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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.893 of 2020 (Against the order dated 07.07.2020 passed by the Peshawar High Court, Bannu Bench in Crl. Misc. BA No.307-B/2020) Haji Shah Behram …Petitioner(s) Versus The State and others …Respondent(s) For the Petitioner(s): Mian Muhammad Zafar Iqbal, ASC For the Complainant: Mr. Salauddin Malik, ASC For the State: Mr. Arshad Hussain Yousafzai, ASC Date of hearing: 03.02.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Impugned herein is order dated 07.07.2020 by a learned Judge-in-Chamber of the Peshawar High Court Bannu Bench, admitting respondents to post arrest bail in a case of murderous assault wherein they were arrayed on petitioner’s complaint. It is alleged that on the eventful day at 4:30 p.m, respectively armed with a Kalashnikov and .12 caliber gun, they targeted the petitioner within the remit of Police Station Gambela, District Lakki Marwat, in the backdrop of an ongoing feud over the property; he was medically examined under a police docket same day when the Medical Officer confirmed receipt of firearm injuries on the right medial forearm as well as deltoid area with corresponding exits, designated as Jurh Ghayr Jaifah Badiah. The reasons that weighed with the High Court to allow the motion are as follows: “In the instant case, the occurrence had reportedly taken place at 16:30 hours with a considerable unexplained delay of three hours. The I.O has recovered only two crime empties of 7.62 bore from the place of accused/petitioner Umer Jan, while no empty whatsoever has been recovered from the place of accused/petitioner Hameedullah who was attributed firing with DBBL shot gun. All the above noted facts cast grave doubt on the veracity of prosecution case Criminal Petition No. 893 of 2020 2 and needs further inquiry into the guilt of accused/petitioners. As per medico legal report, the nature of injury sustained by complainant “Ghayr Jaifah Badiah” is covered by Section 337 F(ii) which does not fall within the prohibitory clause of Section-497 Cr.P.C.” Learned counsel for the petitioner while referring to a string of identical criminal cases registered against the respondents has primarily argued that there was no occasion for the High Court to release the respondents on bail as the statements of the witnesses supported by medical evidence and investigative conclusions, squarely constituted “reasonable grounds” within the contemplation of section 497 of the Code of Criminal Procedure, 1898, standing in impediment to their release on bail in the absence of any space admitting consideration for “further inquiry”, a sine qua non, for favourable exercise of discretion; the bottom line is that the impugned order being nugatory to the settle norms of exercise of discretion warranted interference. Learned counsel for the respondents has defended the impugned order on the grounds that once bail is granted by a competent tribunal, exceptionally strong grounds are required to recall interim freedom, adding that final adjudication can always remedy interim release of an offender even if erroneous in case the prosecution succeeds to drive home the charge at the end of the day; the impugned order being within the four corners of law, particularly in the wake of submission of report under section 173 of the Code is not open to exception, concluded the learned counsel. 2. Heard. Record perused. 3. Section 497 of the Code of Criminal Procedure, 1898 places an unambiguous bar on grant of bail to an accused, “………if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for a term for ten years”: However, subsection 2 thereof provides an escape route to him if, at any stage of the investigation, inquiry or trial, it is observed that there are no reasonable grounds for believing that he had committed a non-bailable offence and instead there were sufficient grounds for ‘further inquiry’ into his guilt. It is in this clearly demarcated statutory framework that an accused charged with an offence punishable with a term of 10 years or above has to make out a plea for his release on bail. Criminal cases, invariably resting upon vastly distinguishable facts, do not admit space for hard and fast rules, empirically applicable with any degree of unanimity in every situation; in each case culpability Criminal Petition No. 893 of 2020 3 of an accused is to be assessed, having regard to its own peculiar facts and circumstances, therefore, determination of “sufficient grounds” in contradistinction to “further inquiry” has to be essentially assessed, with a fair degree of objectivity on the basis of evidence collected during the investigation; wording employed as “there are no reasonable grounds for believing that the accused has committed a non-bailable offence” is an expression of higher of import and, thus, cannot be readily construed in the face of material, prima facie, constituting the offence complained. “Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial subsequently after evaluation of evidence1”. Similarly, “mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection 2 of section 497 Cr.P.C.2. It clearly manifests that expression “further inquiry” is a concept far from being confounded in subjectivity or to be founded upon denials or parallel stories by the defence; it requires a clear finding deducible from the record so as to be structured upon a visible/verifiable void, necessitating a future probe on the basis of material hitherto unavailable. With the available statement of the injured supported by the eye witnesses, “who cannot be stamped as false witnesses at bail stage”3, confirmed by medical evidence. The High Court has clearly misdirected itself in holding that respondent’s culpability warranted further inquiry. It cast away the very basis of the impugned order. Argument that exceptionally strong grounds are required to cancel bail even if granted erroneously, nonetheless, by a tribunal competent to extend such relief, does not hold much water inasmuch as erroneous application of law by itself presents a strong ground for its annulment. Strict adherence to law is a sine qua non to ensure predictability of consequences of a criminal act in any civilized legal system; it is imperative to ensure peace in the society through means and methods prescribed by law. It discourages criminal behaviours and at the same time strengthens people’s faith in the rule of law. Observation by the High Court that nature of injury as “Jurh Ghayr Jaifah Badiah” being punishable under section 337 F(ii) brought 1. PLD 1994 SC 65 (Shah Zaman and 2 others Versus The State and another) 2. PLD 1998 SC 621 (Asmatullah Khan v. Bazi Khan and another) 3. 2003 SCMR 68 (Qudrat Bibi Vs. Muhammad Iqbal and another) Criminal Petition No. 893 of 2020 4 respondents’ case outside the remit of prohibitory clause of section 497 of the Code is also unsustainable, inasmuch as, the language employed in section 324 of the Code unambiguously provides a punishment that may extend to ten years imprisonment with a fine; it is in the event of hurt caused that in addition to the aforesaid an offender shall be liable to the punishment provided therefor, an amendment, contemplated to provide monetary compensation to the victim, in accord with the injunctions of Islam; nature of the injury suffered by the victim and punishment provided therefor, by itself, do not substitute or override primary punishment prescribed for murderous assault. Criminal petition is converted into appeal and allowed; impugned order dated 07.07.2020 is set aside and bail granted to the respondents is cancelled. Judge Judge Islamabad, the 3rd February, 2021 Azmat/-

