The Respondents shall in consultation with UNESCO and other international agencies prepare phase-wise plan to control and monitor urban encroachments and the process of creating buffer zone around the Shalamar garden; xxx) All future projects which directly, indirectly and incidentally involve antiquities or heritage sites shall in the first instance be widely publicized through print and electronic media at least 6 months prior to proposed date of commencement of the project and public hearings shall be conducted to hear objections, if any against such project; and xxxi) For all future projects, NOCs, licences, approvals and permissions as required by law shall be obtained before work on the project site is commenced. 51. In addition to the above, we direct the Government of Punjab within a period of 30 days from the date of this judgment to take the following steps:- a) Set up an Antiquity and Special Premises Fund with the sum of Rupees One Hundred Million which shall be dedicated to monitoring, renovation and reconstruction work of 11 protected and special premises mentioned hereinabove. It shall be a revolving fund and shall be replenished on yearly basis. It shall be utilized firstly for the maintenance, preservation, restoration and renovation work of the protected and Special Premises, Lahore Orange Line Metro Train Project 40 subject matter of this lis and thereafter on other Antiquities and Special Premises situated in Lahore as may be recommended by the special Committee of Experts constituted under this Judgment; b) A broad based Special Committee of Experts consisting of Director General, Archeology Department; a Professor of the Department of Archeology, University of the Punjab; Head of Department of Structural Engineering, University of Engineering and Technology, Lahore; a Senior Professor nominated by the Chairman of Board of Directors of National College of Arts; chaired by a retired Judge of this Court nominated by the Chief Justice of Pakistan shall be notified which shall oversee implementation of the judgment of this Court and the directions issued herein. This Committee shall also make such further recommendations to the Chief Minister Punjab to undertake such measures as may be necessary to implement and enforce the directions and recommendations made in this judgment. The tenure of the Committee shall be one year from the date of its notification; c) The Government of Punjab shall retain the services of at least three Experts having expertise in the field of archeology and renovation, preservation and maintenance of antiquities and special premises. One of the experts shall be a person having expertise in structural engineering. All three experts will work as a Technical Committee with tenure of one year. The Technical Committee shall report to advise and assist the aforesaid Special Committee of Experts. The Committee shall, if required and with the approval of Director General, Archeology retain services of such other experts as it may consider necessary to undertake its work more effectively regarding the steps required to be taken to monitor the protected and Special Premises all over Lahore and suggest remedial measures that may be necessary to ensure the safety of all protected and special premises in Lahore; and Lahore Orange Line Metro Train Project 41 d) We also emphasize the fact that the present condition of the protected and special premises calls for major preservation, renovation, reconstruction and repair work. The Government of Punjab shall take immediate steps and we have been assured by learned Advocate General, Punjab that such steps shall immediately be taken to start repair and renovation work for which the requisite funds will be made available within thirty days from the date of this judgment. 52. In view of the foregoing discussion, the Impugned Judgment of the Lahore High Court is set aside and the instant appeals are allowed in terms noted above. Civil Petition No.3101-L of 2016 is unanimously dismissed and Leave to Appeal is refused. 53. Before parting with this judgment, we would like to record our appreciation for valuable assistance rendered by learned counsel for the Appellants namely; Mr. Shahid Hamid, Sr.ASC, Mr. Makhdoom Ali Khan, Sr.ASC, Kh. Haris Ahmed, Sr.ASC, and Mr. Shakeel-ur-Rehman, learned Advocate General, Punjab and Ms. Asma Jehangir, Sr.ASC and Kh. Ahmed Hussain, ASC for the Respondents alongwith their respective teams. We would also like to acknowledge and commend the hard work assistance and backup provided by the Law Clerks of members of the Bench. Judge Judge Judge Judge Judge Announced in open Court On 08.12.2017 at Islamabad. Judge APPROVED FOR REPORTING Lahore Orange Line Metro Train Project 42 EJAZ AFZAL KHAN,J.-Every thickly populated city like Lahore needs a Mass Transit System. The system already in place with rapidly growing population has become inadequate. A project of this type could have been conceived at least two decades ago. But the people at the helm could not appreciate its importance. They realized to pay heed to it when the water was to go above their heads. It is never too late to mend is an adage which could console even the late starter. Since the things do not remain static and stationary, the problems the late starters face become greater in magnitude. They, thus, have to mend fences according to the situation which has changed a great deal. Had this project been launched twenty years ago it would not have harmed anything of significance because there was sufficient space all around. Take for instance the ShalimarGarden. In the seventies of the twentieth century it was the sole monument in the area having nothing around it. But today it is surrounded by buildings on almost all the sides. Whatever setup we may have today and whatever odds we may come across, the project of the Orange Line Metro Train (OLMT) which is a dire need of the people living in Lahorehas to be launched and completed.The main issue we are confronted with is the preservation of the heritage sites (Antiquities and Special Premises). If the establishment of the Mass Transit System is indispensable so is the preservation of the heritage sites. What perils does this project purportedly bring to the heritage sites could be summed up as under: 1) Visual impairment of the sites and 2) Damage to the building structure of the heritage sites by vibration during the phase of construction and that of operation. Lahore Orange Line Metro Train Project 43 Before examining the aforesaid aspects, we have to consider the present state and surrounding of each of the heritage sites. 2. The first heritage site in the sequence is Shalimar Garden. It is surrounded by densely constructed houses on three and a dualcarriageway, on the fourth side, which is frequented by heavy vehicular traffic. The proposed railway track is being constructed in the mid of the said dual carriageway. The proposed construction does not cause any visual impairment of the site because the Garden is walled on all the fours. A pedestrian walking on one or another side of the road cannot see anything inside the Garden. Vibration caused by the operation of the train does not pose any threat to the Garden when there is a considerable distance between the walls of the Garden and the railway track. Hydraulic tank is also a part of the heritage site.But it is not likely to be damaged by the proposed construction of the railway track as none of the piers for the track has been raised in the area where the tank lies. 3. The next heritage site is Gulabi Bagh’s Gateway. Its left, right and back are covered by double-story buildings, whereas, front is flanked by a dual carriageway. Railway track is being constructed in the middle of the road which has least impact on the site. If the buildings on its left, right and back have done little to damage it, the railway track too would do little to damage its viability. Vibration caused by the train could be said to pose a threat to the heritage site but when the one caused by the vehicular traffic despite being of much greater magnitude has not posed any, there is absolutely no occasion for being paranoid about the vibration caused by the train. There are cracks in the dome and the crown of the arches but in any case the structure Lahore Orange Line Metro Train Project 44 has not reached an edge where it could be declared dangerous as per report of Dr. Ayesha Pamela Rogers. Even if it be so, the benchmark could not be the fast dilapidating state of the building but the one which isrestored on its being repaired and revamped. In case it is left in the present state, tomorrow even a violent gust of wind could cause its collapse. Measures to protect the site have to be taken in any case. The proposed railway track, in this context, is not a threat to the existence of the site. NESPAK and TYPSA, too, do not see any threat to the site on account of the construction of the track and operation of the train. Safeguards provided by law and highlighted in the report of Professor Coninghamhave also been taken care of in the NOC issued by the Director-General of Archaeology, Government of Punjab. Visual impairment is the only problem to be attended to but the fact is that the space left at the moment across the site does not cause any visual impairment as the pedestrians walking on one or another side of the road could well see the façade of the garden. In this situation, we cannot pursue the ideal or what ought to have been. We have to preserve whatever can possibly be preserved. We, thus, do not see anything as could hinder or hamper a ‘go-ahead’ signal to the proposed construction of the railway track as far as this site is concerned. 4. Buddhu’s tomb is another impediment so-called in the construction of the railway track. It is also situated alongside the dualcarriageway. The part of the railway track near the site is resting on fourpiers raised on the strip in between the dual carriageway. Vibration caused by the operation of the train cannot affect much less adversely the fabric of the site and structure of what is built therein. This is not an opinion based on guesswork. This is an opinion based on deduction. The basis for that said deduction is Lahore Orange Line Metro Train Project 45 that the vibration caused by the heavy vehicular traffic which, thus far, did not cause even a crack in any part of the structure on the site. What is strange and even surprising is that disaster on account of vibration caused to the site by the operation of train has been visualized without comparing the vibration caused by the vehicular traffic which appears to be of much greater magnitude. The proposed and partially completed Mass Transit System cannot be obstructed on the basis of assumptions which have no concrete foundations. The piers already raised in between the dual carriageway do not obstruct the vision of pedestrians walking on either side of the road. 5. Having said so, we now pass on to LakshamiBuilding. This building has been demolished but its façade still stands in its original position and this is what is sought to be protected and preserved. Construction of the railway track does not meddle, nor does it compromise the sanctity of its façade for two reasons: the first is that a road intervenes in between the building and the railway track, the second is the heavy vehicular traffic plied on the road whose vibration by no scale of measurement is less than that of the train. Even visual impairment does not appear to be a problem as the pedestrians on one or another side of the road could see the façade of the building. A look at the photographs of the building and its surroundings shows that piers have been partially constructed without causing any damage to the façade. Even otherwise the proposed railway track does not intervene with the building because of the distance between the two. We have been just left wondering how the completion of this project is opposed on the basis of the apprehension which are conjectural. Lahore Orange Line Metro Train Project 46 6. We now deal with Chauburji. This site makes a complex reading. The proposed railway track encroaches upon its courtyardas the piers have been raised therein but when we compare the distance between the heritage site and the road and the distance between the piers and the site, the latter appears to be far greater than the former. But in any case, the proposed railway track causes less intrusion and less visual impairment to the site as compared to the road and vehicular traffic. Known or conventionally recognized standards of protecting the monuments cannot be adhered to without realigning the road and the track. If the road could stay where it stands so could continue the proposed construction of the track as it too does not cause any harm to the site.Vibration caused by the train will not cause any damage to the site when vibration caused by the vehicular traffic did not cause any so far. Protection of the site in terms of ideal against this backdrop is just unworkable. We, thus, have to accept it as it is. 7. Zaib-un-Nisa’s tomb is another heritage site whose existence is alleged to be jeopardized by the proposed construction of the railway track, notwithstanding it is far off the road and has all along been surrounded by double story buildings on all the sides. How the proposed construction of the railway track could cause visual impairment and how the vibration of the train could cause any damage thereto, are the queries begging answers. It is, therefore, nothing but creating a storm in a tea cup. Even otherwise, if the heavy construction aroundthe heritage site and the vehicular traffic plied on the dualcarriageway could not cause a hairline crack, apprehending any threat to the site from the proposed construction of the railway track and the operation of the train would be just chimerical. Lahore Orange Line Metro Train Project 47 8. Now we are to see whether the proposed railway track impinges on the health and existence of the heritage sitesinspite of the fact that the track is going underground which in the technical parlance is called cut and cover. The study which has been undertaken by the experts in this connection led to certain reservations. These reservations when considered carefully do not appear to be of a nature as could justify change of site but observance of certain measures which ensure their protection against an imagined or actual danger arising out of the operation of the train. It may, however, be noted that many of the measures already taken adequatelycater for the reservations. It is,thus, not the end of the chapter which would end with the construction of the track and operation of the train. Any measure which is ancillary and reasonably incidental could still be taken at any time if and when anything endangering the heritage sites appears or emerges. Much hue and cry has been raised about the vibration caused by the operation of the train and its effect on the heritage sites. We have again been left wondering as to how vibration caused by the OLMT could damage the wellengineered and well architectured structure of the sites when much greater vibration caused by heavier trains of Pakistan Western Railway did not cause even a crack in the walls of the guard rooms constructed alongside the barriers of the railway tracks more than hundred years ago. 9. How do the experts look at the railway track and its impact on the heritage sites in terms of vibration and visual impairment? A careful perusal of their opinions would reveal that each of them has his own angle of vision. Yet their opinions are not antithetical to each other. They do not see anything in the railway track as could impinge on the health and existence of the heritage Lahore Orange Line Metro Train Project 48 sites in any form. Dr. Ayesha Pamela Rogers’ expert opinion would support the conclusion when she says that the vibration produced during the construction and operational phase for all sites and sides will be within the permitted limits. She sees an enemy of the sites in dust which could be raised during the phase of construction but it cannot be blown out of proportion when much greater dust is raised by the heavy vehicular traffic plied on the dualcarriageway which runs across the sites. She nevertheless suggested ways and means for the treatment of the problem emerging from the construction of the railway track and operation of the train which could well be taken care of. At times her eyes are more focused on the surrounding than the heritage site as if the site is an angle and not an object of vision. But it too can be attended to, by beautifying the surroundings which have been impaired by the unplanned massive construction. Beautification of the surroundings at any rate, is a yearning which at no stage becomes unmeaning. According to NESPAK the vibration will have least impact on the sites. TYPSA appears to be in agreement with NESPAK. Report of Professor Coningham focuses more on the imagined violation of law than the damage to be caused to the heritage sites. His expertise in the field does not enlighten us much on the technical aspects of the proposed construction. Report given by Dr.Javed Uppal expressed satisfaction with the measures already taken and to be taken to ensure foolproof protection of the heritage sites against noise and vibration. His report does not suggest the change of site for the construction of the railway trackbut it has not been given much weight by the High Court. The reason in this behalf is not any lapse in his expertise but his supposed bias on account of a position he held in the government of Punjab a few years ago. Lahore Orange Line Metro Train Project 49 10. Let us see how and where does the construction of the railway track make inroads in the domain of the law protecting the heritage sites and how and where do the NOCs violate its letter and spirit? Before we answer these questions, we would like to go through the relevant provisions of Section 22 of the Antiquities Act 1975: “22. Execution of development schemes and new constructions in proximity to immovable antiquity.– Notwithstanding anything contained in any other law for the time being in force, no development plan or scheme or new construction on, or within a distance of two hundred feet of, a protected immovable antiquity shall be undertaken or executed except with the approval of the Director General.” What does Section 11 of The Punjab Special Premises Ordinance 1985 envisage in this behalf can well be seen from the words reproduced as under: “11. Execution of development schemes and new constructions in proximity to Special Premises.— No development plan or scheme or new construction on, or within a distance of two hundred feet of a Special Premises shall be undertaken or executed except with the approval of the Government or a Committee.” 11. The provisions reproduced above show that the legislature provided adequate safeguards for the protection of the heritage sites in terms of distance between the sites and the constructions proposed to be raised in their proximity. In case the Lahore Orange Line Metro Train Project 50 distance provided by the law cannot be adhered to because of the irreversible developments taking place in the meantime,what could be the way out to kill the snake and yet save the stick. The answer provided by the law is an NOC issued by the DG Archaeology in respect of Antiquities and an NOC by the Special Committee constituted under the Ordinance in respect of Special Premises.But in no case it could be accepted asa gospel truth. It could be changed, modified or revised if the NOC issued for the proposed construction violates the sanctity of the site. It is not injusticiable. The High Court and for that matter this Court could issue an appropriate order, writ or direction if the NOC for the proposed construction has been issued without safeguarding the sanctity and integrity of the sites. Let us see how do the NOCs issued by the competent authority in this behalf deal with the risk to the Antiquities. NOCs on being read provide the following measures which are common in all: “A) No building material or equipment shall be stored/stocked within the protected area of the monuments. B) No change shall be made in the alignment of the track which brings any part of it nearer to the monuments than the distances set out in the Report of the Advisory Committee. C) Dust pollution during construction shall be controlled through extensive sprinkling of water on regular basis. D) Such further special arrangements shall be made, as necessary, to keep the monument stable and un- damaged in all respects during the execution of the Lahore Orange Line Metro Train Project 51 project as specified in HIA and Study of Control of Vibrations, Noise and Foundation. E) The design of the viaduct and nearby station in terms of colour and reflectivity should be in harmony with the setting and appearance of the monuments. F) Vibration monitoring must be undertaken as part of a Monitoring Plan using the crack measures devices such as Avogard Standard tell-tales throughout construction period of and for a period of 10 weeks after commencement of train operations and more time period if so directed. If levels of vibrations exceed safe limits further action must be taken to bring such levels down such as adjustment of train speed, additional buffer, etc., Visual Inspection of indicators other than cracks shall also be part of the Monitoring Plans. G) An independent and experienced Conservation Engineer must be engaged by the executing agency, and later by the operating agency, to monitor the Project both during its construction and operational phases who shall submit monthly reports to the Advisory Committee which shall in turn make such further recommendations as may be required to the Directorate- General Archaeology. This monitoring shall be in addition to monitoring by the technical staff of the Directorate- General Archaeology. H) The speed of the train shall be reduced while passing in front of monuments as recommended by Lahore Orange Line Metro Train Project 52 the Directorate General of Archaeology from time to time on the basis of the available data. I) Recommendations of the Advisory Committee shall be complied by all the involved agencies in letter and spirit.” Some of the measures are site specific which read as under: A) The area around the Hydraulic tank would be properly attended and developed into green belt. B) Shabby structures on the southern side of the Shalamar Garden would be camouflaged through construction of a wall in consultation of Directorate General of Archaeology. C) The decorative motifs of the Shalamar Garden would be replicated on the nearby station of the Garden to create a harmony with the historic Garden. D) The tile mosaic motifs of the Gulabi Bagh Gateway would be replicated on the nearby station of the Gateway to create harmony with the historic Gateway. E) The area around the Chuburji Gateway would be properly attended and developed into a green belt. F) The decorative motifs of the Chuburji Gateway would be replicated on the nearby station of the Chuburji Gateway to create a harmony with the historic Gateway. G) The area around the Zaib-Un-Nisa’s Tomb would be properly attended and developed. H) The decorative motifs of the Zaib-Un Nisa’s Tomb would be replicated on the nearby station of the Zaib- Un Nisa’s Tomb to create harmony with the historic Tomb. Lahore Orange Line Metro Train Project 53 NOC issued by the competent authority for Special Premises contained the following conditions: a. Excavation would be carried out in a way that it would not affect any of the exposed or buried structure of the Special Premises. b. Wherever necessary special arrangement would be made to stabilize and strengthen the standing structures of the Special Premises. c. Area of the Special Premises would not be used for storing material or parking construction machinery and safety arrangements shall be made in accordance with the best engineering practice during excavation, construction and execution phases of the project. d. If any damage occurred to Special Premises the executing agency will conserve that part from its resources in consultation with the Directorate General Archaeology. e. An independent and experienced Conservative Engineer shall be engaged by Lahore Development Authority/ Punjab MasstransitAuthority, to monitor the Project during excavation, construction and execution phases who shall submit regular reports to the Directorate-General Archaeology which shall be presented to the Committee which may make further recommendations as may be required. This monitoring shall be in addition to monitoring by the technical staff of the Directorate-General Archeology. f. Excavation would be carried out in a way that it would not affect any exposed or buried structure of the Special Premises. Wherever necessary special Lahore Orange Line Metro Train Project 54 arrangement would be made to stabilize and strengthen the standing structures of the Special Premises. g. The executing agency shall install accelerometers, velocity transducers and noise detectors nearby the Special Premises. h. The executing agency shall ensure the implementation of the additional mitigation measures as mentioned in vibration analysis Reports of NESPAK and Heritage Impact Assessment. i. In case of any adverse impact to the Special Premises during excavation, construction and execution phases of the Project, the executing agency will take all possible actions to conserve that part from its resources in consultation and as per advice of the Directorate General of Archaeology. j. In case of any violation of the above-mentioned conditions during the excavation, construction or execution phase of the Project this Permission/NOC will be treated as withdrawn and the executing agency (LDA) and any other involved agencies shall be dealt with in accordance with the provisions of the Punjab Special Premises (Preservation) Ordinance, 1985. These NOCs cannot be looked askance at when the conditions provided therein are effective and adequate. Rigid adherence to the distance provided by law in view of the roads and buildings already constructed has become practically impossible. It, therefore, cannot be over emphasized in the present state of things unless of course the entire mass of roads and buildings is razed and erased. If that is not possible, we have to live with it and go ahead without getting bogged down into a controversy which may Lahore Orange Line Metro Train Project 55 distract the executors of the project from the completion of the Mass Transit System which is launched for the welfare of the people. 12. The main thrust of the arguments of the learned ASCs for the appellants was that the final NOCs issued by the authorities conform to the opinions of the experts viz-a-viz the measures to be taken during the phase of construction and that of operation which are by all means effective and adequate and fully cater for the apprehensions of the respondents. We endorse the views of the experts because they also conform to the grave ground realities emanating from our surrounding. We could not, thus, prefer the unknown to known and theoretical to practical. 13. The learned ASCs for the respondents addressed lengthy arguments but they are based more on their apprehension than rational and realistic understanding of the controversy. They stridently criticized the opinions of the experts without precisely pointing out any infirmity or imperfection therein. They, however, extolled to the skies the report of Professor Coningham without realizing that it focused, more on legal than the technical aspects of the construction of the railway track. They could not give relevant facts and figures either on technical or factual plain. They see heal-all in the arrival of the experts from UNESCO as Zoroastrians see heal-all in reappearance of Zoroastor. We should not, however, forget that we have our own problems. We can understand them better by studying them in the context of our surroundings and solve them accordingly by applying our minds. What in the prevailing state of things would be sane, sound and sensible could be decided by the local experts who know the ins and outs of the project and its impact on the sites. The measures and conditions suggested in the NOCs in view of the reports of the experts reflect Lahore Orange Line Metro Train Project 56 the understanding of the problems and their solution according to our surroundings. 14. We, therefore, allow these appeals, set aside the impugned judgments and direct the appellants to go ahead with the project by rigidly adhering to the measures suggested by the experts for the protection and preservation of the heritage sites. JUDGE Lahore Orange Line Metro Train Project 57 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL C.M.A. NOS.8215 AND 6171 OF 2016 AND CIVIL APPEAL NO.2144 OF 2016, C.M.A. NO. 6225 OF 2016 AND CIVIL APPEAL NO.2145 OF 2016, C.M.A. NO.6226 OF 2016 AND CIVIL APPEAL NO.2146 OF 2016, C.M.A. NO.6291 OF 2016 AND CIVIL APPEAL NO.2147 OF 2016 (Against the judgment dated 19.8.2016 of the Lahore High Court, Lahore passed in WP No.39291/2015 C.M.A. NOS.8215 & 6171 OF 2016 AND CIVIL APPEAL NO.2144 OF 2016 National Engineering Services Pakistan [NESPAK] (Pvt.) Limited Applicant(s)/Appellant(s) Versus Kamil Khan Mumtaz and others Respondent(s) C.M.A. NO. 6225 OF 2016 AND CIVIL APPEAL NO.2145 OF 2016 Punjab Mass transit Authority through its Managing Director, Lahore Applicant(s)/Appellant(s) Versus Kamil Khan Mumtaz and others Respondent(s) C.M.A. NO.6226 OF 2016 AND CIVIL APPEAL NO.2146 OF 2016 Lahore Development Authority through its D. G. and another Applicant(s)/Appellant(s) Versus Kamil Khan Mumtaz and others Respondent(s) AND C.M.A. NO.6291 OF 2016 AND CIVIL APPEAL NO.2147 OF 2016 Province of Punjab through Chief Secretary, Lahore and others Applicant(s)/Appellant(s) Versus Kamil Khan Mumtaz and others Respondent(s) … For the Applicant/Appellant(s): Mr. Shahid Hamid, Sr. ASC Mr. Mahmood A. Sheikh, AOR assisted by Rabia Hassan, Advocate Mr. Salman Hafeez, G.M. NESPAK (in CA.2144/2016) Mr. Makhdoom Ali Khan, Sr. ASC with Mr. Tariq Aziz, AOR Assisted by Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Lahore Orange Line Metro Train Project 58 Mr. Sabtain Fazal Haleem, M.D. PMA (in CA.2145/2016) Kh. Haris Ahmed, Sr. ASC Mr. Mustafa Ramday, ASC Mr. Tariq Aziz, AOR Assisted by Mr. Zaafir Khan, Advocate Mr. Ahmed Jamal, Advocate Israr Saeed, Chief Engineer, LDA Muhammad Rashid, Dir. (Law), LDA Muhammad Hassan, Dy. Dir (Engineering), LDA Hafiz Nisar Hussain, A. Dir (Law), LDA (in CA.2146/2016) Mr. Shakeel-ur-Rehman, AG Punjab Ms. Asma Hamid, Addl. AG Punjab Barrister Qasim Ali Chohan, Asstt. A.G. Pb. Rao M. Yousaf Khan, AOR (Absent) Mr. Khurram Chughtai, Strategic Counsel (in CA 2147/2016) For the Respondent(s): Ms. Asma Jehangir, Sr. ASC, a/w Ch. Akhtar Ali, AOR Mr. Kamil Khan Mumtaz Assisted by Mr. Noor Ejaz Chauhdry, Advocate Mr. Hamid Azim Leghari, Advocate Ms. Namra Gillani. Advocate Ms. Ayesha Alam Malik, Advocate Mr. Suleman Jahangir, Advocate (For respondent No. 1 in CAs 2144 to 2147/2016) Kh. Ahmad Hussain, ASC Mr. M. Ozair Chughtai, AOR (Absent) (For respondents No.2 in CAs 2144 to 2147/2016) Mr. Azhar Siddique, ASC Mr. M. Ozair Chughtai, AOR (Absent) Assisted by Mr. Abdullah Malik, Advocate Mr. Hammyun Faiz Rasool, Advocate Mian Shabbir Ismail, Advocate Mr. Muhammad Irfan Mukhtar, Advocate Ms. Parveen Moghal, Advocate Ms. Hifsa Mafia, Advocate (For respondent No. 3 in CA 2144/2016) (For respondents No. 3-5 in CAs 2145, 2146 & 2147/16) Mr. Shakeel ur Rehman, AG Punjab Ms. Asma Hamid, Addl. AG Punjab Barrister Qasim Ali Chouhan, AAG Punjab (For Govt. of Punjab) Syed Rifaqat Hussain Shah, AOR (For respondent No. 17 in CAs 2144 & 2146/16) (For respondent No. 19 in CA 2145/16) (For respondent No. 16 in CA 214716) Dates of Hearing: 3rd to 6th, 10th to 14th & 17th April, 2017 Lahore Orange Line Metro Train Project 59 -,-,-.-.-.-.-.-. Lahore Orange Line Metro Train Project 60 JUDGMENT MAQBOOL BAQAR, J. Brought in question through the above appeals is the judgment dated 19th August 2016, whereby a learned Division Bench of the Lahore High Court, whilst partially allowing the petitions filed by the respondents No. 1 to 3, declared that the No Objection Certificates (‘NOCs’) issued by the Director General, Archaeology, Punjab and the Chief Secretaries’ Committee, for the construction of Lahore Orange Line Metro Train (‘OLMT’) Project, was without lawful authority, and of no legal effect, and directed the Director General, Archaeology to engage an independent panel of consultants/ experts of international stature, preferably in consultation with UNESCO, to carry out an independent study regarding the protected immovable antiquities and special premises situated along the alignment of the OLMT track. The Court also directed that the request for permission sought under section 22 of the Antiquities Act, 1975 (‘the 1975 Act’), and under section 11 of the Punjab Special Premises (Preservation) Ordinance, 1985 (“the 1985 Ordinance”), respectively, be considered by the competent authorities in the light of the study and report of the said experts, afresh. The Court also directed the Government to frame rules under section 22 of the 1975 Act, and under section 11 of the 1985 Ordinance. 2. Through their petitions, the respondents No. 1 to 3 have challenged before the High Court the aforesaid NOCs, as being violative of section 22 of the 1975 Act, and section 11 of the 1985 Ordinance, respectively. It was contended that the construction of the OLMT Project that will run along five heritage buildings, and five special premises (the monuments), will cause severe damage to the structure of the said monuments, harm their integrity and shall also Lahore Orange Line Metro Train Project 61 cause their visual impairment. It was submitted that the project is being constructed within the protective/buffer zone of two hundred feet (200 ft.), prescribed by the 1975 Act, and the 1985 Ordinance respectively, and in dangerously close proximity to the said monuments. It was submitted that the vibrations induced during the construction activity by use of various equipments/ machinery, and by the transit of the project train, in such close proximity would cause severe and irreversible damage to the said monuments, some of which are more than 370 years of age. It was submitted that as per the internationally recognized standards and scientific data, and literature, the amplitude of the vibrations induced and suffered as aforesaid shall be far in excess of the threshold/tolerance level which shall certainly cause irreversible harm and damage to the monuments. It was claimed that the viaduct structure of the project being constructed in close proximity to the monuments would certainly impair their visual integrity and would break the view line, between the viewers and the monuments. It was further submitted that one of the heritage premises, being the Shalimar Gardens, because of its Outstanding Universal Value (‘OUV’) has been inscribed on the World Heritage List maintained by UNESCO. However because of the impugned construction and the resultant harm envisaged on account thereof in the shape of physical damage, and visual impairment, the relevant Committees of UNESCO, not only requested the Government to change the alignment of the OLMT project, but also to suspend the construction of the project along with the alignment of the Shalimar Gardens, and close to its hydraulic tank which is a core element of the Garden. However subsequently on account of certain assurances given by the Government of the Punjab, they Lahore Orange Line Metro Train Project 62 agreed not to press for the suspension of the work, but insisted upon the change of alignment/route as requested earlier with a caution that non-compliance may result in removing the monument from the World Heritage List. It was submitted that the above monuments are the heart and soul of the city of Lahore and carry with them our glorious past which we are obliged to protect and preserve, and to hand over them in a safe and sound condition to the next generation. 3. It may be relevant to note here that the original feasibility study in relation to the OLMT project was undertaken by a consulting firm, namely, MVA Asia, for a 27.1 km track (20.2 km elevated and 6.9 km underground), including 26 stations (20 elevated and 6 underground) at a total cost of US$ 2.00 billion exclusive of land acquisition. An addendum to the study was completed by NESPAK, one of the appellants before us, in the year 2014, in which the length of the track remained 27.1 km and aligned over or under the median of the road as envisaged by MVA Asia. However, as claimed by the appellants, in order to minimize the land to be acquired for the track, the underground portion was reduced to 1.7 km and the cost was thus reduced to US$ 1.6 billion. It was decided that 1.72 kms of the total 27.1 km length of the route would be cut and cover (underground) and the remaining 25.4 km would be an elevated viaduct. 4. The viaduct of the OLMT project consists of U-shaped girders (two separate channel shaped track way in pre-stressed concrete) resting upon the piers which are generally 30m apart. The viaduct system is supported on piles and a pile cap substructure system. The 1.85m thick pile cap consists of 6 piles of 1.2m diameter and 18m length. Piers of viaduct are generally of 2300mm (1.2 m) Lahore Orange Line Metro Train Project 63 diameters. The height of piers is generally 13.5 m. A 10m long transom (double cantilevered reinforced concrete arms) rests over the top of piers to support the U shaped girders. 5. In the 1.7 km cut and cover (underground) section, construction methodology is to erect barricades on either side of the road, about 12 meter apart, drill holes of a dia of 0.76 meters in straight lines on either side of the road, lower iron cages into the holes and concrete the same, excavate the area in between to a depth of 3 meters, construct a 0.8 meter thick reinforced concrete roof joining the concreted piles on either side, then excavate the earth under the tunnel formed by the roof and the piles on either side with a clear height of 5.60 meters, place a concrete slab 0.6 meters on the floor of the tunnel, and wall the gaps (0.30 to 0.45 meters wide) in between the concrete piles with water proofing materials and vibration dampening materials. 6. The viaduct bridge and the cut and cover subway/tunnel shall carry BI type trains (according to Chinese standard), consisting of 5 vehicles. The axel load of type BI train is 140 kN, and the axel load of empty vehicle is 80 kN. 7. The Project has a total of 26 stations, 24 of which are elevated and two are underground. The proximate rider ship would be 2,45,000/- per day. The operation time of the trains would be from 5:30 a.m. to 11:30 p.m. (18 hours daily). The total estimated cost of the Project as approved on 13.05.2015 is US$1.629 billion, equal to Rs. 165.226 billion, out of which the cost of civil works is Rs.54.421 billion. According to the appellants civil work worth 46% of the total estimated cost thereof, amounting to Rs. 27.999 billion, has been completed up to 30th August, 2016. 8. The Project passes along the following monuments: Lahore Orange Line Metro Train Project 64 Antiquities: (i) Shalimar Garden (World Heritage Site)-95 feet away from the train tracks (ii) Gulabi Bagh Gateway-69 feet away from the train tracks (iii) Buddu’s Tomb-59 feet away from the train tracks (iv) Chauburji-53 feet away from the train tracks (v) Zebunnisa’s Tomb-110 feet away Special Premises: (i) Lakshmi Building-34 feet away from the train tracks (ii) General Post Office (GPO)-42.3 feet away from the train tracks (iii) Aiwan-e-Auqaf (Shah Chiragh) Building-66 feet away from the train tracks (iv) Supreme Court Building-58.1 feet away from the train tracks (v) Mauj Darya Darbar & Mosque-15.8 feet away from the train tracks 9. On 16.11.2015, the Director General Archaeology issued no objection certificate for construction of the OLMT project along the alignment of five (5) heritage buildings protected under the Act of 1975. Similar NOC was issued on 30.11.2015, in respect of the special premises protected under the 1985 Ordinance. By order dated 28.1.2016, passed in the respondents’ petition, a learned Division Bench of the Lahore High Court suspended the said two NOCs, and restrained the present appellants form carrying on any construction work within two hundred feet (200 ft.) of the said monuments. According to the appellants, it was on 15.2.2016, that the “advisor committee” under the chairmanship of the DG Archaeology, decided to request LDA to engage an independent structural engineer to evaluate the effect of the OLMT project on the monuments during construction and operational phases. The Lahore Orange Line Metro Train Project 65 committee also decided to engage Dr. Ayesha Pamela Rogers to conduct a Heritage Impact Assessment (HIA), of the project. In pursuance of the above, on 24.2.2016, Dr. Engineer Javed Uppal submitted his vibration assessment report, whereas Dr. Ayesha Pamela Rogers submitted her report on 05.3.2016. M/s NESPAK, who has submitted a vibration analysis report in respect of the viaduct/elevated section of the project earlier, submitted their such report in respect of the cut & cover/subway section, in February 2016. By order dated 14.10.2016, this Court was pleased to appoint M/s TYPSA Asia Consultant Engineering and Professor Cunningham, whose names were separately suggested by the appellants and respondents respectively, as technical experts for verification of the credibility of the two NESPAK reports. Cunningham report was submitted before this Court on 13.11.2016, and the TYPSA report was so submitted on 19.11.2016. 10. We have heard the learned counsel for the parties and perused the relevant record, including the various reports submitted in the matter from time to time, thoroughly. 11. As succinctly put by Mr. Kamil Khan Mumtaz, the effect of vibrations on the monuments depends on:  Magnitude of Vibration produced by a particular action  Distance between vibration source and the vibration receiver  The condition of the monument  Nature of mediums through which it travels to receiver (soil, concrete etc.) 12. National Cooperative Highway Research Program (2012), as quoted by Dr. Pamela Rogers, states that “Operation of Lahore Orange Line Metro Train Project 66 heavy construction equipment, particularly pile drivers, and other impact devices such as pavement breakers, creates seismic waves that radiate along the surface of the earth and downward into the earth. These surface waves can be felt as ground vibration. Vibration from operation of this equipment can result in damage to buildings including cracks, tilting and subsidence. As seismic waves travel outward from a vibration source, they excite the particles of rock and soil through which the waves pass and cause the particles to oscillate. 13. The term “threshold damage vibration level” is defined as the highest vibration level at which no cosmetic, minor, or major damage occurs. The manner in which a particular building will respond dynamically to strong ground vibration depends on many factors, among which are the soil on which the building is founded, the building’s foundation (e.g., spread footing, piles), the building’s mass and the stiffness of the building’s main structural elements. The condition of a building and its maintenance are important factors when assessing susceptibility to vibration damage and must be taken into account when setting vibration limits. 14. The study of the vibration induced by a train transit in a building located along the line requires solution of the following three sub-problems:  source problem, i.e. the definition of the physical mechanism responsible for the generation of vibrations induced by the transit of trains, and the evaluation of the vibration level at a short distance from the track;  propagation problem, i.e. the study of propagation of vibration from the source to the building; Lahore Orange Line Metro Train Project 67  structural response, evaluation of the modification to the vibration signal induced by the building components (i.e. foundations, load bearing structure, including infill walls, and floor plates). 15. The physical parameters of the transit facility, the geology, and the receiving building all influence the vibration levels. The important physical parameters can be divided into following four categories:  Operational and Vehicle Factors: This category includes all the parameters that relate to the vehicle and operation of the trains. Factors such as high speed, stiff primary suspensions on the vehicle, and flat or worn wheels will increase the possibility of problems from ground-borne vibration.  The ideal rail vehicle, with respect to minimizing ground-borne vibration, should have a low unsprung weight, a soft primary suspension, a minimum of metal-to-metal contact between moving parts of the truck, and smooth wheels that are perfectly round. A limit for the vertical resonance frequency of the primary suspension should be included in the specifications for any new vehicle.  Geology: Soil and subsurface conditions are known to have a strong influence on the levels of ground-borne vibration. Among the most important factors are the stiffness and internal damping of the soil and the depth to bedrock. Experience with ground-borne vibration is such that vibration propagation is more efficient in stiff clay soils, than in loose sandy soil, and shallow rock seems to concentrate the vibration energy close to the surface and can result in ground-borne Lahore Orange Line Metro Train Project 68 vibration problems at large distances from the track. Subways/Tunnels founded in rock will result in lower vibration amplitudes close to the subway due to efficient propagation, as the vibration level does not attenuate as rapidly in rock as it does in soil. Factors such as layering of the soil and depth to water table can have significant effects on the propagation of ground-borne vibration. Soil layering will have a substantial, but unpredictable, effect on the vibration levels since each stratum can have significantly different dynamic characteristics. The presence of the water table may have a significant effect on ground-borne vibration, but a definite relationship has not been established. Factors Related to Vibration Receiver Foundation Type: The general rule-of-thumb is that heavier the building foundation, the greater the coupling loss as the vibration propagates from the ground into the building. Building Construction: Since ground-borne vibration and noise are almost always evaluated in terms of indoor receivers, the propagation of the vibration through the building must be considered. Each building has different characteristics relative to structure-borne vibration, although the general rule-of-thumb is, the more massive the building, the lower the levels of ground-borne vibration. Lahore Orange Line Metro Train Project 69 Acoustical Absorption: The amount of acoustical absorption in the receiver room affects the levels of ground-borne noise. 16. Indeed, “Historical structures are particularly vulnerable to the effects of vibrations generated at an adjacent site. Deferred maintenance and past alterations may have produced structural weak points that are susceptible to damage. Historic finishes, such as plaster walls and ceilings, lack the flexibility to accommodate abnormal movement, while shallow foundations (common in historic buildings) may lack the rigidity to resist vibration induced movement.” (Randl 2001) 17. However, we have noted that all analysis and studies which purportedly formed the basis for the issuance of the NOCs, in question were carried out/undertaken, without certain very relevant basic and crucial information and specifications, like there is absolutely no technical information/evaluation about the stability, strength, endurance level/threshold, or vulnerability/susceptibility of the structure of any of the eleven (11) monuments in relation to the OLMT project, out of which monuments five (5), being protected antiquities under section 10 of the 1975 Act, are by definition, “ancient” buildings. There is absolutely no information about the foundations, their strength, shape, size, and extent of these monuments. Absolutely no physical/technical examination/test or analysis of the monuments has been conducted in relation to the subject project, though all of the above information & tests were absolutely inevitable to determine the endurance/threshold level and the susceptibility of the monuments in relation to the amplitude of the vibration caused by the construction machinery/equipments, and/or by transit of the train. Lahore Orange Line Metro Train Project 70 18. Although the proponents seem to have undertaken extensive field investigation of the soil and subsurface condition, through base hole test along the alignment of the project and generally on the side of the road, and about 5-meter from the centre line, and it is claimed that standard penetration tests were used to determine the compactness/density of the soil, and that silty clay and clayey silt upto 6-8 meters in depth, and thereafter silty sand and sandy silt have been found, and further that Lahore’s soil is generally silty clay and clayey silt, however, no geotechnical investigations were carried out between the track alignment and the monuments or around the monuments which would have been more prudent and appropriate for achieving precision, more so for the reason that no verification, by any geologist, has been submitted to support the claim that there shall be absolutely no material variation in the nature, properties, qualities and characteristics of the different strata of the soil and the other relevant components contiguous to and around the monuments. 19. As is well known the vibration amplitude reduces as it propagates from the source to the receiver. The larger the distance, the lesser the amplitude. In the present case, there are two different sources of vibration, one is the operation/deployment of the construction machinery/ equipment, during the construction phase, and the other would be the transit of train during the operational phase. Construction machinery, as can be seen from the photographs at page 8 of CMA No.8592/2016 in CA 2144/2016, operates from and is deployed upto the point well beyond the viaduct piers, and beyond the raft in the elevated section, and are so deployed upto the point beyond the edge of the trench for the tunnel/box of the cut and cover section. Whereas the train transit Lahore Orange Line Metro Train Project 71 induced vibration is transmitted into the soil and propagates towards the monuments, from the raft of the pier, and from the edge of the cover/roof slab of the cut and cover tunnel/box, as the medium through which the vibration is transmitted beyond the train track changes from that of the viaduct and cut and cover systems, respectively, into the contiguous soil at these two points. Therefore the closest point for the vibration source for the monuments during construction is the edge of the trench of the raft, and the edge of the top/roof slab of the cut and cover tunnel/box. Certainly the source of vibration must be calculated from the point of origin of the energy. However, the distance for calculating/evaluating the level of vibration for the construction phase has, in respect of elevated viaduct system, been taken from the middle line of the width of the pier, instead of the edge of the trench of the raft, and for the cut and cover section, it has been taken from the edge of the cover/roof slab of the subway tunnel/box, instead of the edge of the trench of the cut and cover tunnel. Thus the NESPAK measurements of the viaduct system refers to the distance in between the middle of the viaduct piers and the monument wall, whereas the actual distance is 6.43 meters (21 feet) closer to the monument then stated by NESPAK, and verified by TYPSA Asia. This additional/excessive distance of 6.43 meters (21 feet) has been calculated by taking into account the distance between the middle line of the pier and the edge of the raft/pile cap, being 5.4 meters (17.8 feet), plus the distance between the edge of the raft/pile cap and the edge of the trench dug for the raft/pile cap. Similarly, by ignoring the distance between the edge of the roof/top slab of the cut and cover trench/box and the edge of the tunnel trench, NESPAK has taken into account an additional Lahore Orange Line Metro Train Project 72 distance of 4.82 meters (15.81 ft.) in respect of the cut and cover section. Both the above additional/excessive distances/calculations are clearly demonstrated through photographs at pages 3 and 4 of the presentation submitted by Mr. Kamil Khan Mumtaz, and thus the level/amplitude of vibration received or to be received by the monuments has been calculated on the basis of distances greater than the actual, and cannot, therefore, be relied upon. 20. The calculation suffers from another inadequacy/inaccuracy as the size, shape and extent of the foundations of the monuments have not been discovered and have thus not been taken into account while calculating the relevant distance. Possibility of the footings/foundations setting of the monuments spreading/existing beyond the visible structure of the monuments, bringing the monuments still closer to the Project site cannot therefore be ruled out. 21. As noted earlier neither have the structures of the monuments been examined, or assessed nor is any structural resilience data thereof available, however, from the record of the present case, it can well be seen that the monuments, especially the protected heritage amongst those, are quite old in age. Atleast three (3) of the antiquities are more than three hundred and seventy years (370 years) old. Some of the monuments, as recorded by Dr. Pamela Rogers, have suffered structural instability and have also developed signs of stress, cracks and neglect. However, NESPAK in determining the vibration impact tolerance level of the monuments, have applied a threshold value of 3 mm/s which is prescribed by German Standard DIN 4150-3 for “buildings of great intrinsic value”. Whereas, as noted by structural engineer, Lahore Orange Line Metro Train Project 73 Muhammad Khalil Rehman in his note dated 05.1.2017, (annexure ‘D’ to CMA No.196/2017 in CA 2144/2016), the technical advisory note TAV-04-01-R020 at page 17 of the CALTRAN manual states that there is a real possibility of structural damage to historical buildings and buildings in poor condition by transit of a train from within 15 meters (50 ft to 100 ft) thereof. It may be noted that it is in fact the CALTRAN standard that has been applied by NESPAK in relation to the construction machinery/equipment in this case. However, for monuments/heritage buildings it has used DIN Standard instead, which, as noted above, prescribes the threshold limit in respect of “Building of Great Intrinsic Value” and not for “heritage building”, for closer to which category, it is CALTRAN which prescribes a tolerance level of 2mm/s (0.08/s), under the description ‘ancient monuments or ruins”. 22. A reference to the following passages from a research study/paper in relation to ‘Metro Train induced vibration on historic building in Changu, China” published in a journal of Zhenjiang University – Science A (Applied Physic and Engineering) also may be relevant in the present context. “Generally, it is extremely rare for vibrations from train operations to cause any sort of building damage, even minor cosmetic damage (Heckl et al., 1996). However, there is sometimes a concern regarding long-term vibration effects on historic buildings located near the subway lines. Traffic vibrations are usually low, but lasting, which could lead to potential damage, like building material fatigue and foundation settlement to historic buildings. For structures that have suffered from weathering, desquamation, or have cracks, even low velocities could give Lahore Orange Line Metro Train Project 74 rise to fatigue damage with frequent occurrences.” “For modern steel structures or reinforced structures, it is believed that a PPV lower than 10 mm/s will rarely cause any sort of building damage. For historic buildings and memorials, the criteria are usually stricter, from 3 to 10 mm/s PPV, depending on local codes, which are summarized by Ma et al. (2009). Numerous measurements show that typical ground vibration levels from underground tunnels lie in the range of 0.05–1.00 mm/s, lower than the values in the codes mentioned above, but there remains the possibility of damages to historic buildings. That is, the PPVs between 3 and 10 mm/s do not generally consider architectural damage, but rather structural damage.” “The Chinese National Code (GB/T 50452-2008) gives a criterion of 0.10–0.75 mm/s, which is now one of the strictest allowable values in the world and could be used to evaluate architectural damage. In this code, the fatigue limit is used to fix the allowable velocities. When the cyclic stress is lower than the limit, the materials and structures are unlikely to be destroyed by fatigue. In this case study, for the brick-masonry structure listed as a State Protected Historic Site, the allowable horizontal PPV at the top of the monument is 0.15–0.25 mm/s, according to GB/T 50452-2008. 23. With the various inaccuracies, inadequacies, anomalies and lacunas as discussed in paras 17 to 21 hereinabove, the safe distance from the project alignment to the monuments, as mentioned by Dr. Pamela Rogers is thirty two feets (32 ft.), but the Supreme Court Registry Building, Saint Andrew Church and Mauj Daraya Darbar are situated at much shorter distances. Whereas the Lakshmi building lies just outside the said limit, which monument, Lahore Orange Line Metro Train Project 75 according to her, is already in a fragile state of existence. The monuments have thus been rendered unsafe by the proposed construction of the project, even as per Dr. Rogers calculations. 24. The Mughal era hydraulic tank near the entrance of the Shalamar Garden, which is integral part of the Garden is, according to Dr. Rogers, very close to the alignment of the viaduct, and will in fact be partially underneath the viaduct and is particularly at risk. The continuous low level vibration from the Train transit, in the opinion of Dr. Rogers, may cause structural damage to the existing fabric, which opinion is in consonance with the opinion expressed by a study published by Zhenjiang University reproduced at page 16 hereof. It is also crucial to note that the cumulative effect of the various construction machineries operating simultaneously has also not been taken into account, which may have a serious bearing in fixing the level of vibration. 25. A further anomaly in the NESPAK report is that the peak acceleration and peak velocities (vibration) for Supreme Court and St. Andrew Church buildings are given as less than such value of Mauj Darya Darbar, even though the distances of construction/operation point(s) for Mauj Darya Darbar is given greater than such distance for that of the Supreme Court building. 26. As noted earlier, the definition of the physical mechanism that generates vibration is the foremost component, and the most crucial factor for the study/analysis and evaluation of vibration. In the present case such physical mechanism is a train, said to be a “Chinese standard BI train”. It may also be recalled that the specifications like unsprung mass, distance between axles, primary suspension and stiffness of the suspension, of the vehicle are the most relevant, and crucial specifications/information for Lahore Orange Line Metro Train Project 76 evaluating the transit induced vibration. However, despite request from TYPSA Asia, data regarding the unsprung mass and the dynamic stiffness of the relevant elements was not furnished to them. It was because of lack of information that many specifications and details were assumed to be similar to a model used in a study/paper known as XIA.H.Zhang. N, which was feed by NESPAK in the Structural Analysis Computer Program, SAP2000, to simulate the excitation of the Metro train as supposedly being compatible to “Chinese standard BI train”. However absolutely no information has been laid, and no explanation submitted before us, as to the basis of the assumed compatibility between the said train and the XIA model and therefore, it cannot be said with any certainty that the specification values and configuration used to assess and evaluate the amplitude of the vibration generated by the subject train are in fact the same as that of the XIA model train, relevant details of which model also have not been placed before us and the result thus achieved cannot be sanctified by this Court. 27. It may be relevant to observe here that Typsa-Asia who were appointed as experts to verify the credibility of the Nespak reports, have in their report proceeded to endorse the Nespak reports without analysing the same properly and by ignoring the various deficiencies, discrepancies, inadequacies and anomalies therein, as discussed in detail hereinbefore. It can also be seen from the Typsa’s report that certain very crucial information and details sought by Typsa from Nespak were either not provided or where provided were incomplete or inadequate, and as acknowledged in the report itself, in respect of some issues, Typsa had to proceed on assumptions. Typsa’s report is therefore of no avail in the matter. Lahore Orange Line Metro Train Project 77 28. As discussed in detail in the following passages from a World Bank publication titled, “The Economic of Uniqueness, investing in historic city cores and cultural heritage assets for sustainable development”, which is a collection of research papers authored by leading scholars and practitioners in heritage economics. It is now well recognised that “heritage is a public good”, and “yields public good benefits”. It provides “crucially needed continuity and stability”, helps in “poverty alleviation” and that heritage “anchors people to their roots, builds self esteem and restores dignity”, and serves as a “driver of local economic development and prosperity”. Heritage “might deteriorate or depreciate if not maintained and impose on the present generation a duty of care so they can be handed to future generation”. “The positive influence of cultural heritage on liveability, economic growth and local economic development is also now well established. Whereas undoubtedly liveability is not a middle class luxury. It is an economic imperative: “In a world where more than half of the population now lives in cities and more than ninety 90 percent (90%) of urban growth occurs in the developing world, cities try hard to modernize without losing their unique character, embodied in their historic cores and heritage assets. As cities expand rapidly, conservation and continued use of heritage can provide crucially needed continuity and stability. In other words, the past can become a foundation for the future”. “Cities that are the most successful at attracting investment and businesses to meet the aspirations of their citizens, while alleviating poverty and promoting inclusion are those that harness all of their resources, including their Lahore Orange Line Metro Train Project 78 heritage. In addition, heritage anchors people to their roots, builds self-esteem, and restores dignity. Identity matters to all vibrant cities and all people”. “Heritage is a public good and the economic justification for public sector investment is well established”. “The good news is that there is an increasing trend toward financing projects aimed at conserving and incorporating heritage into development strategies. All countries, developed and developing, are indeed investing more into conserving their city cores and heritage, with projects focusing particularly on landmarks and other major assets”. “In economics, heritage can be seen as an asset, with the theoretical basis in capital theory. The concept of capital has then been extended into the field of culture and heritage, with the definition of cultural capital”. “Like any other form of capital, both cultural and natural capital have been inherited from the past, might deteriorate or depreciate if not maintained, and impose on the present generation a duty of care so they can be handed down to future generations”. “It is widely acknowledged that heritage has a value to the community in which it is located. Among the resources that these cities need to harness are their heritage assets, which are unique features that differentiate them from other cities”. “Tourism has emerged as one of the fastest- growing sectors of the world economy. The average growth of tourism arrivals, as the world economy recovers, is likely to continue to grow in the decades to come. This is especially due to Lahore Orange Line Metro Train Project 79 growing interest in visiting and enjoying vibrant cities and heritage assets”. “Tourism, by virtue of being a labour intensive activity, can allow the large pool of unemployed and underemployed individuals in developing countries to get jobs and in turn create the conditions for a sustained and broad-based growth”. “Tourism has spill over effects in other economic sectors: the foreign direct investment associated with it can in fact bring managerial skills and technology with potential benefits to other sectors. Policies designed to foster tourism ………… can enhance growth in other sectors and distribute wealth more widely”. “Investment in heritage was driven by the need to conserve and upgrade specific endangered assets in the phase of rapid urbanization, and to prevent and mitigate the possible adverse impacts of large infrastructural projects”. “Heritage yields public good benefits that can be classified in the same ways as environmental non-market benefits”. “This book takes inspiration from Nobel Prize Laureate Robert Merton Solow’s quotation: “Over the long term, places with strong, distinctive identities are more likely to prosper than places without them. Every place must identify its strongest, most distinctive features and develop them or run the risk of being all things to all persons and nothing special to any. […] Liveability is not a middle-class luxury. It is an economic imperative.” “The positive influence of cultural heritage on liveability, economic growth, and local economic development has been increasingly studied and discussed in the last few decades”. Lahore Orange Line Metro Train Project 80 “Historic city cores and their cultural heritage assets can have an effective role in differentiating a city from its competitors and in improving liveability and attractiveness”. “In a context of rapid urbanization, old cities struggle to modernize without completely losing their character. In the absence of a strategic public intervention to steer their transformation, many of them simply drift into a haphazard mix of demolition, new construction, and building upgrading ……………………… The level of economic activity these cities can sustain typically increases, sometimes substantially, but in the process these places also lose their distinctive traits and become less liveable. This is not merely a concern of culture-loving intellectuals in the rich world, who may be too privileged to fully value the benefits of rapid urbanization. In many cases, the inhabitants of these cities also regret the loss of a sense of place and the disappearance of the physical markers of their identity”. “The frantic transformation of centuries-old Asian cities into soulless agglomerations of generic architecture is an obvious illustration of this trend. Moreover, there is an element of irreversibility in transformations of this kind, as recovering what was lost is enormously more expensive than it would have been to preserve it in the first place”. “Admittedly, there is also an increasing trend toward financing heritage projects, aimed at protecting and restoring unique buildings or architectural ensembles”. 29. Heritage has to be preserved and protected in all respects, all of it virtue, qualities, facets and characteristics are to be secured from all kinds of harms, including impairment of its visual integrity. According to Dr. Pamela Rogers, the concept of visual Lahore Orange Line Metro Train Project 81 integrity is frequently considered crucial in relation to the preservation of a heritage sites. Visual integrity may pertain specifically to vistas, panoramas, viewpoints, and silhouettes. Visual Integrity can also be taken to mean the capacity of a heritage to maintain its visual distinctiveness, and to visually demonstrate its relationship with its surroundings. 30. The importance of and significance attached to the protection of important views, and their contribution, and relevance in building an image for a historic town, and also in promoting the welfare of the people, can be well appreciated from the following passage of a research paper: “Preservation of the character of historic towns and mitigating the impacts of new development has been a challenging task for spatial planning authorities throughout the world. In preserving the character of historic towns, protection of important views of heritage buildings and landmarks plays an important role. Most of these heritage buildings strongly contribute in forming an image for the historic town. The existence of such views, often containing well known cherished landmarks and landscapes, enriches our daily lives, attracts tourist and helps our communities prosper. “Views play an important part in shaping our appreciation and understanding of historic environment, in towns and cities and in the countryside. Some views are designed to be seen as a unity, more commonly; a significant view is a historical composite, the cumulative result of a long history”. 31. It may, in the above context, be beneficial also to reproduce certain extracts from an article authored by Leo Hollis, titled “How are protected views shaping cities” quoted in the Lahore Orange Line Metro Train Project 82 impugned judgment, as being reflective of the emphasis that the city planners put on protected views in order to preserve the fundamentals of a city and to protect the character of the landscape that characterizes the features of that city, and also the emphasis laid on the significance attributed to preserving such views, as follows:- "In recent months, the council has been responding to widespread concerns that the city of "dreaming spires" was about to be swamped by a rash of tall new buildings. As a result, alongside English Heritage and other agencies, the council has devised policies that create a series of protected views, triangular sections that cut across the map in order to preserve the vertical skyline of the city." "A section of city panoramas from particular points of historic or local interest have been protected, taking in, not just individual historical buildings, but also the topography, the city as a landscape of natural features, variegated heights and forms, combining into a pleasing image…" "…Since the 1960s, different city governments have looked at the preservation of views as a way of controlling the shape, in particular the vertical outline, of cities. How tall should a building be and where should it fit in? Are skyscrapers only for downtown? What kind of building - office, monument, and apartment block - should be allowed to rise into the sky? What can it obscure and what must it not overshadow?" "…For some, cities are changing too fast and in the wrong places. They are losing their character and being replaced by a ubiquitous glass and steel architecture that offers no sense of location. Lahore Orange Line Metro Train Project 83 Tall towers are replacing the human scale of the city's heritage." "…Protected views are ways of managing change: restricting growth in some parts, ring - fencing and preserving the significant aspects. It prioritizes the ocular encounter with the city. The metropolis must "look right to be right." "…there was public concern about the "Manhattanisation" of the financial district of San Francisco that many people thought would damage the "city pattern". This was developed into a general plan passed into law in 1995, including the preservation of "major views whenever it is feasible, with special attention to the characteristic views of open space and water that reflect the natural setting of the city and give a colorful and refreshing contrast to man's development." "For example, are protected views the best way to preserve the heritage of the city? The 2006 Street View study conducted by Edinburgh city council noted some places were "fundamental" to the city, and key views were "precious" and even "sacrosanct" in providing a "sense of the city". 32. In the case of Penn Central Transportation Co. v. City of New York 438 U.S.104 (1978), the U.S. Supreme Court whilst upholding the decision of the New York City’s landmark Preservation Commission, denying permission to construct an office tower on top of the Grand Central Terminal, a railroad station in midtown Manhattan, endorsed the governmental restriction on historic building, and upheld the historic preservation as a legitimate governmental objective. The Court also sanctified the preservation programs around the country by upholding New York City’s historic Lahore Orange Line Metro Train Project 84 preservation laws, which restricted changes to the property designated landmarks and historic preservation. 33. The judgment recognized the fact that the municipal laws to encourage or require preservation of the heritage building were enacted in the back drop of the historic building being destroyed as the same were not being valued as much as those ought to have been, and also without exploring the possibility of preserving them, and in view of a widely shared belief that the heritage building enhance the quality of life for all and serve as an example of quality for today, thus it was observed that: "Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. “Historic conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing - or perhaps developing for the first time - the quality of life for people." Lahore Orange Line Metro Train Project 85 34. The conclusion drawn by the Commission was approved by the U.S. Supreme Court in the following words:- "Landmarks cannot be divested from their setting ……..………………….. and we must preserve them in a meaningful way - with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it." 35. In the case of South Lakeland District Council v. Secretary of State for the Environment [1992] 2 Advisory Committee 141, his Lord Justice Bridge observed, that: "Was it the Parliament's intention that the decision-maker should consider very carefully whether a proposed development would harm the setting of the listed building (or the character or appearance of the conservation area), and if the conclusion was that there would be some harm, then consider whether that harm was outweighed by the advantages of the proposal, giving that harm such weight as the decision- maker thought appropriate; or was it Parliament's intention that when deciding whether the harm to the setting of the listed building was outweighed by the advantages of the proposal, the decision-maker should give particular weight to the desirability of avoiding such harm? And that “there is no dispute that the intention of section [72(1)] is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, Lahore Orange Line Metro Train Project 86 no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest. 36. Similar views were expressed in the case of Hetherington (UK) Ltd. v. Secretary of State for the Environment [1996] 69. P & CR. 874. 37. In the case of Barnwell Manor Wind Energy Ltd. v. East Northamptonshire District Council etc. [2014] EWCA Civ 137, in an appeal against the order quashing the decision of a Planning Inspector, whereby the former granted planning permission for a four-turbine wind farm on land north of Catshead Woods, Northamptonshire, in the face of section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which required that the planning authority, while considering as to whether or not grant planning permission for development which affects a listed building or its setting, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses, and in dealing with the question as to what extent the visible presence of turbine proposed to be erected in the wind farm site (which was around 1.3 KM from the boundary of the registered park and 1.7 KM from the New Beild itself), would affect the significance of the heritage assets concerned, the inspector observed that the tribune array would not intrude on any obviously intended planned view out of the garden or from the garden lodge, as in his view, a reasonable observer would know that the turbine array was a modern addition to the landscape, separate from the planned historic landscape or building they were within, or considering or interpreting, and thus Lahore Orange Line Metro Train Project 87 held that the presence of the wind turbine array would not be so distracting that it would prevent or make unduly difficult, an understanding, appreciation or interpretation of the significance of the elements that make up Lyveden New Bield and Lyveden Old Bield, or their relationship to each other. And therefore, the effect on the setting of these designated heritage assets would not reach the level of substantial harm. 38. His Lordship of the Court of appeal, referring to South Lake and Hetherington (UK) Ltd. (supra) with approval, proceeded to observe that: "…In my view, Glidewell LJ's judgment is authority for the proposition that a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give "considerable importance and weight." And also "That conclusion is reinforced by the passage in the speech of Lord Bridge in South Lakeland to which I have referred (paragraph 20 above). It is true, as Mr. Nardell submits, that the ratio of that decision is that "preserve" means do no harm". However, Lord Bridge's explanation of the statutory purpose is highly persuasive, and his observation that there will be a "strong presumption" against granting permission for development that would harm the character or appearance of a conservation area is consistent with Glidewell LJ's conclusion in Bath. There is a "strong presumption" against granting planning permission for development which would harm the character or appearance of a conservation area precisely because the desirability of preserving the character or appearance of the area is a consideration of "considerable importance and weight." Lahore Orange Line Metro Train Project 88 39. Discussing the decision of Ouseley J. in Garner v. Elmbridge Borough Council [2014] EWCA Civ 891, His Lordship observed: "…Garner is an example of the practical application of the advice in policy HE9.1: that substantial harm to designated heritage assets of the highest significance should not merely be exceptional, but "wholly exceptional". And concluded that: "For the reason I agree with Lang J’s conclusion that Parliament's intention in enacting section 66(1) was that decision-makers should give "considerable importance and weight" to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise:” And that “the Inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. He appears to have treated the less than substantial harm to the setting of the listed buildings, including Lyveden New Bield, as a less than substantial objection to the grant of planning permission. The Appellant's Skeleton Argument effectively conceded as much in contending that the weight to be given to this factor was, subject only to irrationality, entirely a matter for the Inspector's planning judgment. In his oral submissions Mr. Nardell contended that the Inspector had given considerable weight to this factor, but he was unable to point to any particular passage in the decision letter which supported this contention, and there is a marked contrast between the "significant weight" which the Inspector expressly gave in paragraph 85 of the decision letter to the renewable energy considerations in favour of the proposal having regard to the policy advice in PPS22, and the Lahore Orange Line Metro Train Project 89 manner in which he approached the section 66(1) duly. It is true that the Inspector set out the duty in paragraph 17 of the decision letter, but at no stage in the decision letter did he expressly acknowledge the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings. This is a fatal flaw in the decision even if grounds 2 and 3 are not made out." 40. In North Norfolk District Council v Secretary of State for Communities and Local Government etc. [2014] EWHC 279 (Admin), High Court of Justice, Queen's Bench Division where wind turbine was to be erected in open countryside on the side of Cromer Ridge, which is one of the highest points in North Norfolk with implications both for visibility and for wind performance. There were a number of listed buildings in the area. The application for planning permission was revised by the Council on the ground of its impact on landscape and heritage assets. The High Court of Justice, Queen’s Bench Division, proceeded to hold as follows: "But the question remains whether in substance he did have that special regard to the desirability of preserving the settings of the heritage assets as part of the consideration that led to his decision, notwithstanding that, as I find, in approaching that question he did not expressly have regard to the statutory requirement as such. In approaching that question I remind myself of the helpful guidance in Garner that it is not necessary for the decision maker to pass through a particular series of legal hoops to comply with Section 66(1) nor, I would add, does he have to recite any particular mantra or form of words to demonstrate that he has done so. However, Lahore Orange Line Metro Train Project 90 adopting the formulation of Mr Justice Ouseley approved by the Court of Appeal in Garner, that does not mean that the decision maker can "treat the desirability of preserving the setting of a listed building as a mere material consideration to which (he) can simply attach the weight (he) sees fit in (his) judgment. The statutory language goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable. So, if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm. The language of presumption against permission or strong countervailing reasons for its grant is appropriate. It is an obvious consequence of the statutory language rather than an illegitimate substance for it." "…However, the problem that it faces is that, on the conclusion to which I have come, the inspector did not in fact have regard to the statutory duty but applied a simple balancing exercise under paragraph 134 of the NPPF. In the particular circumstances of this decision it is not possible to know how the balance would or might have been affected if he had special regard to the desirability of the preservation of the settings in accordance with the approach helpfully summarized in Garner and set out in the other authorities to which I have referred." 41. Perusal of the following passage from Binay Kumar Mishra v State of Behar and others (AIR 2001 Patna 148), may also be relevant: "It needs no emphasis to mention that protection and preservation of our cultural property against the dangers of damage and destruction resulting from theft, vandalism, clandestine excavations Lahore Orange Line Metro Train Project 91 and illicit traffic is our sacred duty, which we owe to posterity. Cultural heritage along with environment is very essential to the well being and to the enjoyment of man's basic rights- even the right to life itself. This justifies on the statute book, the aforesaid legislations aimed at taking all possible measures to stop the impoverishment of the cultural heritage. The concern for protection of such heritage is not limited to India. Governments of most of the countries in the world today are addressing themselves to this problem. The entire humanity is anxious about it…" 42. The famous Taj Mehal case, reported as (1997) 2 SCC 353, which was a watershed case of supervision done by the Supreme Court of India for three long years culminating into passing of orders whereby the industries situated within the Taj Trapezium Zone and emitting pollution by the use of Coal as fuel and causing damage to the Taj Mehal were ordered to be dealt with in a certain manner. The Court also appointed an expert committee, who’s report along with other reports of the committees were considered by the Court before rendered the final judgment. The expert advice through UNESCO was also sought. The case is significant for its rulings that the objective behind the litigation was to stop pollution while encouraging development of industry. It was held that sustainable development was the answer. In the final analysis the industries were directed to change over to natural gas as an industrial fuel. Other industries were directed to be relocated to other industrial areas. 43. In EMCA Construction Co. v. Archaeological Survey of India and others, (2009) 113 DRJ 446, the learned Delhi High Court upheld the interim order passed by the court below, and directed Lahore Orange Line Metro Train Project 92 the Central Government to remove the structures within 100 meters of the Humayun's Tomb. 44. As highlighted in the following passage from an authenticated professional study/research paper, visual assessment study and visual impact study have now become, integral and significant part of designing and planning process, whereas view scope analysis, and view protection are of crucial importance to the discipline of visual assessment and impact study: “The importance of visual assessment study in urban analysis has long been recognized. The construction of the city of Rome and early Italian hill-towns have been influenced by established lines of sight (Bacon, E.1967), and the planned development of visually prominent locations. The visual impact studies have now become part of urban design and planning process. Several cities throughout world conduct similar studies related to view scope analysis and view protection (for example, London View Management Framework, 2010; Seattle View Protection Policy, 2001)”. 45. The following passage may also be relevant to the present discussion: “In the Indian context studies and research specifically focusing on views of historic landmarks and their preservation were not given importance. But there is a need for such research to protect the views of large number of our ancient monuments, which are constantly threatened by the surrounding urban development which obscure the traditionally enjoyed views.” 46. Dilating upon the approach, object and the purpose of visual impact assessment, and the essential requirements, scope Lahore Orange Line Metro Train Project 93 and parameters of the study, it is stated that “The assessment process aims to be objective and to quantify effects as far as possible. However, it is recognized that subjective judgment is appropriate. If it is based upon training and experience, and supported by clear evidence, reasoned argument and informed opinion. Whilst changes to a view can be factually defined, the evaluation of townscape and visual amenity does require qualitative judgments on the significance of effects to be made. The conclusions of this assessment therefore combine systematic observation and measurement with informed professional interpretation”. 47. For the purpose of Viewscape Assessment for Protecting the Views of Monuments, it is found “important to study the visual relationship between sacred monuments and places from where the views are available, so as to identify the most important views for protection”. 48. The results of the study demonstrate the method for assessment of views so as to identify the significant viewscapes for preservation and enhancement. 49. In order to protect the important views, it was found necessary to assess the factors which affect the quality of views, and the quality of place from where the view is available and to examine the following attributes of the view scope. (a) Visibility of the monument; (b) Classification of view, based on distance; (c) Type of view; (d) Dominance in skyline; (e) Background and Foreground of the viewing plane; (f) Obstruction Type. In case of the viewing place, the relevant attributes being: a) Type of viewing place; b) Place characteristics of the view point, i.e., Lahore Orange Line Metro Train Project 94 i. location, ii. assessment view point, iii. place elevation, iv. activities, v. land use, vi. general ambience, and, vii. potential viewers. 50. Using the methodological View Assessment Framework, it was found that significance of views varies according to the location, visibility, quality of view, quality of viewpoint, view type, etc. Among the variety of criteria used for assessing the view significance, the visibility of structure, its dominance in the skyline and type of view has more weightage than the others. The visibility of the structure is graded, based on the percentage of visibility in a three point scale as Highly Visible, Moderately Visible and Poorly Visible. In classifying the view based on distance, most of the panoramic views are distant views. Among the various types of views, the street end view gains significance due to its spatial configuration. ………… Most of the street end views can be appreciated under the immediate and intermediate view ranges. 51. This study not only classifies the significant views, viewpoints, visual corridors which need to be protected but also identifies the obstructing elements which need to be removed from the viewscape. The study has also revealed that the characteristics of the viewing place have very little influence on the significance of the view. Even if the general ambience of the viewing place is poor, it is still appreciated and frequented if the point offers the best view available. However, improving such view places will enhance the viewing experience. 52. In her HIA report Dr. Pamela Rogers has described the concept of visual integrity as crucial to the preservation of a heritage sites. She states that ‘Visual integrity” may pertain Lahore Orange Line Metro Train Project 95 specifically to vistas, panoramas, viewpoints, and silhouettes, and describes the Visual Integrity as the capacity of a heritage to maintain its visual distinctiveness, and to visually demonstrate its relationship with its surroundings. 53. In relation to the OLMT project she submits that “Two points are of importance in assessing visual impacts; firstly, the height of the elevated track in relation to the view-lines to and from the heritage sites, and secondly, of the current Visual Character of the heritage site in its setting. This refers to the value and character of existing views of Sensitive Receivers within the visual envelope (the area where views and viewers may be affected, the area within which the proposed development is wholly or partly visible to the visual receivers). 54. Amongst the four key potential impacts on the subject heritage as identified in Dr. Rogers HIA report, are Visual barriers and intrusions created by the viaduct. Dr. Rogers claims that the various potential impacts identified in the report, can bear directly on the significance of the heritage buildings. As an illustration she submits that a direct line between a visitor to Ziab-un-Nisa Tomb upwards towards the elevated track may imply strong negative impact. She opined that the nature of an elevated viaduct design inevitably creates residual impacts that cannot be fully mitigated. As regards Chouburji, she states that much of the significance of the said monument lies in its value as a highly visible icon of the city of Lahore, and that the setting of the building will be directly impacted and will require reinstatement. Though she states that visibility of the Shalimar Garden to a passerby as a landmark will not be impacted by the operation of the train, as by definition the garden within its peripheral wall is inward looking, she however Lahore Orange Line Metro Train Project 96 points out that the elevated viaduct shall cause visual intrusion from the upper terrace of the garden which may have impact on its significance. In her assessment the visual impact of the project on Chouburji shall be “very high”, whereas in respect of Shalimar Garden, Ghullabi Bagh gateway, Budhu Ka Awa and Lakshmi building it shall be “high”, and the impact in respect of GPO, Aiwan- e-Auqaf and Zaibun Nisa Tomb shall be “medium”. Such impact in respect of Supreme Court, Branch Registry, Saint Andrew Church and Mauj Darya Darbar has been assessed by her as “low”. 55. According to her, threat to the significance to Gulabi Bagh gateway from the impact of the elevated viaduct shall be by way of visual intrusion. Regarding Chouburji, she further states that the operational phase impact thereon shall primarily be by way of visual impairment. 56. Amongst the various attributes of the relevant monuments recognized by Dr. Rogers as carrying their significance, is the monuments visibility to a passerby as a landmark. 57. Dr. Roger states that “Deciding on the acceptability of impacts requires a professional value judgment about the severity and importance of a case” and that “The impact is acceptable if the assessment indicates that there will be no significant effects on the fabric, setting or values of a heritage place or on the function or performance of intangible heritage”. According to her, “the impact is unacceptable if the adverse effects are considered too excessive and are unable to mitigate practically” and that “the impact is undetermined if significant adverse effects are likely, but the extent to which they may occur or may be mitigated cannot be determined from the study, further detailed study will be required”. She however states that the “existing impacts, need to be factored Lahore Orange Line Metro Train Project 97 into the assessment of potential additional impacts from any proposed development or action”. Though she envisages two different, rather conflicting, scenario, one where the new development, because of the earlier changes, may have a limited effect, and the other, where it may worsen the situation further by adding to and joining the earlier impairment, she however does not prescribe any criteria and/or explain the phenomenon for the said two conflicting scenarios in the stated situation. 58. She however has found the impacts acceptable, purportedly for three different reasons, the first being the existing impairment. The second being, her view that the impact can be mitigated, and the third, that the benefits of OLMT project to public overweigh its harm to the monuments. We find the above analysis and stances as misconceived and untenable. In the first place, as noted above, no reason or explanation has been given in the report, as to why the impact of the project will not worsen the situation and will rather be mild, although as noted above, according to her the situation may assume either of the two. She has also not analyzed and evaluated the level of the existing impact, in a scientific and detailed manner (the manner, approach and methodology for such exercise has been discussed in the earlier part of the judgment). We find it crucial to observe here that the approach in relation to heritage should be that its view must not be made worse even when it has suffered any past apathy, as even if the general ambience of the viewing place is poor, it may still be frequated and appreciated as being the best view available. There can hardly be any qualm about the suggestion that efforts should be made to improve the existing view rather than deteriorating it further. Lahore Orange Line Metro Train Project 98 59. It is crucial to note that it is no body’s case that there exist any previous intrusion or obstruction directly in front of any of the monuments blocking or impairing the front view or the façade thereof. Whereas the elevated viaduct is being constructed not only within the 200 ft. protective/ buffer zone, and in close proximity to the monuments, but is being built right in front of the monuments, with 2300 mm diameter, supporting piers within 30m of each other throughout the length of the viaduct, which admittedly will cause visual intrusion, break the view line, and grossly overwhelm the monument. It is crucial to keep in mind, as noted above, that some other obstructions which may presently be existing in the shape of some over grown trees, encroachments, illegal/unauthorized construction, signages, hoardings, roof projections, etc. (which may be impairing some view, of some monuments, to some extent, and some of which obstructions may not be of permanent nature, or could be removed, or be amenable to correction), certainly do not exist right in front of the monument and don’t obstruct, overwhelm, eclipse and/or temper their view as will the viaduct system. It may be observed that the piers of the viaduct at some points and from certain angles may possibility block almost the entire view of the monument and that for someone moving in an automobile, the pier may prove far more obstructive than for those not riding such transport. As regards the view from the Metro Train, it may be observed that it will be available to only those few amongst its passengers who will be sitting along the windows, looking over the monuments, and that their view too would be very limited and restricted, as because of more than 12m height and a close distance, (which distance, it may be noted will be shorter than the distance between the raft of the viaduct and the monument Lahore Orange Line Metro Train Project 99 because of the largely extended arms of the transoms), and also because of the posture of the passengers, only some portion of the monuments excluding much of it façade shall be visible, and that too they will not be able to enjoy and appreciate properly because of the speed of the moving train. As regards the contention that the Shalamar Gardens being inward looking, the viaduct will harm the visual impact from the Garden and not towards it, it may be observed that it is the whole complex of the “Shalamar Gardens” that presents a visual experience and pleasure, including its walls gates, and other components, which clearly, rather mainly falls within its visual envelope, form an integral part of the monument, and are essential components of the majestic ambience and aura of the complex, and undoubtedly the view and the visual impact of these features of the complex shall be obstructed and impaired by the elevated viaduct. However, as to whether or not the effect of visual impairment in relation to these features would be of a tolerable nature would be a value judgment to be made by some independent, reputable and credible professional in the field. 60. The so called mitigating measures suggested in the report by way of “improved exterior landscaping”, “sympathetic design”, “greening of the structure”, “design and public art opportunities” besides being of generic nature, would hardly work to mitigate the admitted adverse impacts and, may we respectfully say, are in fact wholly inconsequential and irrelevant. 61. No doubt OLMT project, being a mass transit project, offers fast mobility facility to the people of Lahore and is planned to cater to about 245,000 passengers everyday and as claimed, the facility shall be an efficient, affordable and environment friendly transport service, and shall help in reducing traffic congestion and Lahore Orange Line Metro Train Project 100 the travelling time between places. The vehicles to be employed being electric trains will certainly cause reduction of hazardous transport related emissions, but if we recall heritage also has its immense significance, and offers lot of public goods and yields public benefits and also help in poverty alleviation. Its positive influence on liveability and economic growth and human development is now well recognized. Heritage holds into its field some finer graces of civilization. It anchors people to their root, builds self esteem and restores dignity and provides an impetus for local economic development and prosperity. 62. However, it is crucial to understand that the present is not a case of competing interest, and the concern all around should be to achieve sustainable progress and development, and more so when the same could have been, and can still be successfully achieved with some effort, prudence and diligence. Why should we allow irreversible damage to our priceless assets that we have in the shape of centuries old heritage, like the elegant and splendid master piece from the times of brilliant Mughal civilization, the Shalamar Gardens, which, has been recognized as an “asset of outstanding universal value”, having “significance”, which “is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity”, deserving permanent protection as a “heritage of highest importance to the international community as a whole”, and has thus been inscribed on the world heritage list, and like the monumental gateway known as “Chauburji” because of its four towers, which expand from the top, not present any where in the sub-continent, which is a beloved urban landmark, and a highly visible icon of Lahore. Lahore Orange Line Metro Train Project 101 63. It is no body’s case that the OLMT project be scrapped. All that is required, is to ensure that no harm to the monuments is caused by the impact of the project which is, not only our obligation under the mandate of the aforesaid two statutes, but, as shall be discussed later, also is our commitment to the international community. It hardly needs any emphasis that the purpose, object, intent, and spirit of the said two laws i.e. the 1975 Act and the 1985 Ordinance, are the preservation and protection of the “antiquities” moveable or immovable both, and the “special premises” respectively. Both the laws contain elaborate arrangement and provisions for carrying out the aforesaid intent and purpose, including that of declaration and listing of particular properties as antiquities, for enforcing their protection, and of making arrangements for custody, preservation and protection of the antiquities, for examining and acquisition of any land containing antiquities, for purchasing or taking on lease of the antiquities, for exercising right of pre-emption in respect of any antiquity, for declaring any antiquity to be a protected antiquity, for enforcing compulsory acquisition of any antiquity, for prohibition of destruction/damage of the protected antiquity, for prescribing and enforcing measures for protection and preservation of antiquity. And by way of prescribing a 200 ft protective zone under section 22 of the 1975 Act and section 11 of the 1985 Ordinance which require that no development plan or scheme or new construction shall be undertaken or executed within the distance of two hundred feet (200 ft.) of a protected moveable “antiquity” and “special premises” without the approval, in case of the former, of the Director General, and in relation to the later, of the Government of the Punjab. It may be relevant to mention here that the above two Lahore Orange Line Metro Train Project 102 provisions are inconsonance with Article 103 of the “Operational Guidelines for implementation of World Heritage Convention”, issued by UNESCO, (of which convention Pakistan is a signatory), which Article prescribes adequate buffer zone surrounding the monuments, to give an added layer of protection to the monuments, including its immediate setting, important view, and its other important attributes. The answer as to why our laws, have prescribed a limit of 200ft. for the preventive/ protective/buffer zone, seems to lie in the scientific fact, as recorded and illustrated by “CALTRON” (annexure “D” to CMA 196/2016), that it is at this distance of 61m (200 ft) that the extenuation of PPV (Peak Particle Velocity)/vibration is reduced to an almost imperceptible level. 64. In view of the foregoing discussion, we are of the firm view that in order to convert the statutory “No” as contained in the above two provisions, into a “Yes”, the authorities concerned ought to have undertaken a scrutiny of the highest order, and the proposal ought to have undergone minute and thorough screening and due diligence, after collecting, and on the basis of, accurate relevant scientific data. In deciding the request for permissions/NOCs for construction OLMT project within the protective/buffer zone, the statutory intent of preserving and protecting the monuments, their views, attributes and character, should have been of the foremost and overwhelming importance, and the authorities ought to have satisfied themselves that the option of avoiding intrusion into the protective zone have been fully explored by the proponent, and the intervention was truly found to be really inevitable, and in the event of proven inevitability of the proposed intrusion, ought have satisfied themselves, on the basis of precise and accurate calculations, assessment, and evaluations of Lahore Orange Line Metro Train Project 103 the vibration induced by the Metro train proposed to be employed, and the machinery specified for construction purposes shall propagate safe level of vibration. Similarly, the measurements and calculations of distances between the various points at which the vibration was/is to generate and transmitted and upto the point where they were to hit the monuments, as detailed hereinbefore, ought to have been carried out with care and precision, and preferably the soil layers contiguous to the monuments should also have been tested and analyzed. The evaluation and analysis of the transit induced vibration also ought to have been based on detailed information of the relevant specification and configuration, but all of the above is lacking in the present case. 65. As noted above, many of the monuments are not just unique and magnificent and reflective of our glorious past carrying immense cultural, social and historical significance, and aesthetic charm and artistic beauty. The monuments being many hundred years old, admittedly bears signs of abuse and neglect, and suffers from vagaries of weather. Some of these have already developed cracks, however, unfortunately neither the endurance level of these monuments been evaluated/ determined nor is the susceptibility of their foundations and footings been measured. These foundations and footings have also not been taken into account while calculating the distance between the track and the monuments. The heritage impact assessment as discussed and analyzed above, clearly indicates and specifies various adverse impact the project will have on the monuments. 66. The statutory intent of protecting and preserving heritage and avoiding any harm thereto is so strong and overwhelming that potential harm to the heritage cannot be taken Lahore Orange Line Metro Train Project 104 lightly even where the harm is outweighed by the advantages of the proposed development. The authorities must give highest priority to the objective of law by preserving or enhancing the character and appearance of the heritage, and in case the proposed development militates against the statutory objective, the proposal will prevail only in exceptional cases. 67. It is an admitted position that originally the track of OLMT in front of Lakshmi building and Chauburji as planned by MV Asia, was to be laid underground however in order to cut down the cost of the project, the length of the underground section of the project was reduced and thus in front of these two monuments also the track is now being built on elevated viaduct instead, although in respect of Chauburji the option of diverting the alignment to a safe distance is admittedly available. 68. It may be relevant to mention here that in terms of Article 4 of “the Convention for protection, conservation, presentation and transmission to the future generations of the cultural and natural heritage” adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO), to which convention Pakistan is a signatory, we are obliged to ensure the “identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage”, and to do all that we can towards the said end to the utmost of our own resources and where appropriate with any international assistance and cooperation, in particular, financial, artistic, scientific and technical which we may be able to obtain. Pakistan being a signatory to the above convention, and a respectable and worthy member of the comity of nations, is obliged to comply therewith, and to fulfil its obligation Lahore Orange Line Metro Train Project 105 thereunder, more so for the reason that this country has also benefited from the technical assistance and financial help provided by UNESCO, in respect of Shalimar Garden and the Lahore Fort inscribed on the world heritage list in 1981, and has as per a UNESCO report, received through them a financial assistance of US $ 121,000, out of which US $ 44,000, was for Lahore Fort and the balance was for the Shalamar Gardens. 69. During its 40th Session held in July 2016 the World Heritage Committee of UNESCO adopted a resolution expressing its serious concern about the construction of the OLMT project and requested the State Party (the Government of Punjab) to prepare a visual impact study of the Project to be presented to the World Heritage Centre and the Advisory Bodies before pursuing the works of the OLMT associated with the Shalamar Gardens, and also requested them to submit to the World Heritage Centre, in conformity with paragraph 172 of the Operational Guidelines, Technical details, including Heritage Impact Assessment (HIA), for all the proposed projects that may have an impact on the outstanding universal value (OUV) of the property (Shalamar Gardens) prior to their approval, for review by the advisory bodies. The Committee also requested the State Party to invite ICOMOS Reactive Monitoring Mission to the property at its earliest convenience to examine the OLMT and to discuss the same with the relevant Government authorities and to review the management and protection arrangements of the property. A further request was made to submit to the World Heritage Centre by 1st February 2017 an up-to-dated report on the state of conservation of the property and the implementation of the various recommendations/proposals made by the Committee as mentioned in the resolution for Lahore Orange Line Metro Train Project 106 examination of the World Heritage Committee at its 41st Session in 2017 with a view to consider whether there is a certain or potential danger to the outstanding universal value of the property. 70. The latest report of the UNESCO World Heritage Centre indicates that the conservation issues regarding Shalamar Gardens was presented to the Heritage Committee this year, and that despite efforts made by the World Heritage Centre and ICOMOS, the Government of Punjab has not invited Reactive Monitoring Mission as requested by the Committee at its last session (decision 40 COM 7B.43), instead the Government, on 29th March, 2017, informed the World Heritage Centre that the Mission will be invited only after the decision of the present case. 71 The report also notes that no visual impact study or detailed report on the progress made regarding the enlargement of the buffer-zone, has been submitted to the World Heritage Centre, and that the report submitted by the Government discloses very little information about OLMT Project. It is further noted that the full potential impact of the project on the OUV of the Shalamar Gardens goes beyond the potential impact of vibration. If is further stated that the visual impact assessment has not been completed, and that since no comprehensive heritage impact assessment (HIA) in line with ICOMOS Guidelines has been carried out to address, not only the issue of vibration, but also the visual and noise impacts, the full impact of OLMT Project is yet to be formally defined and that HIA submitted by the Government in 2016 was not in line with the internationally recommended standards and has thus failed to address the full range of impact of the Project. The report also claims that the construction that has continued on both sides of the Shalamar Gardens is already impacting on the setting and integrity Lahore Orange Line Metro Train Project 107 of the Gardens and if the Project is allowed to be completed along the Gardens it will irreversibly compromise the authenticity and integrity of the property, thereby potentially threatening its OUV. The Committee through its decision adopted in its 41st Session noted that the Reactive Monitoring mission will be invited immediately after the decision of this Court is announced and requested to urgently complete and share with the World Heritage Centre the Visual Impact Study as decided by the World Heritage Committee at its 40th session as soon as possible, and at the latest on 1st December 2017; and to invite a joint World Heritage Centre/ ICOMOS Reactive Monitoring Mission to the property immediately after the announcement of the decision of this Court, to examine the Orange Line Metro Train Project and to discuss the same with the relevant Government authorities and to review the management and protection arrangements of the property and that highest priority must be given to considering how the Shalamar Gardens and their spiritual associations can be sustained alongside any necessary measures to satisfy the needs of a growing city, by setting out the precise and detailed nature of the potential impacts of the Orange Line Metro project on the OUV of the property, and whether and how mitigation measures can be undertaken. 72. It is now well established that right to life as envisaged by Article 9 of the Constitution includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. In the case of Employees of Pakistan Law Commission vs. Ministry of Works (1994 SCMR 1548), it has been laid down that Article 9 of the Constitution which guarantees life and liberty according to law, is not to be construed in a restrictive manner. Life has larger concept which include the right of enjoyment of life, Lahore Orange Line Metro Train Project 108 maintaining adequate level of living for full enjoyment of freedom and rights. 73. In the case of Siddharam Satingappa Mhetre vs. State of Maharastra and others (2011 SCC 694), Indian Supreme Court held that the protection against arbitrary privation of ‘life’ no longer means mere protection from death, or physical injury, but also an invasion of the right to ‘live’ with human dignity, and would include all those aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage. 74. In the case of P. Rathinam/Nagbhusan Patnaik vs. Union of India and another (AIR 1994 Supreme Court 1844), It was held that word ‘life’ in Article 21 means right to live with human dignity and the same not merely connote continued drudgery. It takes within its fold, ‘some of the finer graces of human civilization, which makes life worth living’ and that the expanded concept of life would mean the ‘tradition, culture and heritage’ of the concerned person. 75. In the case of Ramsharan Autyanuprasi & Anr v. Union of India (1988 SCR Supl. (3) 870; AIR 1989 Supreme Court 549), it was held that it is true that life in its expanded horizons today includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21 of the Constitution. 76. In the present case the relevant authorities have clearly failed to take into account the various crucial relevant aspects of the case, and have failed in their duty to enforce the mandate of Lahore Orange Line Metro Train Project 109 law as discussed above, and have ignored the heritage interest secured by law. 77. In the circumstances, we would dispose of the present appeals by directing the DG Archaeology, Government of Punjab to ensure that the heritage impact assessment in the matter be carried out afresh keeping in view the above discussion, preferably with the assistance of UNESCO, who seems ready and willing, rather keen to provide such assistance, if need be felt, some organization/body having expertise, experience and credibility like “English Heritage” be also associated with the exercise. The exercise be commenced at the earliest and preferably within 15 days from today, and fullest endeavour be made that the same be concluded expeditiously and preferably within one month from its commencement, and within 15 days thereafter the DG Archaeology and the Government of Punjab shall decide the request for the NOCs in the light of the report/findings of the fresh heritage impact assessment, with an endeavour to find practicable and viable solutions of the problems and issues that may be pointed out in the said assessment so that the project may be completed as early as possible. JUDGE JUDGE JUDGE JUDGE JUDGE Lahore Orange Line Metro Train Project 110 Announced in open Court on _______________ Judge. ‘APPROVED FOR REPORTING’ Lahore Orange Line Metro Train Project 111 ORDER OF THE COURT With majority of 4 against 1, Maqbool Baqar, J, dissenting, we endorse and approve the NOCs/permission letters issued by the competent authorities and the recommendations of experts relating to execution, mitigation and remedial measures required to be adopted by the executing agency and allow the Project to proceed subject to the following conditions and directions:- i) The appellant shall make all necessary arrangements to ensure that the monuments remain stable and undamaged in all respects during the execution of the Project as specified in the HIA and Study of Control of Vibration, Noise and Foundation; ii) Vibration monitoring shall be undertaken as a part of the monitoring plan using the crack measure devices such as Avongard Standard Tell-Tale throughout the construction period and for an additional period of 10 weeks from the date of commencement of commercial operation of the train or such further time as may be directed by the Director General, Archaeology. In case, it is found that vibration levels at any stage of the construction or operation are exceeding safe limits, construction work / operation shall immediately be discontinued and remedial action shall be taken to ensure that such levels are brought down to acceptable limits. Such actions may inter alia include use of one piece of equipment at a time, during the construction phase, adjustment of train speed, addition of buffers and such other remedial and mitigating measures as may be recommended by the experts; iii) Technical experts shall be present at the sites during the construction phase in the vicinity of the antiquities and special premises with all necessary equipment for monitoring vibration levels. In case, vibration levels exceed the acceptable limits, work shall immediately be stopped, remedial measures taken to the satisfaction of experts and further work shall not commence unless written clearance for resumption of work is given by the experts; iv) An independent and experienced Conservation Engineer shall be appointed to monitor the Project, both during the construction and operation phases. He shall submit monthly reports to the Advisory Committee which shall Lahore Orange Line Metro Train Project 112 make such further recommendations to the Director General, Archaeology as may be required to ensure that the Project as a whole is meeting all technical requirements meant to preserve, protect and conserve the antiquities or protected premises; v) On completion of the project, the train shall be operated on experimental basis for at least 2 weeks on the entire length of the route and the vibration levels shall be monitored to ensure that the same are within the acceptable limits. Commercial operation shall not commence unless written clearance is given by the experts confirming that vibration levels have consistently been found to be within acceptable limits; vi) The speed of the Train shall be reduced while passing near the monuments as recommended by the Directorate General of Archaeology from time to time on the basis of data made available to it; vii) State of the art vibration measuring equipments shall permanently be installed at suitable places in and around the antiquities and special premises to monitor levels of vibration created by operation of the train. Records of the same shall be maintained and regularly checked by a responsible officer deputed to do so; viii) Special teams consisting of qualified experts will be set up which will periodically inspect all antiquities and special premises to detect any damage or deterioration at the sites. Proper records and logbooks shall be maintained for this purpose; ix) Any damage or deterioration shall be reported to the Director General, Archaeology in writing who shall take remedial steps necessary to ensure safety of the buildings and structures; x) Recommendations of the Advisory Committee (already set up) shall be placed before the Directorate General of Archaeology, who shall take necessary steps to ensure that the same are complied with in letter and spirit by all concerned agencies, contractors, sub-contractors and operators; xi) Where excavation is necessary it shall be carried out in a way that it would not affect any structure or foundation of Lahore Orange Line Metro Train Project 113 the antiquities or special premises. Where necessary special arrangements shall be made to stabilize and strengthen the structure of the antiquities and special premises. All necessary safety arrangements shall be made in accordance with the best engineering expertise during excavation, construction and execution phases of the Project; xii) The executing agency shall install accelerometers, velocity transducers, noise detectors and vibration measuring equipment near the antiquities and special premises. The appellant shall ensure implementation of additional mitigation and remedial measures as mentioned in vibration analysis report by NESPAK, Heritage Impact Assessment (HIA) as well as in the reports submitted by Dr. Uppal and Dr. Rogers; xiii) Excavation would be carried out in a way that would not affect any of the exposed or buried structure of the Special Premises; xiv) In case of any adverse impact to the antiquities or special premises during excavation, construction or execution, the appellant and all other related agencies shall immediately and forthwith stop and discontinue further work, take all possible actions to protect and conserve the antiquities and special premises and in this regard, involve such experts and consultants as may be necessary to ensure that the causes and effects of the adverse impact are effectively removed; xv) A dedicated hotline shall be set up, telephone numbers whereof shall be prominently displayed in public areas around all antiquities and special premises for reporting damage or deterioration observed by members of the public or tourists; xvi) In case, any information/report is received by the Director General, Archaeology the same shall be investigated within 7 days and after receiving recommendations (if any) from experts repair/ renovation work shall be commenced within 30 days; xvii) No building material or equipment shall be stored/stockpiled within protected area of the monuments; Lahore Orange Line Metro Train Project 114 xviii) No change shall be made in the alignment of the track which brings any part of it nearer to the monuments than the distances set out hereinabove; xix) Dust pollution during construction shall be controlled through extensive sprinkling of water on regular basis and taking such other steps including but not limited to covering the monuments with protective sheets in order to avoid any damage from dust; xx) The design of the viaduct and nearby stations in terms of colour and designing shall be in harmony with the setting and appearance of the monuments; xxi) The Hydraulic Tank of Shalamar Garden shall be restored, as far as possible, to its original position and the surrounding area will be converted into a green area; xxii) Structures on the southern side of the Shalamar Garden shall be camouflaged through construction of a wall in consultation with the Directorate General of Archaeology. All practicable efforts shall be made to create a buffer Zone around Shalamar Garden as per proposal already pending in the Directorate General of Archaeology and other competent forums; xxiii) The decorative motifs of Shalamar Garden would be replicated on the train station near the Shalamar Garden to create harmony with the Garden; xxiv) The tile mosaic motifs of the Gulabi Bagh Gateway would be replicated on the nearby station of the Gateway to create harmony with the historic Gateway; xxv) The area around the Chauburji Gateway would be properly attended and developed into a greenbelt; xxvi) The decorative motifs of the Chauburji Gateway would be replicated on the nearby station of the Chauburji Gateway to create a harmony with the historic Gateway; xxvii) The area around the Zaib-un-Nisa’s Tomb would be properly attended and developed; xxviii) The decorative motifs of the Zaib-un-Nisa’s Tomb would be replicated on the nearby station of the Zaib-un-Nisa’s Tomb to create harmony with the historic; Lahore Orange Line Metro Train Project 115 xxix) The Respondents shall in consultation with UNESCO and other international agencies prepare phase-wise plan to control and monitor urban encroachments and the process of creating buffer zone around the Shalamar garden; xxx) All future projects which directly, indirectly and incidentally involve antiquities or heritage sites shall in the first instance be widely publicized through print and electronic media at least 6 months prior to proposed date of commencement of the project and public hearings shall be conducted to hear objections, if any against such project; and xxxi) For all future projects, NOCs, licences, approvals and permissions as required by law shall be obtained before work on the project site is commenced. 2. In addition to the above, we direct the Government of Punjab within a period of 30 days from the date of this judgment to take the following steps:- e) Set up an Antiquity and Special Premises Fund with the sum of Rupees One Hundred Million which shall be dedicated to monitoring, renovation and reconstruction work of 11 protected and special premises mentioned hereinabove. It shall be a revolving fund and shall be replenished on yearly basis. It shall be utilized firstly for the maintenance, preservation, restoration and renovation work of the protected and Special Premises, subject matter of this lis and thereafter on other Antiquities and Special Premises situated in Lahore as may be recommended by the special Committee of Experts constituted under this Judgment; f) A broad based Special Committee of Experts consisting of Director General, Archeology Department; a Professor of the Department of Archeology, University of the Punjab; Head of Department of Structural Engineering, University of Engineering and Technology, Lahore; a Senior Professor nominated by the Chairman of Board of Directors of National College of Arts; chaired by a retired Judge of this Court nominated by the Chief Justice of Pakistan shall be notified which shall oversee implementation of the judgment of this Court and the directions issued herein. This Committee shall also make such further recommendations to the Chief Minister Punjab to undertake such measures as may be necessary to Lahore Orange Line Metro Train Project 116 implement and enforce the directions and recommendations made in this judgment. The tenure of the Committee shall be one year from the date of its notification; g) The Government of Punjab shall retain the services of at least three Experts having expertise in the field of archeology and renovation, preservation and maintenance of antiquities and special premises. One of the experts shall be a person having expertise in structural engineering. All three experts will work as a Technical Committee with tenure of one year. The Technical Committee shall report to advise and assist the aforesaid Special Committee of Experts. The Committee shall, if required and with the approval of Director General, Archeology retain services of such other experts as it may consider necessary to undertake its work more effectively regarding the steps required to be taken to monitor the protected and Special Premises all over Lahore and suggest remedial measures that may be necessary to ensure the safety of all protected and special premises in Lahore; and h) We also emphasize the fact that the present condition of the protected and special premises calls for major preservation, renovation, reconstruction and repair work. The Government of Punjab shall take immediate steps and we have been assured by learned Advocate General, Punjab that such steps shall immediately be taken to start repair and renovation work for which the requisite funds will be made available within thirty days from the date of this judgment. 3. In view of the foregoing discussion, the Impugned Judgment of the Lahore High Court is set aside and the instant appeals are allowed in terms noted above. Civil Petition No.3101-L of 2016 is unanimously dismissed and Leave to Appeal is refused. Judge Judge Judge Judge Judge APPROVED FOR REPORTING Announced in Open Court On 08.12.2017. Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Mushir Alam CMA No.908 of 2014 in Constitution Petition No.52 of 2013 [COMPLIANCE REPORT OF ORDER OF THIS COURT DATED 03.12.2013 PASSED IN CONSTITUTION PETITION NO.52 OF 2013 REGARDING PRICE ESCALATION OF ATTA/FLOUR] Liaquat Baloch, Secretary Jamat-e-Islami Applicant(s) VERSUS Secretary, M/o Commerce & Trade Respondent(s) For the Applicant(s): Mr. Taufiq Asif, ASC Mr. Saifullah Gondal, Advocate Amicus Curiae: Malik M. Rafique Rajwana, ASC For the Federation: Syed Attique Shah, Addl.AGP. Dr. Shakeel Ahmed Khan, Food Security Commissioner Mr. Abdur Rauf Chaudhry, Chief, Agricultural Policy Institute Mr. M. Aslam Shaheen, Chief Nutrition, Planning Commission Mr. Ayazuddin, Dy. DG, PBS Ms. Rabia Awan, CSO, PBS Mr. Shaukat Zaman, Director, PBS For Balochistan Govt: Mr. M. Farid Dogar, AAG For KPK Govt: Mr. Zahid Yousaf Qureshi, Addl.AG Mr. Asmatullah, Dy. Dir. For Punjab Govt: Mr. Razzaq A. Mirza, Addl.AG For Sindh Govt: Mr. Qasim Mirjat, Addl.AG Date of Hearing: 22.04.2014 ORDER On the last date of hearing, we had for our own information constituted Committees for the four Provinces. The Committees have made on ground visits. From their reports, it does appear that fundamental rights to life as given in Article 9 and a life of dignity as envisioned under Article 14 of the Constitution may not be available presently to a substantial number of citizens. This situation appears to be accepted by the learned Law Officers. It would however, be appropriate if we can have empirical data before us based on professionally and scientifically sound bases so that further proceedings and orders are grounded in facts which have been validated. For this purpose, the names of certain institutions have been mentioned by some of the learned counsel before us. Dr. Shakeel Ahmed Khan, Food Security Commissioner has also provided some information. The same is for the purpose of our tentative assessment but again it is necessary that a more comprehensive survey is conducted by qualified professionals or institutions having appropriate expertise. 2. We would therefore, like to consider as to how relevant data can be made available to us. Some information based on data gathered by the Pakistan Bureau of Statistics has been provided to us but the same is outdated. We also note that instances have been provided by Dr. Shakeel Ahmed Khan which vary vastly. While in one instance the price of essential food items per month has been given as Rs.6,200/-, there is another case where this amount comes to Rs.14,858/-. We may also add that these figures are in respect of the bare, essential food items required for survival of a family of four comprising 2 adults and 2 children. These figures do not even consider the needs of such family in respect of electricity, water, gas, traveling, school fees, clothing, shelter and a number of other items which are necessary for a reasonable life with dignity. 3. The Governments of the Provinces and the Federation are charged with the responsibility of ensuring that the fundamental rights of the citizens of the State are met. Even amongst the principles of policy, it has been stipulated in Article 38(a) of the Constitution that the State shall secure the well-being of the people. We are listing this petition for hearing during the next week on which date the Governments shall be heard and their actions to alleviate the abject condition of the citizens will be taken into account. We will also consider the possibility of seeking a study by professionally/ scientifically sound bodies or individuals to assist us in understanding if and to what extent, there may be deficiency in assuring the fundamental rights of the citizens, noted above. Adjourned to 02.05.2014. Judge Judge ISLAMABAD, THE 22nd April 2014 Zubair

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez Civil Misc.Appeal No.1 of 2012 In Const. Petition No.Nil of 2011 Against order of Registrar of this Court, dated 30.12.2011. F. K. Butt Petitioner VERSUS President of Pakistan, etc Respondents For the Petitioner(s) : In person. On Court’s Notice : Maulvi Anwarul Haq, AGP. Date of Hearing : 07.02.2012 ORDER Iftikhar Muhammad Chaudhry, CJ-. This Civil Miscellaneous Appeal has been filed under Order V Rule 3 of the Supreme Court Rules, 1980 against the following order of Registrar of this Court, dated 30.12.2011:- “The above cited Constitution Petition filed by you under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 is not entertainable on the following grounds:- 1. President and Prime Minister of Pakistan have been made party as respondent No.1 & 2, however they cannot be made party under Article 248 of the Constitution of Islamic Republic of Pakistan. 2. That you have no locus standi to file this Const. Petition. 3. That you have not provided the certificate as required under Order XXV rule 6 of the Supreme Court Rules, 1980. Civil Misc.Appeal No.1 of 2012 2 4. That apparently, none of your Fundamental Right guaranteed by Constitution, has been violated. 5. That you may approach the proper forum for redressal of your grievance. This Constitution Petition is, therefore, returned herewith in original being not entertainable along with its paper books.” 2. Appeal against the above order is competent before a learned Judge in Chambers in terms of Order V Rule 3 of the Supreme Court Rules, 1980. However, instead of disposing of the listed Civil Misc.Appeal in Chambers, it was ordered to be enlisted in Court under Order V Rule 5 of the Supreme Court Rules, 1980, which reads as under:- “5. The Registrar may, and if so directed by the Judge in Chambers, shall at any time, adjourn any matter and place it before the Judge in Chambers, and the Judge in Chambers may at any time refer any matter to the Court and the Court may direct that any matter shall be transferred from the Registrar or the Judge in Chambers to the Court.” 3. The learned Attorney General for Pakistan has stated that some of the objections have been removed. However, when we have inquired from him as to whether the question of maintainability or otherwise of the petition can be determined by the Registrar, he replied in affirmative. In this behalf, his attention has been drawn towards a judgment of this Court in the case of All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 Supreme Court 600). On this, the learned Attorney General has submitted that subject to all, just and legal exceptions, the Appeal under Order V Rule 3 of the Supreme Court Rules, 1980 may be entertained allowing the respondents to raise the question of maintainability at the relevant time. Civil Misc.Appeal No.1 of 2012 3 4. As the petitioner is aggrieved from the objections raised by Registrar of this Court, vide order dated 30.12.2011, therefore, having examined the same in the light of the judgment noted hereinabove as well as the relevant rules and also after hearing the learned Attorney General for Pakistan, whom notice was given, the listed Civil Miscellaneous Appeal is allowed, subject to all, just and legal exceptions and the office is directed to entertain the petition, in accordance with law. Chief Justice Judge Judge ISLAMABAD 07.02.2012 Zubair

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE KHILJI ARIF HUSSAIN Constitution Petition No.105/12 alongwith CMAs-3795 & 3798 of 2012, HRC No.23957-S/2012 and Const. P. 53/2012. AND Constitution Petition No.104 of 2012 & CMA 3464/12. AND Constitution Petition No.117/12. Hamid Mir and another. … Petitioner (s) VERSUS Federation of Pakistan etc. … Respondent (s) For the petitioners: Hamid Mir & Absar Alam, in person. (In Const. P.105/12) For the petitioner: Dr. Tariq Hassan, ASC (In Const. P.53/12): Syed Safdar Hussain, AOR For the petitioners: Mr. Tausif Asif, ASC (in Const. P.104/12) (regarding obscene and objectionable material in media) For the petitioners: Sheikh Ahsan ud Din, ASC (Sh. Ahsan ud Din)(in Const.P.117/12): Ch. Akhtar Ali, AOR For the respondent-1: Mr. Zulfiqar Khalid Maluka, ASC Mr. Mehmood A. Sheikh, AOR Mr. Nasir Jamal, DG & Rashid Ahmed (Secy.) and Muhammad Azam (Press Information Officer) For the respondent-2: Mr. Hasnain Ibrahim Kazmi, ASC Dr. Abdul Jabbar (Acting Chairman) For the respondent-3: Nemo. For respondent-3: Mr. Hasnain Ibrahim Kazmi, ASC (Sh. Ahsan ud Din)(in Const.P.117/12): Mr. Mehmood A. Sheikh, AOR For the respondent-4: Mr. Dil Muhammad Khan Alizai, DAG (Sh. Ahsan ud Din)(in Const.P.117/12): Mr. M. S. Khattak, AOR For the respondent-5: Mr. Jawwad Hassan, Addl.A.G. (Sh. Ahsan ud Din)(in Const.P.117/12): For the respondent-4&5: Syed Zahid Hussain Bukhari, ASC For the respondent-6: Nemo For the respondent-7: Mr. Naveed Ihsan Mr. Asif Hussain For the respondent-8: Nemo. For the respondents:1,2,6&8: Nemo. (Sh. Ahsan ud Din)(in Const.P.117/12) Const. P. 105/12 etc. 2 For the respondent,9&10: Mr. Jawwad Hassan, Addl. A.G. Mr. Tahir Raza, Addl. Secretary Information Deptt: Mr. Hassan Raza Khan, Dy. Director, ACE. For the Province of KPK: Syed Arshad Hussain Shah, Addl. A.G. (In Const.P.105/12 & in Const.P.117/12) For the Federation: Mr. Dil Muhammad Khan Alizai, DAG. For the respondent-11 & Value TV: Mr. Yasin Azad, ASC Raja Muqsat Nawaz, ASC Ch. Akhtar Ali, AOR For the applicants: Mr. Hashmat Ali Habib, ASC (CMA 4053/12 in Const.P.105/12) Nemo (CMA 3820/12 in Const.P.105/12) Mr. Arshad Sharif, Bureau Chief, DUNYA TV (CMA 3428/12 in Const.P.105/12) Mr. Ghulam Nabi, President Press Association SC (CMA 4063/12 in Const.P.105/12) Mr. M. Hanif Awan, in person (CMA 3464/12 in Const.P.104/12) Nemo (CMA 3631/12 in Const.P.105/12) Nemo (CMA 4210/12 in Const.P.105/12) Nemo (HRC 23957-S/12) For M/s Vision Network: Mr. Adnan Iqbal Chaudhry, ASC For M/s AURORA: Mr. Munir A. Malik, Sr. ASC alongwith Faisal Siddiqi Advocate. For AAJ TV, Kashash TV, AVT, Mr. Mehmood A. Sheikh, ASC DHOOM, APNA TV: For Express TV: Mr. Asad Kharl, (Reporter) For VIVE TV: Nemo. For PTV: Mr. Shahid Mehmood Khokhar, ASC For PUNJAB TV: Nemo For PEMRA: Hafiz S. A. Rehman, Sr. ASC (in Const.P.104/12) Mr. Mehmood A. Sheikh, AOR (regarding obscene and objectionable material in media) Dr. Abdul Jabbar (Acting Chairman) For Airways Media: Mr. M. Bilal, Sr. ASC Mr. Babar Bilal, ASC For ARY: Nemo For Cable Operators: Dr. Amjad Hussain Bukhari, ASC For Pakistan Broadcasters: Mian Gul Hassan Aurangzeb, ASC (CMA 3521/12 in Const. P.104/12) (regarding obscene and objectionable material in media) For Cable Operators Association: Dr. Amjad Hussain Bukhari, ASC (in CMA 3464/12 of Const.P.104/12): Mr. M. S. Khattka, AOR (regarding obscene and objectionable material in media) For Indus Television: Tariq Ismail Date of Hearing: 20.12.2012 Const. P. 105/12 etc. 3 ORDER Jawwad S. Khawaja, J. These constitutional petitions have raised important issues concerning the twin rights of freedom of speech and access to information protected by Articles 19 and 19A of the Constitution. Since all petitions before us concern similar or connected issues, these are being heard together. 2. The brief particulars of the petitions are as follows: Constitutional Petition No. 53 of 2012 has been filed by three petitioners: Independent Media Corporation (Pvt.) Ltd. which conducts business in the name of Geo TV Network; Independent Newspapers Corporation (Pvt.) Ltd. which conducts business in the name of Jang Group and News Publications (Pvt.) Ltd. which conducts business in the name of The News Group. Constitutional Petition No. 105 of 2012 has been filed by two media persons, namely Hamid Mir, presently Executive Editor of Geo News, and Absar Alam, presently associated with Aaj News. Constitutional Petition No. 117 of 2012 has been filed by two senior advocates: Sheikh Ahsan-ud-Din, and Sajid Mehmood Bhatti. And Human Rights Case No. 23957-S of 2012 is based on a complaint filed by Syed Adil Gilani of Transparency International. 3. The Respondents in the various petitions are: Federation of Pakistan, PEMRA, PTA, Bahria Town (Pvt.) Ltd., Malik Riaz Hussain, FBR, SECP, FIA and others. Notices were also issued by the Court to a number of media houses who have filed replies and are now party to these proceedings. Asad Kharral, a journalist, has also filed an application to be made a party. 4. These petitions give rise to a large number of issues on which arguments have been heard over the course of a number of hearings. In our order dated 16.10.2012, we identified 8 issues on which the hearings were focused. During subsequent hearings, some other connected issues have also emerged. At this stage it is useful to re-state the key issues and make certain prima facie observations. Documents which still need to be submitted have also been identified. This order is meant to enable the various parties to present their concluding arguments in an informed and effective manner and to ensure that necessary documents are available on record. I. Maintainability. Whether the petition raises questions of public importance in relation to the enforcement of fundamental right? If so, what are these questions and what fundamental rights are involved? Whether the allegations in the petition against the Respondents No. 4 & No. 5 and M/s Midas (Pvt.) Limited merit examination by this Court in its jurisdiction under Const. P. 105/12 etc. 4 Article 184(3) of the Constitution? And if so, what should be the extent, scope and methodology of such an inquiry? 5. Most parties before us are in agreement that these petitions, as a whole, do raise questions of public importance with reference to the enforcement of fundamental rights, particularly the right to information (needless to say correct information) guaranteed under Article 19A and the right to free speech guaranteed under Article 19. As such, the jurisdiction of this Court under Article 184(3) is attracted. 6. However, prima facie, some issues arising in these cases require detailed probe into facts. These issues raised in the petitions do not require the Court to exercise its extraordinary jurisdiction under Article 184; instead, it would be more appropriate for aggrieved parties to seek their legal remedy at some other competent forum. Some general principles in respect of these issues can, however, be settled at the conclusion of the hearing. II. Constitutionality of Federal Ministry of Information. Whether after the enactment of the 18th Amendment to the Constitution, the legislative competence of Parliament extends to the print and electronic media so as to justify the retention of the Federal Ministry of Information and Broadcasting? 7. Since this is an important constitutional issue any parties wishing to address arguments on the same may do so on the next date of hearing. III. Principles of Media Regulation. Is this a case where the Court should lay down the contours of the fundamental rights contained in Articles 19 and 19A of the Constitution in the context of the electronic media? If so, what are the boundaries of these rights in the context of the electronic media and are there any corresponding duties owed by such media to the general public? IV. Content Regulations and the Authority’s proper constitution. Whether the Content Regulations framed by PEMRA under the PEMRA Rules, 2009 are consistent with the fundamental rights contained in Article 19 and 19A of the Constitution and the mandate conferred by the PEMRA Ordinance, 2002? If not, whether it is appropriate for the Court to formulate Content Regulations or would it be more appropriate to constitute a Commission for this purpose? Assuming that a Commission is to be constituted, what should be its terms of reference and the manner and character of its composition? Const. P. 105/12 etc. 5 8. During the proceedings of this case, PEMRA issued a notification titled PEMRA (Content) Regulations, 2012. These regulations contain a number of affirmative obligations which are to be discharged by the licensees. However, the petitioners have raised challenges against the substantive as well as procedural validity of the regulations. 9. Prima facie, at this stage a full review of the substance of these regulations does not seem warranted by the facts before us. In line with the common law method, it would be better that as and when any party feels aggrieved by the various provisions of the regulations, it may invoke the jurisdiction of the appropriate forum. The constitutionality of the provisions and the proper interpretation thereof can then be ascertained. To do so now by attempting to envision all future possibilities is not necessary. 10. The procedural challenges lodged by the petitioners are more serious. The petitioners contend that the Regulations were formulated without the necessary consultation with all relevant stakeholders. Furthermore, the Regulations were notified in a period when the Authority was improperly constituted, since Dr. Abdul Jabbar, who claimed to be Acting Chairman and actually chaired the Authority’s meetings, had no legal authority to hold this office. Also, since he had notice of this defect, PEMRA may not be able to rely on de facto exercise of authority. 11. The issue of the appointment process for key statutory offices is of the utmost importance in ensuring the integrity and independence of statutory institutions. Therefore, on 18.12.12, the Court directed Mr. Hasnain Ibrahim Kazmi, counsel representing PEMRA, to produce the full record relating to the process whereby Dr. Abdul Jabbar claims to have been appointed Acting Chairman. The Court also directed Mr. Kazmi and the learned Deputy Attorney General, to present the record of the appointment process of all other members of the Authority. The Court also directed the DAG to present similar record for the appointment to the Board of APP and PBC, the major recipients of the budget of the Ministry of Information. Some documents in this regard have been filed. However, the complete record is still awaited and may be submitted within one week. V. Secret Funds. Whether the Federal Budgets have allocated from time to time to the Federal Ministry of Information and Broadcasting any funds that may be spent in its absolute discretion or that may be spent in secrecy without disclosing the purpose of the Const. P. 105/12 etc. 6 disbursements or the identity of its recipients? If so, did the said Ministry have a constitutional basis for such disbursements? 12. Mr. Zulfiqar Khalid Maluka, ASC, representing the Ministry of Information and Broadcasting addressed the court about the details of the Ministry’s budget. He apprised the Court that the bulk of the Ministry’s budget is spent on statutory corporations: Pakistan Broadcasting Corporation, Associated Press of Pakistan, Press Council of Pakistan and a few other. He contended that there were only two – “Special Publicity Fund” and “Secret Service Fund” – which contain a total of around Rs. 14.3 crore in FY-2011-2012, details of which could not be disclosed during the course a public hearing. The Court clarified that in line with Article 19A, it is not inclined to accept this argument. At this point, Mohammad Azam, the Principal Information Officer, Ministry of Information, stated that the Secretary Information is willing to disclose the details of these funds to the Court by submitting the details in sealed cover. 13. Prima facie, while the Ministry may claim privilege from making public disclosure of certain parts of its budget, such privilege is not automatically available to the Government. It must be claimed from the Court. Information for which secrecy is sought must be clearly marked and the reasons for seeking secrecy must also be clearly stated. The Court can then make a determination on this point in line with the law and the Constitution. VI. Fiscal Misappropriation. On 18.12.12, Mr. Asad Kharal, contended that the budgets of 27 other Ministries also contain secret funds similar to the ones which are in place in the Ministry of Information. This is a disturbing disclosure since secrets funds may potentially be a tool for undermining the right of citizens protected under Articles 19 and 19A. Since all public authorities are fiduciaries of the public and receive their funds from the public, the Auditor General or other constitutionally authorized bodies must have access to ensure transparency in the manner in which they spend the allocated budget. VII. Commission. Some petitioners urge the Court to appoint a Commission which may examine issues IV, V and VI at length and propose appropriate content regulations, and record findings about the manner in which government advertisement spending is being made and determine whether it is in line with Article 19A. While we do not find it appropriate to give any finding on this issue at the present stage, the parties pressing this point are directed to suggest Terms of Reference of the proposed Commission. Const. P. 105/12 etc. 7 14. The case is now fixed for hearing on 9.1.2013. Within 7 days from today all documents specified in this order, or anything else which the parties deem necessary for determination of the above-mentioned issues, must be filed in Court so that the hearing of this case can be concluded. 15. Having gone through the PEMRA Ordinance, 2002 and the various notifications presented in Court including Notifications dated 27.9.2008, 27.7.2009 and 14.5.2011 and also having heard the learned counsel on the question of Dr. Abdul Jabbar purporting to represent himself and to act as Chairman PEMRA, we are prima facie, of the view that Dr. Abdul Jabbar has no authority to act as, or to represent himself as Chairman or acting Chairman PEMRA. This aspect was also highlighted in our order dated 17.9.2012 passed in Constitution Petition No. 104 of 2012, in the following terms:- “It has also been pointed out to us that there is no permanent Chairman of PEMRA and incumbent is an acting Chairman for the last about two years. Relevant provisions of PEMRA i.e. section 6 of the PEMRA does not contain any such provision, however, it is understandable that temporarily for a shortest possible period acting Chairman can be appointed to find suitable person to be appointed as permanent Chairman. In this behalf notice be issued to the Secretary, Ministry of Information and Broadcasting to appear and explain on behalf of the Government as to why the permanent Chairman has not been appointed so far”. 16. Despite the above, no Chairman of PEMRA has been appointed in accordance with the provisions of PEMRA Ordinance and particularly section 6 thereof. Consequently, Dr. Abdul Jabbar is restrained from acting as or representing himself as Chairman or acting Chairman of PEMRA. The questions as to the validity of acts taken in the name of PEMRA during the period starting 13.05.2011 when it had no Chairman, will be considered on the next date of hearing. Judge Judge Islamabad 20.12.2012. A. Rehman Not approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Const.P.No.10 of 2013 Against the violence in Christian Colony in Badami Bagh area over alleged blasphemy For the Applicant (s) (in CMA No.1380/13) : Ch. Naeem Shakir, ASC In Attendance : For Govt. of Punjab : Mr. Ashtar Ausaf Ali, A.G.Punjab Mr. Asjad Javed Ghurral, Addl.P.G. Mr. Jawwad Hassan, Addl.A.G. Mr. Khan Baig, Acting IGP, Punjab Mr. Muhammad Amlish, CCPO, Lahore Mr. Noor-ud-Din Mengal, DCO, Lahore Mr. Babar Bakht Qureshi, SSP (Inv) Mr. Multan Khan, Former SP (Inv) Syed Muhammad Amin Bukhari, SP., City (Inv), Lahore Date of Hearing : 25.03.2013 ORDER CMA No.1548/13 This report has been submitted by the CCPO, Lahore, the following paras (j) and (k) mentioned under the caption of causes/reasons for putting quarters on fire are reproduced herein below: - (j) On 09.03.2013 at 09:30 am to 10:30 am, the aggressive crowd started pelting stones at the police. On which SP Multan Khan ordered DSP and SHO to collect all the police officers available in the area at one place which was Const.P.No.10/13 2 resisted by SHO and DSP as they had deployed them at the gates of Joseph Colony. But on insistence of SP, the police force was collected and SP Multan Khan ordered them to carry out lathi charge and tear gas on the un-ruly mob. Then the crowd started stone pelting on the police on which the police started retreating. In the meantime, Javed and Yousaf Kandawala Godowns opened the gates for the police and police entered into their Godowns and closed the doors. SP Multan Khan took refuge on third floor of the Godown and SHO, DSP alongwith the force closed the main gate. On this, the crowd returned to Joseph Colony and set ablaze the quarters of Christians. They also brought their households/equipments on the main road and put them on fire.” (k) Police reinforcement started arriving around 11:30 am alongwith officers which included SSP Operations Sohail Sukhera, SSP Investigation, Babar Bakht Qureshi, SP Cantt:, Maroof Safdar Wahla, SP Iqbal Town Imtiaz Sarwar, SP Civil Lines, Dr. Farukh Raza alongwith DSPs and SHOs with reserves. On arrival of this force, SP Multan Khan and his force which had taken refuge in godowns came out. By that time, the damage had been done. 2. It has also been admitted that the incident is the result of the instigation by the instigators/leaders of two groups, namely, Aman Group and Ittehad Group. Their names have been mentioned in the caption of investigation which are reproduced herein below: - Name of Group Leaders Aman Group 1. Tariq Mehmood 2. Usman Butt 3. Ch. Shabbir Ahmed 4. Malik Yasir Anwar 5. Mian M. Saleem 6. Bao Sajjad 7. Bao Fayyaz Ittehad Group 1. Amir Siddique 2. Saddian Butt 3. Ch. M. Younis 4. Haji Shaukat Const.P.No.10/13 3 3. The conclusion of the report is also reproduced herein below: - “It is submitted that the blasphemy case has been proved to be true against accused Sawan Masih. The investigation of case FIR No.114/13 (burning of Christian Colony) is in progress in which 48 accused have been arrested. The case in which Bishop was man-handled is also being investigated. Main culprits have been identified and efforts for their arrest are being made. Vacation of quarters of Christians was outcome of fear and charged atmosphere as well as persuasion by the SHO. Right from SHO to SP took the event of 08.03.2013 lightly and failed to convey gravity of the situation to their seniors. The senior officers including DIG Operations, DIG Investigation and the then CCPO too could not assess the gravity of the situation. Incident of blasphemy, instigation by business community and presence of labour class (Pathans) a large scale and strike call were the main causes of putting the Joseph Colony on fire. Nothing solid has come on record so far, to show that the godown owners or any other group had planned these events to occupy the land of the Joseph Colony. The investigation of cases is being carried out on merits under my supervision which will be finalized within shortest possible time and real culprits will be brought to book.” 4. Without prejudice to the case of either of the parties at this stage, we refrain from making any comments except making reference to paras (j) and (k) mentioned in the causes/reasons of the incident from which any one can draw inference thus we leave to the high-ups of the police to draw inference in this behalf. In a situation like this where the police officers themselves had taken shelter in a godown, no one else could Const.P.No.10/13 4 protect to the life and property of the inhabitants of the Joseph Colony and their failure to do so is sufficient to prima facie hold that the Fundamental Rights of the citizens of Joseph Colony were not protected as enshrined under Articles 9 and 14 of the Constitution. 5. Learned Advocate General on our query stated that the Federal Government despite repeated requests by the Provincial Government so far has not posted an Inspector General of Police and the command is still with the Acting Inspector General of Police, Mr. Khan Baig with effect from 01.01.2013, after the retirement of the then Inspector General of Police. 6. We may observe that under Article 148 (3), it is also the duty of the Federation to protect every Province against external aggression and internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution. According to the rules and practice, the Inspector General of Police is required to be appointed by the Federation after providing a panel enabling the Provincial Government to make a choice out of the same. A similar situation was also prevailing in the Province of Sindh, where the post of Inspector General of Police was lying vacant from 06.03.2013, ultimately this Court has to pass an order directing to the Federal Government through Establishment Const.P.No.10/13 5 Division to appoint the Inspector General of Police enabling him to ensure the maintenance of law and order situation and we believe that here in the Province of the Punjab in view of the facts and circumstances, noted in this case, it is necessary to issue direction to the Secretary, Establishment Division, Government of Pakistan to do the needful otherwise it would not be possible for the Provincial Administration to maintain the law and order situation in the Province and post a competent person, as Inspector General of Police so he may protect the life and property of the citizens, instead of allowing the police force to be commanded by the Acting Inspector General of Police. 7. The Registrar of this Court is directed to deliver the copy of this order to the Secretary, Establishment Division, Government of Pakistan as well as to the Chief Secretary of the Province of the Punjab so they may with the consultation of each other take steps for the appointment of Inspector General of Police after due consultation with the competent authority. CMA No.1549/13 8. The DCO, Lahore has submitted a report, which is to be examined on the next date of hearing as it is already 4:00 P.M. 9. The case is adjourned for a date in office after 7 days enabling Mr. Muhammad Amlish, CCPO to further probe into the Const.P.No.10/13 6 matter as according to him the report, which he has placed before this Court, is a tentative one. CJ. Islamabad J. 25.03.2013 *Rabbani* J.