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.9-Q & 12 of 2021 (Against the judgment dated 21.12.2020 passed by the High Court of Balochistan in Cr. A. No5 & 80 of 2017) Ghulam Abbas (in Cr.P.9-Q/2021) Naqeebullah (in Cr.P.12/2021) …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Muhammad Ewaz Zehri, ASC Ch. Akhtar Ali, AOR Mr. M. Riaz Akhtar Tareen, ASC (in Cr.P.12-Q/2021) Mr. Tahir Hussain Khan, ASC (in Cr.P.9-Q/2021) For the State: Mr. Walayat Hussain, Additional Prosecutor General Balochistan For the Complainant: Mr. Kamran Murtaza, Sr.ASC (in both cases) Date of hearing: 06.04.2021. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ghulam Abbas petitioner was tried by a learned Additional Sessions Judge at Quetta for committing Qatl-i-Amd of Ameer Muhammad, 35/40, a supervisor employed in a restaurant at 6:15 p.m. on 10.8.2013; Naqeebullah petitioner, one of the owners of the outlet, was also in the dock for having screened off incriminatory evidence; they were returned a guilty verdict vide judgment dated 17.03.2017; the former convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 was sentenced to imprisonment for life with a direction to pay compensation whereas the latter was convicted under section 201 of the Code ibid; he was sentenced to 5-years R.I. The incident occurred all of a sudden in the wake of an altercation that started over a demand of drink by the principal accused. Criminal Petition Nos.9-Q & 12 of 2021 2 The High Court of Balochistan maintained convictions as well as sentences recorded thereunder vide impugned judgment 21.12.2020, being assailed through separate petitions. Bound by a common thread, these are being decided through this single judgment. 2. According to the prosecution, the deceased served at the food outlet while Ghulam Abbas associated as a guard with Naqeebullah petitioner. On the fateful day, Ghulam Abbas asked the deceased for a drink who demanded a chit to oblige; former, however, got infuriated and shot him in the abdomen; he was subdued by the witnesses at the spot with the weapon, latter taken by Naqeebullah petitioner, who withheld it throughout. Ocular account furnished by Muhammad Awais (PW-1) and Muhammad Afzal (PW-2), with an inspiring unanimity, narrated the graphic details of the episode; they faced embarrassingly lengthy cross- examination without any setback. Red-handed arrest at the spot foreclosed all avenues to entertain any hypothesis other than assassin’s guilt. Naqeebullah, however, attempted hard to wriggle out of the charge by taking plea of having extended assistance to the deceased in his gasping moments; according to him, he not only laid information with the police but also shifted the deceased to the hospital in a bid to save his life; he pleaded ignorance about the disappearance of weapon, held by the co-accused. Both the accused appeared as witnesses in disproof of the charge, an attempt that failed to disturb preponderance of prosecution. 3. Appraisal of evidence by the courts below, upon our own independent analysis, has been found by us inconsonance with the principles of safe administration of criminal justice. It is a broad daylight affair wherein Ghulam Abbas was apprehended at the spot; he was employed by Naqeebullah as a guard, who had obviously provided him the weapon that he used most unwisely, without provocation upon a hapless worker, earning livelihood for his family; he has already been dealt with leniency. Criminal Petition No.9-Q of 2021 fails. Leave declined. Assistance provided to the deceased in his injured condition by Naqeebullah petitioner does not absolve him from his responsibility to assist the law, however, at the most can be viewed as a mitigation to settle quantum of the sentence which having regard to the totality of circumstances is reduced from 5-years to 3-years R.I, pre-trial period inclusive. Fine imposed by the Courts below in the sum of Rs.50,000/- is converted into compensation, to be paid to the legal heirs of the deceased; default shall follow simple imprisonment for six months. With the above Criminal Petition Nos.9-Q & 12 of 2021 3 modification, Criminal Petition No.12 of 2021 is converted into appeal and partly allowed in the above terms. Judge Judge Judge Islamabad, the 6th April, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 90-K OF 2023 (On appeal against the order dated 28.04.2023 passed by the High Court of Sindh, Circuit Court Hyderabad in Criminal Bail Application No. S-362/2023) Munawar Bibi … Petitioner Versus The State … Respondents For the Petitioner: Mr. Abdul Khursheed Khan, ASC a/w petitioner in person (Via video link from Karachi) For the State: Mr. Zafar Ahmed Khan, Addl. P.G. Sindh (Via video link from Karachi) Date of Hearing: 03.08.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 28.04.2023 passed by the learned Single Judge of the learned High Court of Sindh, Circuit Court Hyderabad, with a prayer to grant pre-arrest bail in case registered vide Crime No. 62/2023 under Section 379 PPC at Police Station Kazi Ahmed, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that she along with her co-accused committed theft of two tires along with rims of the tractor trolley of the complainant. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the allegations leveled against the petitioners are false, frivolous, baseless, concocted and the prosecution story is not worthy of credit. Contends that there is a delay of more than three months in lodging the FIR for which no plausible explanation has been put forth Criminal Petition No. 90-K/2023 2 by the complainant. Contends that the co-accused of the petitioner namely Muhammad Ali, who was ascribed the similar role, has been granted bail by the court of competent jurisdiction, therefore, following the rule of consistency the petitioner also deserves the same treatment to be meted out. 4. On the other hand, learned Law Officer opposed the petition by contending that the petitioner has specifically been nominated in the crime report with a specific role and she admitted that she is ready and willing to return all the stolen articles, therefore, she does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. As per the contents of the crime report, the allegation against the petitioner is that she along with her co-accused committed theft of two tires along with rims of the tractor trolley of the complainant. Although, learned High Court noted in the impugned order that the petitioner produced certain documents in which she admitted before the nekmards (pious men) that she is ready to return all the theft articles. However, the learned counsel for the petitioner denied the same and stated that the petitioner is an illiterate lady and could not understand any document. FIR was lodged after an inordinate delay of more than three months for which the complainant did not utter a single word. We have been informed that the co-accused of the petitioner namely Muhammad Ali, who was ascribed the similar role, has been granted post-arrest bail by the court of competent jurisdiction. In these circumstances any order by this Court on any technical ground that the consideration for pre-arrest bail and post-arrest bail are entirely on different footing would be only limited upto the arrest of the petitioner because of the reason that soon after her arrest she would be entitled for the concession of post-arrest bail on the plea of consistency. Reliance is placed on the cases reported as Muhammad Ramzan Vs. Zafarullah (1986 SCMR 1380), Kazim Ali and others Vs. The State and others (2021 SCMR 2086), Muhammad Kashif Iqbal Vs. The State and another (2022 SCMR 821) and Javed Iqbal Vs. The Criminal Petition No. 90-K/2023 3 State through Prosecutor General of Punjab and another (2022 SCMR 1424). The petitioner is a lady of advanced age. The maximum punishment provided under the statute for the offence under Section 379 PPC is three years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. It is settled law that grant of bail in offences not falling within the prohibitory clause is a rule and refusal is an exception. Reliance is placed on Tariq Bashir Vs. The State (PLD 1995 SC 34). This Court in a number of cases has held that liberty of a person is a precious right which cannot be taken away without exceptional foundations. No useful purpose would be served by sending the petitioner behind the bars. It is now established that while granting pre- arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into her guilt. 7. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 18.07.2023. JUDGE JUDGE Islamabad, the 3rd of August, 2023 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.90-P of 2016 (Against the order dated 21.09.2016 passed by the Peshawar High Court Peshawar passed in Cr.A. No.404-P/2015) Asif Khan …Petitioner(s) Versus Sher Shah and others …Respondent(s) For the Petitioner(s): Mr. Muhammad Ajmal Khan, AOR For the State: Mr. Muhammad Nisar, Additional Advocate General, KP Date of hearing: 30.07.2021 ORDER Qazi Muhammad Amin Ahmed, J.- In the backdrop of an ongoing feud, Said Muhammad alias Gulalai was shot dead at 10:55 a.m. on 5.9.2005 within the precincts of Police Station Umar Zai District Charasadda; Ibrahim PW endure the assault with multiple gunshot. Sher Shah, Tayyab along with their absconding brother Riaz were arrayed as culprits for the crime; the first two were tried by a learned Addl. Sessions Judge; they were convicted for homicide as well as coordinate charges; they were differently sentenced that included penalty of death as well, vide judgment dated 26.04.2015, overturned by the High Court vide impugned judgment dated 21.09.2016, vires whereof, are being assailed on the grounds that there was no occasion for the High Court to let off the respondents in the face of formidable evidence establishing their participation in the crime in a daylight affair, with one of the accused still away from law. It is next argued that though the complainant subsequently died natural death, nonetheless, injuries sustained by him during the occurrence stood fully established to corroborate ocular account by available witnesses. While taking through the impugned judgment, learned counsel has highlighted some narrative variations viewed by the High Court as “different versions” to argue that descriptive differences hardly affected the preponderance of evidence unmistakably pointed towards the culpability of the assailants Criminal Petition No. 90-P/2016 2 and, thus, the reasons being artificial, do not present any doubt regarding the guilt of the respondents, that may be deduced from the record; the bottom line is that impugned view being subjective and incompatible with the evidence brought on the record runs counter to settled principles of administration of criminal justice and, thus, clamours for intervention by this Court to avoid miscarriage of justice. Send for the respondents through bailable warrants in the sum of Rs.200,000/- each, returnable to the Assistant Registrar of this Court at Peshawar. Station House Officer shall execute the warrants within a fortnight. Judge Judge Peshawar, the 30th July, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.907 of 2020 and Civil Petition No.1965 of 2020 (Against the order dated 08.06.2020 passed by the Lahore High Court Lahore in Crl. Misc. No. 74081-B/2019 and W.P. No.51049 of 2019) Mian Haroon Riaz Lucky& another (In Cr.P. No.907 of 2020 & C.P. No.1965 of 2020) …Petitioner(s) Versus The State, etc. (In Cr.P. No.907/2020& C.P. 1965/2020) …Respondent(s) For the Petitioner(s): Mr. Abid Saqi, ASC along with (In both cases) petitioners. Ch. Akhtar Ali, AOR For the State: Rana Arif Kamal Noon, Prosecutor General Punjab Rana Abdul Majeed, Addl. P.G. Punjab Mirza Abid Majeed, Deputy Prosecutor General Punjab with Ihsan Ullah, DSP For the Complainant: In person (In both cases) For S.N.G.P.L.: Ch. Hafeez Ullah Yaqub, ASC Mr. Ali Rukh Khattak, L.O. SNGPL On Court Notice: Mr. Sajid Ilyas Bhatti, Addl. Attorney General for Pakistan Date of hearing: 30.09.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Mian Haroon Riaz Lucky and Mian Salman Riaz, real brothers, petitioners herein, run Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 2 an ice factory under the name and style of Sartaj Ice Factory, within the precincts of Police Station Baghbanpura Lahore. The factory is powered by natural gas and it is alleged that the owners have regularly been siphoning off natural gas to the detriment of public exchequer, facing a number of criminal cases albeit with impunity. A raiding party, headed by Sharafat Ali, Distribution Officer, UFG, Sui Northern Gas Pipelines Limited, Lahore Region, carried out the raid on the premises on 29.5.2019 at 3:00 p.m. to detect a gas pipeline, stealth underneath the road, connected with the main supply, surreptitiously linked with the factory across the road. The operation, during the process, was resisted by the petitioners, joined by four lawyers to obstruct excavation on the pretext of an injunctive order; the police were called in, however, the accused, contumaciously denied access to the police contingent and locked themselves inside the premises. Despite fierce resistance, nonetheless, the raiding party succeeded to secure, vide inventory, the paraphernalia employed for the theft. A formal case was registered vide FIR No.938 of 2019 under section 462-C of the Pakistan Penal Code, 1860 with Police Station Baghbanpura, cancellation whereof, was prayed for through Writ Petition No.51049 of 2019, titled as Mian Haroon Riaz Lucky, etc. Vs. The Station House Officer, etc. The petitioners inordinately avoided arrest despite successive dismissals of their pre-arrest bail petitions, both in the Court of Session as well as by the High Court. 