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Sh. Azmat Saeed Mr. Justice Umar Ata Bandial Constitution Petitions No. 10, 11 and 12 of 2019 (Regarding the allegations leveled through a media briefing against Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad) Ishtiaq Ahmed Mirza (in Const. P. No. 10 of 2019) Sohail Akhtar (in Const. P. No. 11 of 2019) Tariq Asad (in Const. P. No. 12 of 2019) …Petitioners versus Federation of Pakistan, etc. (in all cases) …Respondents For the petitioners: Ch. Munir Sadiq, ASC Syed Ali Imran, ASC Ch. Zubair Ahmed Farooq, ASC Syed Rifaqat Hussain Shah, AOR (in Const. P. No. 10 of 2019) Mr. Muhammad Ikram Ch., ASC (in Const. P. No. 11 of 2019) In person (in Const. P. No. 12 of 2019) For the respondents: Mr. Anwar Mansoor Khan, Attorney-General for Pakistan Mr. Sajid Ilyas Bhatti, Additional Attorney-General for Pakistan Mr. Sohail Mehmood, Deputy Attorney-General for Pakistan (in all cases) Dates of hearing: 16.07.2019, 23.07.2019 & 20.08.2019 Constitution Petitions No. 10, 11 and 12 of 2019 2 ORDER Asif Saeed Khan Khosa, CJ.: On 06.07.2019 a media briefing was held by Ms. Maryam Nawaz, Vice President of the Pakistan Muslim League (N) and a daughter of a former Prime Minister of Pakistan namely Mian Muhammad Nawaz Sharif who had been convicted and sentenced by Mr. Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad in connection with a Reference filed by the National Accountability Bureau and whose appeal is presently pending before the Islamabad High Court, Islamabad, and in that media briefing she, while flanked by some stalwarts of her political party, disclosed that the learned Judge mentioned above had contacted his old friend namely Nasir Butt, a worker of the political party of the former Prime Minister, and had asked for a meeting so as to express his remorse on having convicted Mian Muhammad Nawaz Sharif under pressure from “certain individuals”. According to that media briefing a meeting then took place between the learned Judge and Nasir Butt at the Judge’s residence and in that meeting a stenographer of the said Nasir Butt was also present. The said meeting was allegedly recorded through a video camera and some parts of the video so made were displayed in the media briefing showing the learned Judge dictating grounds of appeal which could be utilized for the benefit of Mian Muhammad Nawaz Sharif in his appeal filed against his conviction and sentence. In the said video the learned Judge was shown to be maintaining that Mian Muhammad Nawaz Sharif was convicted and sentenced by him without there being concrete evidence produced against him. The learned Judge was also shown in that video revealing that “certain individuals” confronted him with an embarrassing video from his past and required him to decide the case against Mian Muhammad Nawaz Sharif and, thus, the learned Judge succumbed to the pressure and convicted and sentenced him. The learned Judge was Constitution Petitions No. 10, 11 and 12 of 2019 3 also shown in that video to be admitting that the said conviction and sentence weighed heavily on his conscience and, therefore, he wanted to help Mian Muhammad Nawaz Sharif in order to rectify the wrong. On the very next day, i.e. 07.07.2019 the learned Judge namely Muhammad Arshad Malik issued a press release claiming that the conversation shown to be taking place in the above mentioned video had been distorted and twisted. In the said press release the learned Judge maintained that he knew Nasir Butt and his brother Afzal Butt for a long time and that during the course of the trial of Mian Muhammad Nawaz Sharif he was offered bribe and was also threatened with dire consequences in case he failed to cooperate and acquit Mian Muhammad Nawaz Sharif. It was further claimed by the learned Judge in that press release that he did not yield to those temptations, pressures or threats and that although he had acquitted Mian Muhammad Nawaz Sharif in one of the cases being tried by him yet he had convicted and sentenced him in the other case purely on merits and in accordance with the facts and evidence brought on the record. On 11.07.2019 the learned Judge swore an affidavit containing his detailed assertions in the above mentioned regard which affidavit was presented by him before the Honourable Acting Chief Justice of the Islamabad High Court, Islamabad who had then ordered the said affidavit to be placed on the record of the pending appeal filed by Mian Muhammad Nawaz Sharif against his conviction and sentence. The said affidavit contained some more details of the pressures applied and the temptations and bribe offered to the learned Judge for rendering a judgment acquitting Mian Muhammad Nawaz Sharif. It was also claimed by the learned Judge in the said affidavit that even after rendering the final verdict in the case against Mian Muhammad Nawaz Sharif he was approached by the above mentioned Nasir Butt and one Khurram Yousaf who referred to a video of the learned Judge which was followed by a visit to the learned Judge paid by one Mian Constitution Petitions No. 10, 11 and 12 of 2019 4 Tariq and his son who showed him “a secretly recorded manipulated immoral video in a compromising position.” According to the learned Judge the purpose of showing that video to him was to blackmail and coerce him through one Nasir Janjua to record an audio message of the learned Judge for the satisfaction of Mian Muhammad Nawaz Sharif. The learned Judge had revealed in the said affidavit that thereafter while using the said video as a threat he was made to visit Jati Umrah where he met Mian Muhammad Nawaz Sharif who was on bail at the relevant time and in that meeting when the learned Judge tried to justify his verdict Mian Muhammad Nawaz Sharif was displeased. It was maintained by the learned Judge in the affidavit that in order to remove displeasure of Mian Muhammad Nawaz Sharif the above mentioned Nasir Butt had sought assistance of the learned Judge in the matter of preparing grounds of appeal for the benefit of Mian Muhammad Nawaz Sharif in his appeal against conviction and sentence pending before the Islamabad High Court, Islamabad. It was further revealed in the affidavit that the learned Judge had, during performance of Umrah, met a son of Mian Muhammad Nawaz Sharif namely Hussain Nawaz Sharif in Madina and on that occasion a hefty sum was offered to him as bribe besides requiring the learned Judge to resign from his office on the ground that he had to convict Mian Muhammad Nawaz Sharif under duress when there was no convincing evidence available against him on the record of the case. The learned Judge had statedly resisted all such temptations and threats not only in the said meeting in Madina but even subsequently when Nasir Butt and Khurram Yousaf had repeated the same threats and inducements. 2. After the above mentioned media briefing held by Ms. Maryam Nawaz there was an uproar in the country and different sections of the society started demanding immediate probe into the allegations leveled through the said Constitution Petitions No. 10, 11 and 12 of 2019 5 briefing. The subsequent press release issued by the learned Judge and the affidavit sworn by him had compounded the controversy and had deepened the anxiety felt by people belonging to all walks of life including politicians and the legal fraternity. It was in that backdrop that the present Constitution Petitions had been filed before this Court. The first hearing of these petitions took place on 16.07.2019 when we heard the learned counsel for two of the petitioners and one of the petitioners appearing in person whereafter it was found by us to be appropriate to seek assistance of the learned Attorney-General for Pakistan on diverse issues raised through these petitions and the options available in those regards. The learned Attorney-General for Pakistan was, thus, directed to appear before the Court on 23.07.2019 for the purpose of rendering such assistance. 3. On 23.07.2019 the learned counsel for the petitioner in Constitution Petition No. 10 of 2019 maintained that an Inquiry Commission comprising of an Honourable Judge of this Court should be constituted so as to find out the truth of the allegations and counter allegations leveled through the above mentioned media briefing held by Ms. Maryam Nawaz and the press release and the affidavit sworn by the learned Judge. The learned counsel for the petitioner in Constitution Petition No. 11 of 2019 submitted that contempt proceedings ought to be initiated against all the relevant persons who had tried to malign the judiciary of this country and a probe should also be ordered to be conducted by an Honourable Judge of this Court into the allegations leveled from the two sides. The petitioner appearing in person in Constitution Petition No. 12 of 2019 argued that different institutions were interfering in the working of the judiciary of this country and the allegations and the counter allegations leveled in the present matter required constitution of a Judicial Commission comprising of a retired Honourable Judge of this Court in order to inquire into the matter and to Constitution Petitions No. 10, 11 and 12 of 2019 6 dig out the truth so that dignity and grace as well as independence of the judiciary of this country remain unblemished. He further maintained that the Islamabad High Court, Islamabad ought to initiate an inquiry or investigation into the matter so that reality of the matter might be unearthed and the stain or slur on the name of the judiciary could be removed. 4. On the same date, i.e. 23.07.2019 the learned Attorney-General for Pakistan also appeared before the Court and straightaway informed us that on the basis of a complaint lodged by the learned Judge FIR No. 24 of 2019 had already been registered by the Federal Investigation Agency, Cyber Crime Reporting Centre, Islamabad in respect of commission of offences under sections 13, 20, 21 and 24 of the Prevention of Electronic Crimes Act, 2016 read with sections 34, 109 and 500, PPC. He further informed the Court that a person named Mian Tariq had already been arrested in connection with investigation of the said case and from the said accused person a land cruiser and a video had been recovered and he had claimed that he had been given the land cruiser and a sum of money through a cheque, which had been dishonoured by the concerned bank, as consideration for sale of the video which had been used to blackmail the learned Judge. The said accused person had further maintained before the investigating agency that he had sold the relevant video to one Mian Saleem Raza who had then handed the same over to Nasir Butt. We were informed that the said Mian Saleem Raza and Nasir Butt had already left the country surreptitiously. The learned Attorney-General for Pakistan had maintained that different laws in force in the country adequately took care of the allegations and the counter allegations leveled in the matter and, therefore, it might not be appropriate for this Court to probe into the matter itself or to get the matter probed into by somebody else through a Commission. In this respect the Constitution Petitions No. 10, 11 and 12 of 2019 7 learned Attorney-General for Pakistan had referred to section 16-B of the National Accountability Ordinance, 1999 read with section 34 of the Contempt of Court Ordinance, 2003 and had maintained that the National Accountability Bureau as well as the relevant Accountability Court were competent to take notice of the matter under the said laws. He had also referred to sections 177, 186, 189, 192 and 503, PPC to maintain that even the police could take notice of the matter and then to inquire into and investigate the offences mentioned in the said provisions of the Pakistan Penal Code. He had further pointed out that section 20 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and particularly clauses 3, 4, 5, 17, 22 and 23 of the Electronic Media Code of Conduct, 2015 empowered the said Authority (PEMRA) to take cognizance of the issue and to hold appropriate proceedings. According to the learned Attorney- General for Pakistan an option available with this Court was to constitute a Commission to look into the matter and for constitution of such a Commission this Court was empowered under the Supreme Court Rules, 1980. He had further pointed out that under the Pakistan Commissions of Inquiry Act, 2017 even the Government of Pakistan could constitute a Judicial Commission to probe into the matter. He had, however, maintained that as the Federal Investigation Agency had already embarked upon an inquiry/investigation into the whole affair, therefore, this Court might not like to interfere in such a matter at such a premature stage. He had submitted that no commission of inquiry or any other authority could set at naught the judgment of conviction passed against Mian Muhammad Nawaz Sharif and his conviction and sentence could be interfered with only by the Islamabad High Court, Islamabad which was already seized of an appeal filed by him in that regard. He had maintained that the convicted person in that case could apply under section 428, Cr.P.C. for recording of additional evidence in the pending appeal either by the High Constitution Petitions No. 10, 11 and 12 of 2019 8 Court itself or by the trial court upon an order of the High Court in that regard and it was only when authenticity, relevance and admissibility of the relevant video were established before the High Court through such additional evidence then the effects of the facts disclosed through the said video on the conviction of Mian Muhammad Nawaz Sharif could be examined by the High Court. He had, however, hastened to add that the conduct of the learned Judge in the distasteful affair did call for a proper inquiry to be conducted by the Lahore High Court, Lahore which was the parent High Court of the learned Judge and no matter what the consequences of the relevant video were on the conviction of the relevant convicted person the conduct of the learned Judge ought to be attended to by the said High Court through appropriate departmental disciplinary proceedings. On the said date of hearing, i.e. 23.07.2019 we had adjourned the hearing of these maters for a period of three weeks so as to be apprised of the result of the inquiry/investigation being conducted into the matter by the Federal Investigation Agency. 5. On 20.08.2019 the learned Attorney-General for Pakistan submitted before us a report prepared by the Federal Investigation Agency and according to the said report the investigation into the matter is already underway, some arrests have been made, some recoveries have been affected and many persons have been quizzed. The said report reveals that there are two videos relevant to the present issues, i.e. the ‘objectionable video’ through which the learned Judge was blackmailed and which has already been recovered from the custody of the arrested accused person namely Mian Tariq and the ‘subject video’ which was displayed in the media briefing and which has not so far been recovered. The report shows that a forensic examination of the ‘objectionable video’ has already been conducted and the same has been found to be authentic and Constitution Petitions No. 10, 11 and 12 of 2019 9 genuine. The learned Attorney-General has informed that Ms. Maryam Nawaz and all those sitting on the stage when the ‘subject video’ had been displayed during the news briefing have maintained during the investigation that the said video is not with them and they do not even know where the same is at present. They had also expressed ignorance about who had made that video and when and where the same had been prepared. He has, however, undertaken that the relevant laboratory or expert shall be approached by the Federal Investigation Agency for forensic examination and audit of a copy of that video, if technically possible, as copies of the same can be found and made available. 6. After hearing the learned counsel for two of the petitioners, one of the petitioners appearing in person and the learned Attorney-General for Pakistan and after perusal of the report submitted by the Federal Investigation Agency we have found that the following issues need to be attended to by us in these matters: (i) Which is the Court or forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Muhammad Nawaz Sharif? (ii) How is the relevant video to be established as a genuine piece of evidence? (iii) How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law? (iv) What is the effect of the relevant video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of Mian Muhammad Nawaz Sharif? (v) The conduct of the learned Judge namely Mr. Muhammad Arshad Malik in the episode. We now proceed to discuss these issues one by one. Constitution Petitions No. 10, 11 and 12 of 2019 10 7. Issue No. (i): Which is the Court or forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Muhammad Nawaz Sharif? After having been convicted and sentenced by the trial court after a full-dressed trial an appeal filed by Mian Muhammad Nawaz Sharif against his conviction and sentence is presently pending before the Islamabad High Court, Islamabad and there cannot be two opinions about the legal position that it is that Court alone which can at present maintain, alter or set aside such conviction and sentence on the basis of the evidence brought on the record. Any Commission constituted by the Government or by this Court, any inquiry or investigation conducted by the police or by any other agency and any probe into the matter by any other institution or body can only render an opinion in the matter of the relevant video which opinion is treated by the law as irrelevant and it cannot per se be treated as evidence for the benefit of Mian Muhammad Nawaz Sharif in his appeal pending before the Islamabad High Court, Islamabad. The relevant video cannot be of any legal benefit to Mian Muhammad Nawaz Sharif unless it is properly produced before the Islamabad High Court, Islamabad in the pending appeal, its genuineness is established and then the same is proved in accordance with the law for it to be treated as evidence in the case. In the case of Asif Ali Zardari and another v The State (PLD 2001 SC 568) some audio tapes and their transcripts were produced before this Court when this Court was hearing an appeal against convictions and sentences and such material was produced to establish bias of the learned Judges of the High Court who had dismissed the appeal of the convicts. As the said audio tapes and their transcripts had never been duly proved in accordance with the law, therefore, the said material was neither allowed by Constitution Petitions No. 10, 11 and 12 of 2019 11 this Court to be brought on the record of the appeal nor was such material relied upon by the Court at the time of rendering its final judgment. 8. Issue No. (ii): How is the relevant video to be established as a genuine piece of evidence? With the advancement of science and technology it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not. In the present case the learned Judge had asserted through his press release that the conversation shown to be taking place in the above mentioned video (the ‘subject video’) had been distorted and twisted. The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability. 9. Issue No. (iii): How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law? Article 164 of the Qanun-e-Shahadat Order, 1984 provides as follows: Constitution Petitions No. 10, 11 and 12 of 2019 12 164. Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques: Provided that conviction on the basis of modern devices or techniques may be lawful. Admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court are issues which have been discussed in many a case in this country and abroad and a summary of the case-law on the subject may advantageously be recorded here chronologically. Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad – Applicant/Referring Authority v Abdul Wali Khan, M.N.A., former President of defunct National Awami Party (PLD 1976 SC 57) “So far as tape records of speeches of some of the N.A.P. leaders are concerned, they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been played in the Court. The officer concerned has identified the voice of the person speaking. Therefore, we see no reason not to accept these reports. They stand on the same footing as the transcripts of speeches personally recorded by officers attending the meetings at which the speeches complained of were delivered. The learned amicus curiae have also conceded that such tape records are admissible in evidence and that they have been so admitted by the Courts in this Country.” Hakim Ali Bhatti v Qazi Abdul Hakim and others (1986 CLC 1784) “The evidence relating to first respondent and his supporter’s speeches consisted of cassette or tape-record and transcripts of tape record speeches prepared after tape-recording and the statement of P.W. Haji Taj Din present at the meeting who had actually heard what was said by the first respondent and his supporters. The learned counsel for the petitioner has relied on Yousaf Ali Ismail Nagrea v. State of Maharashtra AIR 1968 SC 147 at 149 and N. Shri Rama Reddy v. V.V. Giri AIR 1971 SC 1162, R.V. Maqsud Ali v. R.V. Ashiq Hussain 1965 (2) AER 464 PL. Constitution Petitions No. 10, 11 and 12 of 2019 13 The first respondent raised objection to the admissibility of this type of evidence. In the case of S. Pralap Lenjh v. State of Punjab AIR 1964 SC 72. The Supreme Court of India accepted conversation or dialogue recorded on a tape-recording machine as admissible evidence. In the case of Yousuf Ali Ismail Nagrea v. State of Maharashtra. The facts are that the appellant had walked into a pre-arranged trap. Mahajan and other police officer had hidden themselves in the inner rooms. Sh. Nagrea knew that the police officers were recording conversation and was naturally on the guard while talking to the appellants. The evidence of conversation was tendered at the trial of the offence. The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under section 8 of the Evidence Act. The dialogue is proved by Sheikh. The tape-record of the dialogue corroborates his testimony. In the case of N. Shri Rama Reddy v. Shri V.V. Giri AIR 1971 SC 1162. In this case the election petitioner had recorded on tape the conversation that had taken place between a witness Jagal Narain and petitioner. Objection was taken to admissibility of the recorded conversation. It was held by the Supreme Court of India that it was admissible. In the case of R.M. Malkani v. State of Maharashtra AIR 1973 SC 157. It was held by the Supreme Court of India that the tape-recorded conversation was admissible in evidence. In the case of R.V. Maqsud Ali 1965 (2) AER 464. In that case a conversation which took place in Punjab dialect between two persons and which had been recorded on the tape was played before the Jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Appeal regarding the admissibility in evidence of the tape-recorded conversation between the accused. Therefore, the point that specifically arose before the Court of appeal was “Is a tape-recording as such admissible in evidence, as a matter of law?” After referring to the observation in Mills Case 1962 (2) AER 298 the Appellate Court noted that the question regarding the admissibility of a tape-record was not actually decided in that case. The decision of High Court of Judiciary in Hopes Case 1960 Scots Law Times 264 was referred to and it was noted that the evidence of the police officer who listened to the tape-recorded was held to be admissible. The Court laid at p. 469:- “We think that the time has come when this Court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now Constitution Petitions No. 10, 11 and 12 of 2019 14 there are devices for picking up, transmitting and recording, conversations. We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape-recording as admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.” In consequence, the Court held that the tape-recorded conversation was admissible in evidence, subject to the limitation mentioned in the above extract. In the case of Islamic Republic of Pakistan v. Adul Wali Khan PLD 1976 SC 57, the Hon’ble Supreme Court laid down the following dictum: “So far as tape records of speeches of some of the N.A.P. leaders are concerned, they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been played in the Court. The officer concerned has identified the voice of the person speaking. Therefore, we see no reason not to accept these reports. They stand on the same footing as the transcripts of speeches personally recorded by officers attending the meetings at which the speeches complained of were delivered. The learned amicus curiae have also conceded that such tape records are admissible in evidence and that they have been so admitted by the Courts in this Country.” I hold that the tape-record and its transcript are not admissible in evidence for the following reasons namely:- (1) The tape-record had been prepared and preserved by the nephew of the petitioner. He is not an independent person and he does not belong to independent authority. (2) The transcript from the tape-record was not prepared under independent supervision and control. The P.W. Haji Taj Din who prepared the tape-record stated in his affidavit that he handed over the cassette or tape- record to the petitioner. It was not annexed to the petition but it was produced before me by the witness himself. (3) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (4) Accuracy of what was actually recorded had to be proved and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record. Constitution Petitions No. 10, 11 and 12 of 2019 15 (5) The witness who had made the tape-record was not part of his routine duties in relation to election speeches but it was actually made for the purpose of laying trap to procure evidence. (6) The first respondent disputed that the tape- recorded voice was his and stated that there had been interpolation in the record. The issue is decided in the negative and against the petitioner.” Muhammad Zahir Shah Khan and another v Nasiruddin and others (1986 CLC 2463) “3. One of the petitioners Zahir Shah has filed his affidavit of evidence in support of the petition on 20th April, 1985 while the other petitioner Malik Munsif did not file any affidavit of evidence. It may be mentioned here that although the petitioner mentioned names of as many as four private witnesses in the list of witnesses submitted alongwith his petition but affidavits of these witnesses were not filed alongwith the petition as required under the Rules. Therefore, in support of the petition, there was only one affidavit of Zahir Shah. The petitioner No. 1 was cross- examined by respondent No. 10 on 16th of October, 1985 and after close of his cross-examination the learned counsel for the petitioners made an oral request that he may be allowed to produce in evidence the four witnesses mentioned in the list of witnesses but this oral request of the learned counsel was disallowed by me on the ground that their affidavits of evidence were not submitted by the petitioners alongwith the petition as required under the Rules framed under section 62 of the Act published on 16th of March, 1985, vide notification No. F1(7)/85 Cord., dated 16th March, 1985. It may also be mentioned here that at the same time the learned counsel for the petitioners made a further oral request that he may be allowed to produce a video cassette alleged to have been prepared during the election campaign of respondent No. 10 but that prayer was also disallowed by me on the ground that neither this document is mentioned in the petition nor the date of acquiring the said cassette is disclosed anywhere by the petitioner. I also noted while declining the above request of the learned counsel in my order, dated 16th October, 1985, that no formal application was moved or filed by the petitioners in this behalf. The case was adjourned on 16th October, 1985 after closing the side of the petitioner to 19th October, 1985 for evidence of respondent No. 10. Respondent No. 10 was cross-examined by the learned counsel for the petitioner at length on 29th October, 1985 and respondent No. 10 closed his side on that date. On the same date, namely, 29th October, 1985 the learned counsel for the petitioner submitted an application under section 151, C.P.C. praying that the petitioner may be permitted to produce the video cassette in Court and that the petitioner is prepared to bear the expenses of playing that video cassette for consideration by the Tribunal. Notice of this application was given to the counsel for the respondent and the case was adjourned to 19th November, 1985 for Constitution Petitions No. 10, 11 and 12 of 2019 16 hearing of application as well as arguments on the main case. Before considering the two issues framed in the case I will first decide the application, dated 29th October, 1985 filed by the learned counsel for the petitioner under section 151, C.P.C. praying for permission to produce the video cassette as a document in the case. The application is vehemently opposed by the respondent No. 10 who in his counter-affidavit besides alleging that no ground has been made out for its production had denied that any video cassette was prepared during his election campaign. In the application filed on 29th October, 1985 the petitioner has sought permission to produce video cassette on the ground that this material was not within the knowledge of the petitioner prior to 14th October, 1985 when for the first time he was told about the existence of this video cassette by one Tamana Shah Warsi. It may be mentioned here that the petitioner appeared for cross- examination in Court on 16th October, 1985 i.e. after about two days of allegedly acquiring the knowledge about the existence of the video cassette. It is pertinent that the petitioner when produced in Court for cross examination made no attempt to make any further addition to his affidavit of evidence which was already filed in the Court alongwith the petition on 20th April, 1985. The learned counsel for the petitioner also made no request that he may be allowed to put further question in examination-in- chief as a result of discovery of some new material with regard to the controversy before the Tribunal. No doubt some questions were put to respondent No. 10 in cross- examination on 29th October, 1985 with regard to the video cassette which he denied but nothing was brought in evidence to establish that the denial made by respondent No. 10 in his cross-examination was incorrect. It may further be mentioned here that neither in the application under section 151, C.P.C. moved by the learned counsel for the petitioner on 29th October, 1985 nor in the supporting affidavit filed by petitioner Zahir Shah anything is disclosed to show that the contents of video cassette are relevant to the controversy in the petition. It is also not alleged either in the application or in the affidavit that the contents of the video cassette are relevant to prove any of the issues involved in the petition. The learned counsel for respondent No. 10 also rightly contended that the oral request of the petitioner having been declined by the Tribunal on 16th October, 1985 a written prayer in that regard was not maintainable. The learned counsel for the petitioner was unable to point out any provision of law under which the Tribunal after having once declined the oral request of the party could entertain a second request through a written application. Therefore, both on the legal plane as well as on merits no case is made out for allowing production of video cassette in evidence. I, therefore, reject the application of the petitioner filed on 29th October, 1985 seeking permission to produce the video cassette recorder in evidence in this petition.” Mst. Rukhsana Begum v District Judge, Karachi (East), etc. (NLR 1987 Civil 799) “This Constitutional Petition is directed against an order dated 26-11-1986 passed by the District Judge Constitution Petitions No. 10, 11 and 12 of 2019 17 Karachi East in Civil Revision Application No. 34/86 allowing the respondent’s revision and rejecting the present petitioner’s application under Section 151, CPC for permission to produce the cassette allegedly containing conversation between the parties as to the settlement talk after filing of the suit No. 221/85 which is pending in the Court of IVth Senior Civil Judge Karachi East. 2. I have enquired from the learned counsel for the petitioner as to the provision under which the above cassette was admissible as a piece of evidence. His reply was that Section 164 of the Qanun-e-Shahadat, 1984 (President’s Order No. X of 1984) allows the production of cassette as a piece of evidence being a modern device. Section 164 of the Qanun-e-Shahadat 1984 (President’s Order No. X of 1984) reads as follows:- Sec. 164. Production of evidence that has become available because of modern devices, etc. – In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.” 3. (a) A perusal of the above section indicates that it confers discretion on a Court to allow the production of any evidence that may have become available because of modern devices or techniques. (b) In the instant case the learned Civil Judge has allowed the above application of the petitioner but the learned District Judge in revision took a contrary view on the basis of the two judgments of the two learned Single Judges of this Court in the cases of Hakim Ali Bhatti v. Qazi Abdul Hakim & others reported in 1986 CLC 1784 and Muhammad Zahir Shah Khan & another v. Nasiruddin and others, reported in 1986 CLC 2463. 4. Mr. Abdul Aleem K. Talib, learned counsel for the petitioner has vehemently submitted that since the learned trial Court has allowed the production of the cassette, the learned Revisional Court was not justifying in reversing the order. However, the fact remains that the petitioner has not been able to point out any infringement of any provision of law by the impugned order. In my view it is not a fit case for a Constitutional Petition. The petition is, therefore, dismissed in limine.” Asfandyar and another v Kamran and another (2016 SCMR 2084) “The record reveals that during investigation the petitioner tried to produce the footage of some C.C.T.V. which were produced by the petitioner/accused before the investigating officer. No doubt the trial Court, under section 164 of the Order, 1984, may allow to produce the said footage of C.C.T.V. but it is incumbent upon the defence to prove the same in accordance with the provisions of the Order, 1984. The defence had ample opportunity to produce in his defence, the concerned person who had prepared the said footage from the C.C.T.V. system in order to prove the same. In that eventuality, the adverse party would be given an Constitution Petitions No. 10, 11 and 12 of 2019 18 opportunity to cross-examine the said witness regarding the genuineness or otherwise of the said document. Any document brought on record could not be treated as proved until the same is proved strictly in accordance with the provisions contained in the Order, 1984. While discussing these aspects of the case, the High Court restricted the admissibility only to the extent of Article 79 of the Order, 1984 whereas there are certain other provisions/Articles in the Order, 1984 for proving the documents which are procured through the modern devices and techniques. Mere producing any footage of C.C.T.V. as a piece of evidence in the Court is not sufficient to be relied upon unless and until the same is proved to be genuine. In order to prove the genuineness of such footage it is incumbent upon the defence or prosecution to examine the person who prepared such footage from the C.C.T.V. system. So we modify the impugned judgment to the extent that the accused is at liberty to produce evidence and prove the same strictly in accordance with the provisions of the Order, 1984 and it will not confine only to the Article 79 of the Order, 1984.” 10. Apart from the precedent cases mentioned above a video recording or footage was held to be admissible in evidence upon fulfillment of some conditions in the following reported cases: Ammar Yasir Ali v The State (2013 P.Cr.L.J. 783) (Mere producing of CCTV video as piece of evidence and its watching in open court was not sufficient to be relied upon unless and until corroborated and proved to be genuine; as a proof of genuineness of such CCTV video, it was incumbent upon prosecution to examine the person who recorded the video to testify the same; prosecution even failed to point out the source of providing CCTV video; investigating officer who received CCTV video stated in his evidence that he received it from a person who did not want to disclose his name or identity being a man of some surveillance; investigating officer admitted that nothing was visible and identifiable in the video as such the CCTV was not reliable piece of evidence) Akhtar Ali Ghowda v The State (2015 MLD 1661) Munas Parveen v Additional Sessions Judge/Ex-Officio Justice of Peace, Shorkot and others (PLD 2015 Lahore 231) (Information conveyed over modern devices such as SMS validly accepted all over the world; however the witnesses in whose presence such information was conveyed or received are always important to prove a fact through its verification) Shahid Zafar and others v The State (2015 P.Cr.L.J. 628) Constitution Petitions No. 10, 11 and 12 of 2019 19 Sikandar Ali Lashari v The State and another (2016 YLR 62) Muhammad Sadiq @ Husnain and others v The State and others (2016 P.Cr.L.J. 1390) Zakir Hussain v The State (2017 P.Cr.L.J. 757) Babar Ahmad v The State (2017 YLR 153) Hasham Jamal v The State and another (2018 YLR Note 105) Muhammad Irfan v The State and another (2018 P.Cr.L.J. 1319) (Forensic report prepared qua a video by an analyst could be looked into without reservation in view of S. 9(3) of the Punjab Forensic Science Agency Act, 2007; reliance placed upon forensic data, procured through technical system, which was not amenable to human interference) Yasir Ayyaz and others v The State (PLD 2019 Lahore 366) (Qualification is that of integrity of the procedure/process) Muhammad Jawad Hamid and another v Mian Muhammad Nawaz Sharif and others (2019 P.Cr.L.J. 665) (Newspaper cuttings or video recordings have to be proved by the author or creator) 11. The precedent cases mentioned above show that in the matter of proving an audio tape or video before a court of law the following requirements are insisted upon: * No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored. * A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is Constitution Petitions No. 10, 11 and 12 of 2019 20 per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007. * Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced. * Even where a court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence. * Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record. * An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place. * The person recording the conversation or event has to be produced. * The person recording the conversation or event must produce the audio tape or video himself. * The audio tape or video must be played in the court. * An audio tape or video produced before a court as evidence ought to be clearly audible or viewable. * The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person. * Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video. * The voices recorded or the persons shown must be properly identified. * The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible. * Safe custody of the audio tape or video after its preparation till production before the court must be proved. * The transcript of the audio tape or video must have been prepared under independent supervision and control. * The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence. * The source of an audio tape or video becoming available has to be disclosed. Constitution Petitions No. 10, 11 and 12 of 2019 21 * The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person. * An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion. * A formal application has to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence. 12. As the trial court in the case of Mian Muhammad Nawaz Sharif has already become functus officio and as his appeal against his conviction and sentence recorded by the trial court is presently pending before the Islamabad High Court, Islamabad, therefore, the only Court which can take the relevant video in evidence of that case is the Islamabad High Court, Islamabad. An appellate Court can take additional evidence under section 428, Cr.P.C. which provides as follows: 428. Appellate Court may take further evidence or direct it to be taken. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) Where the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry. Under this section an appellate court can take additional evidence on its own or upon an application of a party to the appeal, i.e. the appellant, the State or the complainant but in both such cases the appellate court has to record its reasons why it thinks that taking of additional evidence is necessary. The necessity of taking additional evidence at the appellate stage must be felt by the appellate court itself and the same is not to depend upon what a party to the appeal thinks of such necessity. After feeling the necessity of taking additional evidence and after recording reasons Constitution Petitions No. 10, 11 and 12 of 2019 22 for such necessity the appellate court may either take such evidence itself or direct it to be taken by a Magistrate or, when the appellate court is a High Court, by a Court of Session or a Magistrate. Where the additional evidence is taken by the Court of Session or the Magistrate it or he shall certify such evidence to the appellate court and the appellate court shall then proceed to decide the appeal on the basis of the pre-existing evidence as well as the additional evidence lawfully becoming a part of the record. It is, thus, obvious that in the context of the present matter if the Islamabad High Court, Islamabad, either on its own motion or on an application submitted by the appellant namely Mian Muhammad Nawaz Sharif, feels the necessity of taking additional evidence in the form of the relevant video then it may record its reasons for feeling such necessity and may then follow the steps mentioned in section 428, Cr.P.C. It goes without saying that in such a case the relevant video may be taken as (additional) evidence only after complying with the requirements detailed above for proving a video before a court of law. 13. Issue No. (iv): What is the effect of the relevant video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of Mian Muhammad Nawaz Sharif? If upon due fulfillment of the preconditions mentioned in the preceding paragraphs the relevant video is taken as additional evidence by the Islamabad High Court, Islamabad under section 428, Cr.P.C. either on its own motion or on an application submitted by the appellant namely Mian Muhammad Nawaz Sharif or any other party to the case then the High Court shall have to decide as to whether the conduct of the learned Judge of the trial court depicted through the said video, if found to be objectionable, had caused any prejudice or not. If the High Court comes to the conclusion that the process of trial and the evidence recorded during the trial were not affected by the conduct of the learned Constitution Petitions No. 10, 11 and 12 of 2019 23 Judge of the trial court then the Islamabad High Court shall have the option either to reappraise the evidence itself and decide the appeal on its merits after reaching its own conclusions on the basis of the evidence available on the record or to remand the case to the trial court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded. We would not like to comment on these aspects any further as the choices available with the High Court in the above mentioned eventualities would lie within the jurisdiction and discretion of the High Court and such choices would be exercised by it on the basis of the facts found and the conclusions reached by it. 14. Issue No. (v): The conduct of the learned Judge namely Mr. Muhammad Arshad Malik in the episode. The pivot of the matter before us is the learned Judge of the trial court namely Mr. Muhammad Arshad Malik who had tried and decided the relevant criminal cases against Mian Muhammad Nawaz Sharif. He serves under the Lahore High Court, Lahore, was on deputation at the relevant time and was serving as a Judge, Accountability Court-II, Islamabad. We have been informed that he has already been relieved of that position and has been made an Officer on Special Duty (OSD) but he has not so far been repatriated to the Lahore High Court, Lahore and that is why no departmental disciplinary proceedings have been initiated against him so far. However, the press release issued by him on 07.07.2019 and the affidavit sworn by him on 11.07.2019 are themselves damning indictments against him. His admitted conduct emerging from that press release and the affidavit stinks and the stench of such stinking conduct has the tendency to bring bad name to the entire judiciary as an institution. He had unabashedly admitted in the press release and the affidavit that he had a shady past and had skeletons in his cupboard for which he was vulnerable to blackmail, during the trial being conducted by Constitution Petitions No. 10, 11 and 12 of 2019 24 him he had been holding private meetings with sympathizers of the accused person being tried by him, he was threatened and inducements were offered to him during the trial but he had not reported the same to any superior authority and had never considered recusing from the trial, after convicting the accused person in the trial he had met the convict at his residence in a different city, he had even met a son of the convict in a different country and finally he had tried to help the convict in his appeal filed against his own judgment by dictating some grounds of appeal and pointing out some stated weaknesses in the case against the convict convicted by him. Such admitted conduct of the Judge was shocking, to say the least, besides being abhorrent and offensive to the image of a Judge in the society. His sordid and disgusting conduct has made the thousands of honest, upright, fair and proper Judges in the country hang their heads in shame. The learned Attorney-General has assured the Court that the said Judge shall be repatriated to the Lahore High Court, Lahore immediately and we expect that after his repatriation appropriate departmental disciplinary proceedings shall be initiated against him by the Lahore High Court, Lahore forthwith. 15. In the end we find that it may not be an appropriate stage for this Court to interfere in the matter of the relevant video and its effects, particularly when the said video may have relevance to a criminal appeal presently sub judice before the Islamabad High Court, Islamabad. A criminal investigation is already being conducted into the matter by the Federal Investigation Agency, some other offences or illegalities under some other laws referred to by the learned Attorney-General might also entail inquiries or investigations by the competent agencies or fora and any probe into the matter by a Commission to be constituted by the Government or by this Court may end up only with an opinion which may have no relevance or admissibility in the relevant appeal pending before the Islamabad High Court, Islamabad. In Constitution Petitions No. 10, 11 and 12 of 2019 25 this view of the matter all these petitions are disposed of with the observations made above. Chief Justice Judge Judge Announced in open Court at Islamabad on 23.08.2019. Chief Justice Islamabad 23.08.2019 Approved for reporting. Arif

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{'id': 'C.P.10_2019.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE SH. AZMAT SAEED CONSTITUTION PETITION NO.115 OF 2011 Abdul Raheem Ziaratwal and another …Petitioners Versus Federation of Pak. etc. …Respondents For the petitioners: Syed Iftikhar Hussain Gillani, Sr. ASC Mr. M. S. Khattak, AOR, assisted by: Barrister M. Saad Buttar, Advocate For Rspdt. Nos.1-4: Nemo. For Rspdt. Nos.5-6: Kh. Haris Ahmed, Sr. ASC Mr. Arshad Ali Chaudhry, AOR For Rspdt. Nos.7-8: Mr. Shakeel Ahmed Baloch, A.G. Balochistan. Date of hearing: 16-18 & 22.7.2013. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- Constitution Petition No.115 of 2012 has been initiated under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973. 2. Abdul Rahim Ziaratwal, General Secretary along with other office bearers of Pashtoonkhwa Milli Awami Party (PMAP), filed this petition, highlighting the poor living conditions of the people of Balochistan. It was averred in the petition that the Government of Balochistan (GoB) conducts an annual development program Const.P.115/12 etc. 2 throughout the Province of Balochistan called the “Public Sector Development Program” (PSDP), which covers all development schemes, both ongoing and newly commenced. In this regard, the government follows the Manual for Development Projects (MDP) prepared and designed by the Planning Commission of Pakistan (PCP). In pursuance whereof, five programs were prescribed for preparation and implementation of the development schemes. As per the Development Manual, the Planning Division/Planning Department directs departments of the Provincial Government during the months of October/November to provide details of the proposed projects for inclusion in the PSDP after obtaining feasibility report, etc. The information so provided is then placed before a Committee of the Planning Department, which is supposed to scrutinize each and every scheme and approve all information for inclusion in the PSDP. The grievance in this case is that no such process has been adopted by the Planning Department and the PSDP was prepared in a very mechanical manner; therefore, public money was plundered by the holders of public office who were not open to any accountability. A number of schemes in various sectors of the PSDP were earmarked with 100% allocation; however, all such schemes were unapproved. According to the Petitioners, the government had been making public statements from time to time to the effect that they had spent 100% amount of PSDP for the year 2011-2012, whereas the fact remains that no amount had been spent in about 154 schemes and the government functionaries had embezzled and misappropriated an amount of Rs. 6171.00 million. The non-development expenses were brought under the umbrella of development schemes, which is a clear violation of all Const.P.115/12 etc. 3 settled norms of planning. Moreover, every MPA/Minister of the Province had been allocated an unprecedented amount of funds to the tune of Rs.300.00 million. The schemes against the allocated funds were selected by the MPA/Minister concerned without consent of the administrative departments to which the said schemes pertained. With the exception of a few parts of the province, the Petitioners contend, the MPAs have been provided excess funds but without any tangible development outcome. The Petitioners averred that there were many schemes in PSDP which were specific to individuals, rather than being designed and launched to benefit the community at large. The Petitioners believe that such schemes have been included to lure the prospective voters to vote in favour of these benefactors. Therefore, the Petitioners claim that public money was being spent in violation of the constitutional provisions and various laws enacted thereunder, including the General Financial Rules (GFR) of the Federal Government as well as MDP designed by the PCP. Lastly, it was prayed to declare as under:- (a) That the respondents are under obligation to spend the public money fairly, honestly and in accordance with constitutional guarantees to safeguard the interest of general public. (b) Due to shortage of water, priority of new schemes allocation should be given for water storage dames. (c) That the Government of Balochistan and its departments may be restrained from spending any amount shown in the PSDP of 2012-13. 3. On 22.10.2012, when the matter came up for hearing before this Court, learned counsel for the Petitioner as well as the Advocate General, Balochistan were asked to examine the matter to Const.P.115/12 etc. 4 the extent of development work vis-à-vis the public funds which had been spent on the same, by getting them verified by involving a third party belonging to the Province of Balochistan including experts/engineers from the University of Balochistan, University of IT, Agricultural University, etc. In compliance of the said order, two notifications dated 25.10.2012 and 30.10.2012 were placed on record. However, learned counsel for the Petitioner expressed reservations in respect of notification dated 30.10.2012 and stated that in order to ensure transparency, the official persons i.e. the Chairman CMIT and Member Technical CMIT should be excluded. In light of this, the Government was asked to issue a revised notification. The committee was required to exercise their discretion to select schemes of a specific area. Furthermore, at least 25 projects/schemes in respect whereof the amount has been paid since formation of the government till that time were to be examined and report thereof to be submitted to the Court. By means of the same order, it was directed that allocated amounts would not be distributed with regard to unapproved schemes identified in PSDP 2012-2013 till further orders. 4. On 04.12.2012, the learned counsel for the GoB filed a reply stating therein that in compliance of the order dated 02.11.2012, the departments had stopped work on the approved and unapproved schemes However, it was requested that the aforementioned order may be withdrawn. On 06.12.2012 the Court, after hearing both sides, passed the following order:- (1) The Government of Balochistan is allowed to utilize the funds for the schemes, which have already been indentified in PSDP 2012-2013 and after completion of the process, now have been Const.P.115/12 etc. 5 approved by the Planning and Development (P & D) Department against the budgetary allocation. (2) The amount shall be spent only to the extent of the budgetary allocation without making any increase in the same. (3) Similarly, the departments, which have indentified the schemes, shall be responsible to execute the same and no scheme shall be transferred from one department to another department at the behest of any Minister or political functionaries. (4) As reportedly, there is no Provincial Public Accounts Committee, therefore, we direct the Chief Secretary, Government of Balochistan to implement this order and ensure that no rule is violated and the schemes are properly executed to the extent of the budgetary allocation, which have been made, till the final disposal of this petition. (5) As this matter is of an important nature, therefore, parties’ counsel are required to exchange their pleadings, enabling this Court to dispose of the same on the next date of hearing. (6) It has been informed by Mr. Saleem Raza, Chairman of the Committee, constituted to ascertain as to whether funds have been utilized against the development schemes or otherwise, that primarily sufficient time is required for the completion of the task. 5. The Inspection Committee undertook inspection of 55 projects/schemes situated in various parts of the province and submitted report by means of CMA No.136/2013, which was made public vide order dated 11.01.2013. The GoB filed scheme-wise reply/comments on the report. S. # Name of Schemes Observations Raised by Supreme Court Inspection Committee (SCIC) Comments by Various Executing Agencies 1 Construction of Road from N- 50 to Murgha Faqirzai (99 Km). ID No. Z2003.1153 I. The scheme has been revised five times by adding new link roads which is not a good practice and has affected the completion of the scheme since last 10 years. I. Scheme was originally approved during FY 2003 -2004, later on during execution of work; scheme road length was increased at different stages, so that Const.P.115/12 etc. 6 Executing Agency: C&W Deptt. Implementatio n Status: Ongoing II. Before completion of the assigned works, the flood damages contracts of the same road have been awarded. scheme can be concluded with a logical end. a. Link roads were added to the scheme, for the reason, to extend better road communication network facilities to nearby villages falling in the vicinity of the road alignment, which was also demand of general public since long. This inclusion of link roads has facilitated general public of the area. b. Delay in completion of scheme is due to insufficient releases during course of scheme implementation. The releases against scheme are not proportionate with the approved cost of scheme. If required level of funding i.e. Rs 100.000 Million additional funds during CFY 2012- 2013 are provided and Rs 142.946 Million during FY 2013 — 2014, are provided then the scheme can be completed by 30th June 2014. II. During Execution of work, flash flood was encountered, which damaged already complemented components of the scheme. Since under contract agreement there is no provision that flood damaged work on ongoing scheme will be reflected by the contractor, since being a natural disaster. Therefore flood damages contract was awarded to reflective Const.P.115/12 etc. 7 III. Neither planning nor execution in a professional way has been carried out. IV. The works are in progress. Discrepancies were observed in dimension of the road as the width varied at different places. This omission should be removed by adopting a uniform alignment and payments be adjusted in the Final Bill. the damaged components and to ensure that damages are not repeated during floods. a. Work on damaged components could not be left unattended as scheme completion could not be achieved and remaining road components could not be carried out. b. If damages were not reflected, there were ample of room that in any future flash floods, already damaged portion could be severely damaged and reflection cost could be increased by many folds. III. Scheme was planned for completion within three years and the same was approved, but funds were not released in the approved manner as specified in approved PC - I. Due to insufficient releases the planning schedule has been revised repeatedly. a. Rate of funds releases have a direct bearing over physical progress, due to less releases and increase in scope of work, scheme is under execution since FY 2003 — 2004. Under the said circumstances, fund releases dominate the planning. IV. Dimension of road various depending of traffic volume. However the width of road should not have been varied on main trunk road. This discrepancy will be addressed by the Const.P.115/12 etc. 8 department. a. To adopt uniform width on main truck road, estimates are to be reviewed. Apparently uniform width on alignment cannot be adjusted in final bill as approved estimates are as per approved scope and item rates are as per CSR 1998. In case revision of scheme is required due to adoption of uniform width, revised PC — I will be submitted to competent authority for consideration and approval. 2 Pitav Valley Development Project Qilla Saifullah. ID No. Z2004- 0915 Executing Agency: BDA. Implementatio n Status: Ongoing I. The drilling of 160 tube wells has been completed. II. Only 49 tube wells have been installed with machines and energized. III. The stake holders complained about silting up sizeable number of tube wells, and demanded for thorough probe in to the matter through some investigating agency. IV. The QESCO has informed that 33 tube wells for which the Demand Notes have been deposited will be energized by 15th February, 2013. Out of 160 tube wells, only 49 tube wells have been energized. These tube well were drilled in 2006- 2007. Since 2007, BDA is requesting QESCO for providing connection, but they delayed. Due to this reason the already drilled tube wells got silted at minor level. Furthermore, the soil texture of Dolatzai, Ghabzai, Santozai and Batozai is sandy zone according to geologist report. The demand note of remaining 78 no.s tube wells is not submitted by QESCO, whereas; the minutely silted portions of Tube Wells would easily be cleaned through compressor testing. 3 Construction of Zhob Mir Ali Khel Road. ID No: Z2010- 0845 Executing Agency: Initially C&WD but transferred to BDA by the P&DD Implementatio n Status: Ongoing i. Original contract being one package was awarded to M/s. Hasnain Cotex Ltd., who proceeded with the works at snail's pace and hardly achieved some 30% progress till complete suspension which led to abandoning of the Contract on 18-12-07. ii. Following withdrawal of ADB from the Project the BDA entered in the scene critically and reviewed the scope of works resulted in gigantic increase in the cost instigating the executants to split the contract into three distinct packages duly approved by the The scheme after clearance by the relevant approving forum may be started as recommended by the committee. Const.P.115/12 etc. 9 P&DD with the cost allocation as under: a. Rs. 4.521 Billion b. Rs. 2.816 Billion c. Rs. 3.669 Billion Total : Rs. 11.006 Billion iii. It was utmost surprise of the Committee that despite of mammoth increase in the cost of the Project (i.e. Rs. 1.447 billion to Rs. 11.036 Billion) it was somewhat binding upon the Executing Agency to get it approved by the CDWP/ECNEC but this could not happened which is considered to be a serious omission and currently being investigated by NAB, Balochistan and the construction works have been put to halt. iv. Although, the scheme was not inspected by the Committee yet one of its members (Engr. Usman Babai) inspected the works at different time and shared his knowledge about the scheme with other Committee members. v. The Scheme was initially split up into two packages vis: Road and Bridges awarded to M/s. NPI and M/s. MN Construction. Respectively. Later on, a further split in the road package emerged but the number of contractors remained two. vi. The scheme may be got approved at the appropriate forums so that it can be implemented as soon as possible 4 Construction of Roads & Drainage System Zhob Town City Area PSDP No. 428 — 2004-05 Executing Agency: BDA Implementatio n Status: Ongoing i. The works have not been executed in professional manner and the scheme is still in progress even after 8th year of its implementation starting from 2004-05 ii. Bituminous surface of these roads was found worn out at various locations. iii. Drainage channels in some area are not functioning in an efficient manner. Major lengths are choked and without required I. The work has been executed by professional engineers who are regular employees of BDA. In respect of delay in completion of the project, it is due to piece meal provision of funds to the executing agency. II. The deficiencies pointed out will be rectified at the risk and cost of contractor. III. Drainage channel is 100% complete and functioning properly. Garbage and refuse is Const.P.115/12 etc. 10 joints. iv. The poor quality/below specification works attributed to the gross negligence on part of the supervisory staff which needs to be rectified soon and the remaining works should be completed expeditiously. thrown in the channel which adversely affects its functioning. The town committee is responsible for its cleaning. IV. The work is still in progress. Defects will be removed. 5 Construction of Additional Class Rooms at Various Schools, P8- 19. PSDP No 600 Implementing Agency: BDA Implementatio n Status: Out of 144 class rooms to be construction 104 have been completed. i. 02 schools in Zhob town were inspected and the quality of works was found far below the acceptable level. ii. Doors and Windows erected were found below specifications iii. Flooring was also found below specification. iv. The remaining schools included in the project require detailed inspection and the defects found in the executed works should be rectified at the risk and cost of the Contractors concerned. I. The building was completed 4 to 5 years age and still there are no cracks in roof, walls and other structures; however the deficiencies will be removed accordingly. II. Doors are made of pine wood (Chalghoza) which is locally available and windows are made of Z angle iron by local manufactures which though do not give good finishing but are durable. III. Flooring will be repaired at the risk and cost of contractor. IV. Noted for compliance. 6 Musa Khail to Drug Road Dakian- Walwasta Project KM 10.80 to KM 20.8 (10KM) ID No. Z2003.0074/3 0 (2008-09) Executing Agency: C&WD Implementatio n Status: Ongoing i. More or less all the structures have failed. Payment for 10 KM road Premix work has been made, but on site hardly 1 KM length of road was found premixed. Despite the inquiries already conducted, the field staff has not been punished. Opportunity has been provided to get the Premix carpeting work done now, but they were hardly able to complete 01 KM premix work only. I. Scheme from start runs into implementation problems. Firstly a Departmental inquiry team was held regarding said scheme in March 2010. The finding of the inquiry team were that “work done at site be got measured and deducted from the total cost, the balance amount be recovered from the contractor, officers and staff involved in making the payments may be reverted and not posted in future for assignments involving financial matters”. Said inquiry report was processed for Const.P.115/12 etc. 11 ii. Observations made by the Inquiry Committee must be implemented in letter and spirit and defective structures should be reconstructed at the risk and cost of the Contractor/Supervisory Staff. approval of competent authority. a. P&D Department asked CMIT to carry out inquiry of subject road. CMIT submitted report in August 2011. CMIT recommended that within four months scheme be completed. b. Concerned field staff was given time to complete the scheme as per CM1T recommendations. But concerned staff took considerable time to start work and are presently carrying out work as reported by supervisory staff. c. NAB (B) is conducting an inquiry or subject road from August 2012. Relevant documents are provided to NAB(B). Outcome of NAB(B) inquiry is awaited. II. 32 Culverts including pipe culverts were constructed under the project as per approved scope. Some of culverts were damaged as indicated in CMIT and Departmental inquiry reports. a. Defective structures will be demolished and reconstructed at the risk and cost of the contractor / supervisory staff. 7 Establishment of Women Hospital in Zhob. ID No Z2010- 0692/961 Executing Agency: C&WD Implementatio n Status: i. The works are in progress in a satisfactory manner. ii. Should some sincere efforts are poured this vital project can be made functional even within this financial year. I. Department will make efforts to sustain & gain work momentum, so that project is completed within allowed time frame. II. Department realizes the importance of this public utility project and is making genuine efforts for early Const.P.115/12 etc. 12 completion of the hospital, but since being a building work, requiring time for curing and settlement, work items are interlinked and cannot be squeezed being time bound work items. Secondly six months of CFY 2012 — 2013 have already passed and remaining approved scope cannot be completed in remaining six months. a. Hospital can be completed by 30th June 2014, in all respect, if additional funds to the tune of Rs 20.000 Million are provided during CFY 2012 — 2013 and balance completion funds i.e. Rs 21.397 Million are provided during FY 2013 - 2014. 8 Development Plans of Loralai PSDP No. 1417-2011-12 Executing Agency: BDA Implementatio n Status: Ongoing i. Out of 16 Flood Protection Schemes one namely Shah Karez costing Rs. 2,108,889/- was inspected and found completely damaged. ii. The Executing Agency/BDA, however, failed to produce detailed design/drawings of the Scheme. iii. Out of 31 number bores, 3 were checked. Bore at Shah Karez was found operational for individual agriculture use. Stone masonry circular water tank was neither completed nor connected. The other 2 bores were not operational/ energized. iv. Out of 5 Community Halls, 2 were inspected. The one at Circuit House Loralai was of acceptable quality whereas the second one at Killi Khan Karez was found in A-1 condition. The beneficiary has invested his I. The scheme with its appropriate scope of work stands complete. But damages caused by catastrophic floods of August, 2012. According to Pakistan history last year's rains and floods broke records of 15 years. II. The requisite information is available with the department and can be furnished to any authority as and when required. III. Noted for Compliance. IV. The executing agency i.e. BDA accepts the observation of the committee; however, it is assured by the department that these community halls will be Const.P.115/12 etc. 13 own money here. This Hall will be in use of hardly 2 - 3 families. v. Dispensaries and Boundary Walls of Schools etc: A Dispensary and a Boundary Wall was inspected, and found ok, keeping in view the non workable CSR of 1998. Transformers and Electric poles were found installed, vi. Change of executing agency has caused the above mentioned problem which could have been avoided if the line department was involved in implementation process. vii. The shortcomings observed and pointed out by the Inspection Team in the executed works should rectify in adequate manner at the risk and cost of the respective contractors and the site supervisory staff involved in execution process. used for the benefit of general public/community. V. No comments are required in this regard. VI. Noted for future compliance VII. Noted for future compliance 9 Construction of 50 Bedded Hospital at Mach. ID No. Z2009- 0333 Executing Agency: C&WD Implementatio n Status: Ongoing i. The quality of works was not at acceptable level. ii. The contract comprises the specifications in executing such works. iii. The Supervisory staff should redouble their vigilance to ensure quality works. I. Matter regarding quality of work has been seriously viewed by the Department. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications. II. Field Staff is being directed to vigilantly supervise the work and approved / laid down specification must be followed at all cost and quality of work should not be compromised at any cost. III. The SCIC observation is well taken and Department will be strictly following the same. a. Department will ensure that Field Staff will be extra vigilant to ensure quality of work and Department internal monitoring system Const.P.115/12 etc. 14 will be beefed up to have checks over quality of works and counter ensure that executed works are of required specification and quality 10 Construction of Government Girls Intermediate College Mach ID No. Z2003- 0763 Executing Agency: C&WD Implementatio n Status: Ongoing i. The quality of works was not at acceptable level. ii. The contractor is compromising the specifications in executing of such works. iii. Top floor roof work is simply not acceptable. iv. Since the scheme is ongoing, the defective works may be got rectified at the risk and cost of the Contractor I. Matter regarding quality of work has been seriously viewed by the Department. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications. II. Field Staff is being directed to vigilantly supervise the work and approved / laid down specification must be followed at all cost and quality of work should not be compromised at any cost. III. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection of the top floor roof and suggest rectify work, in case it is beyond rectification, top floor roof will be dismantled and roof slab will be relayed at the cost of contractor. IV. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications at the risk and cost of the contractor. 11 Construction of Community Hall at Kurd Camp, Dhadar. Executing Agency: C&WD Implementatio i. Extremely poor works. Structural cracks in the bath room. I. Chief Engineer, Sibi Zone and 1 Superintending Engineer Kachhi will be I directed to carry out detailed Const.P.115/12 etc. 15 n Status: Ongoing ii. Bath room drainage work hopeless. iii. Boundary wall has been constructed by one beneficiary, and may take possession of this community hall. iv. Steps needs to be taken by the Administrative Department to avoid trespassing. inspection of the Community Hall at Kurd Camp Dhaddar and suggest rectify work, in case it is beyond rectification, bath rooms will be dismantled and reconstructed at the cost of contractor. II. Bath room drainage work will be relayed at the risk and cost of contractor. III. Field Staff of the Department will make a reference to District Administration Dhaddar, in this reference. IV. SCIC observation will be forwarded to District Administration for implementation. 12 Construction of Community Hall for Shah Sahiban, Dhadar. Executing Agency: Local Government Department Implementatio n Status: Ongoing i. The structure work has been completed and fixtures and finishing works left un-attended. Fate of completion could not be ascertained. ii. District Administration may be directed to get the remaining works done Considering the important nature of task, the Deputy Commissioner Kachhi has been directed to follow the observations of SCIC and submit compliance report within 15 days positively. 13 Construction of Bit Road Nighari to Kot Kahl, Dhadar. 08 Km Length and Arif Bridge 650 Rft. Executing Agency: C&WD Implementatio n Status: Ongoing i. Social unrest due to tribal rivalry coupled with non availability funds has remained a cause of the slow progress and these issues must be resolved to ensure smooth and un- interruptible implementation process leading to timely completion of the Scheme I. District Administration is in picture and tribal rivalry has to be resolved by District Administration. II. Funds are not being released as work is not in progress and is stopped. III. If tribal disputes are resolved by District Administration, work can be resumed by the Department and if required funds are provided project can be completed by 30th June 2014. 14 Construction of i. The quality of works is not up to I. Chief Engineer, Sibi Const.P.115/12 etc. 16 B/T Road linking NHA Road to Khair Wah via Shan Gola Wah Tehsil Lehri (14 KM length). Executing Agency: C&WD Implementatio n Status: Ongoing the mark. ii. Instead of fetching soils from the specified borrow area located at a distance of 100ft distance the Soil available just adjacent to the alignment of the road is being used for embankments, inviting flood water to develop channels which is the root cause of the damages to the road. iii. Works are in progress as such the defects pointed out can easily be rectified through the contractor engaged for implementation of the contract Zone and Superintending Engineer Sibi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications at the risk and cost of the contractor. II. Observation has been taken. The Department Material testing Field Laboratory staff will be deployed to check the material condition of borrow area at 100 ft as pointed out by SCIC, whether it is fit to be used as borrow area or not, if found suitable, the same will be used for remaining embankment works. a. Material taken for embankment adjacent to road alignment is not acceptable, but since road traverses through cultivated fields and as such land owners do not allow for borrowing material from there. Under said condition material for earthwork / embankment has to be taken from road's right of way. However, field staff will be directed to fill the channel along the road alignment with suitable material and carry its compaction, so that flood water is not channelized through it and road is not damaged due to flood water. III. Chief Engineer, Sibi Zone and Superintending Engineer Sibi will be directed to carry out detailed inspection and rectify all works which are defective through engaged contractor. Const.P.115/12 etc. 17 15 Drainage & Sewerage System at Dera Murad Jamali Executing Agency: BDA Implementatio n Status: Ongoing i. The works have been shown completed, but the Manholes covers were found missing at a number of points and stagnant water is visible all around. ii. The Pumps were operated and found in order. iii. As reported in the field that the Sewage of 03 days collected in the Sump can be emptied in 01 hour operation of the Pumps. iv. In this Project the control of the invert levels is of prime importance. Therefore a thorough Probe is required to be carried out in this project. The manholes covers have been stolen by the inhabitants of the area. The project has already been scrutinized by the NAB, CMIT and IGDP Balochistan. However, the said deficiencies will be removed at the risk and cost of the contractor. 16 Drainage of 400 acres of Dar-ul- Ulma Madressa/Masji d, Hairdin area. Executing Agency: Irrigation Department Implementatio n Status: Completed i. Against the allocated/released funds to the tune of Rs. 10.00 million, the works with designed/approved scope of works were completed in satisfactory manner with good quality at a cost of Rs. 3.60 million. The unspent funds have been surrendered by the Irrigation Department. Work already stands completed and the remaining funds have already 1been surrendered. 17 Construction of Flood Protection of Sohbatpur Town, Executing Agency: Irrigation & Power Department. Implementatio n Status: C&WD i. The scheme with its approved scope of works stands completed but the damages caused to the structures by the catastrophic floods of August 2012 persist and need to be repaired to make the scheme operational. Work completed. However damages caused to the structures by the catastrophic flood of 2012 are proposed to be restored. 18 Construction of 06 KM Road in Sohbatpur Area, Executing Agency: BDA Implementatio n Status: Completed i. Works claimed to have been completed in a road width of 24 feet, but on many points it was hardly 14-18 feet wide. This aspect needs to be further probed. Noted for compliance. The deficiencies will be investigated by the CMIT. 19 Construction of Detoxification Center Goth lshfaq Gola- Sohbatpur, Executing Agency: BDA. Implementatio i. Poor quality and below specifications works were found in progress. ii. Defective works need to be dismantled and reconstructed strictly in accordance with laid down specification and conceived Noted for compliance. Const.P.115/12 etc. 18 n Status: In progress design/drawings at the risk and cost of the Contractor. 20 Community Hall Goth lshfaq Gola- Sohbatpur, Executing Agency: Local Government Department. Implementatio n Status: Not known i. Scheme was inspected on request of the potential beneficiaries. ii. Total wastage of Public money. Scheme has been left incomplete and was giving a deserted look. iii. Works should be completed at the risk and cost of the Contractor concerned and the Site Supervisory Staff deployed at the site of works. The remaining work of the scheme will be completed within a month's time and compliance report will be submitted by the executing agency. 21 Construction of BIT Road from Main Chattan Patti to Shahi Wah including Link Road (16.5 KM). Executing Agency: C&WD Implementatio n Status: Completed i. The road although recently completed but portrays a gloomy picture. I. Scheme was approved at a cost of Rs 74.165 Million against which 16.50 KM of road was to be constructed. Scheme was started in FY 2005 — 2006 and was completed in June 2010 except for a portion / reach of 2.5 KM were only Premix carpeting was not allowed by inhabitants of area due to dispute over alignment. a. After completion the subject road was hit by unprecedented flood of 2010 (August I September). The road was also exposed to massive flood of 2012 (June). Both floods left permanent marks on the roads by destruction. It is also pointed out that road remained submerged in flood water for months during both above said floods.4KM of road was damaged during said floods. b. Dispute over alignment has been resolved now and work on remaining 2.5 KM for Premix carpeting has been started / resumed. Withheld amount of Rs 4.000 Million lying with the Department as Const.P.115/12 etc. 19 ii. The beneficiaries available at site stated that the flood events of 2010 badly damaged the incomplete road and no longer in use of public. iii. 4 KM of out of 10 KM of road has been included in the Flood Damages Programme but no funds received so far. iv. Contractor claimed that the people are not allowing to proceed with construction works and an FIR has been lodged with the Sohbat Pur Police Station. v. Contractor's Security of Rs. 4.0 million lying with the security is sufficient for completion of remaining work. II. As indicated above that road was seriously damaged and remained submerged for months, therefore road was not a utility for public but in a stretch of 4 KM which was damaged by floods, remaining 10 KM i.e. minus 2.5 KM uncompleted road. III. During floods of 2012, road was further damaged and as such estimates were prepared and forwarded to competent authority by the Department through an umbrella project for flood damages restoration. The project stands approved by PDWP & PC-I submitted to Federal Government for approval. IV. As already indicated above inhabitants of area due to dispute over alignment in a portion / reach of 2.5 KM stopped the work for Premix carpeting, although embankment had been prepared and base course laid. Rs 4.000 Million were withheld from contractor bill for Premix carpeting in a reach of 2.5 KM. a. Now the dispute over alignment has been resolved and work on remaining 2.5 KM for Premix carpeting has been started / resumed. Withheld amount of Rs 4.000 Million lying with the Department as security is sufficient for completion of remaining work. V. Noted for compliance. Const.P.115/12 etc. 20 Department and has been retained till satisfactory completion of the repair/ restoration of flood damages. vi. District Administration may intervene to get the works done. VI. Noted for compliance. 22 Construction of 43 KM Road from Jhal Magsi — Kot Maasi Road to Mithazai to Abad Waryam to Mut Banglani (43 KM), Executing Agency C&WD. Implementatio n Status: Ongoing i. The work is in progress but in a clumsy manner with unacceptable quality. ii. Timely funds have not been made available. I. Observation has been taken. The Department Material testing Field Laboratory staff will be deployed to check quality of work throughout length of road and unacceptable reaches will be removed and relayed as per required specification. a. After start of scheme from FY 2005 -2006, subject road has been hit I exposed by flood of 2007, unprecedented flood of 2010 (August / September) and massive flood of 2012 (June). Said three floods left a permanent marks on the roads by destruction. b. Estimates for floods damages were prepared and forwarded to competent authority by the Department through an umbrella project, but funds have not been released for flood damages ratification. Some restoration works have been carried out by the Department to keep the road functional, but payments to contractor has not been made, which will be cleared once funds are received. II. Scheme is ongoing from FY 2005 — 2006. Releases of funds do not tally with requirement. If balance completion Const.P.115/12 etc. 21 iii. Earthen embankment constructed from the borrow material available just adjacent to the road, Inviting flood water to develop flood channel along the road which has badly damaged the road embankment. iv. Scheme being in progress, more vigilance is required on part of supervisory staff and damages got repaired at the risk and cost of the Contractor. funds are made available by providing additional release to the tune of Rs 81.208 Million, the scheme can be completed. III. Subject road traverses through cultivated fields and as such land owners do not allow for borrowing material from there. Under said condition material for earthwork / embankment has to be taken from road's right of way. a. Nearest borrow pit is approximately 50 to 60 KM from the site of work. In approved PC — I, lead for borrow material has not been provided. b. The subject road has been time and time again tested during three unprecedented floods and road withstood the floods even with material borrowed from road sides. IV. The SCIC observation is well taken and Department will be strictly following the same. a. Department will ensure that Field Staff will be extra vigilant to ensure quality of work and Department internal monitoring system will be beefed up to have checks over quality of works and counter ensure that executed works are of required specification and quality. b. Chief Engineer, Sibi Zone and Superintending Engineer Nasirabadwill be directed to carry out detailed inspection and rectify all works Const.P.115/12 etc. 22 which are defective through engaged contractor at his risk and cost. 23 Construction of Agriculture Model Research Farm with Residential Quarters, Goth Miral Khan at Sohbatpur. Executing Agency BDA Implementatio n Status: Ongoing i. The Construction work has not reached the Plinth level. ii. Progress at site does not commensurate with expenditure incurred. iii. Agriculture Department has not started so far the procurement of fixtures and furniture. Needs further probe. The progress of work is slowed down due to bad law and order conditions, however the observations raised by the committee have been noted and will be referred to the CMIT for detail probe. 24 Extension of Lai Minor (Remaining Portion) in Jhal Magsi area, Executing Agency: Irrigation Department (PID) Implementatio n Status: Ongoing i. The work claimed as completed but, in fact, lot of work was found incomplete. ii. Money is being spent for extension of Lal Minor, which will become operational upon completion of Patfeeder Extension Project whilst fate of completion of this Project is not known. iii. The quality of work is not up to the mark. iv. There is a lot of room to improve both quality and pace of progress. v. Works should be completed at the risk and cost of the Contractor and Supervisory Staff Noted for compliance. The rectification process is already been initiated. 25 Construction of Black Topping road at Jungle Pir Alizai Quetta Chaman Road to Killi Kutab Gul Muhammad, Killi Khamat, Haji Abdul Qayyum Street Length: 13.73 km) ID No. Z2005- 0618 Executing Agency: BDA Implementatio n Status: Ongoing i. The following PSDPs were discussed in detail with Mr. Qahar Wadan the Petitioner and his colleagues on January 06th 2013 and two other occasions. Z2009-0046 Rs. 55.00 M Z2011-0381 Rs. 115.00 M Z2009-0184 Rs. 40.00 M Z2005-0618 Rs. 94.291 M Z2010-0552 Rs. 60.00 M Z2012-0069 Rs. 30.00 M Z2012-0129 Rs. 30.00 M ii. During Inspection of Gulistan, Black top Road of Killi Ahmed Khan Ghaibizai (04 Km) was inspected, and found out of the jurisdiction of the MPA Engr. Zamrak Khan i.e. PB-12.The road work was found in order except the berms which required further improvement. Noted for compliance. The shortcomings will be removed at the earliest. Const.P.115/12 etc. 23 iii. Jungle Pir Alizai road had already been inspected in the capacity of member CMIT, and the position was the same as explained for Killi Ahmed Khan Ghaibizai road. Since this is on- going work, therefore shortcomings can be removed without any problem. 6. Vide order dated 10.04.2013, the learned counsel for GoB was asked to furnish the statement containing reply to the following questions:- (i) list of persons against whom both criminal and civil proceedings have been initiated for alleged misappropriation of the funds on receipt of the Inspection Report; (ii) As the Inspection Report has covered only 25% of the development schemes and whether GOB on its own has got prepared the reports in respect of 75% development schemes; (iii) What action has been initiated against the persons/officers etc. responsible for the alleged misappropriation in the development schemes. The learned counsel was also asked to furnish the details in respect of:- (i) The amount received from National Finance Commission (NFC) from the year 2008 to 2013; (ii) The receipt of other amounts during this period; (iii) Year-wise statements about the expenditures out of above sources on development and non-development schemes; (iv) Approximate status of completion and the masses who have or likely to have the benefits and the amounts spent for development or their welfare etc. 7. It is important to note that after constituting a Committee to evaluate and inspect at least 25% of the development schemes, the Const.P.115/12 etc. 24 P&D Department notified a committee on 15.04.2013 in the light of the order of the Supreme Court comprising the following:- 1. Haji Muhammad, Chief Economist, P & D Department (Chairman) 2. Manzoor Ahmed Sarparah, Director General (M&E) P&D Department (Member) 3. Barkatullah Khan, Director General (Implementation), P&D Department (Member) The terms of Reference of the Committee were as follows:- 1. To visit important/problematic development schemes all over the province. 2. The process of Monitoring will continue as regular function, however, team will have to present its preliminary report within fifteen days. 3. The concerned departments shall ensure regular monitoring and progress reporting of all development projects/schemes executed by them. 8. The Committee held a series of meetings to discuss different schemes. Agendas of the meetings were as follows:- 1. To discuss problematic schemes. 2. To give recommendations (Slash/protect) for the schemes in PSDP 2012-13. 3. Any other important issue. The Committee discussed 125 schemes with cost of Rs.3.325 billion and allocation of 2.211 billions. A detailed summary of each section along with recommendations are provided in CMA No. 4387/13. Details of some of the projects are reproduced hereinbelow for reference:- LIST OF SCHEMES TO BE SLASHED FROM PSDP 2013-14 S. No. PSDP ID District Name of Scheme Cost Allocation 2012-13 Recommendation Culture Sector Const.P.115/12 etc. 25 5. 105 Z2012.0732 Kohlu Various Culture Activities In Different Areas In District Kohlu 5.000 5.000 Various components of the project were discussed in details with the authorities concerned of the department and finally decided that the scheme may be slashed. However final responsibility rests on the authorities concerned i.e. Additional Chief Secretary (Dev;). PP&H Sector 6. 149 Z2012.0036 Quetta Construction / Establishment of Women and Juvenile Jail at Quetta 30.000 30.000 -do- Communication Sector 16 474 Z2012.0542 Gwadar Cutting of Kanddasore Road, Gwaddar (UP&D) 90.000 10.000 -do- BDA Sector 22. 624 Z2012.0676 Quetta Const of various roads, Drains & PCC Street at PB- 6 Quetta. 16.000 16.000 -do- Irrigation Sector 24. 669 Z2012.0105 Khuzdar Complete local bore for Agriculture Purpose Near Khalq Jhalawan District Khuzdar. 2.500 2.500 -do- 25. 680 Z2012.0181 Kech Extension of Sami Bund in PB-49 District Turbat. 1.000 1.000 -do- 9. In response to above referred directions, report was filed on 19.07.2013 through CMA No.4387/13, under the signatures of M/s Dostain Khan Jamaldin, Secretary Finance, Government of Balochistan and Aslam Shakir Baloch, Additional Chief Secretary (Dev.), stating therein that in the light of findings of Inspection Report, the concerned departments have been asked to submit initial findings so that future course of action can be decided. It has been further stated that GoB has not prepared any report on its own regarding the remaining 75% of the development schemes. However, periodic inspections are being Const.P.115/12 etc. 26 carried out. During previous inspection visits conducted by different departments, some cases of misappropriations/negligence were pointed out. Consequently, preliminary departmental inquiries were referred to NAB and action was initiated against concerned officers. Detail of the same is reproduced hereinbelow:- 1. Road Barchore-Toba Kakari, Road Baroshore- Khanozai and Road Kut Muhammad Shah – Killa Haji Khan (Case No.5034) NAB (B) Case 2. PRP – Construction of Local Bore for Killi Azamabad, Tehsil Bori District Loralai (Case No.6926) -do- 3. Construction of Community Hall Building Union Council Kharos Wah Tehsil Tamboo District Naseerabad (Case No.7063) -do- 4. Complaint against Mr. Abdul Aziz, XEN and Haji Javed, SDO, C&W Department (Non- Payment & Liabilities) (Case No.7023) -do- 5. Complaint against B&R Provincial-II Quetta (Case No.6976) -do- 6. Construction of Road Musakhail – Drug (Dakian – Wahwasta Portion) Case No. 6970 -do- 7. Construction of Kuchlak Bypass Project -do- 8. Construction of Road Harnai Bazar – Bazo Bungalow -do- 9. Scheme executed by B&R District Harani (Case No.6635) -do- 10. Sports Ground Kohlu (Case No.7056) -do- 11. 13 Schemes executed (Mr. Jaffar George) through MPAs Fund -do- 12. 