2. Learned counsel for the petitioners contends that registration of the impugned FIR, being abuse of process of law, calculated for motives, oblique and unjust, cannot legally sustain after advent of the Gas (Theft, Control and Recovery) Act, 2016 (Act No.XI of 2016) “the Act” that came into force on the 23rd of March, 2016 much earlier than the alleged date of occurrence i.e. 29.5.2019. It is argued that the Act has introduced a new category of offences in order to cope with the crimes relating to tampering with gas pipelines or theft thereof, trial whereof, falls within the exclusive domain of the Gas Utility Court constituted under section 4 thereof. According to the learned counsel, the new mechanism left no scope for registration of a First Information Report and investigative steps, purported to be consequent thereupon in view Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 3 of specific bar provided under subsection 2 of section 5 of the Act that mandatorily required assumption of cognizance of an offence by a Gas Utility Court only on a complaint made in writing by a person duly authorized in this behalf by a gas company in respect whereof the offence was committed. It is next argued that the Act replaced the procedure for search of any premises suspected as being used for theft of gas in view of power of search conferred under section 23 of the Act on an officer or employee of a gas utility company not below BPS-17, specifically authorized to carry out the search; he has finally referred to section 31 of the Act to demonstrate overriding application of the Act. It is argued that combined reading of above provisions of the Act unmistakably confirms that the police were divested of the authority either to register a First Information Report, carry out search or arrest an accused suspected for the commission of theft of gas and, thus, the impugned First Information Report is liable to be quashed to prevent abuse of process of law as well as for being in contravention of the law currently applicable to the alleged offence. While arguing Criminal Petition No.907 of 2020, it is submitted that, be that as it may, the petitioners had long ago leased out the factory through a duly documented transaction and, thus, were not responsible for any wrong if done at all by the lessee. Since no complaint, as contemplated by the Act, has since been filed till date, the petitioners’ remission into custody would serve no purpose except to bring disrepute to them, respectable citizens of stature, concluded the learned counsel. Reliance has been placed on the cases reported as M.D. Tahir Vs. Federal Government and 12 others(1989 CLC 1369), Sher Ali Baz and another Vs. The Secretary, Establishment Division and others (PLD 1991 S.C. 143), Messrs A.M. Industrial Corporation Limited Vs. Aijaz Mehmood and others (2006 SCMR 47),Muhammad Mohsin Ghuman and others Vs. Government of Punjab through Home Secretary, Lahore and others, (2013 SCMR 85),Muhammad Arslan Ahmad Vs. The State (2017 P.Cr.L.J. 434), Muhammad Shah and others Vs. Federal Investment Agency and others (2017 SCMR 1218),General Manager SNGPL Vs. Safeer Ullah Khan and others (2018 YLR 1721),Syed Mushahid Shah & others Vs. Federal Investigation Agency & others (2018 Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 4 SCMR 1812) and Wajid Khan Vs. The State and others (2020 P. Cr.L.J. 454). 3. The learned Additional Attorney General for Pakistan assisted by the learned Prosecutor General Punjab contested the motions in a unison. According to the learned Law Officers, the legislature in its wisdom has introduced a new regime with a view to effectively prosecute/deal with the cases of theft of a valuable national resource as well as recovery of outstanding arrears by setting up tribunals comprising a District & Sessions Judge with exclusive jurisdiction to follow procedures speedy as well as expeditious in jurisdictions both civil as well as criminal. Changes in nomenclatures of offences, constitution of a new tribunal with exclusive jurisdiction and a special procedure on a fast track, to take assumption of cognizance, introduced by the Act, nonetheless, does not relegate procedural plenary powers vesting in the police, under the Code of Criminal Procedure 1898 to register a criminal case, carry out searches and effect arrest of offenders in order to investigate the case to be placed before the Gas Utility Court through the procedure provided under the Act. The learned Law Officers surveyed subsection 4 of section 5 in conjunction with section 24 of the Act to argue that except in cases of theft by a domestic consumer, not a case in hand, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1998) for the registration of a criminal case, arrest of the accused for the purpose of investigation, were applicable with full force; the only rider placed by the Act was requirement of a complaint, in writing by an authorized person. It is submitted that the new requirement was for assumption of cognizance by the Court through taking on board an officer with technical know-how. Introduction of a new penal regime to cope with the cases of theft of natural gas does not imply abolition of the crime warranting cancellation of the First Information Report recorded under the previous provisions of law, concluded the learned Law Officers. Reliance has been placed on the cases reported as The State Vs. NH Poori & others (PLD 1959 (W.P.) Karachi 392), Muhammad Nazeer Vs. Fazal-e-Karim & others PLD 2012 SC 892), Nadil Wali Vs. Sumaya Gul & another (2020 SCMR 414). 4. Heard. Record perused. Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 5 5. In the wake of supply/provision of natural gas as a new source of energy to the domestic and commercial consumers, the Pakistan Penal Code, 1860 was amended through Criminal Law (Amendment Act) 2011 (Act XX of 2011) so as to incorporate a penal regime to cope with cases of theft, pilferage, interference and tampering, etc. with the distribution system and matters ancillary therewith, covering wide spectrum of products under the definition of petroleum. It provided a mechanism for prosecution of offences set out in the newly inserted chapter i.e. Chapter XVII A. Through Act No.XI of 2016, the parliament enacted The Gas (Theft, Control & Recovery) Act 2016 which came into force throughout Pakistan on 23rd of March, 2016. The new law comprehensively deals with the cases of theft, tampering with auxiliary or distribution gas pipelines and with meters thereof including causing wastage or damage thereto. It sets up a tribunal comprising a District& Sessions Judge to prosecute both offences as well as claims for recovery of loss to the public exchequer. A comparative analysis of changes brought about by the Act clearly illustrates that the new regime under exclusive jurisdiction solely deals with the cases of gas with no change in the generic character of the offences earlier enlisted under the Chapter XVII A of the Pakistan Penal Code, 1860 except that it provided a new mechanism for assumption of exclusive jurisdiction by the Gas Utility Court to try offences as a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898), however, it required a complaint, in writing by a person authorized in this behalf by a Gas Utility Company. The offences listed above remained cognizable as well as non-bailable with only immunity extended to a domestic consumer, otherwise liable to be dealt with in accordance with the provisions of the Code ibid. It is in the backdrop of above statutory changes, the petitioners sought annulment of First Information Report on the grounds enumerated above. 6. Survey of above regime unmistakably confirms that a listed offence under the new regime by a commercial consumer, notwithstanding statutory changes remain a cognizable offence defined under section 4 (1)(f) of the Code of Criminal Procedure, 1898, as under: Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 6 “Cognizable offence”. “Cognizable case.” “cognizable offence” means an offence for, and cognizable case” means a case in, which a police-officer, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant: As pointed out above, the only concession available under the new regime is available to a domestic consumer which is not a case before us, as is amply evident from the contents of First Information Report, reproduced below: Similarly, restriction placed by section 23 of the Act ibid is merely directory in nature, to be followed having regard to the exigencies of a particular situation, as far as practicable; non-compliance whereof, cannot be interpreted to have vitiated the process of law as such a construction cannot be visualized without incurring the possibility of loss of evidence regarding theft/pilferage of a precious public resource, a situation never contemplated by the law makers. Similarly, there is a wide variety of offences both under the Pakistan Penal Code, 1860 as well as under various special laws that require prior sanction for prosecution for the purposes of assumption of cognizance by the trial Court, the requirement does not stand in impediment to the registration of First Information Report, arrest of an offender or commencement of investigation thereof as the clog of sanction transiently relates to the steps Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 7 preparatory thereto by the authority designated under the Statute; in the present case, a procedure to be routed through section 5 (2) of the Act. Argument that the petitioners had long before leased out the premises to a third party and as such were not responsible for any wrongdoing, if at all, by the lessee is beside the mark. These are factual controversies which the High Court has rightly declined to attend. There are no shortcuts in criminal prosecutions and it is certainly far less than expedient to pre-empt designated tribunals to exercise jurisdiction so as to try offences on the strength of evidence brought-forth by the prosecution, the only known method both to establish the charge as well as to vindicate a defence. Similarly, while an accused is certainly entitled to a fair trial under “Due Process of Law”, it is also sovereign attribute of State to carry out prosecutions through its agencies in accordance with law with a reasonable opportunity to drive home the charge against the offenders to maintain/enforce its writ and effectively uphold majesty of laws within the realm. It is far more important when at risk is a resource commonly owned by the people. Equality before law without equal protection thereof is a travesty. We have found the High Court while declining the request well within the remit of law consistently expounded by this Court in the cases reported as Umar Hayat Versus The State (1995 S C M R 1005), Mst. Mehr un Nisa Versus Zain ul Abidin and 5 others (1995 SCMR 1139) Ahmed Saeed Versus The State and another (1996 S C M R 186), Miraj Khan Versus Gul Ahmed and 3 others (2000 S C M R 122),Shah Jehan Khetran Versus Sh. Mureed Hussain and others (2005 S C M R 306), Muhammad Bashir Versus Muhammad Usman and others (2003 S C M R 1339),Muhammad Yasin Versus S.S.P. and others(2004 S C M R 868)Muhammad Saleem Bhatti Versus Syed Safdar Ali Rizvi And 2 Others (2006 S C M R 1957),Industrial Development Bank of Pakistan and others Versus Mian Asim Fareed and others (2006 C L D 625),Col. Shah Sadiq versus Muhammad Ashiq and others (2006 S C M R 276), Rafique Bibi Versus Muhammad Sharif and others (2006 S C M R 512), Muhammad Mansha Versus Station House Officer, Police Station City, Chiniot, District Jhang and others (P L D 2006 Supreme Court 598), Khushi Muhammad Versus Abdul Ghafoor and others, Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020 8 (2006 S C M R 839), Muhammad Younas and others Versus Mst. Perveen alias Mano and others (2007 S C M R 393), Muhammad Bashir Versus Station House Officer, Okara Cantt. and others (P L D 2007 Supreme Court 539), The State Through Prosecutor General, Punjab, Lahore Versus Sultan Ahmed and others (P L D 2007 Supreme Court 48), Dr. Ghulam Mustafa Versus The State and others (2008 S C M R 76), Muaz Ahmad Versus Haji Muhammad Ramzan and others (2008 S C M R 529), Ajmeel Khan Versus Abdur Rahim and others(P L D 2009 Supreme Court 102),Muhammad Aslam (Amir Aslam) and others Versus District Police Officer, Rawalpindi and others (2009 S C M R 141),Akhlaq Hussain Kayani Versus Zafar Iqbal Kiyani and others (2010 S C M R 1835),Dr. Sher Afgan Khan Niazi Versus Ali S. Habib and others (2011 S C M R 1813), Rana Shahid Ahmad Khan Versus Tanveer Ahmed and others(2011 S C M R 1937), The State through D.G., A.N.F., Rawalpindi Versus Muhammad Saleem Khan (2011 S C M R 863), Rizwana Bibi versus The State and another (2012 S C M R 94)Director-General, Anti-Corruption Establishment, Lahore and others Versus Muhammad Akram Khan and others (P L D 2013 SC 401). Civil Petition No.1965 of 2020 fails. Leave declined. As a natural corollary, Criminal Petition No.907 of 2020 stands dismissed. Judge Judge Judge Islamabad 30thSeptember,2019 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL PETITION NO. 91-K OF 2020 (On appeal against the judgment dated 12.05.2020 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 183/2019) Muhammad Samiullah … Petitioner Versus The State …Respondent(s) For the Petitioner: Mr. Anis Muhammad Shahzad, AOR For the State: Mr. Hussain Bux Baloch, Addl. P.G. Sindh Date of Hearing: 09.02.