10 Schemes executed through MPAs Funds (Mr. Sana Ullah Zehri) (Case No.7040) -do- 13. Schemes executed by Provincial B&R Kohlu during 2011-2012 and 2012-2013 (Case No.6855) -do- 14. Technical Education (Civil Works) only -do- 15. Construction of Road from Main Chattan Patti to Shabi Wah (Case No.5036) -do- 16. Preliminary Inquiry Cont: of Road Shahrag to PMDC and Road Kach to Harnai Chief Minister Directive 17. Inquiry “Construction of Road from N-50 to Balozai Khanozai Town Dilsora, Tora Khula, Walgai and Balaniganda via Surkhah Road District Pishin SCIC Report 18. Inquiry “Various Roads in Punjgur” -do- 19. Department Committee for inspection of Development Schemes. -do- 20. Complaint against Embezzlement of funds & Sub Standard construction District Kachhi (Mr.Mohammad Saleem Harifal) (B-18) S&GAD 21. Inquiry of Mekhtar Chamalang Road District Loralai CMIT Const.P.115/12 etc. 27 22. Disciplinary Proceeding against Mr. Sabir Ali Baloch Ex-XEN Dera Bugti Departmental Inquiry 23. Financial Irregularities in B&R Khuzdar Case finalized 24. Registration of case in Anti Corruption Establishment against Saddaruddin Buladi Anti Corruption 25. Inquiry No.8/Q/2011 against Niamat Ali XEN and Anwar SDO C&W Department Musakhail Anti Corruption 26. Conducting of inquiry against Mr. Abdullah Khan Mandokhel Ex-XEN B&R District Zhob Departmental 27. Payment to Jogezai Petroleum Service Loralai amounting to Rs.1,261,695/- Departmental 28. Cost: /Cutting/Blasting/Black topping of Musakhel to Drug Road Dakian Walwasta Project Km 10.8 to 20.8 (10Km) Embezzlement/ Misappropriation of funds. Departmental 10. It has been further stated in the reply that after receipt of Committee’s report, no such action has been taken because reports from concerned departments are still awaited. The report also contains the detail of funds transferred under NFC Award, which is reproduced hereinbelow:- Federal Transfers under NFC Award 2008-09 2009-10 (Actual) Last year of 6th NFC) 2010-11 (Actual) (First year of 7th NFC) 2011-12 (Actual) (2nd year of 7th NFC) 2012-12 (estimated) 48.050 54.855 83.121 94.963 114.206 11. In addition to above said amount, the Government of Balochistan also received Rs.12.00 billion annually as arrears of Gas Development Surcharge claims made prior to 1991 and for the period 2003-09. Year-wise statement of the expenditures has also been provided in the said report, which is reproduced as under:- Budget 2008- 09 2009- 10 (Last year of 6th NFC) 2010-11 (First year of 7th NFC) 2011- 12 (2nd year of 7th NFC) 2012-12 (estimated) Non- Development 55.446 77.534 112.755 129.35 144.112 Development 12.745 13.618 26.491 33.918 35.819 Total 68.191 91.152 139.246 163.268 179.931 Const.P.115/12 etc. 28 12. It is to be noted that despite directions of the Court and receipt of the aforementioned report vide CMA No.136 of 2013, no action has been initiated against any of the delinquent persons responsible for the commission and omission of illegalities, irregularities as well as criminal negligence. Inasmuch as, no action has been taken regarding left over 75% projects and schemes. A solitary scheme matter was referred to NAB for initiating proceedings but no final report has been submitted and the payment to the executing agencies involved in the development programme had not been made. 13. As per overall findings of the Inquiry Committee, the progress of development projects seems to be unsatisfactory. However, without undertaking a thorough probe by a competent law enforcing agency, both civil and criminal liabilities cannot be fixed, as such judicial restraint is being exercised lest it should hamper/bring to a standstill the development activities in the Province. We are cognizant of the fact that these development activities are being carried out at very slow pace because prima facie we are of the opinion that despite availability of considerable funds, reference of which has been made hereinabove, no visible development proportionate to the same has taken place in the province of Balochistan; particularly, relating to enforcement of Fundamental Rights of the general public to provide them basic amenities of life, including education, health cover, infrastructure, etc., Most importantly, a major portion of the population is not getting clean drinking water, as is evident from the data provided by both the sides Const.P.115/12 etc. 29 to justify their respective claims. However, it is admitted that the criteria known as Project Management Life Cycle (PMLC) has not been followed, although the government had taken specific stand in this regard. As a result, considerable public money has been wasted due to corruption and corrupt practices during the last five years i.e. 2003 to 2008. 14. There is yet another painful aspect of the matter, namely, the Provincial Government under PWP–I allocated an amount of Rs.30.00 million per year for each MPA. This constituted a hefty budgetary provision, which was to be spent strictly in accordance with the guidelines for Project Management issued by P&D Department, Government of Balochistan, under which a PMLC comprising five distinct phases had to be completed, which included:- 1. Project Identification and Preparation (PC-II) 2. Project Proposal and Approval (PC-I) 3. Project Authorization 4. Project Implementation (PC-III) 5. Project Completion of Closer of PC IV and V. However, as per the material available on record, such amount was spent by the departments in a non-transparent and illegal manner. In some of the cases, as is evident from the contents of the report, concerned authorities entrusted the funds of PSDP or those arising out of the fund/budget allocated to MPAs to the Departments or the executing agencies of their choice without any justification. 15. On having gone through all the material brought on record in respect of allocation of funds and expenditures incurred on the projects/schemes, it is prima facie held that the poor citizens of the Const.P.115/12 etc. 30 Province of Balochistan are being deprived of the fundamental right to life as envisaged under Article 9 of the Constitution. It is pertinent to note that the present situation also runs contrary to Article 3 of the Constitution, which provides that the State shall ensure the elimination of all forms of exploitation. 16. The functionaries of Province of Balochistan, prima facie, are responsible for spending the huge funds contrary to the guidelines issued by the P&D Department, Government of Balochistan, thus are accountable, as the money which was spent has clearly not proved beneficial to the inhabitants of the far flung areas of Balochistan. Even according to the petitioner, who represents one of the political parties, there is no impact of such development out of PWP-I or from PSDP on the poor condition of general public. The report of the Committee as mentioned hereinabove categorically supports the case of the petitioner. 17. It may not be out of context to note that the Chief Minister of the Province also sanctioned specific funds for the purpose of using PWP-II. Reportedly, funds meant for this programme had also not been used in a transparent manner and a thorough inquiry is also called for in this behalf. 18. On having thoroughly examined all the aspects of the case it has been noticed that the Petitioner has brought a case of serious irregularities, illegalities and alleged misappropriation of funds mainly for the reasons that incidentally all the political parties or individual Members of the Provincial Assembly of Balochistan had joined the treasury benches, so there was no effective opposition except one or two Const.P.115/12 etc. 31 Members. This fact is evident from the information provided on official website of the Balochistan Assembly, which is as under:- Party Affiliation Government Alliance Opposition Alliance Pakistan People's Party Parliamentarians 15 Like Minded Group 13 Jamiat-e-Ulema Islam 10 Balochistan National Party (Awami) 7 Independent 6 Pakistan Muslim League (Q) 5 Awami National Party 3 Pakistan Muslim League (N) 1 National Party 1 Jamiat-e-Ulema Islam (Idealogical) 1 Total 62 Independents (Opposition) 2 Belongs to Pakistan Muslim League (Q) Opted Opposition Benches 1 Total Consequently, there was no Provincial Public Accounts Committee, primarily responsible to undertake scrutiny of the public funds from time to time being spent by the Government of the time. 19. It is to be noted that as per Rules of Procedure of the Balochistan Assembly a comprehensive mechanism has to be evolved to ensure that funds belonging to public exchequer/taxpayers are not misappropriated by way of corruption or corrupt practices. However, for any reason, with reference to the province of Balochistan, in view of the circumstances narrated hereinabove, no Public Accounts Committee was constituted to have oversight, particularly on development schemes, both approved and unapproved. To this effect, the provisions of Articles 169, 170 and 171 of the Constitution read with sections 8 and 12 of the Auditor-General's (Functions, Powers and Const.P.115/12 etc. 32 Terms and Conditions of Service) Ordinance, 2001, (which pertains to the functioning and powers of the Auditor General) have to be strictly invoked. 20. Learned counsel appearing for the parties, however, had no objection on utilization of funds for the development purposes in a transparent manner and on adopting any mechanism to avoid corruption and corrupt practices during execution of such projects/schemes. We are of the opinion that to achieve such a noble cause and to ensure that the funds are being utilized for the protection of fundamental rights of the citizens ensured in the Constitution, a heavy burden has to be shouldered by the Executive/Government itself, because the Chief Minister and the Cabinet have the first and foremost duty to ensure that the funds are used to promote the welfare of the citizens strictly in accordance with the Constitution and the law. 21. In the instant case, as noted hereinabove, an independent Committee was constituted pursuant to the order of this Court, which submitted its report through CMA No.136/2013. The reaction to the same has also been shown by filing of CMA No.533/2013. Therefore, further proceedings are required to be initiated by the Executive/Government. It is incumbent upon the Executive/ Government to examine/evaluate left over schemes i.e. 75% of the total, and if it is found that schemes/projects meant for community development have instead provided a golden opportunity to the respondent officials/officers/representatives to misappropriate the Const.P.115/12 etc. 33 public money by indulging into corruption and corrupt practices, then the Government must proceed against them in accordance with law. 22. It is to be noted that in the meanwhile, after the General Elections held on 11.5.2013, the Petitioner’s political party i.e. Pakhtoonkhawa Mili Awami Party is one of the collation partners of the Provincial Government of Balochistan. Therefore, we feel that it has become all the more necessary for the Petitioners and their political parties to cooperate with other components of the coalition Government to check each and every scheme in the light of relevant rules, regulations and instructions issued by the Planning Commission of Pakistan and the Provincial Government to ensure the protection of Fundamental Rights of the citizens. Ultimately, the whole exercise is to be undertaken to ensure that the funds which were provided to the representatives annually for the purpose of identifying schemes through concerned departments are spent in transparent manner, without indulging in corruption and corrupt practices. 23. Thus, the Provincial Government of Balochistan, being the executive authority, must, under the law, undertake an exercise to ensure forensic audit of leftover 75% projects/schemes. On receipt of the audit report, the matter should be taken up with the civil and criminal law enforcing agencies to ensure that delinquents, who have allegedly indulged in corruption and corrupt practices, are dealt with strictly in accordance with law so that it may serve as a deterrent for such like minded persons in future as well. Const.P.115/12 etc. 34 24. The order 10.4.2013 has already been modified because of the disposal of this petition; however, any other restraining order operating against the Provincial Government, is hereby withdrawn. 25. These are the detailed reasons, with regard to Constitution Petition NO.115 of 2012, of short order dated 22.07.2013, passed jointly in Constitution Petition No.115 of 2012 and Constitution No.20 of 2013, contents whereof are reproduced hereinbelow:- “As far as the judgment in listed Constitution Petition No.115 of 2011 instituted by petitioner Abdul Rahim Ziaratwal and connected Constitution Petition No.20/2013 on the subject “Action against Distribution of Development Funds by Ex-Prime Minister of Pakistan Raja Parvez Ashraf”, is concerned, the same is reserved. 2. However, in the meanwhile, with regards to the Schemes initiated out of the funds allocated to the PWP-II, the Executing Agencies are directed to undertake an exercise and examine across the board all the Schemes so as to ascertain as to whether the PEPRA Rules have been strictly followed and whether the development works were assigned to the Contractors in a transparent manner keeping in view the recognized standards for award of execution of such works; and whether the said schemes were based on feasible reports. If such Schemes are found to be in accordance with the conditions and observations made hereinabove the payments to the Contractors may be released to the extent of the work already completed. Const.P.115/12 etc. 35 3. As far as the left over work is concerned, it should be examined as to whether the same is in the public interest and is feasible to continue execution of the said schemes. If such schemes are found not to be in the public interest or feasible, the same shall be abandoned subject to the approval of the Competent Authority i.e. on whose behalf the Schemes were initiated; and the funds so made available shall be deposited with the public exchequer. The said Competent Authority shall also examine the possibility of proceeding further against such persons or agencies, who had allowed the execution of the works/schemes contrary to the PEPRA Rules, proper feasibilities or without following a transparent manner; before the Forums having jurisdiction to deal with such issues both civil as well as criminal, as the case may be. Chief Justice Judge Judge Announced in open Court on 5.12.2013 At Islamabad Chief Justice Approved For Reporting

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{'id': 'C.P.115_2011.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CONSTITUTION PETITION NO.115 OF 2011 Abdul Raheem Ziaratwal and another Versus Federation of Pak. etc. For the petitioners: Syed Iftikhar Hussain Gillani, Sr. ASC Mr. M. S. Khattak, AOR assisted by Barrister M. Saad Buttar, Advocate For rspdt. Nos.1-4: Nemo. For rspdt. Nos.5-6: Kh. Haris Ahmed, Sr. ASC Mr. Arshad Ali Chaudhry, AOR For rspdt. Nos.7-8: Mr. Shakeel Ahmed Baloch, A.G. Balochistan. Alongwith CONSTITUTION PETITION NO.20 OF 2013 (Action against Distribution of Development funds by Ex-Prime Minister Raja Parvaiz Ashraf) AND HUMAN RIGHTS CASE NO.11504-G OF 2013 (News clipping from daily Al-Akhbar dated 25.3.2013 regarding alleged corruption of Ex-Government.) AND CIVIL MISC. APPLICATION NOS.2960, 3566, 3579, 3649, 3865, 4022, 4135, 4208, & 4498/2013 (Applications for impleadment as party) For the Applicants: Mr. Tariq Mehmood, Sr. ASC Const.P.No.115/2012. 2 (CMA-2960 & 3566/13) Mr. M. Munir Peracha, Sr. ASC (Absent) (In CMA No.3579/13) Syed Tayyab Jaffri, ASC (Absent) (In CMA-3649/13) Syed Zafar Abbas Naqvi, AOR with Mr. Irfanullah, Adv./SVP, DBA Lucky Marwat (CMA-3865/13) Mr. Asif Fasihuddin Virdag, ASC (CMA-4022/13) Mr. M. Siddique Khan Baloch, ASC (Absent) (CMA-4135/13) Mr. Shahid Mahmood Khokhar, ASC (In CMA No.4208/13) On Court’s Notice: Mr. Muneer A. Malik, Attorney General for Pakistan, assisted by Mr. Faisal Siddiqui, Adv. For AGPR: Mr. Tahir Mehmood, AGPR For Auditor Malik Manzoor Akhtar, D.G. Audit General of Pakistan: Rana Sahakeel Asghar, Director Audit Mr. M. Munawwar Rana, A.O. For M/o H & W: Mr. Sajid Ilyas Bhatti, DAG Mr. M. S. Khattak, AOR with Mr. Aurangzeb Marral, Deputy Secretary For Pak PWD: Sardar Asmatullah Khan Niazi, ASC Mr. Sarwar Awan, D.G. Mr. Ata ul Haq, CE For M/o Finance: Mr. Sajid Mehmood Butt, ASC Mr. Arshad Ahmed, F.A. (Cabinet) Dr. G. M. Mahmoodi, Sr. JS Mr. Seerat Asghar, former SSPM/ Secy NFS & R For Cabinet Div.: Ch. Zafar Amin JS(PWP) Mr. Masood Ahmed , JS (NPS) Mr. Muhammad Asif Khan, Chief Finance & Accounts Officer. For SSGCL: Mr. Asim Iqbal, ASC Mr. Asif Fateh Sheikh, GM (Legal) Const.P.No.115/2012. 3 Mr. Shahir Aleem, GM (Sales) For SNGPL: Mr. Uzair Karamat Bhandari, ASC Mr. Arif Hameed, MD, SNGPL For PEPCO: Mr. Zaigham Ishaq, MD, PEPCO Mr. Amjad Manan, Chief Engr. (RE) For Parliamentarians: Mr. Wasim Sajjad, Sr. ASC (On behalf of Raja Parvaiz Ashraf, Ex-PM) Mian Abdul Rauf, ASC (On behalf of Mr. Ghias Mela, Ex- MNA, Mr. Anwar Ali Cheema, Ex-MNA, Mr. Amir Sultan Cheema, Ex- MPA) Mr. Moula Bakhsh Chandio, Ex-Law Minister, In person Mr. Liaqat Ali Shabab, Mr. Muhammad Hamayat Khan, Syed Muhammad Ali Shah Bacha, Ex-MPAs, KPK Assembly. Ex-MPA, KPK (All in person) Date of hearing: 16-18 & 22.7.2013. ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- As far as the judgment in listed Constitution Petition No.115 of 2011 instituted by petitioner Abdul Rahim Ziaratwal and connected Constitution Petition No.20/2013 on the subject “Action against Distribution of Development Funds by Ex-Prime Minister of Pakistan Raja Parvez Ashraf”, is concerned, the same is reserved. 2. However, in the meanwhile, with regards to the Schemes initiated out of the funds allocated to the PWP-II, the Executing Agencies are directed to undertake an exercise and examine across the board all the Schemes so as to ascertain as to whether the PEPRA Rules Const.P.No.115/2012. 4 have been strictly followed and whether the development works were assigned to the Contractors in a transparent manner keeping in view the recognized standards for award of execution of such works; and whether the said schemes were based on feasible reports. If such Schemes are found to be in accordance with the conditions and observations made hereinabove the payments to the Contractors may be released to the extent of the work already completed. 3. As far as the left over work is concerned, it should be examined as to whether the same is in the public interest and is feasible to continue execution of the said schemes. If such schemes are found not to be in the public interest or feasible, the same shall be abandoned subject to the approval of the Competent Authority i.e. on whose behalf the Schemes were initiated; and the funds so made available shall be deposited with the public exchequer. The said Competent Authority shall also examine the possibility of proceeding further against such persons or agencies, who had allowed the execution of the works/schemes contrary to the PEPRA Rules, proper feasibilities or without following a transparent manner; before the Forums having jurisdiction to deal with such issues both civil as well as criminal, as the case may be. Chief Justice Judge Islamabad, the 22nd July, 2013 Not approved for reporting Judge M. Safdar Mahmood/*

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{'id': 'C.P.115_2012.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,HCJ MR. JUSTICE JAVED IQBAL MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE RAJA FAYYAZ AHMED MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE RAHMAT HUSSAIN JAFFERI MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE GHULAM RABBANI MR. JUSTICE KHALIL-UR-REHMAN RAMDAY CONSTITUTION PETITIONS NOS. 11-15, 18-22, 24, 31, 35, 36, 37 & 39-44/2010, CM APPEAL NO. 91/2010, HRC Nos.20492-P &22753-K/10 and Civil Petition. No. 1901/2010 (On appeal from the order of PHC, Peshawar dt:16.6.10 passed in W.P. No. 1581/10) Nadeem Ahmed Advocate …. PETITIONER In Const. P. 11/2010) Distt. Bar Association, Rawalpindi …. PETITIONER (In Const. P. 12/2010) Watan Party through its Chairman …. PETITIONER (In Const. P. 13/2010) Supreme Court Bar Association …. PETITIONER (In Const. P. 14/2010) Muhammad Ijazul Haq …. PETITIONER (In Const. P. 15/2010) Const.P.11/2010 etc. 2 Lahore High Court Bar Association …. PETITIONER (In Const. P. 18/2010) Lahore High Court Rawalpindi Bench Bar Association …. PETITIONER (In Const. P. 19/2010) Pakistan Lawyers Forum …. PETITIONER (In Const. P. 20/2010) Sardar Khan Niazi …. PETITIONER (In Const. P. 21/2010) Shahid Orakzai …. PETITIONER (In Const. P. 22/2010) M. Kowkab Iqbal …. PETITIONER (In Const. P. 24/2010) Al-Jehad Trust …. PETITIONER (In Const. P. 31/2010) District Bar Association Sangarh …. PETITIONER (In Const. P. 35/2010) District Bar Association Gujrat …. PETITIONER (In Const. P. 36/2010) District Bar Association Sialkot …. PETITIONER (In Const. P. 37/2010) Arshad Mahmood Bago etc. …. PETITIONER (In Const. P. 39/2010) Dr. Abdul Hafeez Pirzada …. PETITIONER (In Const. P. 40/2010) Dr. Muhammad Aslam Khaki …. PETITIONER (In Const. P. 41/2010) Shamshad Ahmed Mangat …. PETITIONER (In Const. P. 42/2010) Julious Salik …. PETITIONER (In Const. P. 43/2010) Concerned Citizens of Pakistan etc. …. PETITIONER (In Const. P. 44/2010) Application by Lawyers of Hazara Division…. APPLICANT (In HRC No. 20492-P/10) Application by Baba Sardar Haider Zaman…. APPLICANT (In HRC No. 22753-K/10) …. Const.P.11/2010 etc. 3 Shahid Orakzai …. PETITIONER (In C.P. 1901/10) …. Watan Party through its Chairman …. APPELLANT (In CM Appeal No. 91/2010 in Const. P. NIL/2010) VERSUS Federation of Pakistan and others …. RESPONDENTS For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC, (Const. P. 11/2010) Mr. M.A. Zaidi, AOR Assisted by Barrister Sharjeel Adnan Sh., Adv. Barrister Natalia Kamal, Adv. Barrister Sajeel Shehryar, Adv. Barrister Ahmed Kamran, Adv. M. Ishaque Shah, Adv Hafiz Muhammad Naeem, Adv Ms. Sameen Khan, Adv For the petitioner: Mr. Muhammad Ikram Ch., Sr. ASC (Const. P. 12/2010) Mr. Arshad Ali Chaudhry, AOR Assisted by Syed Masood Hussain, Adv. Ch. Muhammad Bashir, Adv. Mr. Mudassar Ikram Ch.,Adv. Mr. Shoaib Shahid, Adv. For the petitioner: Barrister Zafarullah Khan,Sr. ASC (Const. P. 13/2010 & CM Appeal No. 91/2010) For the petitioner: Mr. Hamid Khan, Sr. ASC (Const. P. 14, 18, 35 & 36, Mr. Rashid A. Rizvi, Sr. ASC 37 & 39/2010) Mr. Ahmed Awais, ASC Mr. M.S. Khattak, AOR Assisted by Mr. Waqar Rana, Adv. Mr. Sikandar Khan, Adv. Mr. Taimur Inayat Malik, Adv. For the petitioner: Mr. M.A. Ghaffarul Haq, ASC (Const. P. 15/2010) Mr. Arshad Ali Chaudhry, AOR For the petitioner: Syed Zulfiqar Abbas Naqvi, ASC (Const. P. 19/2010) Mr. Arshad Ali Chaudhry, AOR Petitioner: Mr. A.K. Dogar, Sr. ASC. (Const. P. 20/2010) Const.P.11/2010 etc. 4 Petitioner: Sardar Khan Niazi, In Person (Const. P. 21/2010) Petitioner: Mr. Shahid Orakzai, In Person (Const. P. 22/2010 & C.P. 1901/10) Petitioner: Mr. M. Kowkab Iqbal, ASC, In Person (Const. P. 24/2010) Petitioner: Mr. Habib-ul-Wahab-ul-Khairi, ASC, (Const. P. 31/2010) In Person For the petitioner: Dr. Abdul Hafeez Pirzada, Sr. ASC, (Const. P. 40/2010) In Person Barrister Mian Gul Hasan Aurangzeb, ASC Mr. M.S. Khattak, AOR. Assisted by Mr. Sikandar Bashir Mohmand, ASC Mr. Hamid Ahmed, Adv. Ms. Saleha Hyat, Adv. Barrister Abdul Sattar Pirzada, Adv. Petitioner: Dr. Muhammad Aslam Khaki, ASC, (Const. P. 41/2010) In Person For the petitioner: Mr. Hashmat Ali Habib, ASC (Const. P. 42/2010) Mr. M.S. Khattak, AOR. Assisted by Mr. Zahid Hussain Malik, Adv. For the petitioner: Mr. Zulfiqar Ahmed Bhutta, ASC (Const. P. 43/2010) Mr. Ejaz Muhammad Khan, AOR. For the petitioner: Mr. Rasheed A. Rizvi, Sr.ASC (Const. P. 44/2010) Mr. M.S. Khattak, AOR. For the Applicant: Nemo (HRC. 20492-P/10) For the Applicant: Nemo (HRC. 22753-K/10) On Court notice: Moulvi Anwarul Haq Attorney General for Pakistan Assisted by Mr. Salman Faisal, Adv. Syed Ali Mustafa Gillani, Adv. Ms. Shafaq Mohsin, Adv. Mr. Yousaf Leghari, A.G. Sindh With Raja Abdul Ghafoor, AOR Dr. Salahuddin Mengal, A.G. Balochistan Const.P.11/2010 etc. 5 Mr. Mahmood Raza, Addl. A.G. Balochistan Khawaja Haris Ahmed, A.G. Punjab Ch. Khadim Hussain Qaiser, Addl. A.G.Punjab Assisted by Mr. Raza Qureshi, Adv. Barrister Syeda Maqsooma Zahra Bokhari, Adv. Kh. Isaam Bin Haris, Adv. Mr. Asadullah Khan Chamkani, A.G. KPK Syed Arshad Hussain Shah, Addl. A.G. KPK For the Federation: Mr. Wasim Sajjad, Sr. ASC (Const. P. 11,14 & 40/10) Mr. Mehmood A. Sheikh, AOR Assisted by Mr. Idrees Ashraf, Adv. Barrister Ali Hassan Sajjad, Adv. Barrister Qamar Hassan Sajjad, Adv. Ms. Sambara Arbab Mungrani,Adv. (Const. P. 12/2010): Sardar Muhammad Ghazi, ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 13,19, 35/10 & Raja Muhammad Ibrahim Satti, Sr. ASC C.M.Appeal No. 91/10): Mr. Mehmood A. Sheikh, AOR Assisted by Ms. Shazia Yasin Hashmi, Adv. Mr. Usman Ibrahim Satti, Adv. (Const. P. 15/2010): Barrister Bacha Khan, ASC (For Federation) Mr. Mehmood A. Sheikh, AOR (Const. P.18,21,22,37,39 Mr. K.K.Agha, Adl. AGP & 42/2010): Mr. Mehmood A. Sheikh, AOR (Const. P. 24 & 41 /2010): Ch. Nasrullah Warraich, ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 31/2010): Mr. Salahuddin Gandapur, ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 35/2010): Mr. Iftikhar-ul-Haq Khan,ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 36/2010): Mr. Mushtaq Masood, ASC Mr. Naeem Masood, ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 39/2010): Mr. Iftikhar Ahmed Mian, ASC Mr. Mehmood A. Sheikh, AOR (Const. P. 43/2010): Mr. Khurshid Ahmed Sodi, ASC Mr. Mehmood A. Sheikh, AOR Const.P.11/2010 etc. 6 (For the Govt. of KPK: Syed Iftikhar Hussain Gillani, Sr. ASC (Const. P.13,15,20 & Mr. Shaukat Hussain, AOR (Absent) 24/2010) For the Govt. of Punjab: Mr. Shahid Hamid, ASC (Const. P. 14,18,35,36 Mr. Abid Aziz Sheikh, ASC & 37/2010) Assisted by Mr. Shujaat Ali Khan,Asst. A.G. Punjab Mr. Tahir Mahmood Khokhar, Adv. Ms. Aysha Hamid, Adv. For the Applicant Sahibzada Ahmed Raza Khan Qasuri, (in CMA No.1599/10) Sr.ASC, In Person For the Applicant Mr. Salman Akram Raja, ASC (in CMA Nos. 1859 & Assisted by 1959/10) Syed Shahab Qutub, Adv. Mr. Waqas Mir,Adv. Ms. Aneesa Agha, Adv. Mr. Wasif Majeed, Adv. Ms. Sahar Bandial, Adv. Mian Bilal Ahmed, Adv. Malik Ghulam Sabir, Adv. For the Applicant Dr. Syed A. S. Pirzada, In person (in CMA No. 2681/10) Dates of hearing: 24-31/5, 1–3, 7-10/6, 5-8, 12-15, 19- 22, 26-29/7 , 2-5, 9-12, 16-19 & 23- 25,30,31/8, & 1-2,6-7,27-30/9, 2010. ORDER Through these petitions, various petitioners have called in question the provisions of Articles 1, 17, 17(4), 27, 38, 45, 46, 48, 51, 58(2)(b), 62, 63, 63A, 91, 106, 148, 175, 177, 193, 203C, 209, 219, 226, 245, 260 and 267A and insertion of Article 175A brought about through 18th Amendment in the Constitution. 2. It has been argued that the amendments made are violative of the salient features of the Constitution which according to them, are as under: (i) Parliamentary form of government; (ii) Democracy blended with Islam; (iii) Provision of fundamental rights; Const.P.11/2010 etc. 7 (iv) Independence of Judiciary; and (v) Federalism. 3. Petitioners mostly have challenged the vires of Article 175A of the Constitution, a reference to which would be in order:- “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) Chief Justice of Pakistan; Chairman (ii) two most senior Judges of the Supreme Court; Member (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 two member Judges, for a term of two years; Member (iv) Federal Minister for Law and Justice; Member (v) Attorney-General for Pakistan; and Member (vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years. Member (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; Member (ii) the most senior Judge of that High Court; Member (iii) Provincial Minister for Law; and Member Const.P.11/2010 etc. 8 (iv) a senior advocate to be nominated by the Provincial Bar Council for a term of two years: Member 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 High Court; and Member (ii) 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. (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. Const.P.11/2010 etc. 9 (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 the 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 may make rules for regulating its procedure.” 4. It has been argued that this provision is violative of one of the salient features of the Constitution i.e. independence of judiciary; that the judicial independence has nexus with the appointment process; that it is unworkable and impracticable inasmuch as the nominations made by the Judicial Commission are subject to scrutiny by the Parliamentary Committee which is empowered to confirm and forward the nominations of the Commission to the President for appointment under clauses (12) and (13) of Article 175A; that the Parliamentary Committee has been given veto powers and even a unanimous recommendation made by the Judicial Commission can be vetoed by six out of eight members selected from the Parliament; that the insertion of this new Article is a product of mala fides and that the process of appointment of Judges will have an adverse effect on judicial independence as it is likely not only to make the appointment process political but would even otherwise affect its structural insularity which is an essential element of judicial independence. It was argued that this Court has power of judicial review of constitutional amendments, if the basic structure/features or the core values have been tinkered with. Const.P.11/2010 etc. 10 5. While praying for striking down the provisions under challenge, the concept of basic structure was pressed into service and it was maintained that the principle of substantive limits on the power to amend the Constitution has become a part of constitutional law in several liberal democracies. Reference was made to the judgments rendered by the Supreme Courts of India and Bangladesh where the amendments were struck down on the touchstone of basic structure. It was submitted that the basic structure of the Constitution of Pakistan was even acknowledged by this Court in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) and Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and even in Wukala Mahaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) but the Court did not deem it proper to make it a touchstone to strike down a constitutional provision. These judgments, it was further argued, needed re-visiting. 6. Learned Attorney General for Pakistan, Maulvi Anwar-ul-Haq, learned Additional Attorney General, Mr. K. K. Agha and the learned counsel appearing for the Federation Mr. Wasim Sajjad, ASC defended the impugned provisions by submitting that the concept of basic structure as a touchstone to strike down a constitutional provision is alien to our jurisprudence and this Court may not like to review its own judgments as no good grounds have been canvassed so far, to warrant re-visiting. Learned counsel appearing for the Province of Punjab Mr. Shahid Hamid, ASC defended the impugned amendment. He, however, in all fairness, admitted that the enforcement of Article 175A may raise certain issues and it would be in fitness of things if the matter is referred to the Parliament for re-consideration in terms of Article 267A of the Constitution. 7. We have considered the submissions made and have held extensive deliberations qua all the Articles under challenge. The Court at this stage would Const.P.11/2010 etc. 11 not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion qua Article 175A on reconsideration by it in terms of this order. We would thereafter decide all these petitions adverting to all the issues raised therein. 8. The Court is conscious that it is a creation of the Constitution which envisages, inter alia, a structure of governance based on trichotomy of powers in terms of which the functions of each organ have been constitutionally delineated keeping in view the seminal concept of separation of powers. The political sovereign i.e. the people, being trustees of a “sacred” trust in the distribution of powers under the Constitution, did not make Judges supreme arbiters on issues purely political. But they wanted the Judges to do “right to all manner of people according to law, without fear or favour, affection or ill-will” (Oath under the Constitution). While examining the vires of Article 175A of the Constitution and its judicial enforcement, we are mindful of the mandate of the oath of office, its constraints and the fundamental principles which underpin judicial independence in the constitutional scheme envisaged by the founding fathers. Judicial independence is one of the core values of our Constitution because it is inextricably linked with the enforcement of fundamental rights [Article 184 (3) and Article 199 of the Constitution] and the rule of law. According an exalted position to this value, the Constitution in its very Preamble laid down that, "the independence of the judiciary shall be fully secured". The judiciary has not been made part of the Executive or the Legislature (Article 7), its separation from the executive was made a constitutional command [Article 175(3)] and right to “fair trial” is acknowledged as one of the fundamental rights (Article 10A). To further buttress this objective, the process of appointment of judges (Article 177) and their removal (Article 209) was kept insulated from legislature and the opinions of the Chief Justice of Pakistan and Chief Justices of High Courts were given Const.P.11/2010 etc. 12 weight which now stand judicially defined by this Court in Al-Jehad Trust case (PLD 1996 SC 324). Judiciaries in all democratic setups are vulnerable to the power of legislatures to create, alter or impair judicial structures including the mode of appointing, removing and remunerating the Judges. In our country, like in some others as well, this power is tampered with constitutional guarantees that restrict legislative control over the judiciary. The Parliament was conscious of this scheme, because other than inserting Article 175A, it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary. Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight. 9. It was maintained by the learned counsel appearing for the Federation that the Parliament was motivated by higher considerations of liberal democracy, the rule of law and the independence of judiciary in passing the Eighteenth Amendment. Notwithstanding these noble objectives, serious apprehensions have been expressed that this provision may compromise judicial independence which require serious consideration. Following aspects of Article 175A, according to the petitioners, are likely to disturb the overall constitutional scheme qua judicial independence and the balance sought to be achieved through it, may be tilted in one way. Because: (i) The Chief Justice of Pakistan is pater familias i.e. the head of judiciary. His opinion under the unamended provision was held by this Court [in Al-Jehad Trust case (PLD 1996 SC 324)] to have primacy in the consultative process initiated by the President for appointment of Judges. But under the newly inserted provision, the consultative process has been done away with and the Chief Justice has just one vote in the Judicial Commission whose recommendations can be rejected by the Parliamentary Committee. (ii) The Law Minister and Attorney General who represent the Executive have been made members of the Judicial Commission with weightage equal to judicial members. Const.P.11/2010 etc. 13 (iii) In the Parliamentary Committee in the name of parliamentary oversight, the Committee has been given the power to reject the recommendations of the Judicial Commission which would be tantamount to granting veto powers to it. (iv) Four out of eight members of the Parliamentary Committee, though members of the Parliament are nominees of the Chief Executive i.e. the Prime Minister. The inclusion of the executive members in the afore-referred bodies has not only minimized the role of the judiciary in the appointment process but is likely to politicize the entire exercise and thereby impinge on the constitutional guarantees provided to ensure its insularity and to restrict the legislative and executive control over it. (v) The issues of elevation of a Chief Justice of a High Court or Judge of the said Court to the Supreme Court, if brought before the Parliamentary Committee and discussed is likely to be violative of Article 68 of the Constitution, which stipulates that: “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.” (vi) There is a serious omission in clauses (9) & (10) of Article 175A as in the event of dissolution of the National Assembly, the composition of the Parliamentary Committee would be incomplete and there is no provision in pari materia to the third proviso to clause (2B) of Article 213 of the Constitution which stipulates that, “When the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the Parliamentary Committee shall comprise the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply.” 10. Most of the petitioners who had challenged Article 175A of the Constitution raised serious issues regarding the composition of the Judicial Commission and Parliamentary Committee and veto power given to the latter. It was contended that there was a well known practice, when the unamended provision was in vogue that Chief Justice would consult most senior Judges of the Supreme Court before finalizing the recommendations. Instead of bringing any drastic change, the said practice should have been formalized. It was, therefore, suggested during arguments that to ensure that the appointment process is in consonance with the concept of independence of judiciary, Const.P.11/2010 etc. 14 separation of powers and to make it workable, Article 175A may be amended in following terms:- (i) That instead of two most senior Judges of the Supreme Court being part of the Judicial Commission, the number should be increased to four most senior Judges. (ii) That when a recommendation has been made by the Judicial Commission for the appointment of a candidate as a Judge, and such recommendation is not agreed/agreeable by the Committee of the Parliamentarians as per the majority of 3/4th, the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration. The Judicial Commission upon considering the reasons if again reiterates the recommendation, it shall be final and the President shall make the appointment accordingly. (iii) That the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. 11. Mian Raza Rabbani, Advisor to the Prime Minister (Chairman of the Special Committee of the Parliament for Constitutional Reforms) while speaking on the floor of the National Assembly reiterated the resolve not to alter the core values of the Constitution when he said: “Madam Speaker! Before I go into the details of this Article, let me once again reiterate that one of the essential purposes rather two or three of the essential purposes which made up the basis for these constitutional reforms was to ensure that the fundamental principles of the Constitution are not altered.” 12. He was conscious of the apprehensions which some may have about the provision when at a subsequent occasion he stated that under the new Const.P.11/2010 etc. 15 system (Article 175A), a name for appointment as a Judge shall originate from the Chief Justice of Pakistan. Even learned Attorney General for Pakistan in his written submission affirmed this and stated, "the names of the recommendees will be initiated in the Judicial Commission by the Hon'ble Chief Justice of Pakistan in consultation with the other members/Hon'ble Judges of the Commission" and that "in case of rejection of nomination by the Parliamentary Committee, the said Committee shall have to state reasons which shall be justiciable." But such fair concessions, it was argued, were not enough to fully allay the reservations expressed regarding this provision. 13. In view of the arguments addressed by the learned counsel, the criticism made with regard to the effect of Article 175A on the independence of judiciary and the observations made in paragraphs-8, 9 & 10 as also deferring to the parliamentary mandate, we would like to refer to the Parliament for re-consideration, the issue of appointment process of Judges to the superior courts introduced by Article 175A of the Constitution, inter alia, in the light of the concerns/reservations expressed and observations/suggestions made hereinabove. Making reference to the Parliament for reconsideration is in accord with the law and practice of this Court as held in Hakim Khan v. Government of Pakistan (PLD 1992 SC 595 at 621). 14. This is for the first time ever in our national, judicial and constitutional history that such a serious challenge has been thrown by a cross section of society including some premier Bar Associations of the country to a legislation which was no ordinary piece of legislation but was a constitutional amendment. By making this unanimous reference to the Parliament for re-consideration, we did not consider the sovereignty of the Parliament and judicial independence as competing values. Both the institutions are vital and indispensable for all of us and they do not vie but rather complement each other so that the people could live in peace and prosper in a society which is just and Const.P.11/2010 etc. 16 wherein the rule of law reigns supreme. We can also not lose sight of the fact that we, as a nation, are passing through testing times facing multidimensional challenges which could be best addressed only through measures and methods where societal and collective considerations are the moving and driving force. We had two options; either to decide all these petitions forthwith or to solicit, in the first instance, the collective wisdom of the chosen representatives of the people by referring the matter for reconsideration. In adopting the latter course, we are persuaded primarily by the fact that institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate. 15. Notwithstanding the pendency of these petitions, the constitutional provisions under challenge have come into effect. Prior to the Eighteenth Amendment, several appointments of Additional Judges have been made in various High Courts and the issue of fresh appointments is likely to come up in near future. In these circumstances and till such time these petitions are decided, Article 175A has to be given judicial enforcement by way of a construction which is in consonance with the other constitutional provisions underpinning judicial independence. 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. Const.P.11/2010 etc. 17 (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 justiciable by the Supreme Court. 16. All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of Additional Judges of the latter Courts shall be processed forthwith under Article 175A. 17. To enable the Parliament to proceed and re-examine the matter in terms of the observations made above, these petitions are adjourned to a date in the last week of January, 2011. 18. The Registrar of this Court shall send a copy of this order to the Chairman Senate, the Speaker of the National Assembly, Mian Raza Rabbani, Advisor to the Prime Minister/Chairman of the Special Committee of the Parliament for Constitutional Reforms and to the Secretary Law & Justice, Human Rights Division of Pakistan. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. JAVED IQBAL, J. MIAN SHAKIRULLAH JAN, J. Const.P.11/2010 etc. 18 TASSADUQ HUSSAIN JILLANI, J. NASIR-UL-MULK, J. RAJA FAYYAZ AHMED, J. MUHAMMAD SAIR ALI, J. MAHMOOD AKHTAR SHAHID SIDDIQUI, J. JAWWAD S. KHAWAJA, J. ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J. RAHMAT HUSSAIN JAFFERI, J. TARIQ PARVEZ, J. MIAN SAQIB NISAR, J. ASIF SAEED KHAN KHOSA, J. GHULAM RABBANI, J. KHALIL-UR-REHMAN RAMDAY, J. Announced in Open Court on the of October, 2010. CHIEF JUSTICE ISLAMABAD Khurram Anees P.S./* APPROVED FOR REPORTING

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{'id': 'C.P.11_2010.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original 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 CONSTITUTION PETITION NO.126 OF 2012 [UNDER ARTICLE 184(3) OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973] Nadeem Ahmed, Advocate Petitioner(s) VERSUS Federation of Pakistan Respondent(s) For the Petitioner : Mr. M. Akram Sheikh, Sr.ASC For the Respondent : Mr. Irfan Qadir, AGP. Date of Hearing : 14.12.2012 ORDER Khilji Arif Hussain, J-. Through this petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as ‘the Constitution’], the petitioner seeks following relief:- “a) to issue appropriate directions to the Respondent for issuance of notifications; b) to declare that till issuance of the notifications, being a mere clerical/ministerial formality, the Honourable Judges of Honourable High Court mentioned at (a) and (b) of paragraph above, may continue to function as Judges of Honourable Islamabad High Court without having to depend on issuance of notification(s); c) Any other better or more appropriate consequential relief may also be granted in the interest of justice, especially to ensure that in future, the Respondent may not use this kind of hindrance to the smooth functioning of judicial organ.” 2. From the perusal of material made available before us, it appears that the Judicial Commission of Pakistan [hereinafter referred to as ‘the Commission’] in its meeting held on 22.10.2012, under the provisions of Article 175-A of the Constitution, recommended 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, from the date of expiry of their tenure as Additional Judges of the said Constitution Petition No.126 of 2012 2 High Court. The Parliamentary Committee on receipt of the aforesaid nominations from the Commission, in terms of Article 175-A(13) of the Constitution, after unanimously confirming the same, sent the matter to the Prime Minister of Pakistan to forward the same to the President of Pakistan for appointment. The President of Pakistan apparently not issued orders for appointment allegedly for the reason that one of the participants out of ten was not qualified to attend the meeting of the Commission. 3. We are of the view that even if it is assumed that one of the members, being non entity sat, voted and took part in the proceedings culminating in nomination, but it would not vitiate the proceedings when the Judicial Commission in view of Clause 8 of Article 175A of the Constitution has nominated by majority of its membership. We are supported in our view from the judgment reported as Managing Director, Sui Southern Gas Company LTD, Karachi v. Ghulam Abbas and Others (PLD 2003 SC 724). 4. After hearing Mr. Muhammad Akram Sheikh, learned Sr.ASC, representing the petitioner and the learned Attorney General for Pakistan, and for the reasons to be recorded later, we accept this petition and direct the concerned authorities to issue notifications, thereby appointing 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 giving effect from the date of expiry of their earlier notifications. Judge Judge Judge Judge Judge ISLAMABAD M.Zubair/*

{'id': 'C.P.126_2012.pdf', 'url': ''}

{'id': 'C.P.126_2012.pdf', 'url': ''}

In the Supreme Court of Pakistan (Original Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Mian Saqib Nisar Mr. Justice Ejaz Afzal Khan Mr. Justice Muhammad Ather Saeed Mr. Justice Iqbal Hameedur Rahman Constitution Petition No.127 of 2012 (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) AND H.R.C No. 40927-S of 2012. (Application by Abdul Rehman Farooq Pirzada) AND Civil Miscellaneous Appeal No.176/2012 in Constitution Petition No.Nil of 2012 (Begum Nusrat Ali Gonda Vs. Federation of Pakistan etc. Attendane: For Mr. Justice (R) Rustam Ali Malik Mr. Justice (R) Rana M. Arshad Khan Mr. Justice (R) Ghulam Sarwar Sheikh Mr. Justice (R) Farrukh Latif Mr. Justice (R) Pervez Ahmed Mr. Justice (R) Muhammad Jehangir Arshad Mr. Justice (R) Ahmed Farooq Sheikh Mr. Hamid Khan, Sr. ASC. Mr. M. S. Khattak, AOR. For Justice (R) Mrs. Majida Rizvi Mr. Justice (R) Nadeem Azhar Siddiqui Mr. Justice (R) Tariq Mehmood Justice (R) Mrs. Qaiser Iqbal Mr. Munir A. Malik,Sr.ASC. Mr. Faisal Kamal Alam, ASC. For Mr. Justice (R) Shah Abdul Rashid Mr. Rafiq Rijwana, ASC. For Mr. Justice (R) Khan Riaz-ud-Din Khan Mr. Justice (R) Saeed-ur-Rehman Farrukh Mr. M. Akram Sheikh, Sr. ASC. For Mr. Justice (R) Amjad Ali Mr. Farhat Nawaz Lodhi, ASC For Mr. Justice (R) Riaz Kiani Mr. Justice (R) Aqil Mirza Mr. Justice (R) Sharif Hussain Bokhari Mr. Justice (R) Ghulam Muhammad Qureshi Mr. Justice (R) Abdul Hafeez Cheema Mr. Justice (R) Munir Ahmed Mughal Mr. Justice (R) Rao Iqbal Khan Mrs. Shahida Khurshid, w/o Mr. Justice (R) Raja M. Khurshid Syed Iftikhar Hussain Gillani, Sr. ASC. For Mr. Justice (R) Raza A. Khan Mr. Afnan Karim, Kundi, ASC. For Mr. Justice (R) Syed Najam-ul-Hassan Kazmi Mr. M. Afzal Siddiqui, ASC For Mr. Justice (R) Mansoor Ahmed. Raja M. Ibrahim Satti, Sr. ASC. Mr. Mehmood A. Sheikh, AOR. Const. Petition No.127 of 2012 2 For Mr. Justice (R) Sh. Javaid Sarfraz Mr. Justice (R) Fazal-e-Miran Chohan Mr. Justice (R) Syed Asghar Haider Mr. Justice (R) Tariq Shamim Mr. Justice (R) M. Nawaz Bhatti through widow Mrs. Perveen Nawaz Mr. Amir Alam Khan, Sr. ASC For Mr. Justice (R) Aslam Arian Mr. Mehmood A.Sheikh,ASC For Mr. Justice (R) Abdul Ghani Sheikh: Mr. Abdul Rahim Bhatti, ASC Mr. Justice (R) Tanvir Bashir Ansari Through widow Mrs. Shahnaz Ansari Mr. Zaheer Bashir Ansari,ASC Mr. Justice (R) Sheikh Abdul Rashid Mr. Justice (R) Ch. Mushtaq Ahmad Khan Mr. Justice (R) Sh. Abdul Manan Mr. Justice (R) Munib Ahmed Khan Mr. Muhammad Munir Peracha, ASC For Mr. Justice (R) Muhammad Muzamil Khan Mr. Gulzarin Kiani, Sr. ASC Ch. Akhtar Ali, AOR For Mr. Justice (R) Sher Bahadur Mr.Abdul Aziz Kundi,ASC For Mr. Justice (R) Iftikhar Ahmed Cheema Mr. Justice (R) M.K.N. Kohli Sardar Muhammad Aslam, ASC. Raja Abdul Ghafoor, AOR. For Widow of Mr. Justice (R) M. Khayar Khan Ms. Asma Jehangir, ASC For Mr. Justice (R) Ghous Muhammad: Rana M. Shamim, ASC. For Mr. Justice (R) G.M. Kourejo Mr. Justice (R) Ali Sain Dino Metlo Nemo. Mr. Justice (R) Salim Khan Mr. Justice (R) M. Sadiq Laghari Mr. Justice (R) Abdul Aziz Kundi Mr. Justice (R) Azam Khan Mr. Justice (R) Hamid Farooq Durani In person. Mr. Justice (R)Abdul Ghafoor Khan Ladhi Mr. Justice (R) Mian Ghulam Ahmad Mr. Justice(R)Muhammad Ismail Bhatti Mr. Justice (R) Ch. Shahid Saeed Mr. Justice (R) Sagheer Ahmed Qadri Late Justice (R) Abdul Rehman Khan Kaif Mr. Justice (R) Abdul Khaliq Khan Mr. Justice (R) Qazi Hamid-ud-Din Mr. Justice (R) Raja Muhammad Khan Mr. Justice (R) Muhammad Raza Khan Mr. Justice (R) Said Maroof Khan Mr. Justice (R) Attaullah Khan Mr. Justice (R) Salim Dil Khan Mr. Justice (R) Amanullah Abbasi Mr. Justice (R) S.A. Rabbani Mr. Justice (R) Shahid Anwar Bajwa N.R. Applicant in HRC-40927-S/2012 (Mr. Justice (R) Abdul Farooq Pirzada) Absent For the applicant in CMA No.176/2012 in Const. P. No.Nil/2012: Sardar Muhammad Aslam, ASC Const. Petition No.127 of 2012 3 On Court notice Mr. Irfan Qadir, Attorney General for Pakistan. Mr. Azam Khan Khattak, Addl. AG., Balochistan. Mr. Muhammad Qasim Mirjut, Addl. AG, Sindh. Mr. Muhammad Hanif Khatana, Addl. AG Punjab Syed Arshad Hussain Shah, Addl: AG, KPK On Court notice (amici curiae): Khawaja Haris Ahmed, Sr. ASC Mr. Salman Akram Raja, ASC On Court’s Call: Mr. Abdul Qadeer Ahmed, Deputy Accountant General, Sindh. Dates of Hearing: 26th , 27th, 28th, 29th March, 2013 and 2nd, 3rd , 8th , 9th , 10th & 11th April, 2013. JUDGMENT Anwar Zaheer Jamali, J.- By our short order announced in open Court on 11.4.2013, this case and the other connected cases were disposed of in the following manner:- “…..we hereby, in exercise of all the enabling powers vested in this Court, hold and declare that the law enunciated in the case of Accountant General Sindh and others versus Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) is per incuriam and consequently this judgment is set aside. The titled appeal is accepted and the judgment impugned therein is also set aside. Other miscellaneous applications moved therein and in these proceedings are dismissed accordingly.” In support of above short order, now we proceed to record our detailed reasons as under:- 2. This Petition, for suo moto review of judgment dated 6.3.2008, passed in Civil Appeal No.1021 of 1995, other connected petitions and miscellaneous applications, emanates from the office note dated 21.11.2012 submitted by the Registrar of the Supreme Court of Pakistan for the perusal of Honourable Chief Justice, which reads thus:- “It is submitted that the Civil Petition for Leave to Appeal No. 168-K of 1995 was filed in this Court by the Accountant General Sindh, challenging the validity of the judgment of High Court of Sindh, at Karachi, dated 02.02.1995, wherein the Court had granted the relief of pension to the respondent (since dead), a former judge Const. Petition No.127 of 2012 4 of the High Court of Sindh, who while holding the post of District and Sessions Judge was posted as Secretary to the Government of Sindh, Law Department and was elevated as Additional Judge, High Court of Sindh in 1985. He retired on 25.10.1988 and was allowed pension at the rate of Rs.4,200 per month with the benefit of commutation, gratuity and additional sum of Rs.2,100 per month as cost of living allowance payable to a retired Judge of the High Court under paragraph 16-B of President's Order No.9 of 1970, as amended by P.O. No.5 of 1988. In pursuance of the Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), the pension of the respondent was revised and fixed as Rs.6300 per month and thereafter by virtue of P.O. No.2 of 1993, the pension of retired Judges of superior judiciary was again revised, wherein the pension of High Court Judges was fixed with minimum and maximum ratio of Rs.9.800 and Rs.10,902 per mensum but this increase in pension was declined to the respondent on the basis of departmental interpretation of the President's Orders referred to above read with Fifth Schedule of the Constitution. The respondent thereafter, invoking the Constitutional jurisdiction of the High Court, filed a constitution petition wherein he sought a declaration that he was also entitled to the benefit of P.O. No.2 of 1993. Relief was granted to him by the Sindh High Court. The Accountant General, Sindh feeling aggrieved approached this Court by filing said Civil Petition for Leave to Appeal. 2. Leave to appeal was granted by this Court vide order dated 28th August 1995, on the following terms: "2. So far the main petition is concerned, it is submitted by the learned Deputy Attorney General for the petitioner that respondent No.1 was a District and Session Judge and was elevated as Judge of the High Court in July, 1985 and retired after completing tenure of three years two months and twenty-seven days in that capacity, hence for the purpose of pension his case is covered by Article 15 of the High Court Judges (Leave, Pension and Privileges) Order, 1970, which is applicable to such judges of the High Court who retire before completion of five years service in the High Court and are entitled to draw pension as having retired from the service they were taken from for elevation to the High Court. Const. Petition No.127 of 2012 5 3. Leave is granted to examine the following questions. Firstly, whether for claim of respondent No.1 for extra/maximum pension writ petition before the High Court was competent to and maintainable. Secondly, whether P.O.9/70 is to be read in conjunction with P.O.2/93, P.O.3/95 and Article 205 read with Fifth Schedule to the Constitution, if yes, what will be its effect on the claim of respondent. Thirdly, whether the President can only increase or decrease the amount of pension with altering the terms and conditions as contemplated under Article 205 read with the Fifth Schedule to the Constitution. Fourthly, whether respondent No.1 is entitled to the minimum and maximum amount of the pension as contemplated under P.O.2/93." 3. Pending disposal of the Appeal, a number of other retired Judges of the High Courts, who were not allowed pension on the ground that they having been not put minimum service of five years in terms of paragraph 3 of Fifth Schedule to the Constitution were not entitled to the grant of pension, moved a joint representation to the President of Pakistan, through the Ministry of Law, Justice and Human Rights, Government of Pakistan and having received no reply, filed direct petitions before this Court under Article 184(3) of the Constitution, whereas, some of the retired Judges filed miscellaneous applications to be impleaded as party in the proceedings before this Court. Constitution Petition No.40 of 2002 filed by Mr. Justice (Retd) S.A. Manan was disposed of as withdrawn, but in view of the nature of right claimed in these petitions, this withdrawal was inconsequential to the right of pension of the judges. The appellant in the main appeal and the petitioners in the other constitution petitions sought declaration, as under: a. The provision of President's Order No.3 of 1997 was in derogation to Article 205 of the Constitution read with Fifth Schedule of the Constitution wherein the right of pension of only those Judges who have put minimum five years of service as Judge of the High Court, was recognized. b. The retired Judges of the High Court, irrespective of their length of service were entitled to the grant of pension, as per their entitlement under Article 205 read with paragraph 2 of the Fifth Schedule of the Constitution. 4. On 06.3.2008, the Civil Appeal No. 1021 of 1995 and the connected constitution petitions involving Const. Petition No.127 of 2012 6 common question of law and facts, were disposed of through the single judgment (PLD 2008 SC 522) by three member Bench of this Court comprising Mr. Justice Nawaz Abbasi, Mr. Justice Muhammad Qaim Jan Khan and Mr. Justice Muhammad Farrukh Mahmud in the following terms: “34. In consequence to the above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges.” 5. It is evident from the above that the matter was decided on the basis of High Court Judges (Pensionary Benefits) Order, 8 of 2007. This Order was promulgated on 14.12.2007 and at the time of decision of the matter was considered as a valid piece of legislation. But subsequently, vide this Court Judgment dated 31.07.2009 (Sindh High Court Bar Association V. Federation of Pakistan), reported as (PLD 2009 SC 879) this P.O 8 of 2007 was declared unconstitutional, illegal, ultra vires and void ab initio. The relevant paragraph of said judgment is reproduced as under: “179. All the acts/actions done or taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent 'acts/actions done or taken in pursuance thereof, having been held and 'declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned. These include Proclamation of Emergency and the PCO No.1 of 2007 issued by him as Chief of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the aforesaid two instruments, all dated 3rd November, 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th November, 2007; Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007 dated 20th November, 2007); Constitution (Second Amendment) Order, 2007 (President's Order No.6 of 2007 dated 14th December, 2007);, Islamabad Const. Petition No.127 of 2012 7 High Court (Establishment) Order 2007 (President's Order No.7 of 2007 dated 14th December 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.8 of 2007 dated 14th December, 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.9 of 2007 dated 14th December, 2007). The aforesaid actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case. The said decisions have themselves been held and declared to be coram non judice and nullity in the eye of law. The amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd November, 2007 till 15th December, 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Article 270AAA.” 6. It is further submitted that the issue in hand has far reaching implications. The practical effect of the judgment is that Judges of the superior courts are being granted pension and pensionary benefits without any consideration of tenure or length of service. 7. It is pointed out that Supreme Court in the case of Province of Punjab v. Dr. Muhammad Daud Khan Tariq (1993 SCMR 508) held that it is not against any principle for the Courts of this country to protect the interest of the tax-payers as well as the public exchequer notwithstanding the follies or illogical and some times even casual attitude of the custodians of the public exchequer. Furthermore, this Court in the case of Secretary, Board of Revenue, Punjab v. Khalid Ahmad Khan (1991 SCMR 2527) held that the Government has chosen to spend much more on the litigation instead of paying Rs. 15,000 as judgment-debt to the respondent towards the discharge of the decree in case where substantial justice has been done. Further, although the law point has been decided in favour of the appellants yet in the interest of justice we do not want to inflict further heavy burden on the public exchequer; which would indeed be burdened with more expenses. 8. The matter is therefore of great public importance as huge public money is being expended without any legal justification despite the fact that the basis of judgment itself has lost its validity. It is therefore a fit case for Suo Moto Review. Const. Petition No.127 of 2012 8 9. There are precedents, when this Court took up issues suo moto in the interest of justice. In the case of rowdysim in the Supreme Court premises titled Shahid Orakzai v PML(N) (2000 SCMR 1969), a Bench of three Judges acquitted the contemnor. Criminal Original Petition was filed by the Petitioner and the same was heard by a Bench of 5 Judges and the same was converted into Appeal. It was objected that the matter could not be reviewed by filing a Criminal Original Petition by a third person who was not party in the matter. However, the Counsel for the Contemner conceded that this Court is not precluded from recalling of its earlier order by taking Suo Moto action on coming to know that such miscarriage of justice had occurred due to the Court having proceeded on wrong premises. It was held that under Article 187(1) of the Constitution, Supreme Court can recall its earlier order by taking Suo Moto action on coming to now that sum miscarriage of justice has occurred. In yet another judgment, when two different interpretations by two Benches of the Supreme Court taking contrary views of the judgment of Shariat Appellate Bench passed in a pre-emption case of Said Kamal Shah, a Suo Moto Review (PLD 1990 SC 865) was taken by the Shariat Appellate Bench to clarify the effect of its judgment given in the said case. Again, it was held in the case State v. Zubair (PLD 1986 SC 173) that if a Judge of High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he is sitting and in case it was absolutely impossible to place the second or subsequent bail application before the same Judge, who had dealt with the earlier bail application of the same accused or in the same case in such cases, the Chief Justice of the concerned High Court may order that it be fixed for disposal before any other Bench/Judge of that Court. The Supreme Court by taking suo moto action of the difficulties arising out of the strict implementation of the ratio in the State v. Zubair and on receipt of the reports from the High Courts and hearing the Attorney General of Pakistan and Advocates-Generals of the Const. Petition No.127 of 2012 9 Provinces it was observed (2002 SCMR 177) that the spirit underlying the said case which still held the filed was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned. It was held that the rule laid down in the above case shall continue but due to exigency of service or any other sufficient cause departure can be made in the large interest of justice and may be referred to any other bench for reason to be recorded in writing by the Chief Justice. Recently, a Constitution Petition filed for revisiting of this Court judgment dated 13.9.2011 passed in Constitution Petition No. 50/2010 for declaratory judgment regarding existence of Article 186A of the Constitution was treated as Civil Misc Application (CMA No. 4711/2012 in Constitution Petition No. 50/2010) for the purpose, which awaits hearing before the Court. 10. In view of the above, if approved, Suo Moto action may be taken in the matter for review of judgment dated 6.3.2008 passed in Civil Appeal No. 1021 of 1995 etc and the matter may be fixed before a Larger Bench comprising minimum five members. Registrar 21.11.2012 HCJ 22 3. Taking notice of the facts and circumstances disclosed in the above reproduced submission note, coupled with the legal position canvassed therein for taking cognizance in the matter, on 23.11.2012, following order was passed by the Honourable Chief Justice of Pakistan:- “Perusal of above note prima facie makes out a case for examination of points raised therein. Therefore, instant note be registered as Suo Motor Misc. Petition and it may be fixed in Court in the week commencing from 03.12.2012. Notice to Hon’ble Retired Judges, who are beneficiaries of the judgment dated 6.3.2008 be issued. Office shall Const. Petition No.127 of 2012 10 provide their addresses. Notice to Attorney General for Pakistan may also be issued.”. It is in this background that subsequently this petition came up for hearing before this five member larger Bench:- 4. At the commencement of the proceedings in the matter, Syed Iftikhar Hussain Gillani, learned senior ASC, representing eight of the honourable retired judges of the High Court, M/s Riaz Kiyani, Muhammad Aqil Mirza, Sharif Hussian Bukhari, Ghulam Mehmood Qureshi, Abdul Hafeez Cheema, Dr. Munir Ahmed Mughal, Tariq Shamim and Rao Iqbal Ahmed Khan, JJ and the widow of one honourable retired Judge Raja Muhammad Khurshid, who have been issued notices of these proceedings, came at the rostrum and made his submissions as one of the lead counsel for these judges. 5. At the outset, he gave a brief summary of the relevant facts regarding the services rendered by the judges represented by him, to show their actual period of service as judge of the High Court before becoming entitled for pensionary benefits in the light of judgment dated 6.3.2008, passed in civil appeal No.1021/1995 and other connected petitions (PLD 2008 SC 522), (hereinafter referred to as the “judgment under challenge”). In the same context, he also made reference of C.M.A No.802/2013, which contains relevant facts as regards their respective service as judge of the High Court. He further made reference to the statement in writing subsequently submitted by him, containing the formulations of his arguments, which read as under:- “a. Entitlement to the remuneration of the Judges of the Superior Courts are guaranteed by the Constitution and no Sub- Constitutional legal instrument can take away such entitlement. Const. Petition No.127 of 2012 11 b. Para 2 in the Vth Schedule is an independent provision and is not to be ‘governed’ by Para 3. c. Dictum of Qureshi’s judgment reported in PLD 2008 SC 522 was not decided ‘on the basis’ of the Presidential Order 8 of 2007, as observed in para 5 of learned Registrar’s note, but founded on the mandate of the Constitution. d. That High Court Judges (Leave, Pension and Privileges) Order, 1997 (President’s Order 3 of 1997) is violative of Article-205 and Schedule V of the Constitution.” 6. The learned Sr.ASC referring to some legal aspects of the controversy involved in the present petition, made specific reference to all the relevant statutes starting from the Government of India Act, 1935 upto the Constitution of 1973 as well as various orders and President’s Orders issued in this regard from time to time. Making reference to the language of Article 205 read with paragraph-2 of its Fifth Schedule, relating to High Court judges, he emphasized that the language of paragraph-2 of the Fifth Schedule, commencing from the word “Every judge” makes it abundantly clear that irrespective of his length of service, every judge, once elevated to the High Court is entitled, inter alia, for the pensionary benefits while the authority for determination vested with the President in terms of this para is only confined to the quantum of such pension and nothing more. He added that paragraph-3 of the Fifth Schedule to Article 205 of the Constitution, which was available in the original text of the Constitution of 1973, and subsequently amended in the year 1991, was to be read independent and separate from paragraph-2, which provides for pensionary benefits for the two categories of the honourable retired judges, depending upon their length of service, when read in conjunction with it. He reiterated that every judge of the High Court is entitled for pensionary benefits, but for the determination of quantum of such benefit, they are categorized Const. Petition No.127 of 2012 12 into two; one, who have served as such for a period of five years or more and, the others, having served for less than five years. According to Mr. Gillani, insofar as the entitlement of pensionary benefits of those judges of the High Courts is concerned, who have rendered more than five years of service, there is no dispute or controversy at all about their entitlement of pensionary benefits. However, for the other category of judges, having rendered less than five years actual service, till date no independent determination, as required by law and under the Constitution, has been made by the President. At this stage, he also made reference to the judgment under challenge to show that it was in this background of the controversy that this Court resolved the issue of pensionary benefit of all the retired judges, including those, who have rendered less than five years service, and such conclusion based on valid reasonings is not open to interference in any form. More so, in a situation when such judgment was passed more than four years ago; it has already been implemented in its letter and spirit, and not challenged by the Government or from any other corner. 7. Touching to the moral side of this controversy relating to payment of pension, he further argued that all judges of the superior judiciary, including those who have retired from their office before rendering complete five years actual service as High Court Judge, are highly respected segment of the society, who need to maintain special protocol befitting to their earlier status and office; further in terms of Article 207 of the Constitution, they are disqualified to practice in the same High Court. In such circumstances, merely due to the fact that they have rendered less Const. Petition No.127 of 2012 13 than five years of service in the said position, they cannot be discriminated and deprived of such benefit, which in turn would, in many cases, result in leaving them at the mercy of the society for the purpose of meeting their financial needs in the old age. In order to gain support to his submissions, learned Sr. ASC further made reference to 12th Constitutional Amendment; President’s Order No.2 of 1993 (PLD 1994 C.S 192) and President’s Order No.5 of 1996 (PLD 1997 C.S 199) and relied upon the cases reported as M.A Rashid v. Pakistan (PLD 1988 Quetta 70), Ahmed Ali U. Qureshi v. Federation of Pakistan (PLD 1995 Karachi 223) and I.A Sharwani v. Government of Pakistan (1991 SCMR 1041). Amongst these cases, in the 1st case decided by learned Division Bench of Balochistan High Court on 08.5.1988, a dispute was agitated by honourable retired Justice M.A Rashid, as regards the entitlement of his pensionary benefits under the High Court Judges (Leave, Privileges and Pension) Order, 1970 qua the effect of amending order 5 of 1983, of which benefit was refused to him. In this case, the honourable Judge of the Balochistan High Court had initially adorned the office in that position on 07.10.1974, after being elevated to the High Court of Sindh and Balochistan. Thereafter he ceased to hold the office as Judge of the Balochistan High Court w.e.f. 25.3.1981, after having served for a period of more than six years. The Court, while holding him entitled for the benefit of amending order 5 of 1983, concluded that Constitution is a fundamental document and while interpreting a provision of the Constitution, article thereof must receive a construction which would be beneficial to the widest maximum extent. Moreover, making reference to some Presidential Orders, the Court observed that such Orders nowhere stipulate that the benefit of these Const. Petition No.127 of 2012 14 Presidential Orders would not be available to the Judges who had retired before the dates mentioned in the two orders, as the Orders are clear and admit of no ambiguity, therefore, the necessary conclusion would be that the benefit of these Orders would be available to all the Judges irrespective of their date of retirement. The 2nd case of Ahmed Ali U. Qureshi (supra), need not be discussed here as it was against the same judgment that an appeal was preferred before this Court, which was decided vide judgment under challenge dated 6.3.2008. The 3rd case of I.A Sharwani (supra) is also not being discussed here as it will be discussed in detail in some later part of the judgment. 8. At the conclusion of his arguments, Mr. Gillani also made reference to Article 260 of the Constitution to show the definition of ‘remuneration’, which includes the word ‘pension’, however, when confronted with other definitions contained in this Article, he conceded that since ‘pension’ has been separately defined therein, therefore, its inclusion in the definition of “remuneration” will not make much difference. 9. After conclusion of arguments of Mr. Iftikhar Hussain Gillani, Mr. Munir A. Malik, learned Sr. ASC, who is representing four other honourable retired judges M/s Majida Rizvi, Nadeem Azhar Siddiqui, Mrs. Qaiser Iqbal and Tariq Mehmood, JJ, came at the rostrum and made his submissions. In the first place, he made reference of C.M.A’s No.867 to 869 of 2013, to give some details about the services rendered by each one of them as honourable judge of High Court, particularly the dates of their appointment as an additional judge, permanent judge; and retirement/resignation, with total length of their respective service. Before commencing his Const. Petition No.127 of 2012 15 arguments on legal footing, Mr. Malik, frankly stated that none of the retired judge of the High Court represented by him has rendered actual service as such for a period of five years, but less than five years. In the context of entitlement of pensionary benefits, he gave brief history of constitutional legislation and other provisions of law including the President’s Orders promulgated/ issued in the sub-continent before and after the independence of Pakistan from time to time and reiterated that paragraph-2 of the Fifth Schedule to Article 205 of the Constitution of 1973 is to be read independently; it covers the right of “every judge” of the High Court for the purpose of pensionary benefit to be determined by the President, therefore, irrespective of the fact whether no such determination has yet been made by the President for the category of those honourable retired judges of the High Court, who have rendered service as such for less than five years, they are entitled for the pensionary benefits. When confronted with the query as to how and in what manner the quantum of such pension for these judges could be determined, if no mode of determination in this regard is available before us in any form, he candidly stated that as yet no such determination has been made by the President even once, nor this matter was earlier agitated by any of the honourable retired judge of the High Court, who had rendered less than five years of service in the said office, since the promulgation of the Constitution of 1973 or even before that under the Constitution of 1956 or 1962 etc. The pith and substance of his submissions was that “every judge” as mentioned in paragraph-2 of the Fifth Schedule to Article 205, has its own connotation and significance which makes it abundantly clear that they all are entitled for pensionary benefits, but only the question of determination of quantum of pension is left with the President in Const. Petition No.127 of 2012 16 line with the spirit of paragraph-2 and nothing more. For this reason, in either of the two situations when paragraph-2 is read separately, independently and hermetically or together with paragraph-3, the claim of every retired judge of the High Court for pensionary benefits is fully established. In order to add force to his submissions about the entitlement of every judge of the High Court for pensionary benefits, he also laid stress upon Article 207 of the Constitution, which places an embargo on every honourable retired judge of the High Court from practicing within the territorial limits of the same High Court, wherein he has served as a permanent judge even for a single day. In between the lines, his submission was that when such an embargo becomes operative against honourable retired judges soon after their confirmation then the condition of five years minimum length of service for their entitlement to pension as judge of the High Court seems to be inconsistent, illogical, harsh and violative of Article 18 of the Constitution. He also made reference to the National Judicial Policy 2009 and 2012 and contended that even after retirement, honourable judges of the High Court are required to maintain befitting standard of living in the society, which may not be possible for them under financial constraints, thus, their claim for entitlement of pension even for less than five years actual service is fully justified and in accordance with law. However, he added that, indeed, retired judges of the High Court, who have rendered less than five years service as such and those who have rendered five years or more service, cannot be placed in the same category for the purpose of pensionary benefits. He also conceded to the position that as yet, not even once any determination regarding pensionary benefits of honourable retired judges, who have rendered less than five years service, has been made by the Const. Petition No.127 of 2012 17 President and such purported inaction on his part has never been challenged earlier in the history of the Sub-continent and our Country either under the dispensation of Government of India Act, 1935 or the Constitutions of 1956, 1962 and 1973, except the present litigation emanating from the case of Ahmed Ali U. Qureshi. In his further submissions learned ASC also dilated upon the concept of independence of the judiciary as a third pillar of the State, which, according to him, also covers its financial independence qua right to pension for every judge of the High Court irrespective of his length of service in the office. 10. Mr. Munir A. Malik, learned Sr. ASC in his further arguments, made reference to the office note dated 21.11.2012, submitted by the Registrar of Supreme Court of Pakistan for the perusal of Honourable Chief Justice of Pakistan, which formed basis of these proceedings and contended that no doubt vide judgment in the famous case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), President’s Orders No.8 of 2007 dated 14.12.2007 and Judges Pensionary Benefits Order 9 of 2007, have been declared to be coram non judice and nullity in the eyes of law, but on the basis of this case alone, the judgment under challenge cannot be set aside, as many other strong independent reasons have been recorded in its paragraphs 1 to 19, which still hold the field as alternate grounds for grant of pensionary benefits. Further submissions of Mr. Malik was that even if the Court comes to the conclusion about the non- entitlement of pensionary benefits for the honourable retired judges of the High Court, having rendered less than five years service, keeping in view their high status in the society and bonafide implementation of the judgment under challenge, any Const. Petition No.127 of 2012 18 order contrary to it, if passed, should be made operative prospectively and not retrospectively. During his further arguments, Mr. Munir A. Malik, made detailed reference of P.O No.9/1970, PO No.7/1991, P.O No.2/1993, P.O No.3/1995, P.O No.5/1995, P.O No.3/1997 and 12th Constitutional Amendment in an effort to show that it will be a legitimate and holistic approach if the claim of honourable retired judges of the High Court, who have rendered less than five years actual service, is looked into pragmatically and liberally in order to determine their right and quantum of pension, which exercise has not yet been undertaken by the President, though required under the mandate of the Constitution. Making reference to the case of one of the honourable retired judge of Sindh High Court Ms. Majida Rizvi, he also brought to our notice the judgment dated 1.7.2008 in C.P No.D-24/2002, which remained unchallenged till this date and has, thus, according to him, attained finality. In the end, he made reference to the principles of locus poenitentiae etc and cited the following cases:- a) Attiyya Bibi Khan v. Federation of Pakistan (2001 SCMR 1161). b) M/s Haider Automobile Ltd v. Pakistan (PLD 1969 SC 623). c) Elahi Cotton Ltd. v. Federation of Pakistan (PLD 1997 SC 582). d) Amir Khatoon v. Faiz Ahmad (PLD 1991 SC 787). e) R v. A [2001 (3) All England Reporter 1 (17)]. 11. In the case of Attiyya Bibi Khan, relating to some dispute between the students of a medical college and the educational institutions, the provisions of Article 25 of the Constitution were dilated upon and in that context it was held that the judgment Const. Petition No.127 of 2012 19 would be operative from the date of its announcement and would have no retroactive legal implications. In the case of M/s Haider Automobile Ltd (supra) and other connected case titled Province of West Pakistan versus Manzoor Qadir Advocate and another, dispute revolved around the availability of right of practice to a retired judge of the High Court of West Pakistan in view of the bar imposed by Ordinance II of 1964. The Court held that the legislature is competent to make a law and has full and plenary powers in that behalf and can even legislate retrospectively or retroactively. There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take away a vested right, yet the Courts, must hold that such a legislation is ineffective or strike down the legislation on the ground that it has retrospectively taken away a vested right. After detailed discussion, the learned five members Bench of the apex Court unanimously held that the two learned former judges were debarred by Ordinance No. II of 1964 from practicing in the High Court of West Pakistan or any Court or tribunal subordinate to it. In the case of Elahi Cotton Ltd, discussing some broad principles of interpretation of statutes qua constitutional provisions view expressed by the Court was that the law should be saved rather than be destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation, keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the Constitutionality of the legislative enactments unless ex facie it is violative of a Constitutional provision. It was further held that where power is contained in the Constitution to legislate, one's approach while interpreting the same should be dynamic, progressive and oriented with the desire to meet the situation, Const. Petition No.127 of 2012 20 which has arisen, effectively. The interpretation cannot be narrow and pedantic, but the Court's efforts should be to construe the same broadly; so that it may be able to meet the requirements of an ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context. In the case of Amir Khatoon, in criminal proceedings, principle of interpretation of statute was discussed and it was held that if a provision of law is presenting some difficulty in interpretation, it has to be so interpreted as to harmonise with the other provisions of the Act of which it is a part and it is only when there is a manifest and established failure to harmonise it with the other provisions that it either prevails over other provisions or yields to the other provisions. It was further observed that provisions of any particular Act are to be so interpreted as to harmonise and to remain consistent with the other laws having a relevance or nexus with the law sought to be interpreted. In the case of R v A, involving criminal proceedings relating to some sexual offence, expressing his view on the principle of reading down, it was observed by a learned Member of the Bench that this principle is at least relevant as an aid to the interpretation of section 3 of the 1998 Act against the executive. As in accordance with the will of parliament reflected in section 3, it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Const. Petition No.127 of 2012 21 convention rights is stated in terms, such an impossibility will arise. 12. At this stage, Mr. Rafique Rijwana, learned ASC, who is representing honourable retired Justice Shah Abdul Rasheed in these proceedings, made his submissions. He gave relevant dates of his appointment and retirement to show that at the time of retirement on 11.2.1986, he had served as a judge of the High Court for 04-years, 07-months and 05-days. He did not advance any further arguments except adopting the arguments of Syed Iftikhar Hussain Gillani, learned senior ASC, who has already made his submission in this case, as noted above. 13. Mr. Hamid Khan, learned Sr. ASC, who is representing seven honourable retired judges of the High Court, at the commencement of his submissions, made reference to the material placed on record by him alongwith C.M.As No.847 to 853 of 2013 to give details regarding the service of each of the honourable retired judges represented by him, so as to show their actual length of service as judges of the High Court. For the purpose of clearity in his arguments, he divided the honourable retired judges represented by him into two categories i.e. Rana Muhammad Arshad Khan and Muhammad Jehangir Arshad, two honourable retired judges, who were elevated to the Bench from the bar and the remaining five retired judges, who before their elevation, had rendered about thirty years service in the District judiciary in different capacities. Details of these honourable retired judges and other judges in similar position, regarding service rendered by them, is being provided in the judgment separately in the form of a chart. Const. Petition No.127 of 2012 22 14. Mr. Hamid Khan, during his arguments, also placed on record written formulations, which read as under:- 1. “Para 2 of the schedule 5 has an independent existence from that of para 3 and cannot be read as superfluous or redundant, therefore, under the recognized principles of independence of the Constitution, the Court is called upon to give comprehensive meaning to this para. 2. Despite having independent existence para 2 has to be read with para 3 in order to give meaning of the former para, if read together they would cater for two distinct classifications, one of those who had put in five or more years of service and the other of those who have put in less than five years of service and finally within this formulation that those, who belonged to each of the classification, are entitled to pension and none of them can be deprived thereof. 3. Reading of two paragraphs together, it can also be construed that para 3 lays down a bench mark for those who are entitled to pension under para 2, this would lead to the exercise of principle of proportionality nevertheless if will not apply to the petitioners because such a principle can only be applied prospectively. 4. That having received pension under a judicial determination rights have been vested in favour of the petitioners which cannot be taken away at this stage under the established exception to the principle of locus poenitentiae. 5. Having once received pension under the judicial determination there is legitimate expectancy on the part of the petitioner to continue to receive such pensionary amounts, any deprivation at this stage would lead to privation and financial problems to the petitioners who are of advanced age. 6. There is a special case relating to judges elevated from the subordinate judiciary because:- a. They had put a long service before they become Judges of the High Court; b. They cannot be relegated to the position of those who retired as District Judges and so they cannot be given the pension of District and Session Judges. Const. Petition No.127 of 2012 23 c. Doing so would be against the independence of Judiciary and would undermine the office of a Judge of a High Court.” 15. He contended that paragraph-2 of Fifth Schedule to Article 205 has an independent existence from paragraph-3, otherwise this paragraph would become superfluous and redundant, which status cannot be attributed to any piece of legislation, as under the well recognized principle of interpretation, every provision of law is to be given its comprehensive meaning. Following the arguments of earlier two learned ASCs, who have argued the case before him, he insisted that paragraph 2 of Fifth Schedule to Article 205 visualizes two categories of judges, but both of them are equally entitled for pensionary benefits under the President’s Orders and in this regard power of determination conferred to the President is only confined to the quantum of pensionary benefits and not the determination of right to pension or otherwise. He further contended that reading of paragraph-2 together with paragraph-3 lays down benchmark for those who are entitled under paragraph-2 and in case no determination has been made by the President for entitlement of pension of retired judges of the High Court who have rendered less than five years of actual service, the principle of proportionality could be applied, but that too only prospectively, as the rights accrued and benefits already drawn by the honourable retired judges of the High Court through judgment under challenge cannot be withdrawn, being stare decisis and past and closed transaction under a judicial pronouncement. He further submitted that on account of such judicial determination, vested rights have accrued in favour of honourable retired judges, which cannot be taken away or withdrawn, being protected under the principle of locus Const. Petition No.127 of 2012 24 poenitentiae. To a question posed to him, whether on the principle of locus poenitentiae, retired judges represented by him seek protection of only those benefits which have already been drawn by them or also continuation of such benefits in future, his reply was that the principle of legitimate expectancy has accrued in their favour to continue receiving such pensionary benefits, which are even otherwise very necessary for them to meet their financial needs at this advanced age. Therefore, such benefits in their favour (honourable retired judges of the High Court) shall be continued, irrespective of any adverse pronouncement by this Court in the present proceedings. Making his further submissions, he also attempted to press into service the principle of past and closed transaction based on the premise that the judgment under challenge was announced on 6.3.2008 i.e. more than four years ago and has already been followed and implemented by the concerned government functionaries without any objection. 16. As to the claim of five honourable retired judges of the High Court, who were elevated to the bench after rendering more than thirty years service in District Judiciary in each case, before their elevation to the High Court, he further submitted that for grant of pensionary benefits, they cannot be relegated to the position of retired District and Sessions Judges as it will be a step against the independence of judiciary which will be undermining the status and office of the judge of a High Court. Making reference to Fifth Schedule to Article 205 of the Constitution of 1973, Learned senior ASC submitted that the original paragraph-3 in the Fifth Schedule was borrowed from the President’ Order 9 of 1970, though in the different form, which was subsequently amended and introduced in the present form in the year 1991. When Const. Petition No.127 of 2012 25 confronted with a query that in case paragraph-2 (ibid) is to be read independently and separately, then it contains and denotes only one category of judges and not two, the learned Sr. ASC conceding to this position, criticized the language of paragraph-3 (ibid) by submitting that it has been grafted and drafted in the Constitution of 1973 in a crude form so as to leave the honourable retired judges, who have served the institution for a period of less than five years, without entitlement of any pensionary benefits. In this regard, he also made reference to some relevant Indian provisions of law and contended that there is no specific prohibition regarding the entitlement of payment of pension to the judges who have rendered less than five years service in the High Court before their retirement either in paragraph-2 or paragraph-3 of the Fifth Schedule to Article 205, therefore, the principle that whatever is not prohibited is permissible shall be applied on the principles of equity and fair-play to address the unforeseen difficulties of the honourable retired judges of the High Court. The pith and substance of his arguments was that looking to the constitutional provisions, status of honourable retired judges of the High Court in the society and their old age, a pragmatic approach may be followed by the Court in order to accommodate them for the purpose of granting them pensionary benefits, which is lacking determination in specific terms by the President under any of the earlier President’s Orders issued from time to time. 17. Mr. Amir Alam Khan, learned ASC, who is appearing in this matter for five other honourable retired judges of High Court M/s Muhammad Nawaz Bhatti, Fazal-e-Miran Chohan, Syed Asghar Haider, Sheikh Javed Sarfraz and Tariq Shamim, JJ, in his arguments made reference of C.M.As No.803, 855, 856, 857 and Const. Petition No.127 of 2012 26 858 all of 2013, filed in the form of concise reply and also got recorded their respective dates of appointments as additional judge/permanent judge of the High Court, date of retirement/resignation as judge of the High Court, date of superannuation and the actual period of their respective length of service as judge of the High Court. He candidly stated before us that all the five honourable retired judges represented by him, are those, who, for one or the other reason, have not rendered actual service as a High Court Judge for five years or more and thus for the purpose of pension, they have availed the benefit of judgment under challenge. 