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was proceeded against in terms of the case registered vide FIR No. 25/2015 dated 14.07.2015 under Section 409 PPC read with Section 5(2) of Prevention of Corruption Act-II, 1947 at Police Station ACE East Zone, Karachi on the allegation that he being incharge of Laboratory of Regional Education Center, Shah Faisal Colony, Karachi had misappropriated some of the machinery/equipment. The learned Trial Court vide its judgment dated 19.03.2019 convicted the petitioner while exercising powers under Section 245(2) Cr.P.C. and sentenced him to suffer rigorous imprisonment for 4 years for the offence under Section 409 PPC. He was also directed to pay fine of Rs.25000/- or in default whereof to further suffer SI for 3 months. The petitioner was also convicted under Section 5(2) of Prevention of Corruption Act, 1947 and was sentenced to 4 years RI with a fine of Rs.25000/- or in default whereof to further undergo SI for 3 months. The sentences were ordered to run concurrently with benefit of Section 382(b) Cr.P.C. In appeal, the learned High Court of Sindh, maintained the conviction and sentences recorded by the learned Trial Court. Criminal Petition No. 91-K/2020 -: 2 :- 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 6 witnesses. In his statement recorded under Section 342 Cr.P.C the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he neither examined himself on oath under Section 340(2) Cr.P.C nor did he lead any evidence in his defence. 4. At the very outset, learned counsel for the petitioner contended that it was an unseen occurrence as nobody has seen the petitioner while stealing the equipment of the laboratory. Contends that the prosecution’s case revolves around the alleged admission of the petitioner by filing an application but the fact is that the petitioner had never filed any such application. Contends that the case against the petitioner is highly doubtful and the courts below have failed to take into consideration that the prosecution has miserably failed to prove its case against the petitioner beyond any shadow of doubt and the benefit of the same must be given to the petitioner. Lastly contends that the judgments passed by the courts below are result of misreading and non-reading of prosecution evidence whereby a huge miscarriage of justice has been done. 5. On the other hand, learned Law Officer has defended the impugned judgment. He contended that the appellant has been specifically nominated in the crime report with an allegation of misappropriation of office equipment and during departmental inquiry proceedings, he had admitted his guilt and had filed an application in this regard and sought time to return the equipment, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. The perusal of record clearly reflects that there is no direct evidence available on the record, which could connect the petitioner with the commission of the crime. The prosecution’s case mainly hinges upon the testimonies of four PWs, who belong to the Criminal Petition No. 91-K/2020 -: 3 :- petitioner’s department. The crux of the testimonies of the four PWs who belonged to the petitioner’s department is that during the inquiry proceedings the petitioner had confessed his guilt and had submitted an application seeking time to return the articles. However, we have noted that a specific question in this regard was put to the petitioner while recording his statement under Section 342 Cr.P.C. but he categorically denied the filing of any such application or his signatures on the said application. Perusal of the record reveals that neither the disputed signatures of the petitioner were sent to the handwriting expert nor the forensic test of the same was got done to get them verified in a scientific manner and the Trial Court of its own compared the admitted signatures of the petitioner with the disputed signatures on the alleged application filed by him. There is no cavil that Article 84 of the Qanun-e-Shahadat Order, 1984 empowers the Courts to compare the disputed signatures in order to ascertain whether the same is that of the person by whom it purports to have been written or made but in the matters where no direct evidence is available and the prosecution case exclusively rests on indirect evidence especially like the present case where the prosecution’s case is solely based upon the alleged admission of the petitioner then as an abundant caution the Courts while convicting an accused must adopt a safest way, which glorifies the true spirit behind the safe administration of criminal justice, which admittedly has not been done by the courts below. Even otherwise, it is settled law that in absence of sufficient evidence available on the record in the shape of oral or documentary, the evidence of handwriting expert is always considered to be most unsatisfactory, so weak and decrepit as scarcely to deserve a place in the system of jurisprudence and the courts are not to base their findings merely on expert opinion. Reliance is placed on Rubina Jamshed Vs. UBL (2005 CLD 50), Abdul Hamid Vs. Deputy Commissioner (1985 SCMR 359), Shabbir Hussain Vs. The State (1968 SCMR 1126) and Anwar Ahmad Vs. Nafis Bano (2005 SCMR 152). It is also an admitted position that at the time of registration of the crime report neither the inventory of the alleged stolen articles nor their description was given. If the foundation of the prosecution case is false and would not conform to the doctrine of fairness then the very case of the Criminal Petition No. 91-K/2020 -: 4 :- prosecution falls to the ground. In these circumstances, a dent in the prosecution’s case has been created, benefit of which must be given to the petitioner. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution’s case is to be resolved in favour of the accused as burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. Before parting with the judgment, we may observe that the learned Special Judge, Anti Corruption/Trial Court while un-necessarily pressing into Section 245(2) Cr.P.C. has convicted the petitioner for the offence under Section 409 PPC. Chapter XX of the Code of Criminal Procedure deals with the trial of cases by Magistrate and Section 244 & 245 lie in this Chapter, which prescribe the procedure for trial of a warrant case instituted on a complaint. However, as the prosecution has failed to prove its case, we do not deem it appropriate to go further into this aspect of the matter. 7. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The petitioner is acquitted of the charge. He shall be released from jail forthwith unless detained in any other case. JUDGE JUDGE JUDGE Islamabad, the 9th of February, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.916 of 2020 (Against the order dated 9.6.2020 passed by the Peshawar High Court, D.I. Khan Bench in Cr.M.BC No.10-D/2020) Muhammad Waheed …Petitioner(s) Versus The State through AG KPK and another ….Respondent(s) For the Petitioner(s): Mr. Muhammad Yousaf Khan, ASC For the State: Mr. Anis Muhammad Shahzad (State counsel) with Haq Nawaz, SI. Date of hearing: 01.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Waheed, petitioner herein, blamed for attempt to have carnal knowledge with Nemat Ullah, 7/8, at 12.00 hours on 2.12.2019 within the precincts of Police Station Daraban, District D.I. Khan, seeks revival of his bail granted by the Addl. Sessions Judge, subsequently cancelled by a learned Judge-in- Chamber of the Peshawar High Court, D.I. Khan Bench vide impugned order dated 9.6.2020. After the assault, the child was examined same day and the Medical Officer observed a bleeding anal orifice with abrasions on the knee joint; whitish material on the clothes were forensically opined as seminal stains. 2. Learned counsel for the petitioner contends that there was no occasion for the learned High Court to cancel bail granted by a competent tribunal; according to him, freedom once granted is seldom re-called more so in the absence of compelling reasons, conspicuously missing in the case. Learned Law Officer has faithfully defended the impugned order; he contends that medical evidence unambiguously suggested commission of crime of sodomy as the bleeding rectum confirms penetration, sufficient to constitute the offence and, thus, the investigating officer manifestly ran into error by viewing the incident as mere attempt, therefore, observations, 2 Criminal Petition No.916 of 2020 though tentative in nature, recorded by the High Court are not open to exception. 3. Heard. Record perused. 4. Certainly it is for the trial Court to finally settle petitioner’s alleged culpability and the offence made thereunder on the strength of evidence, nonetheless, available material in the given circumstances constitutes “reasonable grounds” within the contemplation of section 497 of the Code of Criminal Procedure 1898 so as to bring his case within the remit of prohibition provided thereunder and, thus, there was no occasion for the learned Additional Sessions Judge to release him on bail, an error justifiably rectified by the learned Judge-in-Chamber. On our own analysis, given extreme tender age of the child, trauma apparently endured by him, positively confirmed by medical evidence, we do not feel persuaded to subscribe to the parallel story of denial, structured upon complainant’s alleged animosity based upon some previous litigation. Plea of juvenility though addressed at the bar does not find mention in the grounds taken before us though there is an oblique reference before the Court of Session albeit with no supporting material. Petition fails. Leave declined. Judge Judge Islamabad, the 1st September, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.92-K and 100-K of 2021 (Against the order dated 9.3.2021 passed by the High Court of Sindh at Sukkur in Cr. A. Nos.4 & 79/2015) Manzoor Ahmed and others (in Crl. P. No.92-K/2021) Akbar (in Crl. P. No.100-K/2021) …Petitioner(s) Versus The State (in both cases) …Respondent(s) For the Petitioner(s): Raja Jawad Ali Saahar, ASC (in Cr. P.92-K/2021) Mr. Ejaz Ahmed Awan, ASC (in Cr. P.100-K/2021) For the State: Mr. Zafar Ahmed Khan, Addl. Prosecutor General Sindh (in both cases) Date of hearing: 12.10.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Mst. Pathani, 16, was forcibly abducted from her house located within the precincts of Police Station Khairo Diro District Jamshoro at 11:00 p.m. on 19.3.2012; her father Hamzo Khan (PW-1) nominated Baqir, Akbar sons of Ghulam Hussain, Fida Hussain, Aslam son of Akbar Rodani, Ahmad son of Ghulam Hussain, Manzoor, Ali Muhammad sons of Ahmed, Ilahi Bukhsh, Taj Muhammad, Dawan Hussain sons of Faiz Muhammad, Niaz Hussain son of Haji Muhammad as suspects; according to him, the accused, variously armed, barged into his dwelling house and took away the prosecutrix within the view of the family members, who upon resistance were thrashed by the intruders; the injured were medically Criminal Petition Nos.92-K and 100-K of 2021 2 examined on 20.03.2012. As the investigation progressed, the prosecutrix was recovered from Baqar’s house, absconding co-accused, who himself fled from the scene on 24.07.2012; medical examination on the following day confirmed carnal assault on the prosecutrix with a pregnancy of nine weeks; in her statement, she blamed Akbar petitioner (in Cr. P.100-K) alongside Baqar, Fida Hussain and Aslam, absconding till date, for having repeatedly molested her. Barring the absconders, the accused were indicted by a learned Addl. Sessions Judge at Sehwan who returned them a guilty verdict, vide judgment dated 04.01.2014, detailed as below: “All the accused U/s 147/148/149 PPC 3-years with fine of Rs.200/- each in default 20-days SI U/s 337-L(ii) PPC 2-years RI with Daman/fine of Rs.300/- each injured, in default SI for one month and also Daman of Rs.500/- to Sain Bux injured and SI for one month in default. U/s 337-A(ii) PPC 1-year RI with fine/Arsh @ 5% i.e.1,07000/- jointly payable by all accused to Mazhar Hussain injured with further 3-years RI U/s 363 PPC 5-years RI with fine of Rs.10,000/- to be paid to victim Mst. Pathani and six months SI in case of default Akbar, accused U/s 376(2) PPC Life imprisonment with fine of RS.50,000/- to be paid to the victim or SI for six months in default of payment Benefit of Section 382-B Cr.P.C. is extended to all the accused all the accused, except Akbar, were acquitted from the charge of rape.” The High Court upheld the convictions as well as sentences consequent thereupon vide impugned judgment dated 23.06.2021, being separately assailed by the convicts through captioned captions; bound by a common thread, these are being decided through this single judgment. Raja Jawad Ali Saahar, ASC for Manzoor Ahmed, Ali Muhammad, Niaz Hussain Illahi Bux, Taj Muhammad, Dawan and Ahmed (in Cr. P. No.92-K/2021) does not contest convictions and instead prays for Criminal Petition Nos.92-K and 100-K of 2021 3 reduction of sentence to the period already undergone by them, in view of the riders provided under subsection 2 of section 337 N of the Pakistan Penal Code, 1860l; he pledges payment of compensation to the injured as directed by the learned trial Court. Learned Law Officer is not averse to the prayer made at the bar, as according to him, the case of aforesaid convicts, being first offenders, is covered by subsection 2 of section ibid. Criminal Petition No.92-K of 2021 is dismissed as not pressed, however, sentences awarded to the petitioners therein are reduced to the period already undergone by them; upon payment of compensation, they shall be released forthwith, if not required to be detained in any other case. 2. Learned counsel for Muhammad Akbar petitioner contends that in the absence of a D.N.A. analysis, the petitioner cannot be saddled with the responsibility of carnal assault merely on solitary statement of the prosecutrix; adds that the prosecutrix was not recovered from petitioner’s custody, a circumstance that escaped notice of the learned courts below; complainant cast a wider net and it would be unsafe to maintain the conviction with a lifetime incarceration, concluded the learned counsel. The learned Law Officer contends that an hapless minor girl callously dragged out from the safety of her home was jointly molested, a beastly act, medically confirmed with a fetus in the uterus, the petitioner, being one of the offenders, has already leniently been visited with the alternate penalty of imprisonment for life; he has taken us to the statement of the prosecutrix to argue that petitioner’s guilt is proved to the hilt. 3. Heard. Record perused. 