18. As first limb of his arguments, Mr. Amir Alam Khan challenged the maintainability of this petition on the ground that adjudication made by a three member Bench of this Court in exercise of its appellate jurisdiction under Article 185(3) of the Constitution, has attained finality in all respect, rather it has been implemented by the concerned government functionaries in its letter and spirit more than four years ago. Thus, on any legal premise these proceedings cannot be subjected to interference, if considered to be proceedings under Article 184(3) of the Constitution, which confers only limited jurisdiction to this Court relating to the issues involving question of public importance and for the enforcement of fundamental rights guaranteed under the Constitution. He reiterated and added that the judgment under challenge is stare decisis, thus, final in all respect, and not open for reconsideration in any manner, therefore, these proceedings are not maintainable in the present form. Discussing the fallout of judgment under challange, he also made reference of Article 203C(9) of the Constitution to show that not only retired judges of the High Court Const. Petition No.127 of 2012 27 having less than five years actual service to their credit have become entitled for pensionary benefits, but the Chief Justice and other honourable retired judges of the Federal Shariat Court have also become eligible and entitled for pensionary benefits despite being contract employees for a fixed term of three years. His further submission was that since a pragmatic and liberal approach has been followed by the Court in the judgment under challenge, its spirit may not be negated only on technical grounds or the fact that while interpreting the relevant provisions of the Constitution and President’s Orders, another view of the matter prejudicial to the interest of the retired judges of the High Court, was also possible. Mr. Amir Alam Khan, when confronted with the question that in case judgment under challenge is found to be per incuriam then what will be its legal position, candidly stated that in that eventuality it will be a judgment liable to be ignored for all intent and purposes, thus, the ground urged by him for challenging the maintainability of these proceedings will not be an obstacle for the Court from adjudicating the case on merits. 19. Learned ASC also made reference to paragraph 178 of the judgment in the case of Sindh High Court Bar Association (supra) in support of his arguments that the judgment under challenge has been already protected by application of doctrine of de facto exercise of jurisdiction, and as such judgment has been passed by a 14 members Bench of the apex Court, therefore, such protection cannot be taken away by a five member Bench for denying its benefit to the retired judges of the High Court. Dilating upon the moral side of these proceedings, learned ASC also argued that all the honourable retired judges of the High Court, irrespective of their length of service, are highly respected segment of society, who Const. Petition No.127 of 2012 28 deserve extra compassionate consideration in the matter of grant of pension and other benefits, therefore, once a judgment of this Court has remained in the field for a period over four years and fully acted upon, it shall not be withdrawn so as to take away all its benefits retrospectively, being past and closed transaction. Advancing his further arguments with reference to the case of Fazal-e-Miran Chohan, J., learned ASC pointed out that after his elevation to the Bench as Additional Judge of the High Court w.e.f. 1.12.2004 and confirmation vide notification dated 30.11.2005, he resigned from the service under very special circumstances on 11.10.2009, though otherwise his date of superannuation was 25.12.2010. Leaving apart these facts, which need sympathetic consideration for extending him the pensionary benefits, in this manner he has actually served as Judge of the High Court for a period of 04-years, 10-months and 09-days. Thus, upon reading para 29 of President’s Order No.3 of 1997, together with service regulation No.423 of the Civil Service Regulations (in short “CSR”), providing for automatic relaxation/concession of six months in case of short service of a civil servant, he is otherwise also entitled for pensionary benefits, independent to the ratio of judgment under challenge. In this context, he also placed reliance upon the cases Secretary Finance Division, Islamabad v. Muhammad Zaman, Ex-Inspector, I.B., Islamabad (2009 SCMR 769) and Muhammad Aslam Khan v. Agricultural Development Bank of Pakistan (2010 SCMR 522). In the first case of Secretary Finance Division (supra), with reference to regulation No.423 of CSR, of which benefit was claimed by the legal heirs of a deceased government employee/pensioner, it was held that regulation No.423 of CSR is without any qualification and is not restricted to Const. Petition No.127 of 2012 29 pensionary benefit of a widow. Of course, regulation No.423(2) empowers the competent authority to condone the deficiency of more than 6 months but less than one year where an officer has died while in service, or has retired under circumstances beyond his control. In this context, the case of Postmaster-General Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim (PLD 1978 SC 61) was also refered wherein it was held that if the Rules were capable of bearing a reasonable interpretation favourable to the employee then that interpretation should be preferred. In the second case of Muhammad Aslam Khan (supra), again the scope of regulation No.423 of CSR was discussed with reference to the facts of the case, where a retired government servant, who had served for 31 years, 11 months and 14 days and was short of 17 days towards completion of 32 years, was claiming pensionary benefits for 32 years. The Court held that regulation No.423(1) of CSR under Chapter XVII with the heading "Condonation of Interruptions and Deficiencies" would undoubtedly suggest that the shortage of period not exceeding six months become automatically condoned, rather shortage of period exceeding six months was also condonable by competent authority, provided the conditions under regulation No.423(2) of CSR were fulfilled. 20. At the conclusion of his arguments he also pointed out the incident of plane crash, which took the life of honourable Justice Muhammad Nawaz Bhatti in the line of his duty on 10.7.2006, who otherwise would have reached the date of his superannuation on 31.8.2009, after rendering service of roughly 04-years and 09-months. In this context, he stressed for a merciful and lenient view in the matter for the widow and orphans of the deceased judge. Const. Petition No.127 of 2012 30 21. Mr. Muhammad Akram Sheikh, who is representing before us M/s Saeed-ur-Rehman Farrukh and Khan Riaz-ud-Din Ahmed, JJ, at the commencement of his arguments made reference of C.M.A No.871 and 872 of 2013 to give relevant dates of their appointment as Additional Judges/permanent judges of the High Court and date of their retirement on 31.7.1998 and 31.12.1997 respectively. According to his calculations, the actual period of service rendered by them, including the period of gap in their service, both of them have served as a Judge of the High Court for a period of more than five years and thus, their cases are not covered by the ratio of judgment under challenge and they are, therefore, not its beneficiary. Further, according to learned ASC, issuance of notice of these proceedings to them is uncalled for and liable to be withdrawn/set aside. However, when we have looked into some relevant factual aspects of the case in the context of their actual period of service as judge of the High Court, we have noticed that they have served as such for a period of about 03- years, 06-months and 12-days; and 04-years, 02-months and 28- days respectively, if the period when they remained out of service as Judge of the High Court is excluded from consideration in line with the definition of actual period of service given under paragraph-2 of President’s Order No. 3 of 1997, which provides for only computing the actual service for eligibility and payment of pensionary benefits. Learned ASC making reference to Fifth Schedule to Article 205 of the Constitution, also attempted to show the element of discrimination in the matter of entitlement of pensionary benefits for a retired judge of the High Court and a retired judge of the Supreme Court, as separately provided in the said Schedule. In this regard, his submission was that no Const. Petition No.127 of 2012 31 minimum period of service as a judge of the Supreme Court is prescribed in the first part of the Schedule relating to right to pension while the condition of minimum five years service for entitlement of pensionary benefits has been discriminately made applicable for the retired judges of the High Court. Learned ASC, during his arguments, also made reference to the case of I.A Sharwani (supra), to lay stress to his arguments upon the right of pension to a retired civil servant. 22. In addition to the above, in his written submissions, learned ASC further reiterated as under:- a. Notice issued to the retired judges represented by him is not only uncharitable from its language, but also based on wrong premise. b. Pensionary benefits paid to the retired judges on the basis of judgment under challenge is past and closed transaction and stare decisis, thus, no order for its recovery can be made even if the said judgment is reviewed and put at naught. c. Though the principle of stare decisis has very limited application to the proceedings before the Supreme Court, being apex Court, but the rights and obligations determined under any proceedings shall be considered as a past and closed transaction, which has created vested rights under the judicial pronouncement in favour of some party. d. Suo moto exercise of jurisdiction in the present proceedings in any form are not maintainable under the law as held in the cases of Asif Saeed v. Registrar Lahore (PLD 1999 Lahore 350), Nusrat Elahi v. Registrar, Lahore Const. Petition No.127 of 2012 32 High Court (PLJ 1991 Lahore 471), Abdul Rehman Antulay v. Union of India (AIR 1984 SC 1358). In case the present proceedings are being entertained under Article 184(3) of the Constitution, then no violation or breach of any fundamental right of any citizen of this Country has been urged, which is sine qua non for exercise of such jurisdiction. e. Principle of res judicata is squarely applicable after lapse of five years of pronouncement of judgment in the case under consideration, as held in the cases of Abdul Jalil v. State of U.P. (AIR 1984 SC 882), Virundhunagar S.R. Mills v. Madras Govt. (AIR 1968 SC 1196) and Amalgamated Coalfields v. Janapada Sabah (AIR 1964 SC 1013). f. The honourable retired judges of the High Court received the pensionary benefits on the basis of judgment under challenge in good faith and the bonafide orders of the apex Court, therefore, question of its refund does not arise, even if the said judgment is reviewed or revisited. 23. At the conclusion of his arguments, with reference to the plea of stare decisis, Mr. Sheikh also read some passage from the book titled as “Fundamental Law of Pakistan” authored by Mr. A.K. Brohi, a prominent jurist of this country. In the context of past and closed transaction, he also placed reliance upon the cases of Miss Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Jamat-i-Islami Pakistan versus Federation of Pakistan (PLD 2000 SC 111). Const. Petition No.127 of 2012 33 24. In the case of Miss Asma Jillani (supra), dealing with a criminal appeal wherein question arose, whether the High Court had jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the validity of detention under the Martial Law Regulation No.78 of 1971 in view of the bar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969 and the doctrine of law enunciated in the case of State versus Dosso (PLD 1958 S.C. (Pak.) 533), the successive manoeuvrings for usurpation of power under the Pseudonym of Martial Law were justified or valid, the Court while discussing various principles of interpretation of statutes held that: no duty is cast on the Courts to enter upon purely academic exercise or to pronounce upon hypothetical questions: Courts’ judicial function; is to adjudicate upon real and present controversy formally raised before it by the litigant; Court would not suo moto raise a question or decide it; doctrine of stare decisis is not inflexible in its application; law cannot stand still nor can the Courts and Judges be made mere slaves of precedent. In this case finally upholding the doctrine of necessity it was further observed that the transactions which are past and closed may not be disturbed as no useful purpose can be served by reopening them. 25. In the case of Sh. Liaqat Hussain (supra) reviewing the jurisdiction of the Apex Court under Article 184 (3) of the Constitution, it was held that law if validly enacted cannot be struck down on the ground of malafide but the same can be struck down on the ground that it was violative of Constitutional provision. Further with reference to Article 6 of the Constitution, application of doctrine of necessity was rejected. Moreover, the concept of public importance within the meaning of Article 184 (3) Const. Petition No.127 of 2012 34 of the Constitution was discussed in detail and it was held that under Article 9 of the Constitution right of access to justice to all is a fundamental right guaranteed to every citizen of the country. However, in the end this petition and other connected petitions under Article 184(3) of the Constitution, challenging the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance 1998 promulgated on 20th November, 1998, thereby empowering the Military Courts to try civilians for civil offences, were dismissed in the terms as detailed in the short order dated 17.2.1999. 26. In the case of Jamat-i-Islami Pakistan (supra), it was held that a statute must be intelligibly expressed and reasonably definite and certain and it is the duty of the Court to find out the true meaning of a statute while interpreting the same. In the same context the underlining principle of doctrine of “ejusdem generis” was also enumerated. Finally it was held that where the words used in a statute are ambiguous and admit of two constructions and one of them leads to a manifest absurdity or to a clear risk of injustice and the other leads to no such consequence, the second interpretation must be adopted. It may also be added here that the other cases referred to by the learned Sr. ASC in paragraph “d” and “e” relating to the subject of maintainability and res judicata are premised on entirely different facts and circumstances, and thus have no relevancy or applicability to the present proceedings. 27. Mr. Gulzarin Kiyani, learned Sr. ASC, who is representing Mr. Muhammad Muzammal Khan, J., another honourable retired judge of the High Court and beneficiary of the judgment under challenge, in his arguments firstly made reference to C.M.A No.801/2013, and gave relevant dates of appointment of Justice Justice Muhammad Muzammal Khan as additional Judge and Const. Petition No.127 of 2012 35 permanent Judge of the High Court and the date of his retirement, to show that admittedly before retirement he rendered actual service as a judge of the High Court for a period of 04-years, 05- months and 27-days. In his further arguments, learned Sr. ASC firmly disagreed with the submissions of many other learned ASCs, who earlier to him have argued the case, on the point of maintainability of this petition as well as about the interpretation of paragraphs-2 and 3 of Fifth Schedule to Article 205 of the Constitution. He contended that this Court, being the apex Court, has wide jurisdiction to exercise suo moto review powers and the principle of stare decisis is not application in this regard. To fortify his submissions in this regard, he placed reliance upon the case of Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363). 28. Again, making reference to the language of paragraph-2 of Fifth Schedule to Article 205 of the Constitution, he strongly contended that there is only one category of judges of the High Court i.e. “Every judge” mentioned in this paragraph, either read it separately and independently or together with paragraph-3, whose right to pension are to be determined by the President from time to time and until so determined, they are entitled to the privileges, allowances and rights, to which immediately before its commencing day, the judges of the High Court were entitled. For this purpose, he also made reference to High Court Judges Order No.7 of 1937, President’s Order No.9 of 1970 and President’s Order No.3 of 1997, to show that even before partition of the sub- continent, the rights, qualifications and entitlement of the judges of the High Court for the purpose of pension were being regularly determined, but at no point in time, any judge of the High Court Const. Petition No.127 of 2012 36 who had served as such for a period of less than five years, was ever found eligible or entitled under any dispensation for payment of pension. It is only for this reason that right from the pre- partition days, till the decision by way of judgment under challenge, no retired judge of the High Court was found entitled for payment of pensionary benefits if he has served in the High Court for any period less than five years. He added that it looks strange and ridiculous that in case such right to pension was ever available to the retired judge of the High Court at any time during the last sixty years, still all of them, who were jurists in their own rights and adjudicators of law at the highest level, could not dare to interpret such Constitutional provisions or President’s Orders issued in furtherance thereof in their favour, so as to avail the benefit of pension upon their retirement before completing actual service of less than five years. He also argued that paragraphs-2 and 3 of the Fifth Schedule to Article 205 of the Constitution are to be read together and in conjunction with the President’s Orders issued under the said constitutional mandate from time to time and this scheme of law makes it clear beyond any shadow of doubt that there is no entitlement to pension for a judge of the High Court, who has served as such for actual period of less than five years. 29. Reverting to the case of his own client, learned senior ASC read before us paragraph 14, 15, 16 and 29 of the President’s Order No.3 of 1997, the definition clause (b) and (g) from paragraph- 2, relating to ‘actual service’ and ‘service for pension’ respectively, relevant for determination of pensionary rights of a High Court Judge, read with regulation No.423(b) of CSR, which in the first place provides automatic dispensation of deficiency upto six months Const. Petition No.127 of 2012 37 and further visualizes, subject to fulfillment of other conditions, the discretion for dispensation and relaxation of such period upto one year by the President. According to Mr. Kiyani, in such eventuality, by pressing into service these constitutional and sub-constitutional provisions of the law, having rendered service of four years, five months and twenty-seven days, his client has become entitled for the pensionary benefits, more so, as benefit of addition of another 30 days service period to his credit in terms of definition clause (g) of President’s Order No. 3 of 1997 cannot be denied to him. He also cited the two earlier referred cases of Secretary Finance Division v. Muhammad Zaman and Muhammad Aslam Khan v. ADBP. 30. At the conclusion of his arguments, learned Sr. ASC submitted that in case the arguments advanced by him are not sustained and the judgment under challenge is reviewed/revisited, still the application of such judgment should be made prospectively, so as to save the benefits, which his client has already availed in the form of pension etc on the basis of judgment under challenge. 31. Raja Muhammad Ibrahim Satti, learned Sr. ASC, representing in these proceedings one honourable retired judge of the High Court, Mr. Mansoor Ahmed, J., also made reference of C.M.A No.873/2013, which is a reply on his behalf. He provided relevant details about the date of his appointment as additional judge of the High Court and the date of his retirement, which shows his actual period of service as 03-years, 02-months and 04- days. Learned ASC in his arguments strongly challenged the maintainability of this review petition on account of the fact that it has emanated from a note of the Registrar of the Supreme Court in Const. Petition No.127 of 2012 38 this regard, who has no judicial or administrative jurisdiction or authority at all to undertake such critical examination of an earlier judgment of the Supreme Court, which has become final, following the doctrine of stare decisis, and become past and closed transaction. He, however, in the same breath also candidly conceded about the unbridled jurisdiction of this Court to correct any legal error and submitted that indeed where there is a wrong there is a remedy is a well recognized principle of jurisprudence, so also the fact that when superstructure is built on wrong legal foundation, then upon its removal in any form, such superstructure is bound to collapse. The learned counsel further placed on record written formulations of his argument, which read as under:- “1. Whether the Registrar of this Court as defined in Order 1 Rule 2(1) and has been assigned certain powers and functions under Rule 1 of Order III and also Under Order V Rule 1, could in any way authorized or competent to monitor, supervise, scrutinize or having a watch over the Judicial Function of the Court and particularly to comment/point out legal flaws or defects in the judgments finally passed by the Court or any Bench of the Court. 2. Whether the Registrar who is Executive head of the Office has any role to get reopen the Final judgments of this Court which have attained finality and if this course is adopted it will disturb whole the Scheme of Constitution. 3. Whether even the note of Registrar is not misleading as apparently he based the note on total misconception as mentioned in para 5 of the Note that the judgment (PLD 2008 SC 522) is based on PO.NO.8 of 2007 and that PO.No.8 of 2007 has been declared void ab-initio in PLD 2009 SC 879, in fact the judgment is otherwise and it mainly based on interpretations of Article 25, 205, 207(3) Schedule V of the Constitution read with PO 2 of 1993, PO 3 of 1997 and reference has been made to PO 8/2007 in judgment which in fact removed the anomaly and Retired judges were entitled to pension even independent of P.O No.8 of 2007 and the said judgment is valid for other reasons as mentioned in judgment. Const. Petition No.127 of 2012 39 4. What prompted the Registrar to put up a note on judicial side after lapse of almost four years of the passing of judgment which had attained finality. 5. Whether it was not proper to place the matter before an appropriate Bench to proceed with the matter if at all it was necessary whereas the Hon’ble Chief Justice had himself decided the fate of note that prima facie the note make out case of examination and accordingly issued Notices straightaway to the Retired Judges. 6. Whether when a judgment is passed in regular jurisdiction under Article 185 the same can be reopened by recourse to other jurisdictions under Article 184, 186 of the Constitution, Human Right Forum or even Suo Moto. 7. Whether the judgment is also not sustainable on additional ground qua discrimination amongst Judges of Superior Courts. 8. Whether the retired Judge who never applied or party to the judgment can suffer for the Act of Court through which benefit is extended to them and at any rate recovery could be made for no fault of them. 9. Whether in any case the re-visitation of the judgment would be operative retrospectively or prospectively. 10. What should be effects and consequences and way-out regarding inaction of President of Pakistan for not determining the pension according to the schedule regarding the Judges of the High Court who had not completed five years as permanent service though he was empowered under the Constitution to do so.” 32. In addition to the above, he contended that in case present proceedings are deemed to be in exercise of powers of review conferred upon this Court under Article 188 of the Constitution, read with Order XXVI of the Supreme Court Rules, 1980, in that eventuality the guiding principle for determining the parameters of review as laid down by this Court in the case of Abdul Ghaffar - Abdul Rehman (supra) are to be strongly adhered to. Reiterating his stance on the point of maintainability of this petition, he stated that in case the note of the Registrar is taken out of consideration and upon perusal of the judgment under challenge this Court feels it appropriate to proceed further with Const. Petition No.127 of 2012 40 this matter on its own conclusion, then of course, he has no legal objection as to the maintainability of these proceedings. In his submissions, Mr. Satti also placed reliance upon the case of Noor Jehan v. Federation of Pakistan (1997 SCMR 160) (paragraph-10) to show the limited scope of power of review available under the law. In this case, examining the scope of exercise of jurisdiction by the apex Court under Article 184(3) of the Constitution, while refusing to exercise such jurisdiction in that case for the detailed reasons incorporated in the judgment, it was held that the provisions of Article 184(3) of the Constitution indicate that the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled: (i) The case involves a question of public importance; and (ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution. In the end, he submitted that in case the judgment under challenge is reviewed by this Court and set at naught, then it should only be made applicable with prospective effect and not retrospectively, so as to protect the benefits already drawn by the retired judges, who have throughout acted in a bonafide manner and have received such pensionary benefits on the basis of judicial pronouncement of this Court and for no fault of their own. 33. Rana M. Shamim, learned ASC for another honourable retired Judge of the High Court Dr. Ghous Muhammad, J., during his submissions made reference to the contents of C.M.A No.742/2013, which is the reply of this petition on his behalf. He also gave details of services rendered by Dr. Ghous Muhammad as Const. Petition No.127 of 2012 41 judge of the District judiciary before his elevation as judge of the High Court of Sindh w.e.f. 10.5.1995 and confirmation on 30.9.1996. Advancing the case of his client, Rana M. Shamim, pointed out that the date of superannuation of Dr. Ghous Muhammad was 09.4.2001, by which time he would have easily completed actual period of his service of more than five years and six months, but to his misfortune, through an extra-constitutional measure i.e. P.C.O 1 of 2000, he was un-ceremonially removed from his office on 26.1.2000, when he was not invited to take oath under the new extra constitutional set up. 34. Learned ASC also placed reliance upon the language of para 29 of President’s Order No.3 of 1997, read with regulation No.423 of CSR to show that despite shortage of less than two months in his actual length of service as Judge of the High Court, his case for retirement pension is fully matured on the strength of these provisions of law. In addition to it, he also made reference of Article 270AA(3)(b), which, according to him, provides complete redress to the grievance of his client relating to grant of pensionary benefits and protection of all other benefits, even in a situation when judgment under challenge is reviewed by this Court on any other legal premises. For ease of reference, the relevant part of this Article of the Constitution is reproduced as under:- “Declaration and continuance of laws etc. 270AA. (l) …………………………………………………………….. (2) ……………………………………. …………………………………. (3) Notwithstanding anything contained in the Constitution or clause (1), or judgment of any court including the Supreme Court or a High Court,--- (a) ………………………………………………………………… (b) Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given Const. Petition No.127 of 2012 42 or taken oath under the Oath of Office of (Judges) Order, 2000 (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.” 35. Mrs. Asma Jehangir, representing Justice Tariq Mehmood, honourable retired judge of the High Court and the widow of late Justice Khiyar Khan, former Judge of the High Court, in her arguments firstly furnished relevant details about their career as a judge of the High Court, which reveal that the former served as a Judge of the High Court from 06.9.2000 to 6.4.2002 i.e. 01-year, 07-months and 04-days, while the late husband of latter, who was elevated as additional judge of the High Court on 16.9.1990 and reached the age of superannuation on 18.11.1994, had served for 04-years and 03-days. Arguing the case, she firmly questioned the maintainability of the petition in the present form as according to her, note of the Registrar cannot be taken as suo moto review petition against the judgment under challenge before this Court. Rather, such conduct of the Registrar is to be deprecated. She further argued that even if the discussion and observations contained in the judgment under challange, with reference to Presidents Order No.8 of 2007, are totally discarded, still the said judgment on the basis of other sound reasons is sustainable in law and not open to interference under the limited scope of review. She further argued that in paragraph-2 of the Fifth Schedule to Article 205 of the Constitution word “every judge” also includes additional judges for the purpose of pensionary benefits. Lastly, supporting the judgment under challenge on the principle of stare decisis, she placed reliance upon the judgment in the case Const. Petition No.127 of 2012 43 of Bengal Immunity Co. v. The State of Bihar (AIR 1955 SC 661), which, inter alia, lays down that:- “This Court has never committed itself to any rule or policy that it will not “bow to the lessons of experience and the force of better reasoning” by overruling a mistaken precedent……. This is especially the case when the meaning of the Constitution is at issue and a mistaken construction is one which cannot be corrected by legislative action. To give blind adherence to a rule or policy that no decision of this Court is to be overruled would be itself to overrule many decisions of the Court which do not accept that view. But the rule of ‘stare decisis’ embodies a wise policy because it is often more important that a rule of law be settled than that it be settled right. This is especially so where as here, congress is not without regulatory power…… The question then is not whether an earlier decision should ever be overruled, but whether a particular decision ought to be. And before overruling a precedent in any case it is the duty of the court to make certain that more harm will not be done in rejecting than in retaining a rule of even dubious validity.” ………………………………………. It would be seen that in this case the Court acted upon the limitations which they have laid down in the course of their decisions, that reconsideration and overruling of a prior decision is to be confined to cases where the prior decision ‘is manifestly wrong and’ its maintenance is productive of great public mischief. The second is the case in –‘G. Nkambule v. The King’, 1950 AC 379 (Z37), where the Privy Council declined to follow its prior decision in – ‘Tuumahole Bereng v. R.’, 1949 AC 253 (X38). In this case, the Privy Council, while it reaffirmed the proposition that a prior decision upon a given set of facts ought not to be reopened without the greatest hesitation, explained why they, in fact, differed from the previous one in the following passage: “From a perusal of the judgment in ‘Tumahole’s case’, (Z38), it is apparent that the history of the adoption and promulgation of the various statutes and proclamations dealing with the effect of the evidence of accomplices in South Africa was only partially put before the Board, and much material which has now been ascertained was not presented to their Lordships on that occasion. The present case, therefore, is one in which fresh facts have been adduced which were not under consideration when Tumahole’s case (Z38) was decided, and accordingly it is one in which, in their Lordships’ view, they are justified in reconsidering the foundations on which that case was determined”. Const. Petition No.127 of 2012 44 ……… It will be noticed that the overruling of the prior decision in this case was based on the fact that important and relevant material was not placed before the Judicial Committee in the earlier case. These cases emphasis under what exceptional circumstances a prior decision or the highest and final court in a country is treated as not binding on itself.” 36. Mr. Sadiq Leghari, another honourable retired judge of the High Court, who appeared in person, invited our attention to C.M.A No.686/2013, which is his reply to this petition. He gave relevant details of his appointment as a judge of the High Court before having served the District judiciary in Sindh for a period of over thirty years to show that his actual period of service as judge of the High Court is 03-years, 10-months and 04-days. He made reference to the operative part of the judgment under challenge to show that by this judgment, no unrestricted or open ended relief has been granted to the retired judges of the High Court, but only to those retired judges of the High Court, who have retired in terms of Article 195 of the Constitution. As per his formulations, para 33 of the judgment under challenge excludes the additional judges of the High Court from availing its benefit. He, while making reference to Article 188 of the Constitution, candidly stated that vast powers of review are available with this Court, which are aimed to foster the cause of justice and to undo any injustice or irregularity, legal or factual. Mr. Leghari also made reference to the judgment in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) to fortify his submissions that benefit of judgment under challenge once received by him and other retired judges of the High Court has created a vested right in their favour and now it is a past and closed transaction, which can not be reopened; more over, the two parts of Fifth Schedule to Article 205 of the Constitution, relating Const. Petition No.127 of 2012 45 to the Supreme Court Judges and the High Court Judges, are discriminatory, thus, violative of Article 25 of the Constitution. 37. Sardar Muhammad Aslam, learned ASC for M/s M.K.N Kohli and Iftikhar Ahmed Cheema, two honourable retired judges of the High Court; and also for Mst. Begum Nusrat, widow of late Justice Muzaffar Ali Gondal, in his submissions made reference to C.M.As No.875/2013 and 1404/2013, which are their replies to these proceedings and also civil miscellaneous appeal No.176/2012, to show that retired Justice M.K.N Kohli, before his resignation, had served superior judiciary as a judge of the High Court for 04-years, 08-months, and 28-days. Therefore, besides the implication of judgment under challenge, his case was also qualified for pension in terms of paragraph-29 of the Presidents Order No.3 of 1997, read with Service Regulation No.423, and on the principle of rounding up of length of service. As regards the case of other retired judge, Justice Iftikhar Ahmed Cheema, he gave relevant dates of his joining of service as a Judge of the High Court and date of his retirement to show that after having served the District judiciary for over two/three decades, he also served the superior judiciary for 02-years, 07-months and 07-days, while late justice Muzaffar Ali Gondal, who retired as judge of Peshawar High Court on 06.5.1995, served as judge of the High Court for 04-years and 05-months. He conceded that as per the position as it stands today, all retired judges represented by him are beneficiaries of judgment under challenge, but for that, he adopted the arguments of other senior ASCs, who have earlier argued the scope of Article 205 read with Fifth Schedule to the Constitution regarding the pensionary rights of the judges of the High Court, who have retired Const. Petition No.127 of 2012 46 from their offices after having served for a period less than five years. 38. Mr. M. Afzal Siddiqui, learned ASC representing Mr. Najam-ul-Hassan Kazmi, honourable retired judge of the High Court, in his brief submissions made reference of CMA No.392/2013, filed in these proceedings and for the purpose of defending the pensionary right of his client, placed reliance upon the judgment in the case of Justice Hasnat Ahmed Khan v. Federation of Pakistan/State (PLD 2011 SC 680), at page 734, paragraph-43, which reads as under:- “43. It is a matter of great satisfaction and encouragement for all the right men, who believe in the constitutionalism and are of the affirmed commitment that in our beloved country there should not be any rule except one under the Constitution, that is why the Parliament had not granted legitimacy or validity to the actions of 3-11-2007. In view of the past history and on plain reading of the constitutional provisions relating to the Armed Forces i.e. Articles 243, 244 and 245, discussed hereinbefore it is abundantly clear that Chief of Army Staff, who has been appointed by the President in consultation with the Prime Minister has no authority to hold the Constitution in abeyance, therefore, condonation has to be sought by adopting a legislative intervention, as per past practice, from the parliament. In absence of such validation, indemnification or legitimization, unconstitutional actions taken by a dictator would continue to charge not only to the person who had imposed Martial Law (Emergency) but also to others as well who had accepted new order imposed in the country beneficially. There is no cavil with the proposition that unconstitutional actions of General Pervez Musharraf (Retd.) taken on 3-11-2007 were declared unconstitutional on 31-7- 2008 but still their consequences continue to exist because by no legislative intervention through Parliament, the legitimacy, indemnity or validity had been granted by the Parliament. It is to be seen that at the time of such unconstitutional Martial Law in the name of Emergency on 3-11-2007, the Parliament (National Assembly + Senate) was duly functioning until 15-11- 2007 when the National Assembly completed its tenure but no legitimacy, validity or indemnity was obtained from the said Const. Petition No.127 of 2012 47 parliament. However, after dissolution of National Assembly, elections were held on 18-2-2008 and new National Assembly commenced its functions from 3rd week of March, 2008 onward. Meanwhile, Eighteenth and Nineteenth Constitutional Amendments were made by the parliament in pursuance whereof legislative actions of the Eighth Constitutional Amendment and Seventeenth Constitutional Amendments were also considered and all those legislative instruments, which found to be contrary to the Constitution, were weeded out of the Constitution. Interestingly the question of granting validity, indemnity and legitimacy in respect of Seventeenth Constitutional Amendment was also thoroughly examined and the Parliament unanimously indemnified, legitimized and validated the oath made by the Judges, under the PCO and Oath Order, 2000 by inserting sub Article 3 of the Article 270AA, which reads as under:-- "(3) Notwithstanding anything contained in the Constitution or clause (1), or judgment of any court including the Supreme Court or a High Court, - (a) Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a Judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (1 of 2000), shall be deemed to have continued to hold the office as a Judge or appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly. (b) Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation." The above provision in fact has replaced Article 270C inserted by the Seventeenth Constitutional Amendment, legitimizing, validating and condoning the oath taken by the then Judges under the PCO and Oath Order, 2000. Inasmuch as pensionary benefits were also extended to the Judges who had declined to take oath in pursuance of Emergency and PCO, 2000 read with Oath Order, 2000. A perusal whereof clearly indicates that by legislative intervention through Parliament, the Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a Judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 were deemed to have continued to hold the office as a Judge or appointed as such, as the case would be, under the Constitution, and such continuance or appointment, would have effect accordingly. However, Judges of the Supreme Court, High Courts and Federal Shariat Court who were not Const. Petition No.127 of 2012 48 given or taken oath under the Oath Order, 2000, and ceased to hold the office of a Judge were, for the purposes of pensionary benefits only, were deemed to have continued to hold office under the Constitution till their date of superannuation.” He added that in view of this clear enunciation of law by a six member Bench of the apex Court, pensionary rights of Mr. Najam- ul-Hassan Kazmi as a retired judge of the High Court are fully safeguarded like the case of honourable retired Justice Dr. Ghous Muhammad from the High Court of Sindh, whose case is identical and at par to his case. 39. Mr. Abdul Aziz Kundi, a former judge of the Peshawar High Court, who appeared before us in person and also for Mst. Roshan Bibi, widow of late Justice Sher Bahadur Khan, a former judge of the Peshawar High Court, contended that every permanent judge of the High Court is entitled for the pensionary benefits under paragraph-2 of Fifth Schedule to Article 205 of the Constitution, subject to determination by the President and until then, as per earlier arrangements. He also argued that when he was elevated to the Bench as a judge of the Peshawar High Court, the judgment under challenge was applicable and followed with full force in favour of all the retired judges of the High Courts for grant of pensionary benefits irrespective of their length of service, therefore, he had legitimate expectancy for grant of all the pensionary benefits upon his retirement, which had taken place on 31.10.2010, after he having served as a Judge of the Peshawar High Court for a period of 01-year, 03-months and 24-days. He also outlined the difficulties faced by him upon elevation as additional judge of the High Court as a result whereof, he had to close down his office and wind up his flourishing practice. He, therefore, while adopting the arguments of other learned senior Const. Petition No.127 of 2012 49 ASCs, urged that in his case retrospective application of the judgment of this Court, in case it decides to review the judgment under challenge, shall not be made as his case is distinguishable on the principle of legitimate expectancy. Arguing the case of Mst. Roshan Bibi, widow of late Justice Sher Bahadur Khan, he mentioned that the deceased was appointed as additional judge of the High Court on 7.4.1967 and he retired as confirmed Judge of the High Court on 1.7.1970, after having served for 03-years, 08- months and 14-days, and thereafter he passed away on 30.12.1970, but in view of the ratio of the judgment under challenge, his widow has been found entitled for all the pensionary benefits in terms of paragraph-4 of Fifth Schedule to Article 205 of the Constitution. 40. Mr. Mehmood A. Sheikh, learned ASC on behalf of Justice Muhammad Aslam Arain, honourable retired judge of the High Court, in his arguments made reference of C.M.A No.1829 of 2013. He also gave relevant dates to show that before his retirement as Judge of the High Court on 11.5.1995, retired Justice Muhammad Aslam Arain had served as such for 04-years and 06-months, thus, apart from the implication of judgment under challenge, he is entitled for pensionary benefits in terms of paragraph-29 of the President’s Order No.3/1997, read with Service Regulation No.423, which provides for automatic rounding up and relaxation of such short period of service upto six months to make it five years of service for entitlement of pensionary benefits. 41. Mr. Salim Khan, another honourable retired judge of the High Court, who appeared in person to argue his case, made reference to C.M.A No.1274/2013, filed by him and also gave Const. Petition No.127 of 2012 50 relevant dates of his joining as Additional Judge of the High Court and date of his retirement as 31.1.2008, to show that he, before his retirement, had served as judge of the High Court for a period of 03-years and thus entitled for the benefit of judgment under challenge on the basis of arguments advanced in this regard by other senior ASCs, which he also adopts. 42. Mr. Hamid Farooq Khan, honourable retired judge of the High Court, who also appeared in person, gave relevant dates of his joining as Additional Judge/permanent judge of the High Court and date of his resignation/retirement to show that he actually served as judge of the High Court for a period of 03-years and 07- months before his resignation under compelling circumstances, otherwise his date of superannuation was upto 15.10.2020. He pointed out that as a result of unforeseen circumstances resulting in his resignation/retirement, now he is barred under Article 207 of the Constitution from practicing in the Peshawar High Court. In the end, adopting the arguments of other senior ASCs, he placed reliance upon the case of Sindh High Court Bar Association (supra). It will be worthwhile to mention here that during the proceedings in the above cited case before a fourteen member Bench of the apex Court, almost all the judgments/case law cited in the present proceedings, was discussed at length in the manner that eventually, as detailed therein, all illegal actions of a dictator General Pervez Musharraf so also the earlier judgment of the Court in Tikka Iqbal Muhammad Khan case, were struck down/set aside. Not only this, but a review petition against such judgment tilted Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan (PLD 2010 SC 483), heard by equal number of judges, Const. Petition No.127 of 2012 51 was also dismissed with the observation that the Supreme Court has unfettered powers under Article 187 and 188 of the Constitution, read with Order XXVI of the Supreme Court Rules, to do ultimate justice for which earlier review petitions were very much maintainable. 43. Mr. Muhammad Munir Peracha, learned ASC, who is appearing in this case on behalf of M/s Sheikh Abdul Rashid, Chaudhry Mushtaq Ahmed Khan, Chaudhry Abdul Mannan and Munib Ahmed Khan, JJ, honourable retired judges of the High Court, at the commencement of his arguments made reference to C.M.As No.724, 836 and 835 of 2013, filed on behalf of these honourable retired judges of the High Court, containing their respective dates of appointment as additional judges/permanent judges and of their retirement/date on which they ceased to hold the office as High Court Judges. He stated that insofar as Mr. Justice Munir Ahmed Khan is concerned, he has not filed any CMA in reply to these proceedings. From the submissions made before us, we have noted that Sheikh Abdul Rashid, before his retirement on 31.5.2006, had served as a High Court Judge for 02-years, 08- months and 28-days; Chaudhry Mushtaq Ahmed Khan, who was affectee of the fallout of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) case, ceased to remain a judge of the High Court w.e.f 30.9.1996, but by that time, he had served the judiciary for 04-years, 01-month and 04-days; Chaudhry Abdul Mannan, who never remained permanent judge of the High Court, had served as High Court Judge for a period of 03-years, 02- months and 15-days; before his resignation and its acceptance by the President on 19.10.2009; while Mr. Munib Ahmed Khan had Const. Petition No.127 of 2012 52 served as a High Court Judge for 03-years, 11-months and 25- days. Learned ASC, making reference to Article 205 and Fifth Schedule to the Constitution qua the judgment under challenge, submitted that it is a judgment in rem through which all the honourable retired judges, who have rendered less than five years service as a High Court Judge, are entitled to avail its benefit, thus, no exception could be taken to the claim of respondents represented by him. In the same context, he also made reference of Article 25 of the Constitution and the case of Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan (1996 SCMR 1185), which in its terms prohibit discrimination amongst the persons placed in the similar position and entitle others the benefit of earlier judgment, when applicable to their case. He further submitted that judgment under challenge is one which is not fit to be reviewed by this Bench for any technical reasons and if this Court still comes to a contrary conclusion and forms its view about the maintainability of these proceedings in the positive, then it should be made applicable only prospectively and not retrospectively to save the benefits which have been already availed by the honourable retired judges of the High Court in a bonafide manner. In order to gain support to the case of Chaudhry Abdul Mannan, J., who never remained permanent judge of the High Court, he also made reference to the definition of ‘Judge’, under Article 260 of the Constitution, which also includes an additional judge. He summed up his submissions on the note that all the honourable retired judges, who have rendered less than five years actual service as a High Court Judge, being respectable class of the society, having held constitutional post, deserve a Const. Petition No.127 of 2012 53 sympathetic and lenient view in the matter, which may not be prejudicial to their interest. 44. Mr. Afnan Karim Kundi, learned ASC for honourable retired Justice Raza Ahmed Khan, before making his submissions, in order to give relevant dates of his appointment as additional judge, permanent judge and retirement of his client, made reference of C.M.A No.1419/2013, to show that he had actually served as High Court judge for a period of 03-years, 05-months and 04-days, before his retirement on attaining the age of superannuation on 05.3.1992. He contended that law relating to pensionary benefits is now well developed and provides that such benefit to a retired government servant is his hard earned right and no more a bounty of the State for certain individuals, therefore, an additional judge of the High Court is not entitled for any pensionary benefit, but only the permanent judges. He also made reference to the language of paragraph-2 of Fifth Schedule to Article 205 of the Constitution and argued that opening words of this paragraph “every judge” are to be given widest meaning in order to extend pensionary benefits to all the honourable retired judges of the High Court, irrespective of their length of service as such. He added that for fair determination of quantum of pension, any reasonable and equitable formula can be drawn by the President on the basis of rationalization of pensionary benefits to those honourable retired judges of the High Court, who have rendered less than five years service, as right now no such scheme is provided either in the President’s Order No.9 of 1970 or President’s Order No.3 of 1997. Const. Petition No.127 of 2012 54 45. Justice Muhammad Azam Khan, another honourable retired judge of the High Court, who appeared in person, made reference of C.M.A No.743/2013 to show that he was appointed as additional judge of the High Court on 13.6.1998 and was made to retire under the PCO of 2000 w.e.f 26.1.2000, after rendering total service of 01-year, 07-months and 12-days, thus, he is entitled for the benefit of Article 270AA(3)(b), which adequately protects his right to pension as affectees of PCO of 2000, resulting in his un- ceremonial and unconstitutional removal from service as High Court Judge. He, however, conceded that even if he had not been removed under the said PCO, on attaining the age of superannuation he would have retired on 17.3.2001 after rendering total service of less than 03 years. He also made reference of C.M.A No.940/2008, to show that he was one of the contesting party before the Supreme Court in the earlier proceedings wherein the judgment under challenge was passed. In the end, he stated that on other legal aspects of the matter, he adopts the arguments advanced by senior ASC Mr. Iftikhar Hussain Gillani. 46. Mr. Abdul Rahim Bhatti, learned ASC, who is representing Justice Abdul Ghani Sheikh, honourable retired judge of the High Court, made reference of C.M.A No.854/2013, to show various relevant dates of appointment and retirement of Mr. Sheikh after rendering actual service of 03-years and 15-days in aggregate. He made reference to the cases reported as Muhammad Mubeen-us-Salam (supra) and Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) in support of his submission that even if the judgment under challenge is set Const. Petition No.127 of 2012 55 aside, then its applicability can only be made prospectively and not retrospectively. More so, when it is a past and closed transaction as the judgment under challenge has been fully implemented by the official respondents. 47. Mr. Farhat Nawaz Lodhi, learned ASC for retired Justice Amjad Ali Sheikh, a honourable retired judge of the High Court, also gave relevant dates of his appointment and retirement to show that at the time of his retirement on 22.6.1999, retired Justice Amjad Ali Sheikh, has served as a judge of the High Court for a period of 02-years, 06-months and 10-days. He further adopted the arguments of Mr. Amir Alam Khan, learned ASC on the question of maintainability of these proceedings emanating from the note of the Registrar, being malicious. 48. At this stage, with leave of the Court, M/s Gulzarin Kiyani and Iftikhar Hussain Gillani, learned Sr. ASCs, made their further submissions wherein Mr. Kiyani, dilating upon the powers of review vested with this Court, made reference to the judgment in the case of Pir Bakhsh v. Chairman Allotment Committee (PLD 1987 SC 145) and also briefly discussed the principles of res judicata, stare decisis and prospective and retrospective application of various judgments announced by this Court to show that these principles are not attracted in the present case, which is to be adjudicated upon its own merits, more particularly, when these proceedings relate to public exchequer, thus, falling within the domain of public interest litigation. He also contended that in a case where constitutional provisions are clear in language, no doctrine of legitimate expectation can be applied in order to support or protect some wrong doing. For this purpose, he also Const. Petition No.127 of 2012 56 made reference to the High Court Judges Pension Order, 1937, President’s Order No.9/1970 and President’s Order No.03/1997, to show that earlier to the adjudication vide judgment under challenge, it was otherwise also a convention religiously followed by all the retired judges of the High Court having rendered less than five years service that no claim for pension for such short period of service was to be made. In the end, to fortify his submissions, he cited following cases. a. Abdul Ghaffar-Abdul Rehman’s case (supra). b. State of West Bangal v. Corporation of Calcutta (1967 AIR SC 997) c. Bengal Immunity Co.’s case (supra) d. A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531.) In the case of State of West Bengal (supra), examining the effect of Article 141 of the Constitution of India, it was held by a nine member Bench of the Indian Supreme Court that there is nothing in the Constitution which prevents Supreme Court from departing from its previous decision, if it is satisfied of its error and its baneful effect on general interests of public. In Constitutional matters which effect evolution of country’s polity, Supreme Court must more readily correct itself than in other branches of law as perpetuation of a mistake will be harmful to public interest, while continuity and consistency are conductive to smooth evolution of rule of law, hesitancy to set right deviation will retard its growth. To fortify this view, reference to the case of Bengal Immunity Co. (supra) was also made. In the case of A.R Antulay (supra), with reference to the facts of the case, it was held that where the relevant statutory provisions were not brought to the notice of the Supreme Court, which precluded it Const. Petition No.127 of 2012 57 to exercise power in a case, than it cannot be said that the judgment was not per incuriam. In this context reference was also made to the case of State of West Bengal v. Anwar Ali (AIR 1952 SC 75). In addition to it, the maxim “Actus Curiae Neminem Gravabit” (an act of the Court shall prejudice no man) was discussed and it was held that this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law; this maxim is not a source of general power to reopen and rehear adjudications which have otherwise assumed finality, as this maxim operates in a different and narrow area. It was illustrated that if owing to the delay in what, the Court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interregnum, the Court has the power to remedy it. 49. Mr. Iftikhar Hussain Gillani, in his further submissions reiterated that the judgment under challenge cannot be termed as a judgment per incuriam, therefore, the benefits already drawn or claimed by the honourable retired judges of the High Court, though they having rendered less than five years actual service, cannot be reclaimed from them. 50. Khawaja Muhammad Haris, learned senior ASC, one of the amici curiae in this case, strongly supported the maintainability of these suo moto proceedings and contended that it may be that these proceedings have emanated from the note of the Registrar of this Court, but for according legitimacy to these proceedings it is the knowledge or notice taken by the Court, which is material and not its source. Once this Court finds that some law has been wrongly enunciated, it is its prime duty to correct the law irrespective of its fallout or effect upon its beneficiaries. He, while Const. Petition No.127 of 2012 58 criticizing the judgment under challenge, strongly contended that there are many legal mistakes floating on the surface of the record with reference to the judgment under challenge, thus, it can be termed nothing but a judgment per incuriam, and by applying the principle of stare decisis, it cannot be saved. He added that even otherwise, the rule of stare decisis is not strictly applicable to the Supreme Court. Making reference to the High Court Judges Pension Order, 1937, President’s Order No.09/1970 and Presidents Order No.03/1997, he argued that no holistic or fair view was taken by this Court while passing its judgment under challenge and in this regard even prevalent convention and usage since the year 1937, having the force of law, were overlooked. He further argued that Fifth Schedule to Article 205 of the Constitution is not a sub-constitutional legislation, but a part of the Constitution in terms of Article 205 of Constitution, thus, it is to be read as such and when it is read in the context of prevalent President’s Orders from time to time, it makes it very clear that length of service of High Court judges has always remained prime consideration for grant of pensionary benefits to them or otherwise. He also dilated upon the language of paragraph-3 of the Fifth Schedule to Article 205 of the Constitution to show its relevancy and importance in the matter of determining the entitlement for pension of judges of the High Court, who have served for less than five years as such. He conceded that of course, paragraph-3 of the Fifth Schedule to Article 205 of the Constitution will not control its paragraph-2, but at the same time when the whole Schedule is read in conjunction with the President’s Order inforce at the relevant time, there remains no ambiguity that all those honourable retired judges, who have rendered less than five years Const. Petition No.127 of 2012 59 actual service, excluding those cases which are found entitled for the benefit of paragraph-29 (ibid), read with Service Regulation No.423, are not entitled for any pensionary benefits. He again made reference to various provisions of Judges Order/President’s Orders right from the year 1937 till date to show undisturbed convention of over 75 years that no judge of the High Court, having served less than five years, ever objected to or raised the claim of pensionary benefit for a lesser period of service by advancing the interpretation of the relevant provisions of law in the manner as accepted in the judgment under challenge. Re-agitating the applicability of principle of per incuriam to the judgment under challenge, learned ASC read before us its paragraphs No.9 to paragraph No.22, one by one, to highlight several patent deficiencies in it, which brings it within the ambit of judgment per incuriam as per the law laid down by this Court in its various judgments. He further argued that since the very language of judgment under challenge gives its benefit to many others, who were not even party to such proceedings before the apex Court, therefore, the judgment under challenge is a judgment in rem and not a judgment in personam. In the same context, he also made reference to Article 203C, paragraph-9 of the Constitution, which has widened the applicability of the judgment under challenge to the judges of the Federal Shariat Court also. Here he also made reference to the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) to express his point of view on the scope and application of “De facto” doctrine. In this case “De facto” doctrine was discussed as under:- “The doctrine of de facto is a well recognized doctrine embedded in our jurisprudence. Under this doctrine bona fide acts in public interest performed by persons assuming authority, Const. Petition No.127 of 2012 60 which turns out to be illegal, are assumed to have been performed by a de jure authority/person and binding. This doctrine is intended to avoid dislocation, instability and confusion while declaring a de facto authority illegal. In order to create stability, regularity and to prevent confusion in the conduct of public business and in security of private rights the acts of the officers de facto are not suffered to be questioned because of want of legal authority except by some direct proceeding instituted for the purpose by the State or someone claiming office de jure. The doctrine of de facto is based on considerations of policy and public interest. For good order and peace of- society the title of persons in apparent authority is to be respected and obeyed until their title is investigated in some regular mode prescribed by law. The acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were the acts of officers de jure. This doctrine can be applied if the Parliament is declared to be illegally constituted and Enactment passed by such Parliament is declared unconstitutional. It is only in such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service.” 51. In the context of paragraph-29 of the President’s Order No.03/1997, he supported the claim of those former judges of the High Court, who have though rendered less than five years service, but are entitled for the benefit of paragraph-29 read with Service Regulation No.423. In support of his other submissions, particularly on the point of per incuriam, he further cited following cases. i) Sindh High Court Bar Association’s case (supra) ii) Gulshan Ara v. State (2010 SCMR 1162) iii) Fasih-ud-Din Khan v. Government of Punjab (2010 SCMR 1778) iv) Abdul Ghaffar-Abdul Rehman’s case (supra). v) Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) vi) Federation of Pakistan v. Qamar Hussain Bhatti (PLD 2004 SC 77). Const. Petition No.127 of 2012 61 In the case of Gulshan Ara (supra) relating offence under the Control of Narcotic Substances Act, 1997, the principle of per incuriam was discussed with reference to its dictionary meaning in Halsbury’s Laws of England, Fourth Edition, volume 26 in paras 557-558, and comments on the judgment per incuriam were recorded as under:- "A decision is given per incuriam when the Court has acted in ignorance of previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it in which case it must decide which case to follow or when it has acted in ignorance of House of a Lords' decision, in which case it must follow that decision or when the decision is given in ignorance of the terms of statute or rule has statutory force." In the case of Fasih-ud-Din Khan (supra), also, the meaning of phrase per incuriam were dilated with reference to the case of Sindh High Court Bar Association (supra) and it was observed that connotation of per incuriam is “carelessness”. In the case of Asad Ali (supra), the scope of Article 184(3) of the Constitution was discussed in detail and, inter alia¸ it was held that Constitutional Convention once established has the same binding effect as a Constitutional provision, therefore, any breach of such Convention can be treated by the Court as a breach of the Constitution to which the Convention relates. It was further held that Constitution being the basic organic document, which is of a permanent character and is not subject to frequent changes, such a basic document is necessarily a reflection of the aspirations of its people. The Constitution, therefore, is not an imprisonment of the past but it takes care of the present and is also alive to the future. The cardinal rule of interpretation of a basic document like Constitution is that it should be liberally construed and unless the context clearly implies a restricted construction, the words and Const. Petition No.127 of 2012 62 expressions used in the Constitution are to be given widest connotation. Moreover, discussing the legal implication of retrospectivity or prospectivity of a statute touching the vested rights of the parties, it was observed that a new or amending statute touching the vested rights of the parties operates prospectively unless the language of the legislation expressly provides for its retrospective operation. However, the presumption against the retrospective operation of a statute is not applicable to statutes dealing with the procedure as no vested right can be claimed by any party in respect of a procedure. The only exception to the retrospective operation of a procedural law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively. The above principle applicable to a new or an amending statute, however, cannot be applied strictly to the law declared by the Courts through interpretative process. The Courts, while interpreting a law, do not legislate or create any new law or amend the existing law. By interpreting the law, the Courts only declare the true meaning of the law which already existed. Therefore, to that extent the law declared by the Court is applicable from the date the law is enacted. In the case of Federation of Pakistan (supra) dealing with the case of civil servant qua the concept of judgments in “rem” and “personam”, reference to the definition of these phrases was made from Black's Law Dictionary Sixth Edition; the ratio of Hameed Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185) was also discussed with reference to the scope and applicability of Article 25 of the Constitution and based on these reasons/legal principles, benefit was also extended to those other Const. Petition No.127 of 2012 63 persons who were equally placed and found entitled for similar benefit through an earlier pronouncement of the Court. 52. Mr. Salman Akram Raja, the other amicus curiae appointed by the Court, during his submissions read before us second part of Fifth Schedule to Article 205 of the Constitution, relating to High Court Judges and contended that indeed in terms of paragraph-2 every judge of the High Court is entitled for pensionary benefits, but subject to determination of such right by the President, which is the basic requirement and only thereafter the question of quantum of pensionary benefits could be considered/decided by the President for determination. After reading paragraph-2 and 3 of the Fifth Schedule to Article 205 of the Constitution word-by-word, he contended that the word “determination by the President” has two facets; one about the right of every judge; and, the other about the quantum of pensionary benefits of every judge. When in this background, the Fifth Schedule relating to High Court Judges is read in line with the language of either High Court Judges Order, 1937 or President’s Order No.09/1970 or President’s Order No.03/1997, it clearly shows that determination made by the President regarding pensionary benefit of the honourable retired judges of the High Court, who have served as such for less than five years, is zero pension, for which no further clarification or illustration is needed in case President’s Order is read harmoniously with the Fifth Schedule. Making reference to the principle of rationality or proportionality in the matter of pensionary benefits, he further contended that this Court cannot sit over or regulate the powers of the President in this regard, therefore, no such observation or Const. Petition No.127 of 2012 64 directions can be issued to the President, who has already determined the right of the judges of the High Court, having rendered less than five years service as “Zero”. He also made reference to the judgment in the case of Sindh High Court Bar Association (supra) to show that the judgment under challenge is mainly based on the President’s Order No.08/2007 dated 14.12.2007, which has been already declared ultra vires and void ab initio, and it also contain relevant observations striking down the opinion of the Attorney General for Pakistan in that case. He further made reference of Article 184(3), 187 and 188 of the Constitution in support of his arguments that suo moto proceedings in the present form are very much competent, particularly in the circumstances when question of public exchequer is involved and the fallout of judgment under challenge is huge burden over it, which has brought this case within the domain of public interest litigation. In the end, he referred the case of Hussain Badshah v. Akhtar Zaman (2006 SCMR 1163) to conclude his submissions that if the judgment under challenge is reviewed, its applicability shall be made prospectively so that the pensionary benefits already availed by the former/retired Judges of the High Court, having less than five years service to their credit, are not disturbed. He also made a statement before the Court that he will further provide written synopsis of his arguments to show number of glaring deficiencies in the judgment under challenge, which makes it a judgment per incuriam. 53. Mr. Azam Khan Khattak, Additional Advocate General, Balochistan, when came at the rostrum, simply adopted the arguments of learned Attorney General for Pakistan, although by Const. Petition No.127 of 2012 65 that time, the learned Attorney General for Pakistan has not even made his arguments in the case. When confronted with this position, he submitted that he knows that what the learned Attorney General for Pakistan is going to argue in this case, therefore, without waiting for his submissions, he is making such statement before the Court. 54. Mr. Muhammad Qasim Mirjat, learned Additional Advocate General Sindh argued that only confirmed/permanent judges of the High Court are entitled for pensionary benefits and not those who had performed only as additional judges of the High Court. He further argued that the scheme under the Constitution with reference to Article 205 of the Constitution, read with its Fifth Schedule and the President’s Order 9 of 1970 or 3 of 1997, is quite clear, therefore, he would not support the claim of the honourable retired judges of the High Court, who have rendered less than five years service as such and now claiming pensionary benefits on the basis of the judgment under challenge. 55. Mr. Hanif Khatana, learned Additional Advocate General, Punjab conceded to the jurisdiction of this Court in entertaining and deciding the present petition on merits, however, making reference to the language of paragraph-2 of Fifth Schedule to Article 205 of the Constitution, he submitted that every judge of the High Court, irrespective of his length of service is entitled for pensionary benefits. 56. Mr. Zaheer Bashir Ansari, ASC, who appeared in this case on behalf of his late brother Justice Tanvir Bashir Ansari, retired judge of the High Court, was unable to give exact date of his appointment and retirement, but pointed out that on his Const. Petition No.127 of 2012 66 retirement date i.e. 25.6.2005, late Justice Tanvir Bashir Ansari has served as a Judge of the High Court for a period of 04-years, 01-month and few days. He further adopted the arguments advanced by other senior ASCs in this case. 57. Syed Arshad Hussain Shah, Additional Advocate General, KPK in his arguments, stressed upon the definition of word “every” and in this context, referred the case of Abrar Hassan v. Government of Pakistan (PLD 1976 SC 315). In this case, in a petition in the nature of quo warranto, one of the question involved was that whether a writ of such nature could be issued against a High Court Judge. In that context, it was observed that often terms "Judge" and "Court" are used interchangeably as synonymous yet this does not obliterate distinction between a Judge as an individual and Court as seat of justice as an institution. In the end, prayer for grant of writ of quo warranto against the judge was declined and the petitioner was, therefore, dismissed. He contended that these suo moto proceedings in order to examine the legality and propriety of the judgment under challenge on the touchstone of per incuriam, etc are very much maintainable, however, in the peculiar facts and circumstances, he supported the judgment under challenge as well as the claim of every retired judge of the High Court for pensionary benefits, irrespective of his actual length of service as such. 58. Mr. Irfan Qadir, learned Attorney General for Pakistan, in his arguments boldly asserted that judges cannot be made judge of their own cause for the purpose of determining their pensionary benefits. Thus, neither he is supporting these suo moto proceedings, nor the judgment under challenge, as determination Const. Petition No.127 of 2012 67 of right to pension in terms of the clear language of paragraph-2 of the Fifth Schedule to Article 205 of the Constitution is exclusive domain of the President of Pakistan. He further contended that from the definition of word “Judge” given under Article 260 of the Constitution, even the additional judges of the High Court, if the President so determines, could be entitled for pensionary benefit irrespective of the bar under Article 207 of the Constitution. Expressing his view about some other legal aspects of the judgment under challenge, he firstly argued that even wrong law declared by this Court cannot be corrected under any constitutional jurisdiction vested with the Supreme Court, however, at a later stage, he conceded that Supreme Court has unfettered powers under the Constitutional mandate to ensure correct interpretation of law and its applicability to all the citizen of the Country and no palpable wrong pronouncement of law could hold the field once it has come to the notice of the Court and necessary proceedings have been initiated for this purpose. He further argued that judgment under challenge is not entirely dependent upon the discussion made in its paragraph-20, relating to President’s Order No.08/2007, which has been set at naught and declared to be void ab initio in the case of Sindh High Court Bar Association (supra). He also brought to our notice that as per his information, another President’s Order based on the summary of Ministry of Law for determining the right to pension of the honourable retired judges of the High Court, having rendered less than five years service, is in the pipeline. However, till the conclusion of these proceedings and announcement of our short order in Court on 11.4.2013, no such President’s Order has seen the light of the day. Const. Petition No.127 of 2012 68 59. For a short while, Justice Abdul Ghani Sheikh, with the permission of the Court, also came at the rostrum to make his submissions. He read before us paragraph-2 & 3 of the Fifth Schedule to Article 205 of the Constitution to advance his case for pensionary benefits irrespective of his length of service and in support of his submission, placed reliance upon the cases of State Bank of Pakistan v. Mst. Mumtaz Sultana (2010 SCMR 421) and Pakistan through Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). In the case of State of Bank of Pakistan (supra), dealing with some dispute relating to Voluntary Golden Handshake Scheme floated by the State Bank of Pakistan through Circular No.9 of 1997, dated 23.10.1997, while outlining the distinction between a judgment in rem and judgment in personam as also highlighted in the case of Pir Bakhsh and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), it was held that the benefit allowed to one group of employees cannot be denied to another group of employees in similar position, even if they were not party to the earlier proceedings, as the State Bank of Pakistan was bound by the earlier decision to redress their grievance accordingly. In the other case of Pakistan through Secretary Ministry of Finance (supra), in depth discussion as regards the Principle of locus poenitentiae (power of receding till a decisive step taken) was made and it was held that the authority that has power to make an order has also the power to undo it, but subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such order cannot be withdrawn or rescinded to the detriment of his rights. Const. Petition No.127 of 2012 69 60. It may be mentioned here that some other senior ASCs/ASCs and honourable retired judges, who appeared during the proceedings of this case on some dates, did not come forward to make their submissions, though before conclusion of the proceedings on 11.4.2013, right to audience was extended to all, that if any one of them intends to argue the case, he may come at the rostrum to make his submissions. 61. When we look at the detailed submissions of the learned senior ASCs, ASCs, the Additional Advocate Generals of four Provinces, the Attorney General for Pakistan, some of the retired judges of the High Court, who appeared in person and the two amici curiae, as noted above, we find that for proper adjudication of all these factual and legal controversies, framing of three moot points for consideration covering the gamut of these submissions will be useful, which are accordingly framed as under:- (a) Whether the present suo moto proceedings, emanating from the office note of the Registrar dated 21.11.2012, are not maintainable on the basis of various legal contentions raised before us qua the powers of this Court vested under Articles 184, 185, 187 and 188, in Chapter-1, Part- VII of our Constitution? (b) What could be the correct interpretation of Article 205, its Fifth Schedule in the Constitution, read with applicable President’s Orders No.09 of 1970 / 03 of 1997? (c) Whether under any legal principle, pensionary benefits, etc, already availed by the honourable retired judges of the High Court on the basis of judgment under challenge could be retained by them, or they are liable to Const. Petition No.127 of 2012 70 return/restore/refund all such benefits to the public exchequer? 62. As to the question of maintainability of this petition, from the arguments advanced by the learned ASCs etc, we find that the first objection as to its maintainability is raised in the context of jurisdiction and powers of the Registrar of this Court for submission of the note dated 21.11.2012, which formed basis for the subsequent order of the Honourable Chief Justice for fixation of this petition before the larger Bench. The other objections as to the maintainability are with reference to the powers of this Court under Articles 184(3), 187 and 188 of the Constitution qua applicability of the principles of “stare decisis”, “res judicata”, “locus poenitentiae” and “past and closed transaction”. In this regard, when we have confronted the learned ASCs with a simple but important question, that if for any reason the note of the Registrar dated 21.11.2012 is improper and its contents are discarded, but at the same time when the issue in relation to the illegality of a judgment, which has taken the form of a precedent laying down an incorrect law, and its colossal fallout on the public exchequer, which has brought it within the domain of public interest litigation, has come to our notice in any form, whether for some technical reasons alone, the Court should still desist from exercising its jurisdiction vested under Articles 184(3), 187 and 188 of the Constitution, the unanimous answer to this question was in the negative i.e. in exercise of powers under the constitutional provisions, this Court has unlimited jurisdiction to reopen, revisit or review, and for this purpose examine any judgment earlier pronounced by this Court to set the law correct, Const. Petition No.127 of 2012 71 to cure injustice, save it from becoming an abuse of the process of law and this judicial system. The Attorney General for Pakistan, during his arguments, at one stage stated that under no circumstances does this Court have jurisdiction to examine or review the judgment under challenge, but later on, he also conceded to this legal position. Although some of the learned ASCs still reiterated their arguments for pressing into service the principle of stare decisis, res judicata and “past and closed transaction” and cited some judgments in support thereof, but at the conclusion of the proceedings, none of them could dispute that the principle of stare decisis, res judicata, or past and closed transaction in their literal form are not applicable to the proceedings before the apex Court in a situation when the very judgment under challenge is found “per incuriam”. 63. In order to exhibit some of the powers of this Court, which could be exercised to consider a question of public importance with reference to enforcement of any fundamental right; for doing complete justice in any case or matter pending before it, and powers of review available to the Supreme Court, it will be useful to reproduce hereunder Articles 184(3), 187 and 188 of the Constitution respectively and also to discuss few celebrated judgments, enunciating some broad principles of law in this regard. For this purpose, reference is made here to the judgments in the cases of Abdul Ghaffar- Abdul Rehman (supra), Sindh High Court Bar Association (supra) and Justice Khurshid Anwar Bhinder (supra). Article 184(3) of the Constitution. “184. Original jurisdiction of Supreme Court.-(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments. Explanation.-In this clause, “Governments” means the Federal Government and the Provincial Governments. Const. Petition No.127 of 2012 72 (2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only. (3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.” Article 187 of the Constitution. “187. Issue and execution of processes of Supreme Court.-(1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final.” Article 188 of the Constitution. “188. Review of judgments or orders by the Supreme Court.- The Supreme Court shall have power, subject to the provisions of any act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.” Excerpt from the Abdul Ghaffar-Abdul Rehman (supra)’s case. (PLD 1998 SC 363). “14. ….. Article 188 of the Constitution confers power on this Court subject to the provisions of any Act of the Parliament and any rules made by the Supreme Court to review any judgment pronounced or any order made by it. Whereas' Order XXVI, rule 1 of the Rules lays down that subject to the law and practice of the Court, the Court may review its judgment, order of any civil proceeding, on ground similar to those mentioned in Order XLVII, rule 1 of C.P.C. and any criminal proceeding on the ground of an error apparent on the face of the record. It may be observed that Order XLVII, rule 1 of C.P.C. gives a right to a party to apply for review if he is aggrieved by the orders or decrees, or decisions mentioned in sub-clauses (a), (b), Const. Petition No.127 of 2012 73 (c) of rule 1 on the three grounds, namely, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 15. We may now refer to the judgments relied upon by the learned counsel for the parties. Mr.S. Sharifuddin Pirzads has referred to the following cases:- (i) Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335). (ii) Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701), (iii) Suba through Legal Heirs v. Fatima Bibi through Legal Heirs and others (1996 SCMR 158); (iv) Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Limited and another (PLD 1997 SC 865). (v) Unreported order in Civil Review Petition No.l-K of 1989 (Begum Asfar Saeed and others v. Ch.Abdul Aziz) rendered by this Court on 10-3-1991. In the above first case, Cornelius C.J. made the following observation as to the scope of review: "For the present purpose, the emphasis should, in my opinion, be laid upon the consideration that, for the doing of "complete justice", the Supreme Court is vested with full power, and I can see no reason why the exercise of that full power should be applicable only in respect of a matter coming up before the Supreme Court in the form of a decision by a High Court or some subordinate Court. I can see no reason why that purpose in its full scope, should not also be applicable for the purpose of reviewing a judgment delivered by the Supreme Court itself: provided that thereby found a necessity within the meaning of the expression "complete justice" to exercise that power. It must, of course, be borne in mind that by assumption, every judgment pronounced by the Court is a considered and solemn decision on all points arising out of the case, and further that every reason compels towards the grant of finality in favour of such judgments delivered by a Court which sits at the apex of the judicial system. Again, the expression "complete justice" is clearly not to be understood in any abstract or academic sense. So much is clear from the provision in Article 163(3) that a written order is to be necessary for the purpose of carrying out the intention to dispense "complete justice". There must be a substantial or material effect to be produced upon the result of the case if, in the interests of "complete justice" Const. Petition No.127 of 2012 74 the Supreme Court undertakes to exercise its extraordinary power of review of one of its own considered judgments. If there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan there it would be the duty of the Court unhesitatingly to amend the error. It is a duty which is enjoyed upon every Judge of the Court by the solemn oath which he takes when he enters upon his duties, viz., to "preserve, protect and defend the Constitution and law of Pakistan." In the above report, Kaikaus, J., who rendered his separate opinion made the following observations:- "to permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against other benches; and that surely is not the scope of review jurisdiction. No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction. While I would prefer not to accept those limitations as if they placed any technical obstruction in the exercise of the review jurisdiction of this Court I would accept that they embody the principles on which this Court would act in the exercise of such jurisdiction. It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional circumstances." In the second case this Court comprising the then learned Chief Justice and four companion Judges entertained a suo motu review and allowed the same for the following reasons:- "11. The above case supports the petitioner's stand. Another aspect which escaped notice of this Court in the judgment under review is that some of the other civil servants/employees placed in the same position as the petitioner was had been considered for promotion to BPS- 17 and in fact were promoted, whereas the petitioner was denied the above benefit which amounted to violation of inter alia Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. In this regard, reference may Const. Petition No.127 of 2012 75 be made to the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 12 ………………………………………………………………… …………………………………………………………………….. 13 …………………………………………………….………….. ……………………………………………………………….. 14. The upshot of the above discussion is that the judgment under review is liable to be recalled as it proceeded on wrong premises. We would, therefore, allow the above Suo Motu Review Petition and recall the above judgment. In consequence thereof, petitioner's Civil Appeal No. 216 of 1991 is allowed and the judgment of the Tribunal is set aside and the respondents are directed to consider the petitioner's case for promotion to BPS-17." In the third case this Court, while accepting a review petition, made following observations:- "From the above discussed legal position, it emerges that a petition for review before this Court would lie on grounds, which are analogous to those embodied in Order XLVII, Rule 1, C.P.C. The review petition would also be competent if something which is obvious in the judgment has either been overlooked and that if it would have been considered by the Court, the final result of the case would have been otherwise. No review petition, however, would lie on the ground of a wrong decision by the Court or that another view is possible on reconsideration." In the fourth case also the scope of review was succinctly discussed by this Court after referring the relevant case-law and in this regard the following observations were made:-- ' "From the preceding discussion it follows that review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self- evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case." Const. Petition No.127 of 2012 76 In the last unreported order of this Court in the case of Begum Asfar Saeed and others v. Ch. Abdul Aziz, after referring a number of cases, the following conclusion was recorded as to the scope of a review:- "From an examination of the aforesaid precedents of this Court, it seems settled that overlooking some important aspect of the matter from consideration or an erroneous assumption of a material fact affecting the conclusion reached in the judgment are valid grounds on which the review of a judgment can be permitted. In view of what is stated it is not necessary to refer to the judgments cited by the respondent on the scope of review, because mostly the cases relate to reargument of an appeal in review jurisdiction which is not permissible, or to the raising of pleas which were not agitated at the hearing of the appeal or contained a reassertion of the law as laid down in the case of Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335) on which the respondent himself relied." 16. We may now refer to the following cases relied upon by Mr. Gulzarin Kiani, learned Advocate Supreme Court for the respondents: -- (i) Sajjan Singh and others v,. The State of Rajasthan and others (AIR 1965 SC 845); (ii) The Keshav Mills Co. Ltd., Petlad v. The Commissioner of Income Tax, Bombay North, Ahmedabad (AIR 1965 SC 1636); (iii) Pillani Investment Corporation Ltd. v. The Income- tax Officer, A Ward, Calcutta and another (AIR 1972 SC 236); (iv) Sow Chandra Kanta and another v. Sheikh Habib (AIR 1975 SC 1500) (v) M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (AIR 1980 SC 674); (vi) Col. Avtar Singh Sekhom v. Union of, India and others (AIR 1980 SC 2041); (vii) A.R. Antulay, v. R.S. Nayak and another (AIR 1988 SC 1531) In the above first case, the India Supreme Court while dilating upon Article 141 of the Indian Constitution relating to the power of review of the Supreme Court observed that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decision or even to depart from them and any matters relating to the decision of Constitutional points which have significant impact on the fundamental rights of citizens, it would be prepared to review its earlier decision in the interest of public good and that the doctrine stare decisis may not be strictly applied in this context. It was further observed that this doctrine will not be permitted to perpetuate erroneous decisions announced by the Supreme Court to the detriment of the general welfare. It was also observed that Const. Petition No.127 of 2012 77 the question, whether different view is to be taken, would depend on the nature of infirmity alleged in the earlier decision, its impact on public good and the validity and compelling character of situations urged in support of the contrary view. In the second case the Indian Supreme Court examined the scope as to when it should change its previous view in the following words:- "When it is urged that the view already taken by this Court should be reviewed and revised it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all Courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully, justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:-- What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These Const. Petition No.127 of 2012 78 and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court." In the third case it was urged by the Indian Supreme Court that when it was not shown that the earlier judgment of the Supreme Court was erroneous or that any vital point was not considered, the Supreme Court would decline to review its earlier judgment. In the fourth case, Krishna Iyer, J. made the following weighty observations as to the scope of review:-- "Mr. Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re- hearing. May be we were not right in refusing special leave right in the first round but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. " In the fifth case, Krishna Iyer, J. of the Indian Supreme Court again enunciated the scope of a review by holding that a party is not entitled to seek a review of the judgment delivered by the Supreme Court merely for the purpose of re-hearing and a fresh decision of the case. It has been pointed out that the normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do. In the sixth case, Krishan Iyer, J. again reiterated that review is not a routine procedure but the material error should be manifest on the face of the earlier order resulting in miscarriage of justice and must be proved. Const. Petition No.127 of 2012 79 In the seventh case, the Indian Supreme Court highlighted that there is no distinction as to the power between Benches of the Supreme Court because of the number of Judges constituted the same, in the following words:- "It is time to sound a note of caution. The Supreme Court under its Rules of Business ordinarily sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by he benches irrespective of their size are considered as decisions of the Court. The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court. That principle, however, would not apply in the instant case and a Bench of Seven Judges is not entitled to reverse the decision of the Constitution Bench,. Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case. " 17. From the above case-law, the following principles of law are deductible: (i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case; (ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie; (iii) that the fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition; (iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie; (v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie; Const. Petition No.127 of 2012 80 (vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie; (vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility; (viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good; (ix) that the Court is competent to review its judgment/order suo motu without any formal application; (x) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature. Excerpt from Sindh High Court Bar Association (supra)’s case. (PLD 2009 SC 879) “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 the 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. It may be advantageous to reproduce below relevant excerpts from the judgment of the Indian Supreme Court delivered by Bhagwati J, in the said case: - "92………Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Const. Petition No.127 of 2012 81 Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament. 93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the. State, every authority under the Constitution. Derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the Legislature and the Judiciary. Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi's case (AIR 1975 SC 2299) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which were pledged." Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter, fit to be decided by the judiciary,. because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be, left to the determination of the legislature. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial Const. Petition No.127 of 2012 82 review is conferred on the judiciary by Articles 32 and 226 of the Constitution. Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on 9th December, 1948: "If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance". (CAD debates, Vol. VII, p, 953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub-version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional and void as damaging the basic structure of the Constitution. 94. That takes us to clause (5) of Article 368. This clause opens with the words "For the removal of doubts" and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the meaning of the opening words "For the removal of doubts" because the majority decision in Kesavananda Bharati's case (AIR 1973 SC 1461) clearly laid down and left no doubt that Const. Petition No.127 of 2012 83 the basic structure of the Constitution was outside the competence of the mandatory power of Parliament and in Smt. Indira Gandhi's .case (supra) all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati's case and Smt. Indira Gandhi's case, there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What A clause (5) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one." In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an action of an authority functioning under the Indian Constitution was discussed as under: - "The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitutions on exercise of that power. This power of judicial review is, therefore, implicit in a written Constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there, may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable." 168. In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 184] while dilating upon the role of the Supreme Court of India, it was held that it was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. Relevant portion from the judgment is reproduced below: - "651. We have a written Constitution which confers powers of judicial review on this Court and on all High Courts. In exercising power and discharging duty assigned by the Constitution, this Court has to play the role of a 'sentinel on the qui vive' and it is the solemn duty of this Court to protect the fundamental rights guaranteed by Part III of the Constitution zealously and vigilantly. 652. It may be stated that initially it was contended by the respondents-that this Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of this Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a coordinate organ of the State which has the jurisdiction to Const. Petition No.127 of 2012 84 regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House. 653. In my opinion, the submission is well-founded. This Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. This Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection." It was further held as under: - "656. In this connection, I may only observe that in Searchlight [Pandit Sharma (1)] as well as in Keshav Singh, it has been observed that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also, for instance, in State of Karnataka v. Union of India, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State, (1998) 4 SCC 626. But what has been held is that such decision of Parliament/State, Legislature is not 'final and 'conclusive'. This Court in all earlier cases held that in view of power of judicial review under Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have jurisdiction to decide legality or otherwise of the action taken by State- authorities and that power cannot be taken away from judiciary. There lies the distinction between British Parliament and Indian Parliament. Since British Parliament is also 'the High Court of Parliament', the action taken or decision rendered by it is not open to challenge in any court of law. This, in my opinion, is based on the doctrine that there cannot be two parallel courts, i.e. Crown's Court and also a Court of Parliament ('the High Court of Parliament') exercising judicial power in respect of one and the same jurisdiction. India is a democratic and republican. State having a written Constitution which is supreme and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other. Under the said Constitution, power of judicial review has been conferred on higher judiciary (Supreme Court and High Courts)." In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that the judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was further held that it was a cardinal principle of the Constitution that no one could claim to be the sole judge of the 'power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. 169. On the above survey of the case-law, it is clear that the power of judicial review is a cardinal principle of the Constitution. The Judges, to keep the power of judicial review strictly judicial, in its exercise, do take Const. Petition No.127 of 2012 85 care not to intrude upon the' domain of the other branches of the Government. It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. At this stage, reference may also be made to our own jurisdiction where a robust defence of judicial review has been expounded:-- Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369) "The Constitution provides for separation of Judiciary from the Executive. It aims at an independent Judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the Judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or' hand over the adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely a semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry: Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent Judiciary separate from the Executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25. "The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically, under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and 'High Court shall supervise and control all Courts subordinate to it'. Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people." Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) "Adverting to the above second peculiar feature that our country Const. Petition No.127 of 2012 86 has Federal system of Government which is based on trichotomy of power, it may be observed that each organ, of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this juncture, it may be stated that a written Constitution, is an 'organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people; Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that 'it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context. "24. The above principles will have to be kept in view while construing the, provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary. "The Constitution contemplates trichotomy of power inter se the pillars of the State, namely, Legislature, Executive and the Judiciary, each of the organs of the State has to function within the limits provided in Constitution. The Constitutional provisions relating to the appointments transfers of Judges of the superior Courts, therefore, need to be examined in light of the Islamic concept of justice. Islam had always attached unparalleled importance to the concept of justice." Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445) "(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and. therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution; "(vi) That the right of 'access to justice to all' is a fundamental right, which right cannot be exercised in the absence of an independent Judiciary 'providing impartial, fair ' and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution; "(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions." Const. Petition No.127 of 2012 87 Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) "Now take up the main controversy arising in these petitions, whether setting up of Military Courts for trial of civilians for offences not connected with the Armed Forces, is constitutionally valid? As stated above, our Constitution is based on the theory of trichotomy of power which makes the three limbs of the State, the Legislature, the Executive and the Judiciary, independent of each other in their respective spheres. Chapter I of Part VII of the Constitution deals with the judicature. The judicature according to Article 175(1) of the Constitution, consists of the Supreme Court, a High Court for each Province and such other Courts as may be established by law. The Courts created under Article 175(1) (ibid) exercise such jurisdiction which is conferred on them either by the Constitution or by or under any law as provided in Article 175(2) ibid. The judicature stands separated from the executive as provided in Article 175(3) of the Constitution. Creation of Courts outside the control and supervision of Supreme Court or the High Courts, therefore, not only militates against the independence of Judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution." Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869) "It is also mentioned in the Objectives Resolution that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be enabled to order their lives in accordance with teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and independence of judiciary shall be fully secured. Objectives Resolution was even retained in the Interim Constitution of 1972 as Preamble. "Independence of Judiciary is a basic principle of the Constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve .this objective. Article 175 provides that "the Judiciary shall be separated progressively from the executive". "In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment Const. Petition No.127 of 2012 88 where there is peace and security in the society, ,safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development." 170. The exercise of suo motu powers has been dwelt at length by the superior Courts of Pakistan in a large number of cases. Reference may usefully be made to the following cases: - Darshan Masih v. State (PLD 1990 SC 513 at page 544) "It is necessary at this stage to clarify certain aspects of this case. It is indeed necessary because, this being the first case of its nature, the procedural and other elements thereof are likely in due course, to come under discussion. (i) True, a telegram, it has never been earlier made the basis by the Supreme Court of Pakistan for action, as in this case; but, there is ample support in the Constitution for the same. Under Article 184(3) "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." The questions of procedural nature relating to the entertainment of proceedings and/or cognizance of a case under this provision, have been dealt with in the case of Miss Benazir Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this case is covered by the said authority as also by the due extension of the principles laid therein. Such extension/s would depend upon the fact and circumstances of each case and nature of public interest involved and importance thereof. The element of "public importance" in this case now stands demonstrated by the resume (a part only) of the proceedings, given earlier. It needs to be mentioned that in our Supreme Court, though letters and telegrams are sent to individual Judges, but it is not considered as an appropriate and proper method of initiating proceedings. Some times it leads to embarrassment. Accordingly such an information has to go to the Hon'ble Chief Justice for initiating proceedings. In this case the telegram was addressed directly to him and he marked it to me. As to what other form/s of taking cognizance of a matter under Article 184 (3) are possible, will depend upon the nature and importance thereof. (ii) The "nature" of the orders which can be passed in such cases is also indicated in Article 184 (3); that is: such as can be passed under Article 199. Even if for the time being it be assumed that the "nature" of the order is confined only to the Orders under sub-clause (c) of Article 199(1) and not to the other Orders under "Article 199", it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Art. 199(1)(c): "an order giving such directions to any person or authority -------- as may be appropriate for the enforcement of the Fundamental Rights cannot be abridged or curtailed by the law. As to how far it can be extended, will depend upon each case. It is so also because of the other provisions of the Constitution, the rules of this Court and the principles and Rules comprising Const. Petition No.127 of 2012 89 the Constitutional set up of Pakistan. For instance, "according to Article 187 (1) this Court some times has to satisfy the dictates of "Complete Justice". What goes with it, is the subject or ample authority as well as of future application in given cases. When this power is exercised the Court will have the necessary additional power to "issue such directions, orders or decrees as may be necessary." Besides the binding effect of the judgment/order of this Court on all other "Courts" when it "decides" a question of law or it is based upon or enunciates a principle of law under Article 189; another provision Art. 190, gives a similar command to all executive and judicial "authorities" throughout Pakistan": This is, so as to act "in aid of Supreme Court". When Art. 199(1) (c) is read together with Articles, 187, 189 and 190, as stated above, it becomes clear that in a fit case of enforcement of Fundamental Rights, the Supreme Court has jurisdiction, power and competence to pass all proper/ necessary orders as the facts justify. (iii) The question as to whether this is a case of enforcement of Fundamental Right/s has not been raised. Everybody accepted that it is so. The provisions of Article 9 relating to security of person; Article 11 in so far as it relates to forced labour, traffic in human beings and child labour; Article 14 relating to dignity of man; Article 15 ensuring freedom of movement; Article 19 relating to freedom of trade, business or profession; and Article 25 relating td equality, particularly in the protection of law and bar against discrimination on the basis of sex, as also the safeguards for women and children, amongst others, are applicable to the various aspects of the matter. However, it is a different matter that some Fundamental Rights are more directly attracted than the others and some elements involved in any one of them are relevant while the others are meant for other situations. In view of lack of contest on this issue it is not necessary to go into a detailed discussion in this behalf. It is, however, remarked that for purposes of convenience of all concerned, it might be necessary to define the expression "forced labour with illustrations of its different forms"; in such a manner, so as to minimize any confusion about its real purport as also the resultant unproductive litigation. For the same purpose the other important elements in these Fundamental Rights may be collected together and put in a self-contained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam. This Court has in the Shariat jurisdiction dealt with some of them. There is no bar in the Constitution to the inclusion in such law of these rights, in addition to the Fundamental Rights contained in Chapter I Part II thereof. This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights; the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen. These aspects of the enforcement of Fundamental Rights guaranteed by the Constitution and other basic human rights ensured by Islam can, by law be made also into an independent inalienable right, with self-operating mechanism for enforcement as well. Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 Supreme Court 473 at page 805) "First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The Const. Petition No.127 of 2012 90 power conferred depends upon two questions; one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the Fundamental Rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order of the nature mentioned in Article 199. The word 'nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to secure and guarantee the Fundamental Rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by filing affidavits evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance. Shehla Zia v. WAPDA (PLD 1994 SC 693 at page 712) "The learned counsel for the respondent has raised the objection that the facts of the case do not justify intervention under Article 184 of the Constitution. The main thrust was that the grid station and the transmission line are being constructed after a proper study of the problem taking into consideration the risk factors, the economic factors and also necessity and requirement in a particular area. It is after due- consideration that planning is made and is being executed according to rules. After taking such steps possibility of health hazards is ruled out and there is no question of affecting property and health of a number of citizens nor any Fundamental Right is violated which may warrant interference under Article 184. So far the first part of the contention regarding health hazards is concerned, sufficient discussion has been made in the earlier part of the judgment and need not be repeated. So far the Fundamental Rights are concerned, one has not to go too far to find the reply. 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. Const. Petition No.127 of 2012 91 constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the 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. 13. According to Oxford dictionary, 'life' meant state of all functional activity and continual change peculiar to organised matter and specially to the portion of it 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 organised 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. Dr. Pervez Hasan, learned counsel has referred to various judgments of the Indian Supreme Court in which the term 'life' has been explained with reference to public interest litigation. In Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting the word 'life' used in Article 21 of the Indian Constitution, reliance was placed on the judgment of Field, J. in Munn v. Illinois (1876) 94 US 113 at page 142 where it was observed that 'life' means not merely the right to the continuance of a person's animal existence but a right to the possession of each of his organs --his arms and legs etc." In Francis Corgi v. Union Territory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that Const. Petition No.127 of 2012 92 right to life includes right to live with human dignity and all that goes along with it, namely, the bare necessaries of 'life such as adequate nutrition, clothing and shelter and facilities for reading and writing in diverse form". Same view has been expressed in Olga Tellis and others v. Bombay Municipal Corporation (AIR 1986 SC 180) and State of Himachal Pradesh and another v. Umed Ram Sharma and others (AIR 1986 SC 847). In the first case right to life under the Constitution was held to mean right to livelihood. In the latter case the definition has been extended to include the "quality of life' and not mere physical existence. It was observed that "for residents of hilly areas, access to road is access to life itself. Thus, apart from the wide meaning given by US Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate nutrition, clothing and shelter and cannot be restricted merely to physical existence. 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. Under our Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to 'life' under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions. Dr. Pervaz Hasan has also referred to several judgments of the Indian Supreme Court in which issues relating to environment and ecological balance were raised and relief was granted as the industrial activity causing pollution had degraded the quality of life. In Rural Litigation and Entitlement Kendra and others v. State of UP and others (AIR 1985 SC 652) mining operation carried out through blasting was stopped and directions were issued to regulate it. The same case came up for further consideration and concern was shown for the preservation and protection of environment and ecology. However, considering the defence need and for earning foreign exchange some queries were allowed to be operated in a limited manner subject to strict control and regulations. These judgments are reported in AIR 1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 Sc 594. In Shri Sachidanand Pandey and another v. The State of West Bengal and others (AIR 1987 SC 1109) part of land of zoological garden was given to Taj Group of Hotels to build a five- star hotel. This transaction was challenged in the High Court without success. The appeal was dismissed. Taking note of the fact that society's interaction with nature is so extensive that "environmental question has assumed proportion affecting all humanity", it was observed that: -- "Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant, considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public." In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were being thrown in River Ganges whereby it was completely polluted, the tanneries Const. Petition No.127 of 2012 93 were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life, is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article 184(3) of the Constitution may grant relief to the "extent of stopping the functioning of factories which create pollution and environmental degradation. Employees of the Pak. Law Commission v. Ministry of Works (1994 SCMR 1548 at page 1551) "Before dealing with the merits of the case, it seems necessary to first dispose of the preliminary objection raised by the learned Standing Counsel. The learned counsel for the respondents contended that the Court has no jurisdiction to grant the relief under Article 184(3) of the Constitution and the present case is not covered by the said provision. The scope and object of Article 184(3) has been comprehensively discussed in several judgments of this Court including Ms. Benazir Bhutto's case (PLD 1988 SC 416) and Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). It is now well-settled that if there is violation of Fundamental Rights of a class of persons who collectively suffer due to such breach and there does not seem to be any possible relief being granted from any quarter due to their inability to seek or obtain relief, they are entitled to file petition under Article 184(3). The dispute should not be mere an individual grievance, but a collective grievance which raises questions of general public importance. In Benazir Bhutto's case it was observed as, follows:- - "The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated." It was further observed that "the inquiry into law and life cannot, in my view, be confined to the harrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam". While further dilating upon the provisions of the Constitution, particularly Articles 3, 37 and 38 of the Constitution, which enshrine socio- economic principles, it was observed that "these provisions become in an indirect sense enforceable by law and " thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy". In this background it was observed as follows: -- "The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peace Through Law Conference: `Adequate levels of living are essential 'for full enjoyment of Const. Petition No.127 of 2012 94 individual's freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population? The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations'. " "The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-economic change through this medium of interpretation to all sections of the citizens. "This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to Constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population. "It is thus clear that Article 9 of the Constitution which guarantees life and liberty according to law is not to be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. In this background the petitioners' claim to be provided accommodation during tenure of service, which is necessary for maintaining adequate level of living, in our opinion, is covered by Article 9. It is true that the terms and conditions of service perhaps do not require the respondents to provide residential accommodation to the petitioners, but if other Government servants similarly placed are being provided accommodation there is no reason to deprive the petitioners from such relief. In this view of the matter petition under Article 184(3) is competent." General Secretary v. Director, Industries (1994 SCMR 2061 at page 2071) "It is well-settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into questions of fact as well independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline for exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should he in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case." Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 at 294) "It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situation. There can be no dour that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the Const. Petition No.127 of 2012 95 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan. Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page 1005) "It will not be out of context at this stage to observe that our country has a Federal System of Government which is based on trichotomy of power, each organ of the State is required to function/operate within the bounds specified in the Constitution. Though one can say that Judiciary is the weakest limb as it does not have the resources or powers which the Legislature or the Executive enjoy, but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or any other law and because of the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an independent Judiciary. However, I may add that the Judiciary is also constitutionally obliged to act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175 thereof. Clause (2) of the above Article provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the relevant Constitutional provisions .are to be construed in a manner that neither the Judiciary nor the Legislature transgresses its own limit and an equilibrium is to be maintained inter se between the three organs of the State. However, at the same time, it should not be overlooked that our Constitution has enshrined and emphasised independence of Judiciary and, therefore, the relevant provisions are to be construed in a manner which would ensure the independence of Judiciary. We have a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus the approach while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen effectively. The interpretation cannot be narrow and pedantic but the Courts' efforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from the context." Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page 717) "19. Syed Sharif-ud-Din Pirzada learned counsel for the Privatization Commission contended that to invoke jurisdiction of this Court under Article 184(3) of the Constitution, two conditions are required to be fulfilled namely infringement of the Fundamental Rights and absence of alternate remedy. In the case in hand no fundamental right has been infringed and under the scheme of Privatization Commission Ordinance No. LII, 2000 (hereinafter referred to as "Ordinance"), two alternate remedies are available in terms of section 27 and section 28 of the Ordinance. According to learned counsel the judgment relied Const. Petition No.127 of 2012 96 upon by the petitioner in S.P. Gupta's case ibid, in the circumstances of the instant case is not applicable because thereafter the Indian Supreme Court in the case of BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has explained the scope of the public interest litigation. "20. Learned Attorney General, however, at the outset contended that after hearing the case at length by this Larger Bench for a long period, it will not be fair on his part to say that, "no point of public importance is involved in this case", therefore, he will not be questioning locus standi of the petitioners particularly in view of the judgments in the cases of Multiline Associates and Ardeshir Cowasjee ibid. "21. This Court in the referred cases and the Indian Supreme Court in the case of S.P. Gupta ibid have laid down a rule namely that any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision. "In the case of Benazir Bhutto ibid, it was held that only when the element of public importance is involved, the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein. "In Al-Jehad Trust ibid, it has been held that, "question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution. "In Malik Asad Ali ibid it was observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo motu, without having any formal petition. "In Multiline Associates ibid this Court held that requirement of the locus standi in the case of pro bono publico (public' interest litigation is not so rigid) has extended scope. This principle has been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)." At page 739, it is further held - "Thus it is held that in exercise of the power of judicial review, the courts normally will not interfere in pure' policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review." 171. It is clear from the above survey of the case law that it is a fundamental principle of our jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and Judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd Const. Petition No.127 of 2012 97 November, 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution. 172. Though the exercise of suo motu powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision - except a bald reference in Para 2(ii) of the short order - to point to any undue interference in the functioning of the other branches of the government. In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court. But, no such step was ever taken in any case whatsoever. Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3rd November, 2007. It was a contradiction in terms.” Excerpt from Justice Khurshid Anwar Bhinder (supra)’s case. (PLD 2010 SC 483) 24. First of all we intend to deal with the prime contention of Mr. Wasim Sajjad, learned Senior Advocate Supreme Court that in view of the provisions as enumerated in Article 188 of the Constitution and Order XXVI of the Supreme Court Rules these C.M.As. are maintainable and the applicants cannot be knocked out on sheer technicalities which has always been considered undesirable. Article 188 of the Constitution is reproduced herein below for ready reference:-- "188. Review of judgments or orders by the Supreme Court.--The Supreme Court shall have power, subject to the provisions of any Act of (Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it". 25. A bare perusal would reveal that it has been couched in a very simple and plain language hardly necessitating any scholarly interpretation. It, inter alia, provides that the Supreme Court has power to review its judgment or order subject to the provisions of any Act of Parliament and any rule made by the Supreme Court itself. (The contention whether Supreme Court Rules, 1980 are subservient to the Constitution have been discussed in later part of this judgment) It is to be noted that no Act of Parliament whatsoever has been promulgated and thus it can reasonably be inferred that legislature does not want to restrict or impose any condition on the powers conferred upon this Court under Article 188 of the Constitution. In fact the words "subject to the provisions of any Act of (Majlis-e-Shoora/Parliament) and of any rules made by the Supreme Court" are indicative of the fact that indirectly the powers so conferred have been enhanced and there was absolutely no intention for curtailment of such powers Const. Petition No.127 of 2012 98 conferred upon this Court under Article 188 of the Constitution. The point under discussion has been examined by this Court in case titled Evacuee Trust Property Board v. Hameed Elahi (PLD 1981 SC 108) with the following observations:- "6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Now, as we observed, "a litigant should not suffer on account of the mistakes or errors of the Court, and the corollary of this principle is that the Court should have the inherent power to correct its errors. The said rule only clarifies in terms that this Court has the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." There is no ambiguity about these words, and if the respondent's plea be true, he has brought his case within the meaning of the said rule. Additionally, the said rule was not framed for first time by this Court. It is almost verbatim reproduction of section 151 of the Civil Procedure Code and of section 561-A of the Criminal Procedure Code, and these two sections (which in turn are in pari materia with each other) have been part of our procedural laws for generations, so that there is no ambiguity about of our procedural laws for generations, so that there is no ambiguity about them, because they have been repeatedly construed by the superior Courts. Thus, for example, taking first, section 151 of the Civil Procedure Code, the Indian Supreme Court held in Keshardeo Chamaria v. Radha Kissen Chamaria and others (AIR 1953 SC 23) that a Court could in the exercise of its powers under section 151 re-call an order passed by it without notice to the parties concerned. Next, as to section 561-A of the Criminal Procedure Code this Court held in Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) that a Court was competent under section 561-A to re-call an order passed by it without notice to the parties concerned. However, as this judgment was pronounced long after the rules of this Court had been framed in 1956, the case-law on section 561-A before 1950 would be more relevant. We say 1950 and not 1956, because the said rule was originally enacted as rule 6 of Order LIII of the Federal Court Rules of 1950. And on the repeal of those rules of 1956, the same provision was reenacted in the present rules as the said rule." 26. We are conscious of the fact the principles of C.P.C. also need to be examined and thus the provisions as enumerated in Order XLVII, Rule 1 of C.P.C. would require consideration qua its application which is reproduced herein below for ready reference:-- "1. Application for review of judgment.--(1) Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Const. Petition No.127 of 2012 99 Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review." 27. A bare perusal would reveal that the salient features of Order XLVII, C.P.C. are as under :-- (i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by the petitioner at the time when the decree was passed or order made; or (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. [2003 CLC 1355) 28. We have examined the salient features and grounds as enumerated in Order XLVII, Rule 1. C.P.C. and we are of the view in so far as these C.M.As. are concerned that neither there is discovery of new important fact nor some mistake or error has been pointed out and besides that no sufficient reasoning has been advanced on the basis whereof the principle as enunciated in Order XLVII, Rule 1, C.P.C. can be made applicable. It may not be out of place to mention here that "sufficient cause" is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. The words "sufficient cause" mentioned in O. XLVII, R.1 of the Code do not mean any and every cause but it means any reason sufficient on ground at least analogous to those stated in the rule. The view that the "sufficient grounds" need not necessarily be construed ejusdem generis with the words preceding cannot be accepted as laying down the correct law." Suruj Mian v. Asst. Manager, Govt. Acquired Estate (PLD 1960 Dacca 1045). None of the grounds urged by the petitioners attracted the provisions as enumerated in Order XLVII, C.P.C. and thus C.M.As cannot be declared competent. A similar proposition was examined in Yusuf Ali v. State (PLD 1971 SC 508) with the following observations:-- "The right of review granted by Article 62 of the Constitution of 1962 is subject not only to the provisions of any Act of the Central Legislature but also to the provisions of any rules made by the Supreme Court and the Rules of the Court specifically provide by Order XXVI that "subject to the law and practice of the Court, the Court may review its judgment or order in a civil Const. Petition No.127 of 2012 100 proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record". Where none of the grounds urged by the petitioner come within the ambit of this rule no valid ground could be said to have been made out for the review of the judgment." (Emphasis provided) 29. It may be mentioned that the words "any other sufficient reasons" used in Order XLVII, Rule (1)(c), C.P.C. means a reason sufficient on grounds at least analogous to those mentioned in a categoric manner in clauses (a),. (b), and (c) of Rule 1 of Order XLVII, C.P.C. "A review, as has been pointed out by this Court in the case of Lt. Col. Nawabzada Mohammad Amir Khan v. The Controller of Estate Duty Government of Pakistan, Karachi and another (PLD 1962 SC 335) is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court. It can only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure the provisions whereof incorporate the principles upon which a review can be granted." In this regard we are fortified by the dictum laid down in the following authorities: (i) Chhaju v. Neki (AIR 1922 PC 112), (ii) Iftikhar Hussain Shah v. Azad Govt. of The State of J & K (PLD 1984 SC AJ&K 111), (iii) Muhammad Ghaffar v. State (1969 SCMR 10) 30. In our view decision once given cannot be reviewed subject to certain legal exceptions pursuant to the provisions as enumerated in Order XLVII, Rule 1, C.P.C., scope whereof can neither be enlarged nor it can be farfetched in such a manner as argued by the learned Advocate Supreme Courts for the petitioners in view of the language as employed in Order XLVII, Rule 1, C.P.C. its application would be only up to that limited extent and it cannot be unlimited. As mentioned above, the powers of review are not wide but definite and limited in nature. "It has to be confined to the four corners of the relevant rules or the phrase or for any other sufficient reason even the review jurisdiction as visualized must be traced to Order XLVII which contains the prescribed conditions and limitations in terms of the requirement of the section and more so power to review is not an inherent power. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction and cannot be equated to that of a technical obstruction." In this regard the case law as enunciated in the following cases can be referred:-- Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah. 596), Prahlad Krishna Kurne AIR 1951 Bom. 25, Hajee Suleman v. Custodian Evacuee Property (AIR 1955 Madhya Bharat 108, Rukan Din and others v. Hafiz-ud- Din and another (PLD 1962 Lah. 161), Mohd. Amir Khan v. Controller of Estate Duty PLD (1962 SC 335) Abdul Jabbar v. Collector of Central Excise and Land Customs Review Application No.15 of 1959 (Quetta) unreported considered. 31. Mr. Justice Pir Hamid (as he then was) while discussing the provisions as enumerated in Order XLVII; Rule 1; C.P.C. has opined that "I for my part would be inclined to hold that a review is by its very nature not an appeal or a rehearing merely Const. Petition No.127 of 2012 101 on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court, but that it should only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure, the provisions whereof incorporate the principles upon which a review was usually granted by Courts of law in England. The indulgence by way review may no doubt be granted to prevent remediable injustice being done by a court of last resort as where by some inadvertence an important statutory provision has escape notice which, if it had been noticed, might materially have affected the judgment of the Court but in no case should a rehearing be allowed upon merits." (Emphasis provided). (Muhammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335, Young v. Bristol Aeroplane Company Limited (1944) 1 K B 718, Gower v. Gower (1950) 1 A E R 804 distinguished). 32. Mr. Justice Ghulam Mujaddid Mirza (as he then was) has also examined the provisions as enumerated in section 114, C.P.C. and Order XLVII, Rule 1, C.P.C. in the light of dictum laid down in H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65) as under:-- "2. I called upon Mr. K. H. Khurshid, learned counsel for the petitioners to first convince me as to how this petition was competent when the petitioners were not a party to the writ proceedings. Learned counsel submitted that as the petitioners had been adversely affected by the order of this Court dated the 5th of December 1973, they are, therefore, aggrieved persons and hence have a locus standi to file this petition in the present form. Learned counsel relied on PLD 1971 SC 130, in order to prove that the petitioners were aggrieved persons but in my view this authority would not be of much help to him because in this case the question examined was as to who would be the person aggrieved within the ambit of Article 98 of the late Constitution of Islamic Republic of Pakistan whereas in the instant case the petitioners have to bring their case within the purview of Order XLVII, rule 1, C.P.C. Learned counsel tried to avail of section 114, C.P.C. which deals with the power of review and argued that the words "any person considering himself aggrieved" were wide enough to include even those persons who initially were not a party to the proceedings but at a later stage were affected by an order adverse to their interest. My attention was invited to Order XLVII, rule 1, C.P.C. and it was submitted that even in this provision the above mentioned words have been repeated, and the learned counsel, therefore, emphasized that these words would cover the case of even a stranger, the only essential requisite being that he must consider himself to be an aggrieved person, the test for which, according to the learned counsel would be subjective. Reliance was also placed on H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65) with special reference to the following observations: There can be no dispute that the only party which was adversely affected by the order of ad interim injunction was respondent No.1. We are satisfied that Saya & Co., deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the relief sought were really directed against Wazir Ali Industries Limited, and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision Const. Petition No.127 of 2012 102 permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit for proceeding." and it was argued that the principle laid down in this case was fully applicable to the present petition and hence not only that the petition was competent but also that the order dated the 5th of December 1973, of this Court deserves to be reviewed. 3. I have very carefully gone through this decision and find that the law laid down by the Supreme Court is only with regard to the appellate proceedings, whereas the scope of review is much different and the review jurisdiction is substantially and materially different to the appellate jurisdiction because it can be only utilized on the specific grounds mentioned in Order XLVII, rule 1, C.P.C. (Emphasis provided). In this connection it would be worthwhile to reproduce in extenso rule 1 of Order XLVII, C.P.C. which is to the following effect:- "(1) Any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order." The important words to be noted in this connection are "desires to obtain a review of the decree passed or order made". These words leave no room for doubt that the remedy of review could be availed of only by a person who initially was a party to the proceedings in which either a decree had been passed or an order had been made against him, otherwise the very essence of the grounds on which a review would be competent, would be rendered ineffective. It is, therefore, obvious that a stranger to the proceedings would not be permitted to avail of the grounds on which a review petition would be Const. Petition No.127 of 2012 103 competent. I, therefore, do not agree with the contention of the learned counsel that a wider interpretation of the words "any person considering himself aggrieved" would be the only proper and reasonable interpretation. On the other hand, I find that these words would have to be read and interpreted in the light of the main rule and when so done in my view their operation would be restricted and would cover the case of only those persons who initially were party to the proceedings." (Emphasis provided). (Qaim Hussain v. Anjuman Islamia PLD 1974 Lah. 346). 64. From the above discussion it will be seen that depending upon the peculiar facts and circumstances of each case, which enables the Court to form its opinion, all the above discussed jurisdictions conferred to the apex Court under the scheme of the Constitution are closely interlinked, rather, overlapping in some areas, therefore, without entering into the intricacies of such technicalities, this Court is competent to pass any order to foster the cause of justice; eliminating the chances of perpetuating illegality and to save an aggrieved party from being rendered remedy less. If any further case law is needed to fortify this view, reference can also be made to number of other cases referred by the learned ASC’s in their respective arguments and discussed in the earlier part of this judgment as well as the cases of Syed Wajihul Hassan Zaidi v. Government of the Punjab and others (PLD 2004 SC 801) and Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632), which further lays down as under:- Excerpt from the Wajihul Hassan Zaidi (supra)’s case. 17. Admittedly, we are not Sitting in appeal over the judgment rendered by a Full Bench of this Court and the scope of review is very restricted within the parameters laid down by this Court in Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690), Arif Shah v.; Abdul Hakeem Qureshi (PLD 1991 SC 905) and Abdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363). We are of the considered view that even if the view taken by this Court in the decision of the appeal be erroneous, it does not warrant revisiting by this Bench in the exercise of review jurisdiction, which can only be exercised when an error or Const. Petition No.127 of 2012 104 mistake is manifestly shown to float on the face of record, which is patent and if allowed to remain intact would perpetuate illegality and gross injustice. Basic object behind the conferment of power of judicial review on superior Courts essentially is to foster justice and eliminate chances of perpetuating illegality. Principal aim and spirit underlying judicial review of orders passed or actions taken by executive or quasi-judicial forums is to respect law and to enforce primacy of the Constitution and the law. There can be no cavil with the proposition that writ jurisdiction is completely discretionary in nature and invocable in order to meet blatant illegalities, total lack of jurisdiction, unwarranted exercise of authority otherwise not conferred by law or preventing retention of ill-gotten gains. Discretion exercised within the contemplation of Articles 185 & 187 of the Constitution by this Court is a too wide in nature and stands at a higher pedestal. It is obligatory for this Court to ensure that apart from legal requirements broad equitable principles of law are not infringed so that complete justice can be dispensed with if equitable situation demands and legal formulations do not take the controversy to its logical end. This Court would be grossly failing in duty if it over-looks equitable considerations and alters the final verdict in the exercise of its extraordinary jurisdiction.” Excerpt from Mrs. Shahida Zahir Abbasi (supra)’s case. From above-quoted passages, it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals. In the case of Employees of Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548, Saleem Const. Petition No.127 of 2012 105 Akhtar, J., relying on the observations in Benazir Bhutto's case, supra, on the scope of Article 184(3) of the Constitution observed as follows:-- "In Benazir Bhutto's case it was observed as follows: The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved. or whether it is defined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. " ……. ……………………………………………………………….. ……………………………………………………………………………………. From the above discussion, it is quit clear that this Court while construing the provisions of Article 184(3) of the Constitution did not follow the conventional interpretative approach based on technicalities and ceremonious observance of rule or usage of interpretation. Keeping in view the avowed spirit of the provision, this Court, preferred the interpretative approach which received inspiration from the triad of provision which saturated and invigorated the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and Directive Principles of State Policy so as to achieve, democracy, tolerance, equality and social justice according to Islam. This liberal interpretative approach opened the door of "access to justice to all". 65. As a result of above discussion with detailed reference to some celebrated judgments of this Court, we have no hesitation to hold that this petition is very much competent and maintainable, thus, no exception could be taken to its maintainability on any of the grounds urged by the learned Sr.ASCs/ASCs and the retired judges of the High Court. 66. To proceed further, as the whole controversy in the present proceedings originates and revolves around the “right to pension” of honourable retired judges of the High Court, before examining the above noted point No.2, as a next step it will be appropriate rather useful to dilate upon the true connotation and concept of pension, which has undergone radical changes in the Const. Petition No.127 of 2012 106 last century. In this regard, it will be useful to reproduce hereunder few definitions of word “pension” from some authoritative books/dictionaries and thereafter to reproduce some discussion from the judgment in the case of I.A Sharwani (supra), which is quite pertinent on this subject. Black’s Law Dictionary. “Pension. Retirement benefit paid regularly (normally, monthly), with the amount of such based generally on length of employment and amount of wages or salary of pensioner. Deferred compensation for services rendered.” In the New Encyclopedia Britannica Vol.9, 15th Edition at p.266 the following is laid down for the term “Pension”:- “Pension: Series of periodic money payments made to a person who retires from employment because of age, disability, or the completion of an agreed span of service. The payments generally continue for the remainder of the natural life of the recipient, and sometimes to a widow or other survivor. Military pensions have existed for many centuries; private pension plans originated in Europe during the 19th century. Eligibility for and amounts of benefits are based on a variety of factors, including length of employment, age, earnings, and, in some cases, past contributions.” In Law Laxican defined “pension” as follows:- Pension defined, Act 21, 1886, S.2-241C803 a periodical payment made by a Government, company or, any employer or labour in consideration of past services or the relinquishment of rights; claims or emoluments; regular payments to persons in order that they may maintain themselves. Art.112(3)(d)(i) Const. I.A Sharwani’s case (supra). “15. Having dealt with the above legal preliminary objections, we may now revert to the merits of the case. Before dealing with the respective contentions of the learned counsel for the parties, we may first refer to the definition and raison d'etre of the term "pension" and the nature of right in respect thereof. In this Const. Petition No.127 of 2012 107 regard, reference may be made to Encyclopaedia Britannica, Volume 17, 1963 Edition, page 488, Corpus Juris Secundum, Volume 67, pages 763 and 764, Corpus Juris Secundum, Volume 70, page 423, American Jurisprudence, Volume 40, pages 980 and 981, and para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India (supra), which read as follows:-- Extract from Encyclopaedia Britannica Vol. 17 1963 Edition Page 488.---"Pensions are periodic payments, usually for the natural life of a person who retires because of age or disability. Sometimes the term refers to, periodic payments to wives, widows or children of a primary or deceased person or pensioner; occasionally, a pension will be conveyed solely as an honour for conspicuous service or valour. Pensions are provided by Government in three guises: (1) as compensation or recompense to war veterans and families for old age or for disability or death, usually from service causes; (2) as disability or old age retirement benefits for civilian employees of government; (3) as social security payments for the aged, disabled or deceased citizenry based on past employment history or subject to current evidence of need. Pensions are also provided by many non-Governmental employers as a means of protecting workers retiring for age or disability and for relieving the payroll of superannuated personnel. They are sometimes provided by union-management welfare funds, associations or trusteeships. Only rarely do employees in groups, associations or unions undertake their own pension programme without employer or Government assistance." Extract from Corpus Juris Secundum. Vol. 67. pages 763-764.---"Except as limited by the Constitution the establishment of a pension system is within the scope of the legislative power. The granting of pensions to public officers or public employees serves the public purpose, and is designed to induce competent persons to enter and remain in the public' service or employment, and to encourage the retirement from public service of those who have become incapacitated from performing their duties as well as they might be performed by younger or more vigorous persons. It has also been stated that a pension system is intended to promote efficient, continued and faithful service to the employer and economic security to the employees and their dependents, by an arrangement Const. Petition No.127 of 2012 108 under which, by fulfilment of specified eligibility requirements, pensions become property of the individual as a matter of right upon the termination of public service." Extract from Corpus Juris Secundum. Vol. 70, page 423.---"A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient." Extract from American Jurisprudence, Vo1.40, pages 980 and 981.---"The right to a pension depends upon statutory provisions therefore, and the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted. The right to a pension may be made to depend upon such conditions. as the grantor may see fit to prescribe. Thus, it has been held that it may be provided, in a general Pension Act, that any person who accepts the benefits thereof shall forfeit his right to a special pension previously granted." Para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India (supra).---"Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowances or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to Const. Petition No.127 of 2012 109 old-age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon." 16. It seems that there are various kinds of pension schemes which are obtaining in various countries of the world. However, the same can be divided into two broad categories, namely, (i) Government Pension Schemes; (ii) Non-Government Pension Schemes. Each of the above category can be sub-divided into a number of sub-categories according to the object for which a particular scheme is designed. In the instant case, we are mainly concerned with the pension schemes meant for public employees/public officers, who are known in the Sub-Continent as civil servants. A pension is intended to assist a retired civil servant in providing for his daily wants so long he is alive in consideration of his past services, though recently the above benefit has been extended inter alia in Pakistan to the widows and the dependent children of the deceased civil servants. The raison d'etre for pension seems to be inability to provide for oneself due to old-age. The right and extent to claim pension depends upon the terms of the relevant statute under which it has been granted. 17. In the Sub-Continent during the British Rule since it was considered that the salary which a -civil servant drew was a bounty, the same view was held in respect of the pension. However, the above controversy has been settled inasmuch as this Court in more than one case; has held that the concept that the salary which a civil servant drew was a bounty, was no longer the law of the country. Reference may be made to the case of The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147). As regards the right to claim pension, the controversy has been set to rest by this Court inter alia in the case of The Government of N-W.F.P. through The Secretary to the Government of N.-W.F.P.. Communication and Works Departments, Peshawar v. Muhammad Said Khan and another (P L D 1973 S C 514), wherein the following view has been taken:-- "It must now be taken as well-settled that a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer 'a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided Const. Petition No.127 of 2012 110 in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved. (See Article 470, Civil Service Regulations). It is equally well-settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned." The same view has been taken by the Indian Supreme Court in the case of Deokinandan Prasad v. State of Bihar and others (AIR 1971 SC 1409) and the case of State of Punjab and another v. Iqbal Singh (AIR 1976 SC 667). [Also see: D.S. Nakara and others v. Unionof India (AIR 1983 SC 130) and Kerala State Road Transport Cooperation v. K.O Varghese and others (AIR 2003 SC 3966)] 67. The gist of the discussion made in the above cited cases on the subject of pension is that it is a right which the Government servants or employees in different positions and different capacities earn in terms of the relevant statutory provisions applicable to their case, mostly depending upon their length of service. In any case it is not a State bounty which can be awarded to any individual outside the scope of the applicable statute, as a favour. 68. After the above discussion, when we move forward to dilate upon, discuss and adjudicate the second point relating to the interpretation of Article 205, read with Fifth Schedule to the Constitution and applicable President’s Order in the light of submissions made before us and the law, we deem it appropriate to firstly, discuss the concept of interpretation of statutes, particularly the constitutional provisions; briefly trace out the history of legislation in this context; reproduce hereunder the relevant statutory provisions commencing from Government of India Act, 1935; various Orders/President’s Orders relating thereto in sequence, and also to give a brief resume/ comment on the Const. Petition No.127 of 2012 111 statutory provisions of some other countries regulating pensionary benefits of the honourable retired judges of the superior Courts in those countries, with specific reference to the requirement of minimum length of service to earn the right to pension, as they are somewhat “pari materia” to the constitutional provisions and the President’s Order in vogue in our country. 69. As regards the concept of interpretation, we find that it is a method by which the true sense or meaning of the word is traced out and understood. The process by which a Judge or a person or a lawyer associated in the search of meaning of a statute, constructs from the word of statute book a meaning, which he either believes to be intent of the legislature or which he proposes to attribute to it, is called “interpretation”. Salmond in his famous book on the Interpretation of Statutes, describes interpretation or construction as the process by which Courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed. Other renowned jurists and legal experts have designated the principle of interpretation of statute as ‘an art of proliferating a purpose’, or a science by itself and the purpose behind interpretation is to seek the intention of its law maker. In the same context, when we revert to some well recognized principles of interpretation of statute, we find the following basic principles outlined for this purpose. “a. That the entire Constitution has to be read as an integrated whole. b. No one particular provision should be so construed as to destroying the other, but each sustaining the other provision. This is the rule of harmony, rule of completeness and exhaustiveness. c. Interpretation to be consistent with the Injunctions of Islam. Const. Petition No.127 of 2012 112 d. It must always be borne in mind that it is only where the words are not clear, or the provision in question is ambiguous, that is, it is fairly and equally open to diverse meanings, that the duty of interpretation arises. e. Intention to be gathered from the language of the enactment, otherwise known as the ‘plain meaning rule’. f. It is elementary rule of construction that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise in their ordinary meaning. Critical and subtle distinctions are to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed. g. It is a cardinal rule of construction of statutes that no words are to be added or omitted or treated as surplusage or redundant. h. That the words of written Constitution prevail over all unwritten conventions, precedents and practices to the contrary. i. Legislative history is relevant for interpreting constitutional provisions.” 70. Having discussed above the concept of “Pension” and “interpretation of statutes” , for ready reference, now we reproduce in sequence the relevant constitutional provisions, President’s Orders etc as under:- Government of India Act, 1935. “Salaries, &c. of judges 221. The judges of the several High Courts shall. be entitled to such salaries and allowances, including allowances for expenses in respect of equipment and travelling upon appointment, and to such rights in respect of leave and pensions, as may from time to time be fixed by His Majesty in Council: Provided that neither the salary of a judge, nor his rights in respect of leave of absence or pension, shall be varied to his disadvantage after his appointment.” THE HIGH COURT JUDGES ORDER, 1937 “…………………………………………………………………………………… ……..AND WHEREAS by section two hundred and twenty-one of the Act it is provided that the Judges of the several High Courts Const. Petition No.127 of 2012 113 shall be entitled to such salaries and allowances, including allowances for expenses in respect of equipment and travelling upon appointment, and to such rights in respect of leave and pensions, as may from time to time be fixed by His Majesty in Council: . . . PENSIONS 17.—(1) Subject to the provisions of this Order, a pension shall be payable to a Judge on his retirement if, but only if, either – (a) he has completed not less than 12 years’ service for pension; or (b) he has completed not less than 7 years’ service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years’ service for pension and his retirement is medically certified to be necessitated by ill-health. (2) the President may for special reasons direct that any period not exceeding three months shall be added to a Judge’s service for pension. Provided that a period so added shall be disregarded in calculating any additional pension under Part I or Part II of the Third Schedule to this Order.” THE CONSTITUTION OF INDIA, 1949 (Pre 54th Amendment) “221. Salaries, etc., of Judges.—(1) There shall be paid to the Judges of each High Court such salaries as are specified in the Second Schedule. (2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.” (Post 54th Amendment) “221. Salaries, etc., of Judges.—(1) There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that Const. Petition No.127 of 2012 114 behalf is so made, such salaries as are specified in the Second Schedule. (2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. “Salaries”.—The salaries received by the High Court/the Supreme Court Judges are “salaries” and are taxable under the Income Tax Act, though the Judges are Constitutional functionaries having no employer.” The Constitution of the Islamic Republic of Pakistan, 1956. “175.—(1) The remuneration and other conditions of service of a Judge of the Supreme Court or of a High Court shall not be varied to his disadvantage during his tenure of office. (2) Subject to Article 151, the conduct of a Judge of the Supreme Court or of a Judge of a High Court shall not be discussed in the National or a Provincial Assembly. 176. ……. 177. Until other provisions in that behalf are made by Act of Parliament, the provisions of the Third Schedule shall apply in relation to the Supreme Court and High Courts in respect of matters specified therein. THIRD SCHEDULE (Articles 159 and 177) The Judiciary PART I THE SUPREME COURT 1. Salary and allowances of Judges. – ………. _______________________ PART II THE HIGH COURTS 4. Salaries of Judges.—(1) There shall be paid to the Chief Justice of a High Court a salary of Rs.5,000 per mensem, and to every other Judge of that Court a salary of Rs.4,000 per mensem. Const. Petition No.127 of 2012 115 (2) Every Judge of a High Court shall be entitled to such other privileges and allowances, including allowances for expenses in respect of equipment and travelling upon first appointment, and to such rights in respect of leave of absence and pensions as may be determined by the President, and until so determined to the allowances, privileges and rights which immediately before the Constitution Day, were admissible to the Judges of the High Court, and the provisions of the Government of India (High Court Judges) Order, 1937, shall, subject to the provisions of the Constitution, apply.” The Constitution of the Islamic Republic of Pakistan, 1962. “CHAPTER-3.—THE CENTRAL AND PROVINCIAL JUDICATURES. . . . 124. The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Second Schedule. SECOND SCHEDULE Article 124 Remuneration and Terms and Conditions of Service of Judges THE SUPREME COURT 1. There shall be paid to the Chief Justice of the Supreme Court a salary of Rs.5,500 per mensem, and to every other Judge of the Supreme Court a salary of Rs.5,100 per mensem. 2. Every Judge of the Supreme Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the Supreme Court of Pakistan were entitled. THE HIGH COURTS 1. There shall be paid to the Chief Justice of a High Court a salary of Rs.5,000 per mensem, and to every other Judge of a High Court a salary of Rs.4,000 per mensem. 2. Every Judge of a High Court of a Province shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the Province were entitled.” Const. Petition No.127 of 2012 116 “PRESIDENT'S ORDER 9 OF 1970 HIGH COURT JUDGES (LEAVE, PENSION AND PRIVILEGES) ORDER, 1970 PART I-PRELIMINARY 1. Short title and commencement.-(l ) This Order may be called the High Court Judges (Leave, Pension and Privileges) Order, 1970. . . . PART III – PENSION 13. Conditions of admissibility of pension.—A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has – (a) completed not less than five years of service for pension and attained the retiring age; or (b) completed not less than ten years of service for pension and, before attaining the age, resigned; or (c)completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health, or been removed for physical or mental incapacity: Provided that, for the purpose of clause (a) of Part I of the First Schedule a deficiency of three months or less in the service for pension as Judge shall be deemed to have been condoned. 14. Determination of pension.—Subject to the provisions of this Order, the pension payable to a Judge who, on his retirement, is entitled to a pension under this Order shall be calculated— (a) in the case of a Judge who is not a member of a service in Pakistan or who immediately before his appointment as a Judge did not hold any other pensionable civil post in connection with the affairs of the Centre or of a Province, in accordance with the provisions of Part I of the First Schedule; (b) in case of a Judge who is a member of a civil service in Pakistan or who immediately before his appointment as a Judge held any other pensionable civil post in connection with the affairs of the Centre or of a Province, in accordance with the provisions of Part II of the First Schedule, unless he elects to receive pension under Part I of the said Schedule. 15. Pension of Judges not covered by paragraph 13.—A Judge who immediately before his appointment as such was a member of a civil service in Pakistan or was holding a post in connection with the affairs of the Centre or of a Province and who does not fulfill the conditions laid down in paragraph 13 shall, on retirement, be entitled to such pension as would have been admissible to him in his service or post, had he not Const. Petition No.127 of 2012 117 been appointed a Judge, his service as a Judge being treated as service for the purpose of calculating that pension.” Constitution of the Islamic Republic of Pakistan, 1973 PART VII THE JUDICATURE CHAPTER 4-GENERAL PROVISIONS RELATING TO THE JUDICATURE . . . 205. Remuneration, etc., of Judges. The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule. FIFTH SCHEDULE [Article 205] Remuneration and Terms and Conditions of Service of Judges. THE SUPREME COURT 1. There shall be paid to the Chief Justice of Pakistan a salary of Rs.9,900 per mensem, and to every other Judge of the Supreme Court a salary of Rs.9,500 per mensem, or such higher Salary as the President may, from time to time determine. 2. Every Judge of the Supreme Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the Supreme Court of Pakistan were entitled. 3. The pension payable to a retired Judge of the Supreme Court per mensem shall not be less or more than the amount specified in the table below, depending on the length of his service as Judge in that Court or a High Court: Provided that the President may, from time to time, raise the minimum or maximum amount of pension so specified:- Judge Minimum amount Maximum amount Chief Justice Rs. 7,000 Rs. 8,000 Other Judge Rs. 6,250 Rs. 7,125 4. The widow of a Judge of the Supreme Court shall be entitled to a pension at the following rates, namely:- (a) if the Judge dies after retirement - 50 per cent of the net pension payable to him; or (b) if the Judge dies after having rendered not less than three year's service as Judge and while still serving as such - 50 per cent of the pension admissible to him at the minimum rate. 5. The pension shall be payable to the widow for life or, if she remarries, until her marriage. 6. If the widow dies, the pension shall be payable:- (a) to the sons of the Judge who are less than twenty- one years of age, until they attain that age; and Const. Petition No.127 of 2012 118 (b) to the unmarried daughters of the Judge who are less than twenty-one years of age, until they attain that age or are married, whichever first occurs. THE HIGH COURT 1. There shall be paid to the Chief Justice of a High Court a salary of Rs. 9,400 per mensem, and to every other Judge of a High Court a salary of Rs.8,400 per mensem, or such higher salary as the President may, from time to time, determine. 2. Every Judge of a High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights, to which, immediately before the commencing day, the Judges of the High Court were entitled. 3. The Pension payable per mensem to a Judge of a High Court who retires after having put in not less than five years service as such Judge shall not be less or more than the amount specified in the table below, depending on the length of his service as Judge and total service, if any, in the service of Pakistan: Provided that the President may, from time to time, raise the minimum or maximum amount of pension so specified:- Judge Minimum amount Maximum amount Chief Justice Rs. 5,640 Rs. 7,050 Other Judge Rs. 5,040 Rs. 6,300 4. The widow of a Judge of the High Court shall be entitled to a pension at the following rates, namely:- (a) if the Judge dies after retirement - 50 per cent of the net pension payable to him; or (b) if the Judge dies after having rendered not less than five years' service as Judge and while still serving as such - 50 per cent of the pension admissible to him at the minimum rate. 5. The pension shall be payable to the widow for life, or, if she remarries until her marriage. 6. If the widow dies, the pension shall be payable:- (a) to the sons of the Judge who are less than twenty- one years of age, until they attain that age; and (b) to the unmarried daughters of the Judge who are less than twenty-one years of age, until they attain that age or are married, whichever first occurs. High Court Judges (Leave, Pension and Privileges) Order, 1997 PRESIDENT'S ORDER 3 OF 1997 “PART I-PRELIMINARY 1. Short title and commencement.-(l ) This Order may be called the High Court Judges (Leave, Pension and Privileges) Order, 1997. (2) It shall come into force at once and paragraph 15 shall be deemed to have taken effect on the 27th day of July, 1991. Const. Petition No.127 of 2012 119 2. Definitions.— ……….. (a) …… (b) “actual service” means the time spend by a Judge on duty as such or in the performance of such other functions as he may be required under any law to perform or may be requested by the President or the Governor to discharge and includes vacation (but excluding any time during which the Judge is absent on leave) and joining time on transfer from— (i) a High Court to the Supreme Court; (ii) the Supreme Court to a High Court; (iii) one High Court to another; (iv) one permanent seat of a High Court to another permanent seat ; (v) a High Court to the place where he is required under any law to perform any function; and (vi) from a place where he is required under any law to perform any function to another such place or to a High Court; (c) “Additional Judge” means a Judge appointed by the President to be an Additional Judge; (d-e) ……... (f) “Judge” means a Judge of High Court and include the Chief justice, and Acting Chief Justice and an Additional Judge; . . . PART III. PENSION 14. The condition or admissibility of pension.—A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has-- (a) completed not less than five years of service for pension and attained the retiring age; or (b) completed not less than five years of service for pension and before attaining the age, resigned or sought retirement; or (c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire. Const. Petition No.127 of 2012 120 15. Payable Pension.— The Chief Justice and a Judge on his retirement, resignation or removal as provided in paragraph 14 shall be entitled to the minimum amount of pension equal to seventy per cent of the salary determined by the President from time to time payable to the Chief Justice, or as the case may be, a Judge on the completion of five years service for pension as Judge, and therefore an extra pension at the rate of two per cent of such salary for each subsequent completed year of service as the Chief Justice or, as the case may be, the Judge, including his service if any, in the service of Pakistan the maximum pension not exceeding eighty per cent of the said salary. Provided that for the period between twenty-seventh day of July, 1991 and the thirty-first day of May, 1994 the minimum and the maximum amounts shall refer to the amounts specified in the Pension of Judges of Superior Courts Order, 1993 (P.O.2 of 1993). Explanation.—The expression ‘salary’ means the salary referred to in paragraph 1 of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan or such higher salary as the President may determine from time to time and shall include Superior Judicial allowance but shall not include any allowance or amount representing any other privilege or facility. 15A. ……… 16. Pension of Judges not covered by paragraph 14.—A Judge who immediately before his appointments as such was a member of a civil service in Pakistan or was holding a post in connection with the affair of the Federation or of a Province and who does not fulfill the conditions laid down in paragraph 14 shall, on retirement, be entitled to such pension as would has been admissible to him in service or post. Had he not been appointed a Judge, his service as Judge being treated as service for the purpose of calculating that pension.” . . . 29. Subsidiary conditions of service.—Subject to the provisions of this Order and such other provisions as the President may make in this behalf, the other privileges and rights of a Judge shall be determined by the rules for the time being applicable to an officer appointed by the President and holding the rank of secretary to the Government of Pakistan: Provided that nothing in this paragraph shall have effect so as to give to a Judge who is a member of a civil service less favourable terms in respect of his conditions of service than those to which he would have been entitled as a member of such service if he had not been appointed as a Judge, his service as Judge Const. Petition No.127 of 2012 121 being treated as service for the purpose of determining those privileges and rights.” (Underlining in the above reproductions is ours, which is made for emphasis) 71. A careful reading of above reproduced relevant constitutional provisions; Article 221 of the Government of India Act, 1935; Article 221 of the Constitution of India, 1949; Article 175 of the Constitution of Islamic Republic of Pakistan, 1956; Article 124 of the Constitution of Islamic Republic of Pakistan, 1962; and, Article 205 of the Constitution of Islamic Republic of Pakistan, 1973, read with relevant Schedules to the Constitution, reveals that they are “pari materia” to the extent of entitlement to privileges and allowances and to such rights in respect of leave of absence and pension, and in this context, from time to time, High Court Judges Order 1937, President’s Order 9 of 1970 and President’s Order 3 of 1997, were issued to determine the moot question as to their right to pension. Here a reference to some repealed provisions of the Constitution and the High Court Judges Order/President’s Orders has been made only to show that in the High Court Judges Order 1937, condition of minimum length of service for a High Court Judge for his entitlement/right to pension, in the normal course, was 12 years and on attaining the age of sixty years, it was seven years, so also in the cases where retirement was medically certified to be necessitated due to ill-health, while the President was further conferred with power that for special reasons, he may direct that any period not exceeding three months shall be added to a Judge’s service for pension. The relevant provision of President’s Order 9 of 1970, dated 17.6.1970, paragraph 23 whereof repealed the earlier High Court Judges Order 1937, was its paragraph 13, which provided one clear condition for entitlement of right to pension as minimum length of actual service of five years on attaining the Const. Petition No.127 of 2012 122 retiring age in the normal course and in case of resignation not less than ten years service. Further, paragraph 15 of this President’s Order contained provision as regards the right to pension of other Judges, who were not covered by paragraph 13. In the President’s Order 3 of 1997, introduced in the year 1997 and brought into force at once, except to the extent of its paragraph 15, which was made effective from 27.7.1991, in the definition clause, meaning of ‘actual service’, ‘additional judge’ and ‘judge’ were specifically provided, while section 14 dealt with the condition of admissibility of pension of the retired judges. A bare reading of President’s Order 3 of 1997 clearly spells out that every Judge of the High Court, having completed not less than five years of actual service as such on attaining the retiring age, is entitled for pensionary benefits. This provision is further subject to paragraph 29 of the President’s Order 3 of 1997, relating to the “subsidiary conditions of service”. A close look at the Fifth Schedule to Article 205 of the Constitution of Islamic Republic of Pakistan, 1973, which is an important integral part of the constitutional mandate, applicable to the present case, further reveals that paragraphs-2 and 3 relating to High Court, are the two relevant provisions of the Constitution, which in unequivocal term provide that in terms of paragraph-2 “EVERY JUDGE” of a High Court shall be entitled to such “PRIVILEGES”, “ALLOWANCES”, and to such “RIGHTS” in respect of leave of absence and “PENSION” as may be determined by the President, and until so determined, with the privileges, allowances and rights, to which immediately before the commencing day, the judges of the High Court were entitled. From the language of paragraph-2, it is also clear that it only refers to one category of judges of the High Court i.e. “Every Judge”. To put Const. Petition No.127 of 2012 123 it in other words, there are no two categories of judges specified therein as many senior ASCs and retired judges of the High Court have argued before us while supporting their claim despite they having rendered less than five years actual service as such. What is important to notice here is that firstly right to pension is to be determined by the President for every judge of the High Court and until such determination, the privileges, allowances and rights already in-force before the commencing day, are to be availed by all of them. Keeping in view this clear and unambiguous language of paragraph-2 (ibid), when we revert to the provisions of paragraph 13 of the President’s Order 9 of 1970, relating to conditions of admissibility of pension, we find that till its repeal vide paragraph 30 of President’s Order 3 of 1997, rights of every Judge of the High Court were already determined in the manner that unless they had completed not less than five years of service before retiring age, they were not eligible or entitled to any pensionary benefits. It was in this background that none of the retiring honourable judge of the High Court, having less than five years service as such to his credit, ever ventured to agitate such claim. In the year 1997, when the President’s Order 3 of 1997 was promulgated with immediate effect (except its section 15, which was made applicable retrospectively w.e.f. 07.7.1991), under paragraph 14, a similar condition of not less than five years service before attaining the retiring age was engraved, and the position under paragraph 17 of the High Court Judges Order, 1937 (repealed on 17.6.1970) was also not much different, except that requirement of length of service to earn right to pension at that time was minimum 12 years service in the normal course or in case of attaining the age of sixty years, not less than seven years. Const. Petition No.127 of 2012 124 72. Reverting to the language of paragraph-3 of Fifth Schedule to Article 205 of the Constitution of 1973, we find that in its original text, paragraph-3 had different phraseology, but it was subsequently amended in the present form by 12th amendment Act of 1991. However, in both the situations, right to pension of a retired High Court Judge was made conditional to not less than five years actual service, while a further table was provided for increase in the percentage of pension depending upon the length of his service as a Judge of the High Court upto the maximum of 80 percent of his salary. Thus, the two paragraphs 2 and 3 of Fifth Schedule to Article 205 of the Constitution either read separately/ conjunctively or disjunctively, do not alter/change in any manner the requirement of minimum five years length of actual service for every Judge of the High Court as one of the basic condition to earn the right to pension. The arguments of learned ASCs based on the principle of reading down etc are, thus, of no avail in this regard. 73. Reference to Article 207 of the Constitution, debarring the honourable retired Judges of the High Court to plead or act in any Court or before any authority within the jurisdiction of the High Court they have served in that capacity, arguments advanced by some of the learned ASCs in order to strengthen the case of those honourable retired Judges of the High Court, who retired before completing a period of minimum five years actual service as such, are equally without force. Firstly, for the reason that in view of the reasonable classification to the extent that they are not debarred from practicing before the High Courts of other Provinces and the Supreme Court, such limited restriction is not in conflict with the spirit of Article 18 of the Constitution relating to freedom of trade, Const. Petition No.127 of 2012 125 business or profession. Secondly, all the Judges who retired or resigned before completing their actual service as a High Court Judge for a minimum period of five years, knew well in advance at the time of their elevation to this high office that their total length of service upon appointment, looking to their date of birth qua retirement will be less than five years, therefore, as per Constitutional mandate and seventy five years old convention/usage, they will not be entitled to any pensionary benefit. In such circumstances, with profound respect, all these honourable retired Judges of High Court are estopped from agitating such grievance at this belated stage. This view, further gains support from the fact that except few honourable retired High Court Judges, who have now availed the benefit of judgment under challenge, though they retired in 70s, 80s, 90s and upto the passing of judgment under challenge, no one ever put up his claim on the basis of interpretation of Article 205 read with Fifth Schedule and President orders No.3 of 1997, 9 of 1970, as now made applicable to their cases with reference to judgment under challenge. After all they all were highly skilled and qualified professional in the field of law and jurists in their own rights. Thus, any plea of ignorance of law or misinterpretation of the relevant Constitutional provisions for over seven decades doesn’t appeal to reason. 74. Besides, the base line of minimum five years actual service to become entitled for pensionary benefits and to deny the right to pension to other retired High Court Judges, who have not served as such for five years or more, applying the principles of interpretation of statutes as summarized in the preceding paragraph 69 and reading the Constitutional provisions and P.O’s Const. Petition No.127 of 2012 126 as a whole, gain full support from the language of High Court Judges Order 1937 (Repealed), President Orders i.e. President Order No.9 of 1970 (Repealed) and President Order No.3 of 1997, which also provide for a special provision for relaxation of such period upto certain limit by the President in hardship cases, where the required period of minimum five years service has remained short by few days or few months. For the argument sake, in case determination of right to pension of such category of Judges, who from time to time rendered less than five years actual service to their credit and retired, was yet to be made by the President then there was no necessity for insertion of such provision in both the President’s Order, as otherwise those hardship cases, having deficiency of few months, could have been separately dealt with during such process of determination. This view of the matter gains further support from the fact that in case right to pension as regards honourable retired Judges of the High Court, having less than five years actual service was yet to be determined, then why since the year 1937 uptil now, neither any such representation was made nor any legal remedy was followed by the honourable retired Judges allegedly qualifying for pension in that category. In this regard, we also confronted many learned Sr. ASCs to show us a single instance either of pre-partition days or thereafter wherein such interpretation of law was advanced or such grievance was ever agitated by any honourable retired Judge of the High Court falling in this category or earlier to judgment under challenge, any judge of the High Court was ever granted right to pension/pensionary benefits on the basis of his length of service as such for a period of few months or few years, irrespective of minimum required length of actual service, as has been held Const. Petition No.127 of 2012 127 through the judgment under challenge. In reply, they frankly conceded that they have not come across any such instance. All these facts taken together leave us in no doubt to hold that the judgment under challenge is outcome of improper assistance to the Court due to which number of relevant provisions of law necessary for a just and fair adjudication of this issue were entirely overlooked and the findings were built on entirely wrong premises. 75. Another aspect of the case, which has been argued before us with vehemence by some of the learned ASCs, is the legal status of the judgment under challenge “as to whether it is a judgment in “personam” or a judgment in “rem”. In this regard some of the learned ASCs have also made reference to the cases Pir Bukhsh versus Chariman, Allotment Committeee (PLD 1987 S. C. 145) and Federation of Pakistan versus Qamar Hussain Bhatti (PLD 2004 S.C. 77), which laid down the test of distinction between a “judgment in rem” and “judgment in personam”. In order to dilate upon the true meaning of these two legal phrases, some reproduction from the case of Pir Bukhsh (supra) will be useful, which reads as under:- “The terms “in rem” and “in personam” are of Roman law used in connection with actio, that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms “in rem” and “in personam” got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an actio in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.” Const. Petition No.127 of 2012 128 76. However this aspect has hardly any relevancy to the facts of the present proceedings, as while dealing with this issue, we have felt no difficulty in forming our view, as from the very language of the judgment under challenge, particularly, from its paragraphs 31 to 34, as reproduced below, it is clear that for all intent and purpose appeal against a private person challenging the judgment of the High Court regarding his individual grievance was widened in scope and treated as a judgment in rem, benefit whereof was open endedly extended even to other honourable retired Judges who were not party to the said appeal and even to those who were at one stage of the proceedings party through some miscellaneous applications, but had earlier withdrawn the same during its pendency. In addition to it, benefit of the judgment under challenge was also extended to the honourable retired Judges of the Federal Shariat Court of Pakistan, though prima- facie no such issue was involved in the proceeding. For ease of reference, such paragraphs of judgment under challenge are reproduced as under:- “31. Before parting with this judgment, we deem it proper to point out that Chief Justice and Judges of Federal Shariat Court are also entitled to the grant of pension and pensionary benefits available to the retired Judges of the Supreme Court and High Courts under the Constitution. The appointment of the Chief Justice and Judges-of the Federal Shariat Court is made by the President under Article 203-C of the Constitution and the terms and conditions of service of the Judges of the said Court are also determined by the President, therefore, notwithstanding the fixed tenure of the Chief Justice and Judges of the Federal Shariat Court, they are entitled to the terms and conditions of service and remunerations including pension and pensionary benefits at par to the Judges of the Supreme Court and High Courts, by virtue of Article 203-C(9) of the Constitution which provides as under:-- "(9) A Chief justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same Const. Petition No.127 of 2012 129 remuneration, allowances and privileges as are admissible to a Judge of a High Court: Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under the clause." 32. The Chief Justice or a Judge of Federal Shariat Court shall be entitled to the same salary, pension, allowances, privileges, including grant of leave/LPR and other benefits as are allowed to a Judge of the Supreme Court and High Court respectively. The plain reading of Article 203-C of the Constitution read with Article 205 and Fifth Schedule of the Constitution would show that right of pension and pensionary benefits of the Chief Justice and Judges of Federal Shariat Court notwithstanding the length of service or fixed term of tenure is recognized under the Constitution and consequently, this judgment subject to the Constitution, shall be equally applicable in respect of the right of pension and pensionary benefits admissible to the Chief Justice and Judges of the Federal Shariat Court. 33. In the light of foregoing reasons, we hold that all retired Judges of the High Courts who retire as such Judge in terms of Article 195 of the Constitution of Islamic Republic of Pakistan and the Chief Justices and Judges of the Federal Shariat Court notwithstanding the tenure appointment, are entitled to the pension and pensionary benefits in terms of Article 205 read with Fifth Schedule of the Constitution read with P.O. No.8 of 2007 and Article 203-C of the Constitution and all other enabling provisions of the Constitution as well as President's Order No.2 of 1993 and P.O.No.3 of 1997, irrespective of their date of retirement and length of service. The Miscellaneous Applications bearing No.940 in C.A. 1021 (filed by Justice (R.) Muhammad Azam Khan), 968/05 in C.A. 1021/95 (filed by Syed Sharif Hussain Bokhari and Muhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 in C.A. 1021/95 (filed by Ghulam Muhammad Qureshi), 1176/05 in C.A. 1021/95 (filed by Mr. Riaz Kayani retired Judge of Lahore High Court, 1190/05 in C.A. 1021/95 (filed by Rao Iqbal Ahmed Khan), retired Judge of Lahore High Court, 1368/05 in C.A. 1021/95 (filed by Dr. Munir Ahmad Mughal), retired Judge of Lahore High Court, 2079/06 in C.A. 1021/95 and 1273/06 in Const. P. 10/01 (both filed by Justice (R.) Saeed-ur-Rehman Farrukh), involving similar questions of fact and law, containing the prayer for impleadment of the applicants in the constitution petition as co-petitioner and in civil appeal as respondent, have already been allowed. 34. In consequence to the above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/ applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who Const. Petition No.127 of 2012 130 are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges.”. 77. As a corollary of above discussion, it is also imperative and significant to mention here that the judgment under challenge was passed by a learned three member Bench of this Court consisting of M/s Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmood, JJ on 06.3.2008, at a time when the whole superior judiciary of the Country was in kayos, crises and disarray due to unconstitutional measures taken by the then President/dictator General (Retired) Pervez Musharraf of Pakistan, who by hook or crook wanted to remain in power and in that perspective attempted to destroy the institutions in the Country, particularly targeted the superior judiciary, to bring them under his thumb and control. The discussion regarding this aspect of the case in the present proceedings is enough to this extent. However, in this context if any further detailed discussion is felt orderly, reference can be made to the judgment of a full Bench of this Court in the case of Sindh High Court Bar Association (supra), wherein this aspect has been extensively discussed and aptly attended to. 78. It is pertinent to mention here that while taking cognizance in these suo moto proceedings, we have exercised all care and caution to intimate all the Honourable Retired Judges of the High Court, who, in one or the other capacity have availed the benefit of judgment under challenge, to afford them due opportunity of hearing and for this purpose notices were also issued to the legal heirs of late Mr. Justice Ahmed Ali U. Qureshi. Const. Petition No.127 of 2012 131 Besides, offices of the Accountant General of all the four Provinces were also directed to bring on record all the relevant facts and figures in order to afford opportunity of hearing to all the concerned, but, as the judgment under challenge was given the status of judgment in rem, therefore, it is further made clear that irrespective of the fact whether some Honourable Retired Judges had notice or they participated in these proceedings or not, each one of them will be bound by the fallout of this judgment in the same manner as if they were party to these proceedings. This clarification is necessary as, particularly, the office of Accountant General Sindh and Balochistan have not come up before this Court in response to our order dated 3.4.2013, with clean hands, so much so that at one stage of these proceedings we had to initiate contempt proceedings against Deputy Accountant General Sindh for his negligent and irresponsible conduct in responding to our queries. 79. There is yet another aspect of this case, which has been argued before us by some of the learned ASCs and Honourable Retired Judges of the High Court, who have been either elevated or have resigned from their offices after the judgment under challenge. They have contended that since at the relevant time of their elevation/resignation judgment under challenge was in full force applicable and implemented, therefore, valuable rights have accrued in their favour on the principle of locus poenitentiae/legitimate expectancy which cannot be taken away lightly by way of some observations in this case. Indeed, such submissions of some of the newly elevated or honourable retired Judges of the High Court are in line with the ratio of the judgment Const. Petition No.127 of 2012 132 under challenge, but at the same time it is to be noticed that the Honourable Judges, who have resigned from their office before completion of minimum five years service as such have to bless their own stars for this purpose because their mere oral assertion that they had to resign from their office under compelling circumstances, cannot be legally accepted. As regards the other Judges, who have taken oath of their office as High Court Judge after the judgment under challenge, suffice it to observe that since the said judgment has been declared by this Court as per incurium, null and void, therefore, any benefit on the principle of legitimate expectancy cannot hold the filed, more so, when as to their pensionary rights they are to be governed by the law in force at the relevant time i.e. Article 205 of the Constitution read with its Fifth Schedule and President’s Order No.9 of 1970 or 3 of 1997, regarding which a detailed discussion has already been made in the preceding paragraphs of this judgment, and not by the dicta laid down in the judgment under challenge, which has been declared “per incuriam”. 80. Another angle for looking at the interpretation of the relevant Constitutional provision and the President’s Order, to view the right to pension of the honourable retired Judges of the High Court, having less than five years actual service, is admitted long standing convention/usage of its interpretation which has given it a status of statutory backing on the principle of “Optima Est Legis Interpres Consuetudo”, which is defined in Black’s Law Dictionary Sixth Edition as under:- “Custom is the best interpreter of the law” 81. Discussing this legal principle as a rule of construction in the case of Sheppard v. Gosnold (1672 Vangham 159, P-169), Const. Petition No.127 of 2012 133 Vaughan, C.J. observed that where the penning of a statute is dubious, long usage is just a medium to expound it by; for jus et norma loquondi is governed by usage, and the meaning of things spoken or written must be as it hath constantly been received to be by common acceptation. General usage under a statue may make for a practical construction of it which will be accorded great consideration by the courts. General usage, of long duration therefore unquestioned, will frequently be of great assistance in the search of legislative meaning. The meaning publicly given by contemporary or long professional usage, is presumed to be a true one, even when the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed, may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions. This view of the matter is fortified from the case of National and Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay (AIR 1969 SC 1048) and also from the judgment of this Court in the case of Asad Ali (supra), which lays down as under:- “95. ……..a constitutional convention once established has the same binding effect as a Constitutional provision. We may, however, add that in the case of an unwritten Constitution, conventions play a more prominent and dominant `role in the interpretation of Constitutional provisions than in the case of written Constitution. Therefore, while explaining the Constitutional provision of a written Constitution on the basis of a convention, it must be shown that either a convention has developed with the passage of time side by side with the enforcement and interpretation of the Constitution or a convention already existing on the date of enforcement of a written Constitution, has either received a statutory, recognition Const. Petition No.127 of 2012 134 in the Constitutional document or has been established as a Constitutional convention on account of conscious and deliberate obedience of the convention by those who are charged with the duty of interpreting or enforcing the Constitution. Therefore, when an already existing convention is followed in interpreting a provision of a written Constitution consistently and consciously over a length of time by those who are responsible under the Constitutional mandate to interpret and enforce the said provision of Constitution, the convention is established as a Constitutional convention and any breach thereof may be treated by the Courts as a breach of the provision of the Constitution to which the convention relates. …..” 82. Indeed, right to pension of every honourable retired Judge of the High Court in our country is to be determined strictly in line with applicable Article 205, its Fifth Schedule read with applicable P.O No.9 of 1970 or P.O. No.3 of 1997, but for our better understanding, we have also attempted to further divulge into the question of condition of minimum length of service for honourable retired Judges of High Court as one of the basic requirement to earn the right to pension. For this purpose, we have over seen some relevant Constitutional and statutory provisions in force on this subject in the neighbouring countries, India, Bangladesh and Sri Lanka, which are in substance pari materia to ours and noticed that in each of these countries without any exception there is requirement of length of service of minimum five years or more for acquiring such right as a retired Judge of the High Court, while in some other countries it is stretched upto 10/12 years, and this long standing convention, having the force of law, is being religiously adhered to. 83. In so far as the arguments of Rana M. Shamim, learned ASC who represented honourable retired Justice Dr. Ghous Muhammad and Mr. Afzal Siddiqui, learned ASC who represented honourable retired Justice Syed Najmul Hassan Kazmi, with Const. Petition No.127 of 2012 135 reference to Article 270AA 3(b) of the Constitution, are concerned, we find much force in their contentions that they shall be deemed to have retired on attaining their respective age of superannuation and as such both of them have completed minimum five years actual service to their credit as Judge of the High Court, which has made them entitled for the benefit of pension irrespective of the judgment under challenge. Thus, for this purpose, they have their own entitlement for pension, independent of judgment under challenge. 84. The submissions made by some of the learned ASCs that “Additional Judges” of the High Court, being covered with the definition of “Judge” as defined under Article 260(1)(c) of the Constitution, are equally entitled for right to pension like permanent judges of the High Court, have much force as at one place the definition of ‘Judge’ in the above referred Article of the Constitution clearly defines that in relation to the High Court, a person who is an Additional Judge of the High Court, is also included in the definition of a Judge and at the other place under Article 197 of the Constitution, relating to appointment of Additional Judges also, no discrimination is identified for the purpose of holding them disentitled for right to pension like any permanent judge of the High Court, who, in terms of Article 195 of the Constitution, will retire on attaining the age of 62 years, unless he resigns sooner or removed from the office in accordance with the Constitution. It will be also pertinent to mention here that under paragraph-2 of the President’s Order 3 of 1997, “Additional Judge” and “Judge” of the High Court have been separately defined as under:- “2(c) “Additional Judge” means a Judge appointed by the President to be an Additional Judge.” Const. Petition No.127 of 2012 136 “2(f) “Judge” means a Judge of High Court and include the Chief Justice, and Acting Chief Justice and an Additional Judge.” From the reading of above two definitions, again it is clear that definition of a Judge of the High Court also includes additional judge, therefore, no exception could be taken in determination of his right to pension for the reason that he has not yet been appointed as permanent judge of the High Court in terms of Article 193 of the Constitution. Another added reason in support of this conclusion emerges from the combined reading of paragraph-2 of the Fifth Schedule to Article 205 of the Constitution, speaking about “every judge”, and the definitions of “judge” under Article 260(1)(c)(b) of the Constitution and paragraph-2(f) of President’s Order 3 of 1997, which leave no room for exclusion of “Additional Judge” from the category of “every judge” within the meaning of paragraph-2 (ibid). However, it is necessary to state and clarify here that in such eventuality, for claiming right to pension a retired judge of the High Court “additional judge” will also have to have minimum five years actual service to this credit. 85. In view of the foregoing discussion, we find that Additional Judge of the High Court will be entitled for equal treatment like a permanent Judge of the High Court for his right to pension, but subject to subsisting determination of such right by the President in terms of Article 205, read with Fifth Schedule of the Constitution and the applicable President’s Order. 86. When we go into further details of this litigation, which earlier ended up in the form of judgment under challenge, we find that on 19.10.1994, retired Justice Ahmed Ali U. Qureshi, who had initially joined Sindh Judiciary on 11.6.1953 as sub-Judge, Const. Petition No.127 of 2012 137 thereafter elevated as Additional Judge of the High Court of Sindh in July, 1985, wherefrom he retired on 25.10.1988, after rendering actual service in that capacity for a period of three years and four months approximately, upon his retirement was found entitled for pension at the rate of Rs.4,200/- per month, as retired District Judge. The payment of this pension amount was in addition to a sum of Rs.2,100/- as cost of living allowance payable to a judge of the High Court under paragraph 16-B of the President’s Order 9 of 1970, as amended by President’s Order 5 of 1988. The pension of the petitioner was revised from time to time, but when the petitioner approached the Accountant General Sindh, Karachi to avail the benefit of President’s Order 2 of 1993, he was denied such benefit on the ground that since he had not put up minimum five years actual service as Judge of the High Court, therefore, he was not entitled for its benefit. 87. In the above discussed background, in order to avail the benefit of President’s Order 2 of 1993, the petitioner had brought the said petition before the High Court in person with the following prayers:- “a) To declare the P.O. 9 of the 1970 so far its provision in Part III with regard to pension are repugnant to the Constitution of the Islamic Republic of Pakistan are void. b) To order the Respondents to pay the Petitioner maximum pension payable to a Judge of the High Court under P.O. 2 of 1993 alongwith arrears or in alternative. e) To order the Respondents to fix the pension of the Petitioner at Rs.8,190/- per month admissible to him as Civil Servant, add to it increments in pension allowed from time to time and pay all the arrears alongwith markup for the period this amount is illegally retained by Respondent No.4.” 88. This petition was strongly resisted by the respondents on various legal grounds regarding disentitlement of the petitioner, Const. Petition No.127 of 2012 138 however, narration of facts was not disputed. It was in this background of the litigation that learned Division Bench of the High Court of Sindh, wherein one of its member was Justice Ms. Majida Rizvi (as she then was), delivered its judgment in the following terms. “11. In the result, the petition is allowed and the respondents are liable to fix the petitioner’s pension at the maximum pension as allowed under President’s Order No.2 of 1993. The parties are left to bear their own costs.” 89. A perusal of this judgment of the High Court of Sindh dated 08.2.1995, which was subsequently impugned before the apex Court in the earlier proceedings, reveals that the main ground which found favour for grant of such relief to the petitioner was the principle laid down in the case of I.A Sharwani v. Government of Pakistan (1991 SCMR 1041) was attracted, operative part whereof reads as under:- “9. We are, consequently, of the view that rights and privileges admissible to the petitioner in respect of his pension are now governed under President’s Order No.2 of 1993. As has been held by the Supreme Court in I.A. Sharwani’s case, instruments such as P.O. 2 of 1993 are constitutional instruments, therefore, full effect must be given to them. We, therefore, find no force in the contentions raised on behalf of the respondents. Learned Standing Counsel has also adopted the arguments advanced by the learned A.A.G. but as we have just pointed out, we are unable to agree with his contentions. 10. Although, it has also been contended by the petitioner in the alternative that, in any case, he is entitled to a pension of Rs.8,190 in accordance with the Civil Servants Rules, but since we have accepted his plea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessary for us to consider the second contention of the petitioner. However, it will always be open for the petitioner to take such a plea in the future if the circumstances so require.” 90. After scanning the whole record in this case, we are somewhat surprised to see that nowhere in the judgment dated 08.2.1995, which was subsequently challenged by the Accountant General Sindh before the apex Court, question of entitlement of Const. Petition No.127 of 2012 139 pension to every judge of the High Court, irrespective of his length of service, was involved or decided by the High Court, rather, it was held that at the time of retirement of the petitioner from service as Judge of the High Court, the rights and privileges as to his pension had not yet been determined by the President in pursuance of paragraph 2 of the Fifth Schedule, but as was provided by said paragraph, till such rights and privileges were determined by the President, a Judge of the High Court was entitled to such privileges, allowances and rights, to which he was entitled immediately before the commencing day, while such day has been specified by Article 265 of the Constitution as the 14th day of August, 1973. In our opinion, remaining oblivious of all these legal and factual deficiencies and the limited scope of appeal against the impugned judgment, floating on the surface of record, is yet another strong ground to justify declaring the judgment under challenge per incuriam. 91. At the cost of repetition, it will be worthwhile to reproduce here paragraph-2 of Fifth Schedule to Article 205 of the Constitution as all along it has been the center point of arguments advanced in this case on behalf of honourable retired judges of the High Court etc, who have been the beneficiary of the judgment under challenge. “FIFTH SCHEDULE [Article 205] Remuneration and Terms and Conditions of Service of Judges. THE SUPREME COURT …………………………………………………………………………………… THE HIGH COURT 1. …………………………………………………………………………. 2. Every Judge of a High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence Const. Petition No.127 of 2012 140 and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights, to which, immediately before the commencing day, the Judges of the High Court were entitled” In the first place, simple reading of this paragraph alongwith corresponding language of Article 221 of the Government of India Act, 1935; relevant paragraph of the High Court Judges Order, 1937; Article 221(2) of the Constitution of India, 1949 (pre 54th amendment and post 54th amendment); paragraph 4(2) relating to High Court Judges in the Third Schedule to the Constitution of Islamic Republic of Pakistan, 1956; Article 124 read with paragraph-2 of the Second Schedule to the Constitution of Islamic Republic of Pakistan, 1962, relating to High Court; and above reproduced paragraph-2 of the Fifth Schedule to Article 205 of the Constitution of 1973, read with President’s Order 9 of 1970 or President’s Order 3 of 1997, leads us to an irresistible conclusion that these provisions for the purpose of determination of right to pension of the honourable retired judges of the High Court are “pari materia” for all intent and purposes. In this background when we proceed further to look into the language of the High Court Judges Order, 1937, President’s Order 9 of 1970 and President’s Order 3 of 1997, we find no ambiguity at all that the determination, as to the right to pension required to be made by the President under the Constitution, was made from time to time for every judge of the High Court. Therefore, to say that determination of right to pension for the honourable retired judges of the High Court, who have rendered less than five years actual service is yet to be made is absolutely fallacious and misconceived. This view of the matter gains further support from the fact that the determination of right to pension to be made on each occasion, Const. Petition No.127 of 2012 141 was to be made for every judge of the High Court at one go and not in piecemeal; and this is what exactly through all these instruments his Majesty in Council and the President have done in unequivocal terms that at all times minimum length of service, (now five years), was the bottom line to earn the right to pension. Not only this, but a combined reading of all the three orders i.e. High Court Judges Order, 1937, President’s Order 9 of 1970 and President’s Order 3 of 1997 in sequence also reveals that such determination of “right to pension” of “every judge” of the High Court was always made and continued without break since 1937 uptill today. 92. To add force to the above interpretation of paragraph 2 of the Fifth Schedule to Article 205 of the Constitution, we also cannot overlook two maxims of similar nature “Expressum Facit Cessare Tacitum” meaning thereby that “what is expressed makes what is implied to cease”, and “expressio unis est exclusio alterius” meaning thereby that “the express mention of one thing implies the exclusion of another”. Thus, where a statute contains express covenants or mention of things and contingencies no other implication of any covenant or contingency on the same subject matter can be raised. In other words, where the legislature postulates and specifies some thing for some category of persons only, it, inline with these maxims, impliedly exclude others. Indeed, the principle propounded in these two maxims, in certain situations, can have dangerous repercussions, therefore, it is to be applied with extra care and caution, but in the present case, there is absolutely no dispute or denial of the fact that right from the year 1937, while exercising powers, his Majesty in Council or the Const. Petition No.127 of 2012 142 President, as the case may be, have from time to time laid down the criteria for entitlement of pensionary benefits for every retired judge of the High Court, and for this purpose, the relevant provisions of Judges Order 1937 or two President’s Order, which are “pari materia”, give a clear meaning of exclusion from the entitlement of pensionary benefits, all those honourable retired judges of the High Court, who have, under the order of 1937 or President’s Orders 9 of 1970 and 3 of 1997, not completed minimum twelive/five years actual service to earn right to pension. A reading of paragraph 2 and 3 in any manner, conjunctive or disjunctive, makes it abundantly clear that the President at the time of determination of right to pension for a retiring honourable judge of the High Court has made not less than five years actual service as bottom line for his entitlement/right to pension with full intent and, thus, excluded all those who have not met this minimum threshold of actual service. But in some cases subject to other prescribed and applicable provisions like proviso to paragraph-13(c) of President’s Order No.9 of 1970 or paragraph 29 of the President’s Order 3 of 1997, read with S.R No.423 (ibid), relating to automatic or otherwise addition of certain period in it to make up deficiency in hardship cases. The arguments advanced by some of the learned ASCs that Fifth Schedule to Article 205 of the Constitution is a sub- constitutional legislation, in our opinion, are also meritless, therefore, any argument built on these premises are devoid of force. At the cost of repetition, we may mention here that right to determine conferred to the President under paragraph 2 (ibid) is not a right limited to the extent of determination of quantum of pension for every judge, but in the first place, President has to determine the criteria for honourable retired judge of the High Court to earn right Const. Petition No.127 of 2012 143 to pension, which exercise has been already undertaken explicitly and in unambiguous terms in both the earlier President’s Order 9 of 1970 and President’s Order 3 of 1997 (reproduced above). To put it in other words, it is the President who has been exclusively delegated with the power, in the first place to determine the entitlement/right to pension of every honourable retired judge of the High Court; and, in the second place, to determine the quantum of such pensionary benefit, which exercise has been repeatedly undertaken by him in very clear terms. While discussing the issue relating to entitlement of pensionary benefits of honourable retired judges of the High Court, having less than five years service, another strong ground which has emerged for our consideration from admitted facts, and carries force of convention/usage is that learned ASCs addressing the Court despite specific suggestions to this effect, could not cite a single instance from the Sub-continent where the honourable retired judges of the High Court, having rendered less than the minimum required period of actual service, envisaged as condition for entitlement for right to pension under the High Court Judges Order 1937, President’s Order 9 of 1970 or President’s Order 3 of 1997, ever claimed or got pension on the basis of interpretation of paragraph 2 and 3 read with applicable President’s Order in the manner as erroneously interpreted in the judgment under challenge. We, therefore, have no hesitation to hold that for the preceding reasons and further reasons to be recorded hereinafter, the judgment under challenge falls in the category of per incuriam and makes it without jurisdiction and nullity in the eyes of law, as if it never existed at all. 93. After having answered the first two moot points, when we come to the last point relating to the fate of pensionary benefits Const. Petition No.127 of 2012 144 already availed by the honourable retired judges of the High Court, though having less than five years actual service to their credit, on the basis of the judgment under challenge, we deem it proper that before undertaking any further discussion in this regard, to prepare a statement in the form of a chart, containing the relevant dates and financial repercussions, as noted hereunder. Calculation/Statement of Accounts pertaining to Pension of Hon'ble Judges of High Courts Lahore High Court S.No. Name of Hon'ble Judge/ or widows of Hon'ble Judges Date of retirement/ resignation/ removal Actual Length of Service (Y-M-D) Total Pension Drawn including Commutation Per month Pension Annual Pension Amount 1 Mr. Justice (Retd) Abdul Ghafoor Khan Lodhi 1-Jul-81 04-05-20 24,907,339 - - 2 Mr. Justice (Retd) Mian Ghulam Ahmad 2-Feb-95 02-05-04 26,845,284 515,652 6,187,824 3 Mr. Justice (Retd) Sh. Abdul Mannan 6-Nov-95 03-02-06 25,850,871 550,422 6,605,064 4 Mr. Justice (Retd) Rana Muhammad Arshad Khan 1-Oct-96 02-01-23 25,281,378 535,133 6,421,596 5 Mr. Justice (Retd) Ch. Mushtaq Ahmad Khan 1-Oct-96 04-01-23 24,386,404 528,002 6,336,024 6 Mr. Justice (Retd) Khan Riaz- ud-Din Ahmad 1-Jan-98 03-02-23 23,275,729 533,944 6,407,328 7 Mr. Justice (Retd) Muhammad Aqil Mirza 4-Apr-97 02-07-26 24,048,779 528,002 6,336,024 8 Mr. Justice (Retd) Abdul Hafeez Cheema 1-Oct-97 03-01-23 28,802,381 610,287 7,323,444 9 Mr. Justice (Retd) Ghulam Sarwar Sh. 10-Dec-98 02-00-00 25,986,075 594,663 7,135,956 10 Mr. Justice (Retd) Syed Sharif Hussain Bukhari 15-Jun-98 03-10-07 24,615,969 527,950 6,335,400 11 Mr. Justice (Retd) Muhammad Islam Bhatti 22-Dec-98 03-02-11 26,184,753 608,654 7,303,848 12 Mr. Justice (Retd) Rao Iqbal Ahmad Khan 12-Jan-99 02-01-00 24,793,480 519,535 6,234,420 13 Mr. Justice (Retd) Mian Saeed ur Rehman Furrukh 1-Aug-98 03-06-12 24,392,330 527,950 6,335,400 14 Mr. Justice (Retd) Sh. Amjad Ali 22-Jun-99 02-06-11 24,233,654 608,654 7,303,848 15 Mst. Shahida Khurshid w/o Mr. Justice (Retd) Raja Muhammad Khurshid 24-Aug-99 03-10-13 13,662,023 297,012 3,564,144 16 Mr. Justice (Retd) Syed Najam ul Hassan Kazami 27-Jan-00 02-07-29 24,027,865 519,172 6,230,064 17 Mr. Justice (Retd) Iftikhar Ahmad Cheema 1-Jul-01 02-07-07 29,708,666 441,273 5,295,276 18 Mr. Justice (Retd) Dr. Munir Ahmad Mughal 7-Jul-01 04-06-26 26,364,853 594,023 7,128,276 19 Mr. Justice (Retd) Riaz Kayani 6-Aug-01 03-02-15 23,770,477 519,173 6,230,076 Const. Petition No.127 of 2012 145 20 Mr. Justice (Retd) Ghulam Mahmood Qureshi 8-Oct-01 04-04-10 23,119,482 519,172 6,230,064 21 Mr. Justice (Retd) Mansoor Ahmad 7-Mar-04 03-02-04 22,601,149 510,436 6,125,232 22 Mr. Justice (Retd) Pervaiz Ahmad 10-Apr-04 02-01-05 26,222,120 583,356 7,000,272 23 Mr. Justice (Retd) Farrukh Latif 10-Jun-05 03-03-05 23,143,378 606,077 7,272,924 24 Mr. Justice (Retd) Rustam Ali Malik 10-Sep-05 03-06-05 23,605,888 574,113 6,889,356 25 Mr. Justice (Retd) Sh. Abdul Rashid 1-Jun-06 02-08-28 22,297,141 571,932 6,863,184 26 Mst. Parveen Nawaz w/o Mr. Justice (Retd) Muhammad Nawaz Bhatti 11-Jul-06 01-07-10 13,343,486 267,566 3,210,792 27 Mr. Justice (Retd) Muhammad Jahangir Arshad 4-Nov-07 02-11-02 20,578,426 488,459 5,861,508 28 Mr. Justice (Retd) Sh. Javaid Sarfraz 13-Feb-08 03-02-11 22,760,620 488,460 5,861,520 29 Mr. Justice (Retd) Muhammad Muzammal Khan 29-Feb-08 04-05-27 22,096,799 488,459 5,861,508 30 Mr. Justice (Retd) Tariq Shamim 12-Oct-09 03-07-10 26,598,475 440,299 5,283,588 31 Mr. Justice (Retd) Fazal-e- Miran Chowhan 11-Oct-09 04-10-09 24,587,585 440,299 5,283,588 32 Mr. Justice (Retd) Syed Asghar Haider 12-Oct-09 03-07-09 29,458,843 440,299 5,283,588 33 Mr. Justice (Retd) Sh. Ahmad Farooq 10-Feb-12 01-11-20 26,826,640 436,235 5,234,820 34 Mr. Justice (Retd) Ch. Shahid Saeed 3-Oct-12 02-07-13 24,480,676 364,567 4,374,804 35 Mst. Shahnaz Ansari w/o Mr. Justice (Retd) Tanveer Bashir Ansari 26-Jun-05 04-01-few 9,102,366 188,768 2,265,216 36 Mr. Justice (Retd) Sagheer Ahmad Qadri 11-Feb-13 03-04-26 26,174,540 416,649 4,999,788 Sub-Total (Lahore High Court) 858,135,924 17,384,647 208,615,764 Peshawar High Court S.No. Name of Hon'ble Judge/ or widows of Hon'ble Judges Date of retirement/ resignation/ removal Actual Length of Service (Y-M-D) Total Pension Drawn including Commutation Per month Pension Annual Pension Amount 1 Widow of late Justice (Retd) Sher Bahadar Khan 1-Jun-94 03-8-14 7,919,104 256,277 3,075,324 2 Mr. Justice (Retd) Raza Ahmad Khan 6-Mar-92 03-5-04 25,648,302 535,132 6,421,584 3 Mr. Justice (Retd) Muhammad Khiyar Khan 18-Nov-94 04-00-13 14,269,686 267,566 3,210,792 4 Mr. Justice (Retd) Shah Abdur Rashid 2-Dec-84 04-07-05 23,111,683 535,710 6,428,520 5 Mr. Justice (Retd) Salim Khan 1-Jan-08 02-11-28 23,740,207 407,359 4,888,308 6 Mr. Justice (Retd) Abdul Aziz Kundi 1-Jan-11 01-3-24 36,132,633 331,918 3,983,016 7 Mr. Justice (Retd) Hamid Farooq Durrani 3-Nov-09 03-06-28 39,701,383 321,762 3,861,144 8 Mr. Justice (Retd) Muhammad Azam Khan 27-Jan-00 01-07-14 23,818,108 519,172 6,230,064 Const. Petition No.127 of 2012 146 9 Mr. Justice (Retd) Fazal-ur- Rehman 1-Mar-07 04-05-18 18,513,679 208,667 2,504,004 10 Mr. Justice (Retd) Salim Dil Khan 1-Oct-96 02-09-16 13,599,009 260,437 3,125,244 11 Mr. Justice (Retd) Muhammad Raza Khan 8-Aug-08 03-07-04 26,189,176 481,828 5,781,936 12 Mr. Justice (Retd) Attaullah Khan 4-Jun-12 02-08-26 36,224,227 311,595 3,739,140 13 Mr. Justice (Retd) Muhammad Daud Khan 1-Jan-82 04-11-11 17,510,692 267,566 3,210,792 14 Mr. Justice (Retd) Said Maroof Khan 2-Nov-09 03-06-29 30,864,089 399,655 4,795,860 15 Mr. Justice (Retd) Raj Muhammad Khan 15-May-08 02-01-11 24,930,879 390,558 4,686,696 16 Mr. Justice (Retd) Abdur Rehman Khan Kaif 27-Jul-91 03-07-08 11,782,192 225,794 2,709,528 17 Mr. Justice (Retd) Qazi Hamid ud Din 11-Oct-96 02-08-26 23,587,385 456,045 5,472,540 18 Mr. Justice (Retd) Miftah-ud- Din Khan 03-05-05 0 Sub-Total (Peshawar High Court) 397,542,434 6,177,041 74,124,492 Balochistan High Court S.No. Name of Hon'ble Judge/ or widows of Hon'ble Judges Date of retirement/ resignation/ removal Actual Length of Service (Y-M-D) Total Pension Drawn including Commutation Per month Pension Annual Pension Amount 1 Mr. Justice (Retd) Tariq Mehmood 17-Apr-02 01-07-04 22,186,772 489,133 5,869,596 2. Mr. Justice (Retd) Mehta Kelash Nath Kohli 25.8.2009 04-08-10 23,979,696 519,536 6,234,432 Sub-Total (Balochistan High Court) 46,166,468 1,008,669 12,104,028 Sindh High Court S.No. Name of Hon'ble Judge/ widows of Hon'ble Judges Date of retirement/ resignation/ removal Actual Length of Service (Y-M-D) Total Pension Drawn including Commutation Per month Pension Annual Pension Amount 1 Mr. Justice (Retd) Ghulam Muhammad Kourejo 31-Jul-82 02-02-14 22,807,356 350,546 4,206,552 2 Mr. Justice (Retd) Munawar Ali Khan 19-Jun-86 04-06-12 22,546,187 350,546 4,206,552 3 Mr. Justice (Retd) Muhammad Aslam Arain 11-May-95 04-06-00 24,750,995 457,234 5,486,808 4 Mr. Justice (Retd) Majida Rizvi 18-Jan-99 04-07-12 23,635,293 441,274 5,295,288 5 Mr. Justice (Retd) Dr. Ghous Muhammad 26-Jan-00 04-09-16 23,675,698 441,273 5,295,276 6 Mr. Justice (Retd) Amanullah Abbasi 4-Mar-00 04-11-23 23,552,083 441,274 5,295,288 7 Mr. Justice (Retd) Abdul Ghani Sheikh 11-Nov-00 03-00-13 24,156,529 519,173 6,230,076 8 Mr. Justice (Retd) S.A. Rabbani 5-Jun-02 03-01-16 26,034,663 515,350 6,184,200 9 Mr. Justice (Retd) M. Sadiq Leghari 30-Jun-06 03-10-03 25,118,860 502,245 6,026,940 10 Justice (Retd) Mrs. Qaiser Iqbal 11-Oct-09 03-11-16 28,631,048 503,199 6,038,388 Const. Petition No.127 of 2012 147 11 Mr. Justice (Retd) Nadeem Azher Siddiqui 11-Oct-09 03-11-16 29,358,946 362,400 4,348,800 12 Mr. Justice (Retd) Munib Ahmed Khan 11-Oct-09 03-11-16 22,790,717 414,172 4,970,064 13 Mr. Justice (Retd) Ali Sain Dino Metlo 11-Oct-09 03-11-16 27,786,518 414,172 4,970,064 14 Mr. Justice (Retd) Shahid Anwar Bajwa 4-Oct-12 03-00-19 20,440,437 303,806 3,645,672 Sub-Total (Sindh High Court) 345,285,330 6,016,664 72,199,968 Grand Total 1,647,130,156 32,604,359 391,252,308 (Note: All the details and particulars incorporated in this chart are based on the data collected from the case record and the statement of accounts furnished before this Court by the office of Accountant Generals of all the four Provinces, thus, any reference to above chart in this judgment shall not be deemed as final adjudication as regards facts and figures incorporated therein.) 94. Now taking up the issue of applicability and effect of this judgment after the implementation of judgment under challenge, so as to see whether it should have prospective or retrospective applicability, the first thing to be noted is that in our short order dated 11.4.2013 we have declared that the law enunciated in the judgment under challenge is “per incuriam”. The fallout of such declaration is that it is a judgment without jurisdiction, thus, for all intent and purposes not to be quoted as precedent, rather liable to be ignored. A useful discussion on the concept and import of “per incuriam” finds place in the case of Sindh High Court Bar Association (supra), which reads as under:- “(ii) MAXIM "PER INCURIUM". 37. `Incuria' literally means "carelessness". In practice per incurium is taken to mean per ignoratium and ignored if it is rendered in ignoratium of a statute or other binding authority. 38. What is mean by giving a decision per incurium is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be Const. Petition No.127 of 2012 148 demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565 para 21), Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113, 1131), Watson's case {AELR 1947 (2) 193 at 196, Morelle Ltd.'s case (LR 1955 QB 379 at 380), Elmer Ltd.'s case {Weekly Law Reports 1988 (3) 867 at 875 and 878), Bristol Aeroplane Co.'s case {AELR 1944 (2) 293 at page 294} and Morelle Ltd.'s case {AELR 1955 (1) 708). 39. The ratio of the aforesaid judgments is that once the Court has come to the conclusion that judgment was delivered per-incurium then Court is not bound to follow such decision on the well known principle that the judgment itself is without jurisdiction and per-incurium, therefore, it deserves to be over-ruled at the earliest opportunity. In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this Court, as mentioned above, is bound to review such judgments to put the nation on the right path as it is the duty and, obligation of the Court in view of Article 4, 5 (2) read with Article 189 and 190 of the Constitution.” 95. Apart from the above, it will be seen that there can be no two views about the powers of legislature to legislate any law and to make it applicable prospectively or retrospectively or from any particular date, with clear/express intendment in this regard. However the procedural law, even though not expressly provided for, normally holds its applicability retrospectively as no one can claim vested right in the matter of procedure. There are number of precedents where the law has been so legislated or amended and made applicable retrospectively to destroy the vested rights of certain individuals and such actions when challenged, have been upheld by the Court, to be legal. If any case law is needed to fortify this view, reference can be made to the case of Asad Ali (supra) as under:- “135. It is a well-settled law that a new or an amending statute touching the, vested rights of the parties operates prospectively unless the language of the legislation expressly provides for its retrospective operation. However, the presumption against the retrospective operation of a statute is not applicable to statutes dealing with the procedure as no vested right can be claimed by any party in respect of a procedure. The only exception to the Const. Petition No.127 of 2012 149 retrospective operation of a procedure law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively. The above principles applicable to a new or an amending statute, however, cannot be applied strictly to the law declared by the Courts through interpretative process. The Courts while interpreting a law do not legislate or create any new law or amend the existing law. By interpreting the law, the Courts only declare the true meaning of the law which already existed. Therefore, to that extent the law declared by the Court is applicable from the date the law is enacted. However, as under the Constitution only the decision- of this Court on a question of law or in so far it enunciates a principle of law is binding on all Courts, and Authorities, the possibility that a provision of law or Constitution before it came up for interpretation before this Court, was interpreted or understood differently could not be ruled out. Therefore, if as a result of interpretation of a law or a Constitutional provision by this Court, the existing interpretation or meaning of the law is changed, then it is more of a matter of public policy based on justice, equity and good conscious than a rule of law, that an innocent person who acting bona fidely on the prevailing interpretation or meaning of law created a liability or acquired a right, be protected against the change brought about in the existing state of law as a result of its interpretation by this Court. However, where a person or authority acts in defiance of a clear provision of law or Constitution or the interpretation by the Court does not have the effect of changing the prevailing understanding of the meaning of the provision of law or the Constitution, the question of, protecting any one against the effect of such interpretation by the Court on the principle that the effect of interpretation by given prospective operation, does not arise. For example, if a particular provision of law or the Constitution has not come up for interpretation before any Court and the functionaries responsible for giving effect to it have consistently interpreted the said provision and understood it in a particular scene and acted upon it accordingly over a length of time, but all of a sudden the functionaries decide to follow a new practice by changing the interpretation of that provision. However, when the matter is brought before the Court, the solitary deviation by the functionaries made on the basis of changed interpretation is struck down by the Court as illegal and unconstitutional and the previous interpretation and practice followed by the functionaries is upheld being in accordance with the law and Constitution. In that event, neither the functionaries nor the person deriving any benefit on the basis of the new practice founded on the changed interpretation of the provision of law or the Constitution could Const. Petition No.127 of 2012 150 defend the illegality or unconstitutionality of the action on the principle that the interpretation given by the Courts be applied prospectively and not retrospectively, as in such a case the Court is striking down the very first deviation of the functionaries on the ground that the deviation from the previous practice/ interpretation is illegal and unconstitutional. The principle that the change in the state of law as a result of interpretation by this Court is to be given effect to from the date the Court interpreted the law is also not applicable in those cases which could be brought under challenge in accordance with the law before or after the interpretation of the provision by this Court. Even otherwise, as pointed out by us earlier, this Court while adopting an interpretation of the provision of the law or the Constitution which is at variance from the existing view, it is only declaring the correct law as an apex Court. By doing so, it neither legislates any new law nor amends the existing law. Therefore, while interpreting a provision of law or the Constitution, this Court can also provide the date from which the interpretation given by it is to come into effect, keeping in view the nature of the provision it is interpreting, the likelihood of possible prejudice which may be caused to an individual or a body of individual and the requirement of justice in the case.” [Also see: Golak Nath v. State of Punjab (AIR 1967 SC 1643) and Messrs Haider Automobile Ltd v. Pakistan (PLD 1969 SC 623)] 96. Similarly, depending upon the facts and circumstances of a case, the Supreme Court, having vast powers, while delivering its judgment or making an order can lay down the parameters for its implementation including the option of its retrospective applicability from any particular date, so as to make sure its effective fallout, as the situation in a particular case may demand. For doing so, one of the underlining principle is “Actus Curiae Neminem Gravabit” (an act of the Court shall prejudice no man). As, no body should suffer due to any act, omission or mistake of the Court. Similarly no body should take undue advantage or benefit of any act, omission, mistake or legal error committed by the Court and to avoid adverse effect of such judgment, powers are to be exercised by the Court in the manner to save it from Const. Petition No.127 of 2012 151 becoming an abuse of the process of law. In the present proceedings as highlighted earlier, due to judgment under challenge public exchequer has been unjustly burdened with the liability of Rs.1,647,130,156/-,besides additional payment of Rs.32,604,359/- towards monthly pension, thus, in all fairness such mistake of law is to be cured in a manner to repair such huge financial loss to the public exchequer. 97. While discussing the fallout of the judgment under challenge having been declared per incurium, we find that this Court, in exercise of its jurisdiction under Articles 184(3), 187 and 188 of the Constitution, in order to do complete justice and stick to the norms of equity and fair play is not denuded of its powers to order implementation of this judgment retrospectively from the date of the judgment under challenge. Dilating further upon the maxim “Actus Curiae Neminem Gravabit” (an act of the Court shall prejudice no man), we find that concept of “ prejudice no man” visualized in it, includes not only individual parties before the Court but also any juristic person such as corporations, banks, government functionaries, including Federal or Provincial Government. Thus, in the instant proceedings due to the act or mistake of the Court no prejudice should be caused to the interest of the Federal or Provincial Government like any other ordinary litigant before the Court. Moreover, when we have declared the judgment under challenge “per incurium”, its natural fallout is that whosoever has availed its benefit in any form he is bound to restore it in favour of the other, whose interest has been prejudiced due to such act of the Court. It is also to be noted here that all the sums so paid by the Government to honourable retired judges, exceeding Rs.1.64 billion (Rs.1,647,130,156/-) have been paid Const. Petition No.127 of 2012 152 from the public exchequer, which is otherwise a sacred public trust, therefore, its improper use or mishandling in any form is to be checked and controlled at all costs. 98. The discussion made in the last two paragraphs of this judgment gains full support from the case of South Eastern Coalfields Ltd. v. State of M.P. (AIR 2003 SC 4482), wherein after detailed discussion with reference to several other cases on the doctrine of “actus curiae neminem gravabit”, the Indian Supreme Court observed as under:- “26. That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court; the ‘act of the court’ embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the Court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to Const. Petition No.127 of 2012 153 pass interlocutory orders favourable to them by sues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim orders even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Court withholding the release of money had remained in operation.” [Also see: Jai Berham v. Kedar Nath Marwari (AIR 1922 P.C 269)] 99. Besides, it is germane to observe here with reference to the arguments of some learned ASCs, insisting for only prospective applicability of this judgment, that this Court has not legislated or laid down any new law through its judgment in hand, but only interpreted and enunciated correctly an existing law, which is in force in the form of Article 205 of the Constitution with its Fifth Schedule and President’s Order 3 of 1997, since the year 1973 and 1997 respectively. Therefore, premised on these admitted facts there is no tenable legal ground to hold the applicability of this judgment prospectively and not retrospectively, so as to curb the mischief of earlier erroneous enunciation/interpretation of law. 100. From the earlier discussion as regards the scope and applicability of paragraph No.29 of President’s Order 3 of 1997 (as reproduced earlier) read with regulation No.423 of CSR, we find that, prima facie, the honourable retired Judges shown in the above reproduced chart, at serial No.18,20,29,31 & 35 (M/s Justice Dr. Munir Ahmad Mughal, Justice Ghulam Mahmood Qureshi, Justice Muhammad Muzammal Khan, Justice Fazal-e- Miran Chowhan, and Mst. Shahnaz Ansari w/o Late Justice Tanveer Bashir Ansari) from the Lahore High Court; serial No.9 & 13 (M/s Justice Fazal-ur-Rehman, and Justice Muhammad Daud Const. Petition No.127 of 2012 154 Khan) from the Peshawar High Court; serial No.2 (Mr. Justice Mehta Kelash Nath Kohli) from the Balochistan High Court; and, serial No.4,5&6 (M/s Justice Majida Rizvi, Justice Dr. Ghous Muhammad, and Justice Amanullah Abbasi) from the Sindh High Court, having actually served for different periods, but for more than four years or four years nine months (as the case may be) in each case and in some cases just few days less than five years, are eligible to lay their claim for pensionary benefit before the competent authority (President) by following due process of law in line with paragraph-29 of President’s Order 3 of 1997 and applicable regulation No.423 of CSR, which reads as under:- “423. (1) A deficiency of a period not exceeding six months in the qualifying service of an officer shall be deemed to have been condoned automatically. (2) The authority competent to sanction pension may condone a deficiency of more than six months but less than a year subject to the following conditions, namely:- (a) The officer has died while in service, or has retired under circumstances beyond his control, such as on invalidation or the abolition of his post, and would have completed another year of service if he had not died or retired. (b) The service rendered by him had been meritorious.” 101. However, those honourable retired judges of the High Court, who have retired as such before coming into force of President’s Order 3 of 1997 on 12.2.1997, for the purpose of making up similar deficiency will be governed by the proviso to paragraph-13(c) of President’s Order 9 of 1970, providing for making up deficiency upto three months or less and not by paragraph-29 of the President’s Order 3 of 1997 read with regulation No.423 of CSR. We, therefore, expect that if any such Const. Petition No.127 of 2012 155 representations or fresh representations are made by the honourable retired judges qualified under either of the two categories of retired judges, before the President of Pakistan, he will decide the same within two month so as to fairly adjudicate and safeguard the interest of these honourable retired Judges in accordance with applicable law. 102. Since during his arguments, Mr. Munir A. Malik, learned Sr. ASC made reference to a subsequent judgment of the High Court of Sindh dated 1.7.2008, in C.P No.D-24/2002 (Re: Mrs. Majid Rizvi v. Federation of Pakistan and others) relating to the same controversy, passed in favour of one honourable retired Judge of the High Court and also placed on record copy of said Petition under Article 199 of the Constitution, alongwith the copy of judgment passed therein, it became imperative for us to discuss this aspect of the case also. A perusal of contents of the said petition reveals that though in the petition a reference to the earlier judgment of a Division Bench of the High Court dated 02.2.1995 in C.P No.D-2308/1994 (Re: Ahmed Ali U. Qureshi v. Federation of Pakistan and others) was made, but the prayers made by the petitioner were for seeking directions to the President of Pakistan for condonation of deficiency in her length of service and to determine the payable pension of the petitioner as a retired judge of the High Court notwithstanding her length of service; as before her retirement she had served as a Judge of the High Court for a period of 04-years, 07-months and 12-days. The learned Division Bench of the High Court, while passing its judgment dated 1.7.2008, had not made any independent discussion on the merits of the contentions raised before it by the petitioner, but simply Const. Petition No.127 of 2012 156 placed reliance upon the judgment under challenge dated 6.3.2008, which was referred before it. In such circumstances, it goes without saying that as the above referred judgment has now been declared per incuriam, therefore, as its corollary, the judgment dated 1.7.2008 in C.P No.D-24/2002, is also liable to be set aside and the petition has to be dismissed. We accordingly order so. However, it will be open for the honourable retired Justice Majida Rizvi that she may apply afresh to the President of Pakistan for availing the benefit of relevant provisions of President Order No.3 of 1997 applicable to her case; paragraph-29 whereof, read with regulation No.423 of CSR, inter alia, provides for automatic making up of deficiency in the length of service upto six months. 103. As some of the learned ASCs on behalf of the Honourable Retired Judges have also attempted to present their case on the cardinal principle of independence of judiciary, including financial independence, and National Judicial Policies (NJP) 2009 and 2012, we may mention here that indeed the “JUDICIARY”, as a third pillar of the State needs to be independent in all respects, including its financial matters, but at the same time such independence is subject to the mandate of the Constitutional provisions. A bare reading of Part VII Chapters 1 to 4 i.e. Articles 175 to 212 together with Article 2-A and some other relevant constitutional provisions define such independence of the judiciary, thus, it cannot be argued that the issue regarding right to pension for retired Judges of the High Court, which is the crucial point under consideration in the present proceedings, has as such any nexus to the financial independence of judiciary as a Const. Petition No.127 of 2012 157 institution. Similarly, reference to National Judicial Policies 2009 & 2012 confer or create no right to pension beyond the intent of the legislature, as evident from the plain reading of Article 205 read with Fifth Schedule of the Constitution and the applicable President’s Orders 9 of 1970 or 3 of 1997. 104. Apart from various Constitutional provisions and Presidential orders reproduced and discussed above, some of the learned ASCs have also made reference of other Presidential Orders Nos.1 of 1968, 5 of 1983, 3 of 1990, 2,6,7 & 9 of 1991, 1 & 2 of 1993, 1&2 of 1994, 3&5 of 1995, 2 of 1997, 1,2&3 of 1998, 2&3 of 2000, 1,2&3 of 2001, 2 of 2004, 1 to 4 of 2005, and 2&3 of 2006. However, in our opinion, in so far as the issue regarding review of judgment under challenge is concerned except interpretation of relevant Constitutional provisions and President’s Orders 9 of 1970 and 3 of 1997, on the subject of right to pension of honourable retired Judges of the High Court, having less than five years actual service as such, no detailed discussion on these Presidential Orders is required. More so, as all these President’s Orders relate to the increase in salaries and other benefits of the judges of the superior judiciary or grant of some additional facilities to them from time to time while in actual service or after retirement, as the case may be. But have no nexus to the determination of right to pension by the President in terms of paragraph-2 of the Fifth Schedule to Article 205 of the Constitution. 105. When we look at the individual cases of some of the honourable retired Judges of the High Court, we find that M/s Mian Saeed ur Rehman Farrukh and Khan Riaz-ud-Din Ahmad, JJ, are the two affectees of judgment of the Apex Court in the case Const. Petition No.127 of 2012 158 of Al-Jehad Trust, (supra). In this case when the question of appointment of judges in the superior judiciary came up for consideration before a five member Bench, inter alia, following discussion was made:- “The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary. The relevant constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context. The above principles will have to be kept in view while construing the provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary. Courts, while construing a constitutional provision, can press into service an established constitutional convention in order to understand the import and the working of the same, if it is not contrary to the express provision of the Constitution.” More over, as regards few earlier appointments of the judges in the High Courts, which were found to be violative of the scheme of the Constitution, some parameters were laid down and following directions were issued:- That upon the appointment of the permanent Chief Justices in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Courts' Judges in terms of the above declaration No. 13 within one month from the date of this order or within one month from the date of assumption of office by a permanent incumbent whichever is later in time and to Const. Petition No.127 of 2012 159 take action for regularising the appointments/confirmation of the Judges recently appointed/confirmed inter alia of respondents Nos.7 to 28 in Civil Appeal No.805/95 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of Ad Hoc/Acting Judges. 106. This being the position, despite their effective service as Additional Judges or otherwise for any period, since their appointments were neither legal nor regularized, they cannot be even considered as Judges of the High Court. Besides, calculations as regards their actual period of service as retired judges of the High Court, made by the learned Sr. ASC during his arguments, to bring their case within the category of Judges, who have served as a Judge of the High Court for five years or more, are entirely misconceived, inasmuch as, from no stretch of imagination intervening period, when they had not served as High Court judges, could form part of their actual period of service for the purpose of such relief. 107. Arguments of some of the learned Sr. ASCs with reference to the observations of this Court contained in paragraph No.178 of the judgment in the case of Sindh High Court Bar Association (supra) are also without force, as applying the principle of exercise of de facto jurisdiction, only judicial proceedings were saved, but these observations had not conferred or blessed any sanctity to the findings in the judgments passed during such proceedings nor protected them from being challenged in accordance with law. To make this view more clear the relevant paragraph No.178 is reproduced as under:- Const. Petition No.127 of 2012 160 178. However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd November, 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case (supra). 108. Considering the claim/case of the widows/legal heirs of some of the Honourable Retied Judges, we may mention here that the ratio of judgment under challenge is of no help to their claim, as their cases are to be dealt with by the President strictly in terms of paragraphs No.4 to 6 relating to the Supreme Court and the High Court in the Fifth Schedule to Article 205 of the constitution. 109. Inspired by the maxim “salus populi est suprema lex” (public welfare is the supreme law), to which all other maxims of public policy must yield, another important aspect of the case, on which much arguments have not been advanced by the learned ASCs is that as a result of judgment under challenge, erroneously giving it a status of judgment in rem, this Court has hugely burdened the public exchequer with uncalled for financial liability. Therefore, being custodian of public interest and public welfare, looking at this controversy from another angle, we consider it just, fair and equitable to treat these proceedings as public interest litigation to protect the rights of every citizen of this country qua public exchequer and to lay down correct law for this purpose. 110. While arguments with reference to principle of past and closed transaction were being advanced before us repeatedly, we also enquired from the learned ASCs as to whether such principle, Const. Petition No.127 of 2012 161 if at all found applicable to the present case, should not have been in the first place conversely made applicable to the case of those honourable retired Judges of the High Court, who stood retired during the period from 1970 onwards upto the date of judgment under challenge, as they never agitated such claim during this long period after their retirement from time to time. None of the learned ASCs could offer any satisfactory reply to this query, except that the right to pension has accrued in their favour on the basis of judgment under challenge. This reply on their behalf is not only frail and meritless but negates their other contention that right to pension was otherwise available in their favour on the basis of Article 205 read with Fifth Schedule of the Constitution and President’s Order 9 of 1970 or President’s Order No.3 of 1997. Undeniably, the right to pension of every Judge of the High Court is to be determined and regulated in terms of Paragraphs-2 and 3 of Fifth Schedule to Article 205 of the Constitution, which is the basic instrument for this purpose, together with applicable President’s Order No.9 of 1970 or 3 of 1997. Thus, the judgment under challenge confers no independent right to pension for them. Needless to mention here that where the superstructure is built on altogether faulty factual or legal foundation, upon its removal, it is bound to collapse as a whole. 111. Considering the question of indulgence or sympathetic consideration of the case of the honourable retired Judges of the High Court, having been already benefited from the judgment under challenge, we cannot lose sight of the fact that the heavy sums paid to them, as partly reflected in the above reproduced chart, were made from public exchequer, which is a sacred trust. Thus all care and caution is required to see whether a mistake or Const. Petition No.127 of 2012 162 illegality committed by the Court could make them entitled for payment of more than Rs.1,647,130,156/- and further liability of payment of Rs.32,604,359/- towards monthly pension. In view of our discussion in this context made in the foregoing paragraphs, we have no option but to hold that all the sums paid to each of the honourable retired judges, who were made entitled for pensionary benefits in terms of the judgment under challenge, are liable to be recovered from them. 112. It is necessary to mention here so as to make the things more clear that admittedly before his retirement as a Judge of the High Court on 19.10.1994, retired Justice Ahmed Ali U. Qureshi had served as such for a period of 03-years and 04-months (approximately) and since by this judgment the Constitutional Petition No.D-2308 of 1994 filed by retired Justice Retied Ahmed Ali U. Qureshi before the High Court of Sindh has also been dismissed, therefore, all the benefits, except as per his entitlement as a retired District Judge qua paragraph 15 of President’s Order 9 of 1970, availed under the said judgment of the Sindh High Court and the judgment under challenge are to be recovered from the legal heirs of the deceased to the extent of their liability in this regard, but in accordance with law. 113. There is yet another aspect of this case, which has been argued before us by some of the learned ASCs and honourable retired Judges of the High Court, who were either elevated or had resigned from their offices after the judgment under challenge. They had contended that since at the time of their elevation/resignation judgment under challenge was in full force applicable, followed and implemented, therefore, valuable rights have accrued in their favour on the principle of legitimate Const. Petition No.127 of 2012 163 expectancy which cannot be done away lightly by way of some observations in this case. Indeed, such submissions of some of the newly elevated or honourable retied Judges of the High Court are in line with the ratio of the judgment under challenge, but at the same time it is to be noticed that the Honourable Judges, who have resigned from their office before completion of minimum five years actual service as such have to bless their own stars for this purpose because their mere oral assertion that they had to resign from their office under compelling circumstances, cannot be legally accepted as a valid defence. As regards the other Judges, who have taken oath of their office as High Court Judge after the judgment under challenge, suffice it to observe that since the said judgment has been declared per incurium, and become null and void, therefore, any claim based on the principle of locus poenitentiae or legitimate expectancy cannot hold the field. More so, when as to their right to pension honourable retired judges are to be governed by the law in force at the relevant time i.e. Article 205 of the Constitution read with its Fifth Schedule and President Order No.3 of 1997, regarding which a detailed discussion has already been made in the preceding paragraphs of this judgment, and not by the dicta laid down in the judgment under challenge. The honourable retired judges of the High Court also cannot claim any benefit on account of its implementation by the respondents on the principle of past and closed transaction or on the principle estoppel, as on one hand it is a continuing liability over the public exchequer to the tune of approximately Rupees Thirty million per month, thus giving recurring cause of action; and, on the other hand, being judgment of the apex Court, the respondents had no option but to implement it in its letter and spirit or to face penal consequences of non-compliance, including contempt proceedings. Const. Petition No.127 of 2012 164 114. It is pertinent to mention here that the principle of locus poenitentiae, which refrains from rescinding, if a decisive step is taken in furtherance of some action, is mainly confined to administrative actions and not to the judicial pronouncements, as rescinding in the form of review, recalling, varying or amending the earlier order or judgment will have statutory backing in the form of Article 188 of the Constitution and section 21 of the General Clauses Act 1897. Thus, the principle of locus poenitentiae cannot placidly take away the authority of the apex Court to undo a wrong occasioned due to the act of the Court. If a contrary view of the matter is taken, then these provisions of law will become a farce, meant only for the purpose of academic discussion without power to repair the loss caused to an aggrieved party due to a judgment per incuriam, null and void in nature. Here, in order to understand the principle of locus poenitentiae more clearly, reference to the cases of Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907), will also be useful. In the case of Engineer-in-Chief Branch (supra), it was held that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order. In the other case of Abdul Haq Indhar (supra), discussing the principle of locus poenitentiae, provisions of section 21 of General Clauses Act were also considered and it was affirmed that the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order, as locus poenitentiae is the power of receding till a decisive step is taken, but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be Const. Petition No.127 of 2012 165 gained on the basis of such an illegal order. Thus, mere bonafide of the beneficiaries of the judgment under challenge, as claimed, which carry a big question mark due to their legal background and post retirement conduct, as discussed earlier, is not enough to dilute the effect of the judgment in hand. 115. As regards the honourable retired judges of the High Court, who have opted to resign or have retired after the judgment under challenge, here a reference to the case of Justice Hasnat Ahmed Khan v. Federation of Pakistan/State (PLD 2011 SC 680) is also necessary wherein the consequence of unconstitutional P.C.O 1 of 2007, dated 3.11.2007 qua it implications on the superior judiciary were examined in detail with reference to an order passed by a seven member Bench of the Supreme Court on the same day, and as regards the judges who have either taken oath under the P.C.O 1 of 2007 or had violated the said order of the Court dated 3.11.2007, following observations were made:- “Appellant and others shall be entitled for the service and pensionary benefits upto 20.4.2010 when 18th Constitutional Amendment was passed; however if ultimately they are found to be guilty of contempt of the Court by the Supreme Court, their cases for affecting the recovery of pensionary benefits in future shall be dealt with accordingly.” In these circumstances, to say that some judges of the High Court, who resigned from their office after the judgment under challenge, could legitimately claim right to pension without meeting the threshold of minimum five years actual service, has no legal foundation. 116. As regards the issue of recovery of pensionary benefits availed by some honourable retired judges of the High Court in terms of judgment under challenge, when we look at the recent pragmatic approach employed by this Court to safeguard public interest qua securing public exchequer, we find that in the case of Const. Petition No.127 of 2012 166 Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD 2012 SC 1054) and Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD 2012 SC 1089), wherein declaration was issued against number of elected MNAs, MPAs and Senators for their disqualification from being Members of Majlis-e-Shoora (Parliament), Provincial Assemblies and the Senate, because of holding dual nationalities and consequent disqualification under Article 63(1)(c) of the Constitution, despite they having served their respective Institution (Parliament) during the intervening period, Court ordered that all these Members of the Parliament and Provincial Assemblies etc being declared disqualified are also directed to refund all monetary benefits drawn by them for the period during which they kept the public office and have drawn their emoluments etc. from the public exchequer, including the remuneration, T.A./D.A., facilities for accommodation alongwith other perks which shall be calculated in terms of the money by the Secretaries of the National Assembly, Senate and Provincial Assemblies accordingly. 117. In another case of similar nature titled Muhammad Yasin versus Federation of Pakistan (PLD 2012 SC 132), relating to appointment of Chairman, OGRA, which was declared illegal and void ab inito, it was further ordered that all salaries, value of perquisites and benefits availed from the date of his appointment till the date of the judgment shall be recovered by the Government from the beneficiary Chairman at the earliest. In contrast the facts of these two cases, the beneficiaries of judgment under challenge (the honourable retired judges of the High Court) during the intervening period have not worked or undertaken any assignment so as to make their cases worth consideration for some concession or relief on this ground. Const. Petition No.127 of 2012 167 118. The above discussed recent trend adopted by this Court to safeguard public exchequer from being misused has persuaded us to follow a similar course in the present case. More so, as this principle can not be deviated merely for the reason that this time the affectees of this judgment are some honourable retired judges of the High Court, who are very respectable citizens of the Country. Rather, adoption of this course in the present proceedings is all the more necessary to strengthen the inbuilt process of self accountability, which is necessary to earn public confidence in our judicial system. 119. Leaving apart the principles of English jurisprudence qua the intricacies of the legal principles discussed hereinabove, when we simply look at the principles of Islamic jurisprudence, having special significance in our judicial system by virtue of Article 2-A of the Constitution, in the context of moot point No.(c) of paragraph-61 (ibid), we find that there is no legal notion under the Islamic dispensation of justice, furnishing any reasonable justification for the honourable retired judges of the High Court to retain the financial benefits availed by them under the disguise of pension on the basis of judgment under challenge, which we have already declared per incuriam, null and void. 120. While dealing with a lis at any level and in any form, every Court has to keep in mind the golden principle that all laws in any form, may be constitutional provisions, including fundamental rights provided in Part-II of the Constitution or the sub-Constitutional legislations of different nature are based on one broad principle of equal dispensation of justice for all, for which every citizen of this country enjoys similar legal status, thus, he cannot be discriminated on any high moral ground. We have no Const. Petition No.127 of 2012 168 hesitation to further clarify that interest of public at large is to be given priority and preference over the interest of individuals, therefore, interest of public at large cannot be sacrificed to extend profane benefits to some individuals. Thus, to say that this Court looking to the peculiar facts and circumstances emerging from the judgment under challenge, shall take a lenient view of the matter so as to protect the benefit of the judgment under challenge already availed by some honourable retired High Court Judges has absolutely no legal or moral force. As a matter fact, all honourable retired judges of the High Court, who had less than minimum five years actual service to their credit as such and beneficiary of judgment under challenge, are legally and morally bound to restore all such gains to the public exchequer so as to set an example for the society about their high morals and conduct, which is expected from all those who are supposedly role model for the society. 121. Before parting with this judgment, we also record a note of our appreciation for M/s Khawaja Haris Ahmed and Salman Akram Raja, the two learned amici curiae appointed in this case, for their valuable assistance in this matter. Islamabad, the 11th April, 2013. Approved for reporting. �ا� Judge Judge Judge Judge Judge 169 MIAN SAQIB NISAR, J.- Pursuant to the short order dated 11.4.2013 consensually passed by this Bench in the noted matter, my learned brother Anwar Zaheer Jamali, J. has composed the detailed reasons. I have the privilege of going through such exposition and to an extent agree thereto, however, with due deference to the honourable Judge, where my reasons are otherwise or I hold an opinion different on any of the proposition(s) (involved herein), it shall be duly reflected in this discourse. 2. The facts of the matter; the submissions made at the podium by all the concerned and the laws cited in that context, have been extensively and elaborately given in the judgment of my learned brother, however, still though at the cost of repetition, but with an object to facilitate the comprehension of my present determinant I shall make a brief mention of such facts which are absolutely relevant, in that:- these proceedings having emanated from a note dated 21.11.2012, put up by the Registrar of this Court to the Hon’ble Chief Justice of Pakistan stating therein, in some detail, the background of the verdict rendered by this Court in Accountant-General, Sindh and others Vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) (hereinafter referred to as “The Judgment”) and specifying that, the entitlement of the pensionary rights (benefits) of the honourable retired Judges of the High Courts (hereinafter referred to as the Judges), in such decision, inter alia, have been based upon P.O.8/2007, which was promulgated by the President of Pakistan on 14.12.2007, but such order (PO) has been declared unconstitutional, ultra vires and void ab initio vide judgment of this Court dated 31.7.2009 passed in Sindh High Court Bar Association through its Secretary and 170 another Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), besides, “the judgment” otherwise is wrong in law, therefore, it was suggested “the matter is therefore of great public importance as huge public money is being expended without any legal justification despite the fact that the basis of the judgment itself has lost its validity. It is therefore a fit case for Suo Moto Review.”. Upon the said note, the Hon’ble Chief Justice passed an order dated 23.11.2012 to the following effect:- “Perusal of the above note prima facie makes out a case for examination of points raised therein. Therefore, instant note be registered as Suo Moto Misc. Petition and it may be fixed in Court in the week commencing from 03.12.2012. Notice to Hon’ble Retired Judges, who are beneficiaries of the judgment dated 6.3.2008 be issued. Office shall provide their addresses. Notice to Attorney General for Pakistan may also be issued.” This is how the noted matter has come up for hearing before the Court and vide order dated 29.1.2013, the Bench seized of the matter, appointed M/s Makhdoom Ali Khan (not appeared), Khawaja Haris Ahmed and Salman Akram Raja, learned ASCs to assist the Court as amicus curiae. In the context of the above, the epitome of the submissions made by all the concerned before the Court are: (1) whether the present proceedings are maintainable or otherwise; in this regard the authority/action of the Registrar of this Court upon whose note these proceedings were initiated has been seriously questioned (2) whether (in the context of maintainability) “the judgment”, which was passed in the appellate jurisdiction of this Court under Article 185 of the Constitution, and/or under Article 171 184(3) thereof can (or cannot) be reviewed, revisited and set aside by this Court, in the instant suo moto proceedings (note: as while arguing from the Judges side it is the plea of almost all, that these proceedings predominantly have nexus to Article 184(3) of the Constitution) (3) whether these proceedings qualify (or do not qualify) the test and the principles set out by law (including the law enunciated by this Court) for the purposes of review of a judgment, either under Article 188 of the Constitution or even while exercising suo moto jurisdiction by this Court (4) whether “the judgment” is founded upon valid, proper, due and correct consideration, application and interpretation of relevant provisions of law, i.e. Article 205 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the Constitution) read with the Fifth Schedule thereto, and various (certain) Presidential Orders (5) whether a vested right(s) stand created in favour of the Judges on the basis of “the judgment”, which cannot be stultified vide the instant proceedings, even if “the judgment” is per incuriam, and such right(s) is protected by the rules of past and closed transaction, the locus poenitentiae, and legitimate expectation (6) whether in the facts of the matter any protection is available to the Judges on the rule of equality as enshrined by Article 25 of the Constitution (7) without prejudice to the above, if this Court comes to the conclusion, that “the judgment” is per incuriam and thus it should be set aside, whether such decision shall have prospective or retroactive effect. And the right of the Judges to receive pension in future shall not be affected on account of such (this) decision; and in any case, the amounts so far received by them, under “the judgment” cannot be directed in law to be recovered (from them). 172 MAINTAINABILITY (Questions No.1, 2 and 3) 3. My learned brother has exhaustively dealt with the question of maintainability, which is a threshold proposition of the matter, and in this behalf extensive reference to the case law has also been made. I therefore have no intention to add any superfluity to that, however, my approach to the proposition is quite simple, plain and facile, in that, the Supreme Court of Pakistan is the apex Court of the country. It is the final, the utmost and the ultimate Court, inter alia, in relation to, (a) resolving disputes inter se the parties before it, (b) securing and enforcing the fundamental rights of the citizen/person, when those (rights) are in issue before the Court, in any of its jurisdiction, either original or appellate or suo moto, (c) the interpretation and the enunciation of the law of the land, (d) examining and adjudging the legislative Acts and the executive order/actions of the State, in the exercise of its power of judicial review, (e) the exercise of original jurisdiction as per the mandate of Article 184 of the Constitution, (f) the advisory jurisdiction within the parameter of Article 186 of the Constitution, (g) the review of its decision (judgments) (see Article 188) (h) a special jurisdiction conferred upon this Court by any law. And above all the power to do complete justice (see Article 187). In terms of Article 189 of the Constitution, “Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, (emphasis supplied) be binding on all other courts in Pakistan”. Moreover, according to Article 190 “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court”. 4. The aforestated legal position explains and highlights 173 the true magnitude and the supremacy of this Court in regard to the dispensation of justice in the country and the enunciation and the declaration of the law by it. As the law laid down by the (apex) Court, and the order(s) passed by it, being the paramount and ultimate in nature, has to be imperatively and mandatorily followed, obeyed and adhered to by all the concerned. Reading Articles 189 and 190 conjointly, and while keeping in view the scheme of the constitution, the very purpose, the pivotal position and the status of this Court (prescribed above), it is expedient that correct law should be pronounced by the apex Court. And pursuant to the above object and due to the venerated position of this Court, the Court is cumbered with, inviolable responsibility, and a sacred duty, to interpret, declare and enunciate the law correctly, so that it should be followed, obeyed and adhered to purposively and in letter and spirit, by all the other organs of the State (including all other Courts in Pakistan) strictly inconsonance with the true aim of the aforementioned Articles. It may be pertinent to mention here, that any invalid enunciation of law, shall contravene and impugn the very character, and attribute(s) of this Court and such bad/wrong law shall cause drastic adverse affects on the socio-economic, political, geographical, ethnic, cultural aspects and dynamics of the nation, the society, the people at large and the State in presentee or in futurio. In the above context, reference can also be made to Article 4 of the Constitution which enshrines (inter alia) an inalienable right of every citizen to be dealt with in accordance with the law, obviously this shall mean the law that is, correctly laid down by this Court. As it is a cardinal principle of justice, that the law should be worn by the Judge in his sleeves 174 and justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard. Therefore, if any law which has been invalidly pronounced and declared by this Court, which in particular is based upon ignorance of any provisions of the Constitution, and/or is founded on gross and grave misinterpretation thereof; the provisions of the relevant law have been ignored, misread and misapplied; the law already enunciated and settled by this Court on a specific subject, has not been taken into account, all this, inter alia, shall constitute a given judgment(s) as per incuriam; and inconsistent/conflicting decision of this Court shall also fall in that category. Such decision undoubtedly shall have grave consequences and repercussions, on the State, the persons/citizens, the society and the public at large as stated above. Therefore, if a judgment or a decision of this Court which is found to be per incuriam (note: what is a judgment per incuriam has been dealt with by my brother), it shall be the duty of this Court to correct such wrong verdict and to set the law right. And the Court should not shun from such a duty (emphasis supplied). For the support of my above view, I may rely upon the law laid down in the dicta Lt. Col. Nawabzada Muhammad Amir Khan Vs. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335 at page 340):- “Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan, there it would be the duty of the Court, unhesitatingly to amend the error. It is a duty which is enjoined upon every Judge of the Court by the solemn oath which he takes when he enters upon his duties, viz., to "preserve, protect and 175 defend the Constitution and laws of Pakistan" But the violation of a written law must be clear.” M. S. Ahlawat Vs. State of Haryana and another (AIR 2000 SC 1680):- “15. To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.” Bengal Immunity Co. Ltd., Vs. State of Bihar and others (AIR 1955 SC 661):- “19. Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision except in cases where a material provision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the continuance of a repealed or expired statute and that we should not differ from a previous decision merely because a contrary view appears to us to be preferable. It is needless for us to say that we should not lightly dissent from a previous pronouncement of this court. Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the surrounding circumstances of each case brought to our notice but we do not consider it right to confine our power within rightly fixed limits as suggested before us. If on a re-examination of the question we come to the conclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty to say so and not to perpetuate our mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection (emphasis supplied by me). In Superintendent and Remembrancer of Legal Affairs, west Bengal Vs. Corporation of Calcutta (AIR 1967 SC 997) it is held:- 176 “If the aforesaid rule of construction accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule (emphasis supplied by me). In constitutional matters which affect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard it growth. In this case, as we are satisfied that the said rule of construction is inconsistent with out republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision.” The question, however, shall be as to how this duty should be discharged and the object of correcting the wrong law, and setting it (the law) right should be achieved. One of the obvious ways of doing so is, when a party to the lis seeks review of the wrong judgment in terms of Article 188 of the Constitution. But what, if that remedy is not availed for any reason, or even if availed by the concerned, is discarded by the Court (again by committing an another wrong). Whether thereafter, such a wrong decision on the point of law, cannot be remedied and interfered with, revisited or set aside at all or in other words, even if a judgment which is patently per incuriam, infinitely should be left outstanding, allowing it to become the liability of this Court and our legal/judicial system, for all future times. And the (this) Court and the system should be fettered by it, and held as a captive thereto, leaving it intact to pervade and permeate serious prejudice in perpetuity to the persons/citizens of the country and even the State, compelling them, to be dealt with by a wrong/invalid law, despite it having come to the notice of the Court, through any means whatsoever, 177 that such decision suffers from patent and gross vice, and it is vividly a judgment per incuriam by all references. The answer is “No”. In my candid view the approach to leave such a decision to stay intact shall be ludicrous and shall lead to drastic effects as indicated above. Rather in such a situation this Court, having special position in our judicature (judicial system as highlighted above) shall have the inherent, intrinsic and inbred power (jurisdiction) vested in it, (a) to declare a judgment per incuriam; (b) decline to follow the same as a valid precedent, (c) and/or to set it aside. For the exercise of jurisdiction in that regard and for the discharge of the duty as mentioned earlier, it is absolutely irrelevant and immaterial vide (via) which source it (decision) has come to the notice of the Court. The Court once attaining the knowledge of such a blemished and flawed decision has the sole privilege, to examine the same and to decide about its fate, whether it is per incuriam or otherwise. In this context, it may be mentioned, for example, if while hearing some case, it is brought to the attention of the Court by the member(s) of the Bar; or during the hearing of any matter, the Court itself finds an earlier judgment to be per incuriam; or if a Judge (Judge of this Court) in the course of his study or research, comes across any judgment which in his view is per incuriam or if any information through the Registrar of the Court is passed on to the honourable Chief Justice of the Court or to any other Judge (of this Court), by any member of the Bar, or the member of the civil society (any organization/group of the society) that a judgment is per incuriam (note: without the informant having any right or locus standi of hearing or the audience, until the matter is set out for hearing in the Court and the Court deems it proper to hear him), the Court in exercise of its inherent suo moto 178 power and the duty mentioned above (emphasis supplied) shall have the due authority and the empowerment to examine such a judgment, in order to ascertain and adjudge if the law laid down therein is incorrect or otherwise. And if the judgment is found to be per incuriam, it shall be dealt with accordingly. In such a situation (as earlier stated) it shall not be of much significance, as to who has brought the vice of the judgment to the notice of the Court or through which channel it has reached there. Rather, the pivotal aspect, the object, the concern and the anxiety of this Court should be to examine the judgment and if it is per incuriam to set the law right with considerable urgency. 5. In the instant matter, as stated in the beginning, these proceedings have genesis in the note put forth by the Registrar of this Court, to which serious objection has been raised from the Judges’ side; in this behalf it may be held that though there is no specific provision in the Supreme Court Rules, 1980, enabling the Registrar to put up such note to the honourable Chief Justice of Pakistan, but at the same time there is no bar or clog upon the Registrar, being the principle officer of the court, not to bring to the notice of the Chief Justice of Pakistan or the Court as the case may be, that any decision earlier rendered by the Court is per incuriam or needs to be reviewed. Therefore, in view of what has been discussed, the objections about the maintainability of the present proceedings and the jurisdiction of this Court are overruled. And it is categorically held that judgments/decisions of this Court which are per incuriam are a class apart, to which the limitations or the rider of the Review (Article 188) or of the provisions of Article 184(3) are inapplicable and not attracted. These Articles and the 179 limitations thereof shall have no nexus for the exercise of the inherent jurisdiction of this Court and the discharge of its duty as prescribed above for the correction of the decisions per incuriam. Before parting with the topic, however, I feel urged to make a reference to a full Court meeting of this Court, (presumably held on 26.4.2010) in which pursuant to an agenda item, in the context of conflicting judgments by various Benches of the Supreme Court, the office had put up a note envisaging that as the Supreme Court provides guidance to all the Courts in the country and its judgments are also binding upon them (Courts) thus, and any conflict in its judgments shall have far reaching effect (note: obviously conflicting judgments, shall fall within the purview of per incuriam). Upon the above note, it was resolved by the full Court that the Librarian and R&ROs of the Court should carry out an exercise in the matter and point out instances of the conflicting judgments, and while doing so, they may consult with eminent lawyers to take benefit of their experience. Data should be prepared and the matter be placed before the Hon’ble Chief Justice of Pakistan, who may like to constitute a larger Bench to resolve the conflicting issues. It was further resolved, if during the course of hearing of any case, an instance of conflicting judgments comes to the notice of the Bench, the Hon’ble Judges may refer the same to the Hon’ble Chief Justice for constitution of a larger Bench to resolve the conflict. This resolution of the full Court duly fortify my above point of view, that it is the duty of this Court to declare and discard a judgment as per incuriam and for this neither the source of its knowledge nor the confines of ordinary Review and/or Article 184(3) are of much relevance. 180 ENTITLEMENT TO PENSION (Question No.4) 6. On the aspect of entitlement to the right of the Judges to receive pension, I am of the view that for the purposes of adjudging the same, and for the interpretation of the relevant provision of the Constitution i.e. Article 205 and Fifth Schedule thereto, and the apposite Presidential Orders; the legislative history of the law on the subject; the nature and object of pension; the (constitutional) convention and previous practice, and the contemporaneous understanding (prior to the case of Ahmed Ali U. Qureshi) of the law are quite germane factor (note: my brother has also highlighted the above concept but may be differently). However, as the requisite history and the text of laws has been comprehensively reproduced in the main judgment of my brother, therefore, by relying thereupon, I shall primarily restrict to the interpretation of such provisions (note: however, whenever required a part of such text shall be reproduced), by making reference to the laws in a chronological order. 7. For the first time in the Subcontinent the honourable retired Judges of the High Court were held entitled to receive pension as per Article 221 of the Government of India Act, 1935, but the Article only prescribed that they “shall be entitled to such rights (emphasis supplied) in respect of leave and pension as may from time to time be fixed (emphasis supplied) by His Majesty”. From the aforestated it is clear that the authority and the prerogative for the fixation of the entitlement was conferred upon His Majesty; meaning thereby that His Majesty was mandated to fix i.e. assess and settle such right and the entitlement. Pursuant to the above, the High Court Judges Order, 1937 was accordingly enforced on 18th March, 1937, and vide clause 17 thereof, the right of pension was fixed, but restricted 181 to those Judges only, who fulfilled the required criteria laid therein, e.g. (relevant being) upon the completion of service tenure of not less than 12 years. There can be no cavil, that without the above mandate of law, no retired Judge otherwise was entitled to receive the pension. And for the purposes of acquiring said right, or in other words to qualify for the pension, the test and the criteria prescribed in Order 1937 (ibid) was sine qua non, signifying that the right or entitlement to receive pension was subjected to and was conditioned by the requirement of a specific tenure. After the emergence of Pakistan, the entitlement to pension of the Judges remained to be governed by the said laws (note: till 1956). However, Article 221 of the Indian Constitution 1949, prescribes “Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time to be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule (emphasis supplied)”. It is manifest from the above that despite some change in language the entitlement again is dependent upon the determination by the law (note:- until the law, by Second Schedule). When the Constitution of 1956, was enforced in our country, the relevant provisions therein are quite analogous to the Indian provisions, inasmuch as quite significantly the Third Schedule thereto (of 1956 Constitution) stipulates “Every Judge of a High Court shall be entitled to such other privileges and allowances for expenses in respect of equipment and traveling upon first appointment, and to such rights in respect of leave of absence and pension as may be determined by the President (emphasis supplied by me).” The only main difference in the Indian provision and our constitutional dispensation was, that there (India) the determination of entitlement by or under the law by Parliament was made, 182 (otherwise by Schedule), while in Pakistan determination had to be made (done) by the President (note: and until then under Order 1937). After the abrogation of 1956, the Constitution 1962 came into force and as per relevant Article (it is prescribed) “124. Remuneration, etc., of Judges.— The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Second Schedule.”. The relevant part of the Schedule provides:- “2. Every Judge of a High Court of a Province shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the Province were entitled.” It is obvious from the above, that the authority, of determination of the entitlement to the pension of the Judges as per the Constitutional command, was conferred and bestowed upon the President, i.e. it shall be the President who shall decide, about their entitlement. Pursuant thereto, Presidential Order P.O.1/1968 was issued, prescribing (see clause 13) the qualifications and the criteria for the said entitlement, which vividly and unmistakably is dependent upon the length of service of the Judges. Anyhow, on account of the annulment of the 1962 Constitution and upon proclamation of emergency on 25th day of March, 1969, a Provisional Constitutional Order dated 14th April, 1969, was introduced, whereunder the President of Pakistan enforced P.O.9/1970, wherein the entitlement (right) of the Judges in respect of their pension was stipulated as under:- “13. Condition of admissibility of pension.—A Judge shall, on his retirement, resignation or removal, be 183 paid a pension in accordance with the provisions of this Order if he has--- (a) completed not less than five years of service for pension and attained the retiring age; or (b) completed not less than five years of service for pension and, before attaining the age, resigned; or (c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having being medically certified to be necessitated by ill-health or been removed for physical or mental incapacity: Provided that, for the purpose of clause (a) of Part I of the First Schedule a deficiency of three months or less in the service for pension as Judge shall be deemed to have been condoned.” In the interim Constitution of Pakistan 1972 as per Article 207, the entitlement of every retired Judge remained conditional to the determination by the President (emphasis supplied). 8. On the promulgation of the “the Constitution” no vital and important change was introduced (therein) about the entitlement of the retired Judges, as no departure from the earlier law was visibly made. And Fifth Schedule (note: the interpretation of the Fifth Schedule is critical) to Article 205 prescribed:- “1…………………………………………………….... 2. Every Judge of a High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court were entitled. 3. The pension payable to a retired Judge of the Supreme Court shall not be less than Rs.1,500 per 184 mensem or more than Rs.1,950 per mensem, depending on the length of his service as Judge in that Court or a High Court:” However, by virtue of the Constitution (Twelfth Amendment) Act 1991 dated 27.7.1991, Paragraph 3 was substituted to read as below:- “3. The Pension payable per mensem to a Judge of a High Court who retires after having put in not less than five years service as such Judge shall not be less or more than the amount specified in the table below, depending on the length of his service as Judge and total service, if any, in the service of Pakistan: Provided that the President may, from time to time, raise the minimum or maximum amount of pension so specified” Then came into force P.O.2/1993 on 19th October, 1993 and it is quite significant to point out, that this P.O. has been issued under proviso to 3rd Paragraph of the Fifth Schedule (Paragraph 3 which was added by aforestated twelfth amendment); in this regard the title of the P.O. reads as “Whereas, the proviso to third paragraph of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan relating to the remuneration of the Judges of the Supreme Court and High Courts provides that the President may, from time to time, raise the minimum or maximum amount of pension so specified in the said paragraph”. Whereas the pension related part of P.O.2/1993 is:- “2. Pension.---(1)…………………………………………... (2) The minimum and maximum monthly pension of the Chief Justice of a High Court shall be Rs.9,800 and Rs.12,250 respectively and that of every other Judge of a High Court shall be Rs.8,722 and Rs.10,902 respectively.” 185 Finally P.O.3/1997 was enforced on 12.2.1997, which has been issued under Paragraph 2 of the Fifth Schedule, and it contains the provisions about the entitlement and the admissibility (emphasis supplied) of pension of retired Judges of the High Courts as below:- “14. Condition or admissibility of pension.—A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has--- (a) completed not less than five years of service for pension and attained the retiring age; or (b) completed not less than five years of service for pension and, before attaining the age, resigned or sought retirement; or (c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having being medically certified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire.” The above in a sequence accomplish the legislative history, in respect of the genesis, and the evolution of the pensionary right and the entitlement of the Hon’ble retired Judges of the High Courts throughout. And as stated earlier it is in the context of this legal backdrop and the development; the nature and purpose of pension; the convention etc.; and contemporaneous understanding of the law, that the evaluation of the right/entitlement of pension of the Judges should be made and the provision(s) of Article 205 and Fifth Schedule thereof, and P.O.3/1997 (alongwith other relevant P.Os.) 186 has to be applied and construed. 9. Since the Government of India Act, 1935 which is the origin of the retired Judge’s right to receive pension, and from all the laws that have followed, it is vivid from the contents, the text, the letter and spirit thereof (such laws) that the said right is neither absolute nor unqualified. Here I would briefly mention that the 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. In the case of the employments which are governed by the service rules, there are provisions laying down the criteria and the qualification for that purpose; and where the employments are regulated by the contracts, it is so specified in the terms and conditions of such contracts. Until such qualifications are met and the contractual stipulations are satisfied (note: as the case may be), no servant/employee is entitled to pension. And the Judges are no exception to the above rule. Therefore, a Judge per se on the basis of his appointment shall not become entitled to the pension, rather he has to earn that right by meeting the qualifications and by fulfilling the requirements stipulated by the legal instruments in force at the relevant point of time (or from time to time). In all the laws mentioned above, there are some very important words and expressions which have been used, and for the comprehension and interpretation of such provisions and for the purposes of resolving 187 the issue, it is imperative that meaning of the words/expressions should be ascertained. The first in the chain is such, which means, that, as/that, of the type to be mentioned, or that kind; unmistakably meaning, that it is only that kind of the right which has been fixed and determined either by the law or the authority designated in the law, therefore, these two words are of immense importance. According to various dictionary meaning fix is defined as, to assess, to determine, to settle (see e.g. MS Dictionary), whereas, the word determine connotes; to fix conclusively and authoritatively; to come to a decision, to settle, to resolve, to fix the form or character before hand; ordain; to find out the nature, limit, dimension and scope (see MS Dictionary and Merriam and Webster Dictionary). In view of the aforestated position, I have wee hesitation to hold that these two (words) are analogous and interchangeable terms/words. Thus from the above it is clear that, it is only such right which is determined by the President which entitles the Judges to pension; if there is no determination there is no right and if the determination is qualified, the right is not absolute, but conditional thereto. Therefore, in the context of the instant proposition, it is hereby conclusively held that such right is subject to, dependent upon, and circumscribed by the condition of determination; and when the said determination has prescribed certain qualifications and the requirements for the conferment and/or for acquiring the (such) rights, the right shall only be created, as is mandated by law, and the conditions laid down therein (the law) are first satisfied. I find myself in agreement with the plea raised from the Judges side, that the provisions of Paragraph 2 of the Fifth Schedule are independent of Paragraph 3, but none, as repeatedly queried, was 188 able to answer and point out if the President has ever made any determination about the entitlement/right to receive pension with respect to those Judges who have the term of service less than five years. Undoubtedly while considering the contents of Paragraph 3 of the Fifth Schedule and also the relevant provisions of P.O.3/1997, the determination of the right and the entitlement is only restricted to, with respect to those Judges who have served for five or more years and for none else. I am absolutely unimpressed by the argument from the Judges side that the determination has been made as per the provisions of P.O.2/1993 reproduced above; or for that purpose Paragraph 3 of the Fifth Schedule or clause 14 of P.O.3/1997 should be enlarged or read down (note: Mr. Munir A. Malik, ASC, has argued this point); it is my candid opinion that P.O.2/1993 has nothing to do with the determination contemplated by Paragraph 2 of the Fifth Schedule, rather it (P.O.2/1993) is pursuant to Paragraph 3 of the Schedule, as it is so clear from the title thereof and such Presidential Order is only meant for and caters for the Judges, whose right have been determined as per the force of Paragraph 2 of the Fifth Schedule. Now considering the right to pension in terms of the convention etc. There has not been a single instance (present case is an exception) in the Subcontinent that a retired Judge who had not completed the requisite term of service would ask for or was granted the pension, which thus had developed into a convention and this was also the contemporaneous understanding of the law, that is why the legal illumenorions of their time, who had lesser term of service than required never pressed for pension (this aspect has also been highlighted by my brother). Before parting with the proposition, passingly it may be mentioned that in India, almost in 189 a similar factual scenario, an akin issue, cropped up, and in view of the provision of Article 221 ibid and Section 14 of the Indian (relevant) law, which prescribed a particular tenure for the entitlement to pension of the High Court Judges; the Court seized of the matter in that case reported as Pana Chand Jain Vs. Union of India and others (AIR 1996 Rajasthan 231) held:- “Reading the aforesaid provisions (Section 14) with Part-I of the First Schedule to ‘the Act’ it is evident that the amount of pension payable to a Judge of the High Court is linked with the length of service rendered by him. This very basis of fixation of amount of pension is challenged by the petitioner………………………………………………………...” “Thus, framers of the Constitution, who laid down the eligibility criteria in Article 217 of the Constitution made distinction while determining the amount of pension and other allowances payable to the High Court Judges. That is why they made separate provision by enacting Sub-Clause (2) of Article 221. The leave of absence and the pension and other allowances payable to High Court Judges was left to be determined by Parliament by enactment of law. The framers of the Constitution did not take upon the task of fixing the amount of pension themselves as they undertook this task while fixing the amount of salary. The very scheme of the Constitution suggests that the amount of pension to be payable to a High Court Judge is to be left to the wisdom of the Parliament. This is the mandate of the Constitution. Therefore, the contention based on the provisions of Constitution and particularly the provisions of Article 217 is misconceived. If the argument is accepted, it would lead to absurd result inasmuch we may have to come to the conclusion that the framers of the Constitution were not aware about the distinction introduced and made by themselves in Article 221(2) in respect of leave of absence and pension payable to the High Court Judges. Therefore, there is no merit in the argument that the provision of Section 14 of the Act is contrary to law or 190 violative of Articles 217 and 221 of the Constitution.” WHETHER “THE JUDGMENT” IS PER INCURIAM AND THE NEXUS OF THE PRINCIPLES OF LOCUS POENITENTIAE AND LEGITIMATE EXPECTATION ETC. (Question No.5) 10. For adjudging the validity of the law laid down in “the judgment” (PLD 2008 SC 522), it seems expedient to make a brief probe into the facts of that case. Justice (Retd.) Ahmed Ali U. Qureshi retired as a Judge of the Sindh High Court, without having a period of five years to his service credit (as High Court Judge). He (in the year 1994) filed a writ petition in the Sindh High Court, claiming entitlement to the pension, notwithstanding the length of his service, which claim of the learned (Retd) Judge was accepted by the learned High Court vide its judgment dated 2.2.1995 (reported as PLD 1995 Kar 223) holding “We are, consequently of the view that rights and privileges admissible to the petitioner in respect of his pension are now governed under President's Order 2 of 1993”………………“In the result, the petition is allowed and the respondents are liable to fix the petitioner's pension at the maximum pension as allowed under President's Order No. 2 of 1993”. This verdict has been affirmed by this Court in “the judgment” (PLD 2008 SC 522) and in relation to the proposition, about the entitlement of the pension of the Judges, while interpreting Article 205 of the Constitution and the Fifth Schedule thereto, this Court came to the conclusion that Paragraphs 2 and 3 of the Schedule are two independent provisions (note: no cavil with the above). Besides, under Paragraph 2 (of the Schedule) ‘Every Judge’ is entitled to pension, irrespective of his length of service and Paragraph 3 only relates to those Judges who have served for more than five years; the latter Paragraph in no manner debars and/or preclude the other Judges, 191 who have served for less than five years to receive pension. In this regard with an object to justify that the entitlement of such Judges (with less than five years term) has been determined by the President, strenuous reliance was placed on P.O.2/1993 and also on the factum that this entitlement has been affirmed and recognized by P.O.7/2008. This Court also implied (in that decision) that the expression “every Judge” appearing in Paragraph 2 of the Fifth Schedule, as against the lack of or the omission of the expression ‘a Judge’ therein, is significant and therefore the entitlement of “every Judge” notwithstanding P.O.3/1997 is absolute and established. In my view “the judgment” (PLD 2008 SC 522) is per incuriam and for this purpose my opinion/exposition on Question No.4 (ibid) should be read as integral part herein, and in the light thereof, I hereby enumerate the fundamental errors of “the judgment” which has rendered it per incuriam: (a) the legislative history of the law on the field has been ignored and overlooked by the Court (b) the true nature, the concept and the purpose of the pension has been disregarded (c) the convention and the previous practice which has the force of law, in that, no pension was ever paid or claimed by the Judges who did not qualify the test of the law, has been elided (d) the most important and crucial words/expression of the relevant laws such right and fix/determination of such right, by the President has not been adverted to at all (e) once holding that the provisions of Paragraphs 2 and 3 of the Fifth Schedule are independent, still the justification of entitlement has been founded upon either of the two Paragraphs by erroneously reading those with P.O.3/1993 (f) P.O.2/1993 undisputedly was issued under Paragraph 3 of the Fifth Schedule, 192 yet it has been misconceived that the determination by the President has been made on the basis thereof which could only be in the context of the Paragraph 2. In this behalf conspicuous omission has been committed, by not adverting to and taking in account (reproducing) the title part of P.O.2/1993, which reads as “Whereas, the proviso to third paragraph of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan relating to the remuneration of the Judges of the Supreme Court and High Courts provides that the President may, from time to time, raise the minimum or maximum amount of pension so specified in the said paragraph” which clearly contemplated that the P.O. was only restricted to Paragraph 3 (g) P.O.7/2008 was resorted to, which was subsequently declared as ultra vires and non est by this Court in the Sindh High Court Bar Association case (h) the contemporaneous understanding of law and the factor that during the long period of about around 50 years, no Judge having a lesser tenure than the one prescribed by law for the time being in force, ever claimed or approached the Court, for the pension have grossly eluded the attention of the Court. 11. Now attending to the proposition raised from the Judges side, that as a vested right has been created in their favour, on account of the judgment thus on the basis of the doctrine of past and closed transaction, locus poenitentiae, and legitimate expectation, such right cannot be stultified and taken away which stands protected in perpetuity; suffice it to say that as per the settled law, no perpetual right can be created in favour of a citizen/a person, which (right) is against the law. The right to pension, which the judges claim to have been created in their favour, undoubtedly is founded upon “the judgment” (PLD 2008 SC 193 522). Obviously, this right has to sustain and cease with the fate of the said judgment. If the law declared in “the judgment”, is pronounced to be per incuriam (as has been done in the matter) “the judgment”, and the law enunciated therein stand extinguished and with the annihilation of “the judgment”, the right also vanish and the judges cannot claim, under any principle of law (quoted above), that they still should be paid the pension in future. Even though, the said judgment being per incuriam has been set aside by this Court. In the context of the plea that the right of pension can sustain, I intend to analyze the doctrine of locus poenitentiae; my learned brother in his judgment has defined and elucidated the principle of locus poenitentiae, however at the cost of repetition, it is held that locus poenitentiae conceptually connotes, that authority which has the jurisdiction to pass an order and take an action, has the due authority to set aside, modify and vary such order/action, however there is an exception to this rule i.e. if such order/action has been acted upon, it creates a right in favour of the beneficiary of that order etc. and the order/action cannot thereafter be set aside/modified etc. so as to deprive the person of the said right and to his disadvantage. However, it may be pertinent to mention here, that as pointed out in the preceding part, no valid and vested right can be founded upon an order, which by itself is against the law. In this regard, reference can be made to the judgment reported as The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another Vs. Jalaluddin (PLD 1992 SC 207), the relevant part whereof reads as under:- 194 “It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order.” Further dictas in this behalf are:- Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907) and M/s Excell Builders and others Vs. Ardeshir Cowasjee and others (1999 SCMR 2089). Besides, the principle of locus poenitentiae (with its exception), in my view, primarily has the nexus and application to administrative orders and actions, and would not apply to the judicial decisions. The judicial decision can only be invalidated, quashed and annulled, through the process of appeal, revision and review, if such remedies are available to an aggrieved party under the express provisions of law. And once such decision has attained finality it operates as res judicata inter se the parties to the lis (note: the decisions however rendered by the superior Courts in so far enunciating the law has the binding effect also on all the concerned). Therefore, such a decision until the law declared therein is altered in the appropriate jurisdiction of the Court or the decision is declared as per incuriam, and is squashed it shall have the due effect. But where the judgment is set aside as in this case; the rule of locus poenitentiae, alongwith the exception, shall not be applicable, because as mentioned earlier, the doctrine primarily belongs to the administrative domain of the State and is restricted to administrative orders/actions alone. In this context, reference can 195 be made to Clause 21 of the General Clauses Act, 1887, which provision is reproduced as below:- “Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws. Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” While interpreting such provision, it has been held by Sindh High Court in Sheikh Liaquat Hussain Vs. The State (1997 P.Cr.L.J. 61) “The word "orders" has been used alongwith the words "notifications, rules, and bye-laws", and will thus be interpreted ejusdem generis, meaning thereby that it will be taken to be in the sense of an order issued by the Legislature or the Executive. Moreover, as a rule of construction the words used in a statute must be construed according to their context and as such other provisions in that statute would be very much relevant. Section 21 should, therefore, be read in the light of sections 14 to 20 and sections 22 to 24 and then it will be clear that the word "order" in that section refers to Legislative or Executive orders and not a judicial order. I am fortified in my opinion by a Full Bench decision of Nagpur High Court reported as Venkatesh Yashwant Deshpande v. Emperor AIR 1938 Nag. 513. I will reproduce with advantage the following observations in this judgment:-- "The meaning of the word 'orders' becomes clear when section 21 is read in conjunction with section 24. These considerations make it clear that the word 'order' used in section 21, 196 General Clauses Act, is a legislative or statutory order, that is an order having the force of law. The order passed under section 401 granting remission of punishment falls in a category different from the order contemplated in section 21, General Clauses Act. The applicability of that section is, therefore, highly doubtful. " A learned Single Judge of the Lahore High Court also took the view that section 21 of the General Clauses Act could not be pressed into service in relation to orders passed in a judicial capacity. Reference in this connection may be made to the case of Muhammad Ibrahim and 2 others v. Municipal Committee, Chiniot through its Chairman 1990 ALD 655.” In this behalf, reliance can also be placed upon the judgment reported as Venkatesh Yeshwant Deshpande Vs. Emperor (AIR 1938 Nagpur 513) wherein it has been held as under:- “It is a well recognized rule of construction that the words used in a statute must be interpreted according to their context. Section 21 of the General Clauses Act, must therefore be read in light of Ss 14 to 20 which precede Ss 22 to 24 which follow. These considerations make it clear that the word ‘orders’ used in section 21 is a legislative or statutory order, that is an order having force of law.” Moreover, in the A.I.R. Manual, 5th Edition 1989 by V.R. Manohar and W.W. Chitaley; the query at hand is addressed at on page 143 of its book. It states that Section 21 of the General Clauses Act does not apply to a decision as to the rights of parties made by particular judicial or quasi judicial or administrative authority. Orders spoken in the section are those in the nature of subordinate legislation. 197 My own reading of the provisions of clause 21 of the General Clauses Act with reference to the object and purpose of the Act and its various provisions leads me to form a view that, the rule of locus poenitentiae, for the purposes of the protection of the rights under the said clause, is only restricted to the administrative or executive orders/actions, and in no way is attracted to the judicial decisions, particularly where a decision is declared as per incuriam and is specifically set aside. Upon the above principles, and the reasoning the doctrine of past and closed transaction, shall also not attract hereto, specially because no right can in perpetuity either be created or be continued on the basis of a law, which has ceased to exist and has been annulled. As far as the rule of legitimate expectation is concerned, such rule is not a part of any codified law, rather the doctrine has been coined and designed by the Courts primarily for the exercise of their power of judicial review of the administrative actions. As per Halsbury’s Laws of England, Volume 1(1), 4th Edition, para 81, at pages 151-152, it is prescribed:- “A person may have a legitimate expectation of being treated in certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise from a representation or promise made by the authority including an Implied representation or from consistent past practice.” In R. Vs. Secretary of State of Transport Exporte Greater London Council (1985)3 ALL. ER 300, it is propounded that:- “Legitimate, or reasonable, expectation may arise from an express promise given on behalf of a public authority or from the existence of a regular practice which the 198 claimant can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the public authority which has the duty of taking decision.” In the judgment reported as Union of India Vs. Hindustan Development Corporation (1993)3 SCC 499 at 540, it has been held:- “The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or established procedure followed in regular and natural sequence. It is also distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.” It is thus clear from the above that the doctrine only has nexus to administrative decisions and actions, and no one can have resort to it, for the purposes of claiming any right found upon any decisions of this Court, which decision and the law laid down therein is found by the Court to be per incuriam. Therefore, I do not find any merit in the plea raised by the Judges side, that their right to receive pension in future is protected on the principle of legitimate expectation despite the fact that “the judgment” has been declared per incuriam and set aside. WHETHER ANY PROTECTION IS AVAILABLE TO THE JUDGES ON THE RULE OF EQUALITY AS ENSHRINED BY ARTICLE 25 OF THE CONSTITUTION (Question No.6) 12. For the above question, it has been argued from the Judges side that they shall be discriminated qua the Judges of this 199 Court as also the Judges of the High Courts who are entitled to pension in terms of Paragraph 3 of the Fifth Schedule and also clause 14 of P.O.3/1997, as having served for a term of five years or more. There can be no two opinions, that the reasonable classification and differentia is permissible under Article 25 of the Constitution. The Judges of this Court have been treated by the Constitution itself as a class apart from the Judges of High Courts for the purpose of pension, and by no conceivable reason, it can be held that both the categories of the Judges i.e. Supreme Court and High Court forms part of one and the same class. Therefore, the plea with reference to the Judges of this Court has no force. Now examining the argument in relation to those Judges who have completed five years tenure; it may be mentioned that they are again qualified to receive the pension under the mandate of the Constitution and in this behalf Paragraph No.2 of the Fifth Schedule to the Constitution, and clause 14 of P.O.3/1997 are very much clear; and I have already held (see discussion on entitlement) that the right to receive the pension is not absolute; it has to be earned and it also is not a bounty. Therefore, the Judges lacking the qualification prescribed by law for acquiring the right cannot compete with those who fulfill the requirement. It may be pertinent to state here that some of the Judges have a service tenure of one year/two years/three years; how conceivably they can compare themselves, with those who have the prescribed tenure of five years and plead discrimination. Therefore, the submission made is unfounded and is hereby discarded. 200 WHETHER THIS JUDGMENT SHALL HAVE PROSPECTIVE OR RETROSPECTIVE EFFECT (Question No.7) 13. While assessing this question I have the privilege and advantage of going through the note of my learned brother Muhammad Ather Saeed, J. and agree thereto, therefore I shall not repeat what my brother has already expressed. However I would like to add; that in the ordinary course, the judgment(s) pronounced by this Court declaring and enunciating law has prospective effect, but still, the prospective or the retrospective application of a particular judgment depends upon the facts and circumstances of each case, and it is for the Court to decide (in each case), if the judgment should be made applicable prospectively or otherwise. In forming this opinion, I am fortified by the law laid down in the case reported as Malik Asad Ali and others Vs. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161 at page 346) (on which reliance has also been placed by my learned brother in his judgment) the relevant part whereof reads “Even otherwise, as pointed out by us earlier, this Court while adopting an interpretation of the provision of the law or the Constitution which is at variance from the existing view, it is only declaring the correct law as an apex Court. By doing so, it neither legislates any new law nor amends the existing law. Therefore, while interpreting a provision of law or the Constitution, this Court can also provide the date from which the interpretation given by it is to come into effect, keeping in view the nature of the provision it is interpreting, the likelihood of possible prejudice which may be caused to an individual or a body of individual and the requirement of justice in the case (emphasis supplied)”. In Malik Asad Ali’s case (supra), quite a few precedents on the subject have been cited. In my view the present 201 decision warrants prospective application i.e. from the date of its pronouncement and I have reasons to form such an opinion. However, before propounding those reasons I intend to state that a judgment per incuriam is not a judgment without jurisdiction and thus it is neither void nor nullity in the eyes of law therefore, the fallout of a void verdict/order shall neither follow nor can be resorted to; moreover in the context of this case, I find no relevance, to compare the interest of the Judges with the State and/or the public interest, on the touchstone of the maxim “salus populi est supreme lex” or on the rule that the individual interest has to give way to the public welfare and interest. Be that as it may, my reasons for giving this judgment prospective effect are:- majority of the Judges have not even approached this Court to seek the relief for the grant of pension, rather it is only in terms of paragraph No.34 of “the judgment” which provides “In consequence to the above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges (emphasis supplied)” that they were contacted by the Registrar of the respective High Courts (as this is the stand taken by them and I have no reasons to disbelieve) and they were offered the pension. Some of the beneficiaries of “the judgment” are the widows of the retired Judges. It is nobody’s case that they have practiced and played any 202 fraud or committed some foul in gaining and procuring the pension, so as to disentitle them to retain such gain, on the known principle, that no one should be allowed to hold the premium of his wrong/fraud and/or retain ill gotten gains. Rather to the contrary they have received the monies under the judicial dispensation by the apex Court, which was considered as valid enunciation of law, till the present decision and the pension was paid and received by them in bona fide belief of the entitlement; none of the concerned, ever pointed out the depravity and the vice of “the judgment”, though “the judgment” was known at all the levels of the High Court(s) and also in other judicial circles, rather it was a publicly known fact, yet the verdict was left outstanding for a considerably long period, thereby allowing the Judges to derive benefit of “the judgment”; I am not persuaded that the Registrar of this Court or for that matter all the concerned, at all the levels, including the learned Members of this Bench, who graced the respective High Courts of the country as the Chief Justices were unaware of “the judgment”, but still no timely action was initiated to set the wrong law, right and the time was allowed to pass. If a wrong and an error has been committed in the declaration of law (PLD 2008 SC 522), the responsibility rests on this Court and it is fundamental rule of law and justice, that the act of the Court shall prejudice none; in my view this principle tilts in favour of the Judges, rather the State. Because on account of the lapse of considerable time, most of the Judges might have spent and consumed the amount received by them, as they are expected to have decent living after their retirement; the amount so received might have expended on the education and marriages of their children; the possibility that 203 they might have acquired an abode to spend rest of their life to avoid dependency on their scion cannot be ruled out. This amount might have been utilized on their daily expense and sustenance and in the discharge of their other social and financial obligations. And if now the amount is ordered to be recovered from them they might have to sell their assets (shelter) and belongings. Those who have no assets or saving might be compelled and constrained to entreat others or borrow which would definitely not behove with their status and position as the retired Judges; baring few, most of them are of old age and I am not sure they have the ability and capacity, at such an advance age to generate the requisite amount for the refund. Enforcing the refund of the amount upon them may cause innumerable predicament for them and may lead to a very pathetic and a ludicrous situation for them. And all those who have once graced the superior judiciary, might in this scenario be rendered destitute and precarious and deprived of even a modest life and living in future. But for the commission of no wrong, fraud, foul and fault on their part. Rather as stated earlier an error and mistake perpetrated by this Court. Therefore, I am of the considered view that the present judgment be given prospective effect. 14. I also do not find that in this matter the principle of restitution, which in the normal situation where a decision is reversed should apply because the judgment is not being set aside on the approach of any aggrieved party, but on its own motion by this Court for the purposes of setting the wrong law correct. Furthermore, I am not impressed by a thought that as “the judgment” was rendered during the period when the real judicial 204 set up was lacking in country, therefore the recovery is justified, because to my mind all such decisions made and verdicts given in between the period of 3rd March, 2007 and 23rd March, 2009 have been saved as per the doctrine of defacto jurisdiction (see para 178 of the Sindh High Court Bar Association case) however without debaring in any manner this Court in its appropriate/proper jurisdiction, including its suo moto jurisdiction to examine such decisions and to set aside those, inter alia, on the basis of rule of per incuriam; and “the judgment” is no exception to it, however, it shall be perilous to impute motives to the Judges in rendering the judgments. Be that as it may, in not conferring retrospective effect to the present judgment and I am persuaded by the law laid down by this Court in The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another Vs. Jalauddin (PLD 1992 SC 207) (to which reference has also been made by my learned brother in his judgment) wherein while considering the aspects of locus poenitentiae and past and closed transaction, with regard to an order involved in that case, which was declared to be illegal, it has been held as under:- “Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the present case the appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during this period when the letter remained in the field.” 205 Therefore following the above dictum, I hold that the amount so far received by the Judges should not be recovered, from them, as it shall be oppressive and more prejudicial to the Judges, as against the respondent of the case i.e. (of PLD 2008 SC 522) and the State, which (State) even never ever filed any review against “the judgment”, even after the success of the movement for the restoration of real judiciary. And even now the recovery has not been pressed for before us by the State. However, as now the judicial verdict (PLD 2008 SC 522) under which the Judges had and have been receiving the pension, is declared per incuriam and is set aside, obviously their right to receive the pension has ceased and come to an end, rather they are disentitled to receive pension in future. And as mentioned earlier, such right for the future receipt of pension is not protected under any principle, rule and on jurisprudential plain. 15. While summation of my this discourse, I want to state that in the judgment authored by my brother Anwar Zaheer Jamali, J. it has been held that for the purposes of the entitlement to pension, there is no distinction between “a Judge” and an “Additional Judge” of the High Court. In this behalf, my brother has taken into account the definition of a “Judge” provided in Article 260 of the Constitution and reference to certain P.Os. have also been made, the definition of remuneration etc. has also been considered, but with due deference to my learned brother, I am not inclined to endorse such a view and the reasoning; because in my humble estimate, the object and purpose of such appointment (see Article 197) is different and the definitions are only meant for the purposes of the functions/privileges and remuneration of an 206 “Additional Judge” during the course of his service as Additional Judge, but does not entitle him for pension even if he has served for five years. Anyhow as in the present scenario, in my view the above question is only rendered academic and as we have not received much assistance on the point, therefore, I shall leave the issue open and left to be resolved in some appropriate matter. JUDGE 207 EJAZ AFZAL KHAN,J:- I have gone through the judgment authored by my brother Mr. Justice Anwar Zaheer Jamali. Though I agree with the judgment yet I would like to record reasons of my own on certain points. 2. The entire argument of the learned counsel appearing to defend the judgment rendered in the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and others” (PLD 2008 SC 522) hinges on the words “every judge of a High Court” used at the start of paragraph 2 of Fifth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973. The main thrust of their argument is that when it has been provided in the said paragraph that every judge of a High Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension the legislature in its wisdom can never be said to have conditioned the incidence of such rights with having put in not less than five years of service as such judge. It, according to them, recognized the entitlement of every judge to the privileges and allowances and such rights in respect of leave of absence and pension irrespective of their length of service, therefore, it has to be determined by the President and that failure to do so will not culminate in the extinguishment of such rights. These arguments so to speak, evince an element of ingenuity but when all the paragraphs of the Schedule are read in their correct perspective, these arguments appear to be fallacious both legally and logically. What paragraph-2, in simple words, provides is that every judge of a High Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may be determined by the President and until so determined the judges of the High Court would get what they were, immediately before the commencing day, entitled to. Now the question arises what the judges of the High Court entitled to before the commencing day of the Constitution. The answer can well be found in paragraph-13 of Order IX of 1970. The relevant provisions of the Ordinance read as under:- 208 “13. Conditions of admissibility of pension. – A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has ---- a) completed not less than five years of service for pension and attained the retiring age; or b) completed not less than ten years of service for pension and, before attaining the age, resigned; or c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health, or been removed for physical or mental incapacity; Provided that, for the purpose of clause (a) of Part I of the First Schedule a deficiency of three months or less in the service for pension as Judge shall be deemed to have been condoned. 14. Determination of pension. --- Subject to the provisions of this Order, the pension payable to a Judge who, on his retirement, is entitled to a pension under this Order shall be calculated --- a) in the case of a Judge who is not a member of a service in Pakistan or who immediately before his appointment as a Judge did not hold any other pensionable civil post in connection with the affairs of the Centre or of a Province, in accordance with the provisions of Part I of the First Schedule; b) in the case of a Judge who is a member of a civil service in Pakistan or who immediately before his appointment as a Judge held any other pensionable civil post in connection with the affairs of the Centre or of a Province, in accordance with the provisions of Part II of the First Schedule, unless he elects to receive pension under Part I of the said Schedule. 15. Pension of Judges not covered by paragraph 13. --- A Judge who immediately before his appointment as such was a member of a civil service in Pakistan or was holding a post in connection with the affairs of the Centre or of a Province and who does not fulfill the conditions laid down in paragraph 13 shall, on retirement, be entitled to such pension as would have been admissible to him in his service or post, had he not been appointed a Judge, his service as a Judge being treated as service for the purpose of calculating that pension”. 2. An identical provision can be found in the Constitution of 1962 and that of 1956 in the same words which provided that every judge 209 of a High Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may be determined by the President and unless so determined to the privileges, allowances and rights to which immediately before the commencing day the judges of the High Court were entitled. What was the instrument regulating the entitlement of the judges to the privileges and allowances and to such rights in respect of leave of absence and pension immediately before the commencing day of the aforesaid Constitution. The answer can be found in the relevant provisions of The High Court Judges Order 1937 which read as under:- “Pension. 17.--- (1) Subject to the provisions of this Order, a pension shall be payable to a Judge on his retirement if, but only if, either – a) he has completed not less than 12 years’ service for pension; or b) he has completed not less than 7 years’ service for pension and has attained the age of sixty; or c) he has completed not less than 7 years’ service for pension and his retirement is medically certified to be necessitated by ill-health”. 2) The [President] may for special reasons direct that any period not exceeding three months shall be added to a Judge’s service for pension: Provided that a period so added shall be disregarded in calculating any additional pension under Part I or Part II of the Third Schedule to this Order”. 3. All provisions of the orders reproduced above show that a Judge shall have a right to pension only if he has put in the prescribed qualifying service. Mere appointment as a Judge will not entitle him to pension. Many instruments regulating the entitlement of judges of the High Court to privileges and allowances and rights in respect of leave of absence and pension like Order II of 1993 and Order IX of 1970 have been enforced but none of them entitles them to rights to pension if they have put in less than five years of service. It, thus, clinches the matter once and 210 for all and leaves no doubt that rights of the judges to pension who have put in less than five years of service also stand determined. What was required to be enforced under the enabling provision of the Fifth Schedule stood enforced in the form of Order II of 1993 and Order III of 1997 which have been extensively reproduced in the main judgment. When this being the case, we don’t understand where do the rights to pension of the judges who have put in less than five years of service come from. It was argued by one of the counsel representing the retired judges that if the rights of the judges to pension who have put in less than five years of service, have been recognized by the Constitution, it could not be denied due to inaction of the President as the very conferment of the power enabling him to determine such rights would invariably call for its exercise. But this argument, to say the least, appears to be misconceived as there has not been any inaction on the part of the President at any stage or at any point of time, inasmuch as, he enforced Order II of 1993 and Order III of 1997 determining such rights in clear and unambiguous terms. Once these rights have been determined pursuant to paragraph 2 of Fifth Schedule of the Constitution, we don’t think any judge who has put in less than five years service can be left with a hope or an occasion to wait for yet another order determining the rights in accordance with his wishful thinking. 4. The provision recorded in the judgment rendered in the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and others” (supra) entitling a Judges to pension who have put in less than five years of service is paragraph 4 of Order VIII of 2007 but when this and the paragraph succeeding it are read together and each word used therein is given due meaning, it does not tend to support the deductions drawn therefrom. None of the words used in the aforesaid paragraphs could lead to the meaning wrung and wrested therefrom in the judgment under review. It appears that the aforesaid paragraphs have not been read carefully nor were they interpreted in their correct perspective. 211 5. When asked whether the Judges who have put in less than five years of service could retain the benefits they have received in case the judgment rendered in the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and others” (supra) is set at naught, learned counsel representing the Judges submitted that it being a transaction past and closed cannot be reopened because a subsequent decision being prospective in operation cannot be applied retrospectively. But when asked how the Judges who have put in less than five years service, could retain the benefits they have received or continue to receive if the judgment furnishing basis for grant of such benefits is set at naught and thus rendered non existent, no satisfactory reply was given by any of the counsel representing them. Granted that a subsequent precedent overruling a previous one being prospective in operation cannot be applied retrospectively but this principle will not apply when the judgment furnishing a basis for a right or entitlement stands annulled on having been reviewed. Therefore, a judgment reversing or declaring a judgment per incuriam in review cannot be treated at par with a judgment overruling or declaring a precedent in another case as per incuriam. As for example, a pre-emptor, succeeding to get a decree from a Court, in a pre-emption case without having a superior right of pre-emption and without making demands which are sine qua non for the enforcement of such right, cannot claim any right or benefit much less vested on the basis of such decree when it is annulled by the Court granting it in the exercise of its review jurisdiction. Retention of a benefit or right thus acquired cannot be justified under any cannons of law, justice and propriety. It cannot be justified on the plea of bonafide either. What is illegal would remain illegal. It cannot be changed into legal by pleading bonafide. 6. When learned counsel for the respondents could not find any statutory basis to shield the benefits the latter received, they sought to shield them behind the principle of locus poenitentiae by arguing that an order extending a right cannot be rescinded, revoked or recalled if it is 212 acted upon and in consequence a right has accrued. This principle cannot help them firstly because it is not applicable to judicial proceedings and secondly because it cannot be applied in a vacuum without considering the import of provisions contained in section 21 of the General Clauses Act. According to the aforesaid provision, the authority passing such order, in the first instance must have a power to pass, and then recall, revoke or rescind it. Where the authority passing the order has no power to pass it, its recall, revocation or rescindment can’t be precluded on the ground that it has been acted upon and in consequence a valuable right has accrued. An order passed without a power, would be just non-est. The judgment rendered in the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and others” (supra), when read with open eyes does not appear to have been based on and backed by any order, instrument or any statutory provision worth the name. It, therefore, has no basis altogether. If at all it had any by any stretch of imagination, it vanished and withered away on having been reviewed. Needless to say, that fall of basis would call for the fall of the superstructure raised thereon. Effect of the judgment in Constitution Petition No. 127 of 2012 declaring the judgment rendered in the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and others” (supra) as per incuriam would be prospective as well as retrospective when the existence of the latter on having been reviewed has been reduced into non-existence unlike the judgments overruled or dissented from inasmuch as they for having been rendered in different cases do not reopen the matters past and closed. 7. I have also been deliberating since the commencement of hearing of their case till the writing of this note to find some justification for the retention of the benefits received by the learned Judges but could not find any. In case I create or contrive one in this behalf, I cannot find any reason to deny the same relief to the others whose case is either in the pipeline or who have yet to retire. I also could not find any intelligible 213 differentia for a classification amongst the Judges who have received the benefits and those who have yet to receive notwithstanding they are similarly placed. Even otherwise, a benefit extended in derogation of the law cannot be justified to be retained simply because it has been received as such. Judge 219 Iqbal Hameedur Rahman, J: - I have the honour and privilege of going through a very lucid judgment expounded by my lord Justice Anwar Zaheer Jamali, J, as well as additional notes of my lords Justice Mian Saqib Nisar and Justice Muhammad Ather Saeed, JJ, wherein very persuasive and elaborate interpretation has been given with clarity in pursuance to our short order dated 11.04.2013, whereby the judgment rendered by this Court in the case of Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) has been declared to be per- incuriam. 2. Both my lords, Justice Anwar Zaheer Jamali and Justice Mian Saqib Nisar, JJ, have in exhaustive manner dealt with the contentions raised by respondents-Judges and the law alongwith the interpretation of constitutional provisions extensively with clarity and reasoning supported by celebrated judgments and I fully concur with the reasoning and conclusions being propounded by my lords by holding the judgment in the case of Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi and others per-incuriam. There is no cavil to the same and I fully agree with the same, but with due reverence and humility to my lord Justice Anwar Zaheer Jamali, J, I find myself not in consonance with the view that the judgment should take retrospective effect rather, on this issue, I concur with my lords Justice Mian Saqib Nisar and Justice Muhammad Ather Saeed that the judgment should take prospective effect, and in this regard I am fully in accord with the reasons given by my lord Justice Mian Saqib Nisar, J, which reads as under: - “13. …….. Be that as it may, my reasons for giving this judgment prospective effect are:- majority of the Judges have not even approached this Court to seek the relief for the grant of pension, rather it is only in terms of paragraph No.34 of “the judgment” which provides “In consequence to the above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 220 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges (emphasis supplied)” that they were contacted by the Registrar of the respective High Courts (as this is the stand taken by them and I have no reasons to disbelieve) and they were offered the pension. Some of the beneficiaries of “the judgment” are the widows of the retired Judges. It is nobody’s case that they have practiced and played any fraud or committed some foul in gaining and procuring the pension, so as to disentitle them to retain such gain, on the known principle, that no one should be allowed to hold the premium of his wrong/fraud and/or retain ill gotten gains. Rather to the contrary they have received the monies under the judicial dispensation by the apex Court, which was considered as valid enunciation of law, till the present decision and the pension was paid and received by them in bona fide belief of the entitlement; none of the concerned, ever pointed out the depravity and the vice of “the judgment”, though “the judgment” was known at all the levels of the High Court(s) and also in other judicial circles, rather it was a publicly known fact, yet the verdict was left outstanding for a considerably long period, thereby allowing the Judges to derive benefit of “the judgment”; I am not persuaded that the Registrar of this Court or for that matter all the concerned, at all the levels, including the learned Members of this Bench, who graced the respective High Courts of the country as the Chief Justices were unaware of “the judgment”, but still no timely action was initiated to set the wrong law, right and the time was allowed to pass. If a wrong and an error has been committed in the declaration of law (PLD 2008 SC 522), the responsibility rests on this Court and it is fundamental rule of law and justice, that the act of the Court shall prejudice none; in my view this principle tilts in favour of the Judges, rather the State. Because on account of the lapse of considerable time, most of the Judges might have spent and consumed the amount received by them, as they are expected to have decent living after their retirement; the amount so received might have expended on the education and marriages of their children; the possibility that they might have acquired an 221 abode to spend rest of their life to avoid dependency on their scion cannot be ruled out. This amount might have been utilized on their daily expense and sustenance and in the discharge of their other social and financial obligations. And if now the amount is ordered to be recovered from them they might have to sell their assets (shelter) and belongings. Those who have no assets or saving might be compelled and constrained to entreat others or borrow which would definitely not behove with their status and position as the retired Judges; baring few, most of them are of old age and I am not sure they have the ability and capacity, at such an advance age to generate the requisite amount for the refund. Enforcing the refund of the amount upon them may cause innumerable predicament for them and may lead to a very pathetic and a ludicrous situation for them. And all those who have once graced the superior judiciary, might in this scenario be rendered destitute and precarious and deprived of even a modest life and living in future. But for the commission of no wrong, fraud, foul and fault on their part. Rather as stated earlier an error and mistake perpetrated by this Court. Therefore, I am of the considered view that the present judgment be given prospective effect.” 3. I, therefore, consider the judgment Accountant-General, Sindh (supra) to be per-incuriam, which should be given prospective effect and the pensionary benefits being paid to the Judges should be discontinued with effect from passing of the judgment and order by this Court, but no direction for the of recovery of pensionary benefits and emoluments already availed by them can be given, as the same are undoubtedly not obtained by them on account of any commission of wrong, fraud or fault on their part rather the same have been availed on account of a mistaken judgment by this Court. As such, the instant judgment and order cannot be given retrospective effect. Judge.

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            251                    251                                     (2013 SCMR 1880)                                                                                         251                                                                                                                                                                                                                                                                                                                                                      1                                                                                                                   28    251                                                                                                                                                  184(3)         39  1                                                                                             24    2        97      2010   19          2015   7                                         2                              3                                                        (sovereign)    1                   2                                   4                                                                5                                                  3                         239         6                                11           A.V. Dicey                PLD 1976 Karachi 1368                                      basic structure theory                                   7        basic structure theory                    Preamble                                                                     8                  4                                     basic structure theory                             9    399   470     social contract theory     Thomas Hobbes                Jean Jacques Rousseau     John Locke                                         social contract theory     (preambles)                                                  social contract theory                    11             6  5  239     10                      11                         238          5  239                5                               6                                    6  5       11               6                                                                       9        11                   Preamble                 (holistic)               6  5  239       12                                  11                                                            13             (organic whole)      6                                                                                 14     Michael Dorf     Lawrence Tribe                                                                                              Dr. Conrad                                                                                                                                                                                                 PLD 2011 SC 409)                        15                       7             Hippocrates                                                                                                                                                                                                                        [    ]                                              239             16                                                     6  5      6  5                   17   1985          1973                                  6  5                 8                    PLD 1997 SC 426               238      (original)   1973                  239                239                               6                                                         239                                               6                                                             239                                    239                                                                5      18        6                                        "amendment"    to amend                                  9                 Raghunathrao Ganpatrao VS Union of India, AIR 1993 SC 1267                                 e m e n d e r e                   constitutionalism                                                       (6)   (5)   239          19  368       368               [  ]         (constituent power)     1971                          1972-73                       368      239        20       1976   5   4     6   5       6  5    5   4                          5  4       1985   17     6   5   239         1985   20          10   Constitution {Second Amendment} Order 1985  1985                       198520           198520         1985        6  5                      239                                      20            constituent                   1985               5  368                       [   ]                                                                 2010     270                 1985                                                                 (6)   (5)   239                                   11              11   21                  A.V. Dicey                                                                                                                    (sovereignty)    22                       Lord Steyn                                                                                                                                                                                                                    12                             1998         23                                                    Lord Steyn       (Jackson Vs Attorney General [2005] UKHL 56)                              1998        The European Convention on Human Rights                                                                                                              24                                                             PLD 2012SC 774                               13                                                                                                                            25                   (House of Lords)          2009                                                                   (Magna Carta)    1215     (Lords of Appeal in Ordinary)                                                                                                                                   14                 26                                        1949                                                                    27                                                                                        1935                                 28                                                                                     1947   15                                          29                    1947          1947              7(2)                                 (White Hall)    (Westminister)                                                                                                                                                                                                           30                 16                                  PLD 1955 FC 240                                       (Justice A. R. Cornelius)                                                                                                        31      1947                   6                                                                                                                                                                [    ]    1947     1947                              17                        32                                                81    1947                                                                        (1947)                                                     33   PLD 1976 Karachi 1368                                             preamble                                                              239                                   34                                                               18                                                                                                                                                                                           35                                                          (Chief Justice John Marshall)           McCulloch Vs Maryland 17 316 US 1819)                               1973                              1787                                   5           (rigidity)               19                       (Bill of Rights)         230                                                            239  238                      1972-73                                               36                                                                                                          1946                                                                                                                             20                                     37                                                                                        (Jameson)      John Austin                Carlyle   Willoughby   (Williamson)                                                                                                                                   38                                                                                            21                               39                                                                                                                                                                                            (organic whole)                                                    40                                                                                                         22               41                                                                                                                    42                                                                                                                                    1958                                      43                                                                 23                                       (Justice Bhagwati)                                                                                                                                                                              63A                                                44       (James Madison)                                                                                                                                                                                            24                                                                                  63A                 (Basic Structure Theory)         45                                                                                                                 46                                  Shankri Prasad Vs Union of India, AIR[38] 1951 SC 458                                         (Sajjan Singh Vs State of Rajsthan, AIR 1965 SC 845)                     Kesavananda Bharti Vs State of Kerala, AIR 1973 SC 1461 25        368                                           47                                                                48                                                                         Grover     Shelat                             Mukherjea   Hegde                                                           Reddy                                                      26    (Dr. Ashok Dhamija)                    27         27              39     49                                               (Dhamija)                                                (Dhamija)                 368                    6                                                                                       50                         (preamble)                                                                 27                                                                                                                             51                                                       (Preamble)                        52    (Preamble)                                                                                   1949                                         1973                   1949   28                                                                                                      (1)                        (2)                                      (3)                                                 (4)                                          (5)                                                               (6)                                           29                       (7)                       (8)              (9)                                          (Preamble) 53                                  1949                                                    PLD 1997SC426)                                        54                                                                                                                 30               55                                                                                                                                               56                        162                                                                                                                   1972                        1973                        31                  57        (PLD 1996 SC 324)        ((PLD 1996 SC 504)           (PLD 1994 SC 105)                                              26     (Democratic People's Republic of Korea)                      (run off)                                                            58                                                          (Craies)   (Crawford)         59                                                                (judicial review) 32             60                                                                                                  (draftsman)                                                                                                                                   51  63A, 175A, 175             61                                               1973                         1973     33       1949       62                                                                 1973                                                    63           1949                                                                                    1972                   (preamble)        1949                                                                                                                                                                                              34                          1972-73      1949                     1949                                                                   1949                                       1973   1949                                                  64                                                                                                                                             35               65                                                            1935                           2015                Recall of MPs Act 2015  Control of Horses Act-2015                      (Act)                              Recall of MPs Act 2015                                                 1919                                          66                                                                                                                                         (PLD 1973 SC 49) 36           200    67                         (Hansard)                  1949                                                                             68   52                                                                               (Lawrance Tribe)               69            (Michael Dorf)                                                                                   37                         70                                                                                                                    1947  26                            71                                                                                     (Ashoka Kumar Thakur Vs. Union of India (2008 [6] SCC 1)                                                                                                   38            72                                                                                                                                                           1973        73                                                     1949                                              1973                                                                                 39              74                                                                                                                      75                                                                            (PLD 2010 SC 265)                                                                                                                 76                                                                                 40                                                                                                                    77               (Black's Law Dictionary)                       (Shorter Oxford Dictionary)                           (Webster's Unabridged Dictionary)                                    (common law)          78                                          Preamble             1972-73                                              41                                  (Prof. Raj Kumar Chakraverty)           1973  24          1949                                 (will of the People)                                        Preamble    79                                                                           (fiduciary)              10/2009                                                    (Bristol and West BS Vs. Mathew [1996 (4) AER 698)                                                                     1973 42             80                                                                                                                         239                                                                    1949 81                                                                                                   (PLD 2012 SC 923)                                                                                   1972-73       43                                  (social contract)                                                                            1973 82                                            1973      1973   12   1973                        1973   9                                                                                                                                                                                                                                             44                                                                                   11       (vii)    1972-73  1949                                                                                                                     83                                                                                                (6)   (5)  239                                                                    45                   84                       239                                                                        (Frankfurter)            (SEC Vs Chenary Corpn. 518 US 80 (1943))                                                                                                                                                                            85   239                                                                       46                             239                                                                                                                                                                                                             86                                            PLD 2010 SC 265                                                                                                                        47  PLD 2009 SC 879               87                                                                                                     Hans Kelsens       salus populi suprema lex                                                         88                                     89                                                                                                                                                48                                                                                        90                                                                                                      (John Rawls)   (The Idea of Justice)         (Amartya Sen)                                                                                    91                                                49                                            92            175A            175A             63A                                   51         175A      97        19.4.2010     93           175A                     175A               175A     175A                                                                                            50             94          (PLD 2011 SC 407)                                175A                                                                                95                                                     175A   175A                      96                         175A                 63A        63A          97                                      2010    (iii)  (ii)(i)   1  63A                  51  1 63A                                  ;          i ;         ii ;   money bill   iii                  98                                                                                          63A                                               63A                        63A   99   63A            (PLD 1998 SC 1263)      63A                         63A              63A          100      63A              52                                                                            63A                            (Preamble)       1973    101                                                                                                                            63A                                     63A              63A                            63A                                                                                                    53                                                                             63A   102       63  62                                                                       103                                                                                                                          104                      1976                                           218                                              54   4  17               105                                                                                                                          2013                               106                                                                                                                                           (iii)   (1)(b)   63A                   107                                       55       7.1.2015                                                                                                                                                                                            108                                          63A                                                                                                            1997                                                     109 56             51       51         110                42/2010           (Julius Salak)              6(c)+(e)   51                    c                      e                                                                         111                                                                                                               112                   57             51                                                   (Julius Salak)  113                             114                                                                                                 115                                                           116                                      58 77           51           385             51           97           51                                                  27                                                                     117                                                                                                                 51    118                                                                                51                       59        51            119                                      106                     1   175                 120                                                      121                   63A          3  2,1   122                                                       175A    (1) (b)   63A                        60       (6) (c)+(e)   51                                   123         1                 (PLD 2010 SC 265)                                                                                                           1954               124                                       PLD 2012 SC 774                                                                                                                                                                                                                                 61                 125                                                                                          62

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