4. Five members of the family with stamp of injuries unanimously blamed the petitioner and co-convicts for having intruded into the dwelling to abduct the prosecutrix; she was recovered by the police after almost four months from the house of Baqir co-accused, still away from law; medical evidence confirmed carnal assault with a fetus in its aftermath, leaving no space to entertain any hypothesis other than sexual assault; witnesses in a comfortable unison faced directionless cross-examination, mostly comprising of suggestions vehemently denied, without embarrassment; most inspiring is statement of the prosecutrix, having endured the trauma, she related graphic details of abduction and subsequent treatment meted out during her captivity. In a rural neighbourhood, it is hard to believe that Criminal Petition Nos.92-K and 100-K of 2021 4 a family would join hands to level a false accusation at the cost of a perennial stigma, that too, without any motive or reason. Even investigative conclusions do not admit the hypothesis of a false case nor the learned counsel his persistent denial, notwithstanding, has not been able to point out any flaw or infirmity in the statements of the witnesses. In particular, statement of the prosecutrix does not admit a slightest doubt and as such by itself constitutes formidable evidence to independently drive home the charge with the support of irrefutable clinical evidence, preponderance whereof does not require a confirmatory D.N.A. profile generation, a facility otherwise scarcely available way back in the year 2012; appraisal of evidence by the courts below, being in accord with the principles of safe administration calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 12th October, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRL.P.921/2023, CRL.P.938/2023 AND CRL.P.922/2023 1. Crl.P.921/2023 Imran Ahmad Khan Niazi v. District Election Commissioner, Islamabad 2. Crl.P.938/2023 Imran Ahmad Khan Niazi v. District Election Commissioner, Islamabad and another 3. Crl.P.922/2023 Imran Ahmad Khan Niazi v. District Election Commissioner, Islamabad For the Petitioner(s) : Sardar Muhammad Latif Khan Khosa, Sr. ASC Mr. Gohar Ali Khan, ASC assisted by Mr. Intazar Hussain, Advocate HC and Ms. Surain Jehan Khan, Advocate HC On Court’s call : Mr. Amjad Pervez, ASC ECP : Mr. Khurram Shahzad, Addl. DG Law, ECP Mr. Falak Sher, Consultant Date of Hearing : 23.08.2023 O R D E R We have heard the learned counsel for the petitioner who has read to us from the impugned order of the High Court dated 03.08.2023 whereby a number of jurisdictional and maintainability objections were remanded for consideration by the Trial Court. The proceedings before the Trial Court were already fixed for hearing on 05.08.2023. The case was called a number of times but neither the petitioner nor his authorized representative were present in the court. As a result, the Trial Court proceeded ex-parte and decided the complaint filed by the CRL.P.921/2023 etc 2 Election Commission of Pakistan (“ECP”) without hearing the petitioner on 05.08.2023 convicting him for offences under Sections 167 and 173 of the Elections Act, 2017 and sentencing him to 03 years S.I. We are also informed that the petitioner in his statement recorded under Section 342 Cr.PC on 01.08.2023 had expressed the intention to produce defence witnesses. That application was turned down by the Trial Court on 02.08.2023 for the reason that the four witnesses mentioned in the list were not relevant to the controversy in issue. 2. We asked the learned ASC, who represents the ECP-Complainant before the Trial Court as well as the High Court, whether the aforementioned two points are correct. He has candidly acknowledged the claim made by the learned counsel for the petitioner to be true. He has also admitted that notwithstanding the remand order passed by the High Court on 03.08.2023 whereby the jurisdictional and maintainability objections were returned to the Trial Court, the final judgment of the Trial Court dated 05.08.2023 failed to decide the same afresh. Instead the final judgment reaffirms the Trial Court’s earlier orders dated 05.05.2023 and 08.07.2023 which had considered these points. However, the same were set aside by the High Court through order dated 03.08.2023 that is impugned before us. In this respect, the final judgment of the Trial Court dated 05.08.2023, prima facie, defies the direction of remand issued by the High Court by relying on its earlier point of view that already stands rejected by the High Court. CRL.P.921/2023 etc 3 3. These are serious points of law that deserve consideration but we are told that an appeal against the final judgment passed by the Trial Court on 05.08.2023 has been filed before the High Court on 08.08.2023. The petitioner is in jail since 05.08.2023. Therefore, an application for suspension of sentence of the petitioner has also been filed before the High Court which is fixed for hearing tomorrow i.e., 24.08.2023. Notwithstanding the legal issues highlighted to us and noted above regarding the jurisdiction of the Trial Court and the maintainability of the complaint, the procedural propriety of the trial and compliance with the due process requirements ordained by the Constitution, we consider that the High Court is the first Court which should hear and decide such matters. As the petitioner’s application for suspension of sentence is fixed for hearing tomorrow, it is appropriate that out of respect for the High Court we first await its decision. 4. Mr. Khurram Shahzad, Addl. DG Law has appeared on behalf of the respondent-ECP and waives notice. These petitions to come up for hearing at 02:00 PM on 24.08.2023. Sd/- Chief Justice Sd/- Judge Sd/- Judge Islamabad 23.08.2023 Rashid/* CRL.P.921/2023 etc 4 Not approved for reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.923 of 2020 (Against the order dated 22.07.2020 passed by the Lahore High Court Lahore in Crl. Misc. No.28210-B/2020) Muhammad Ashraf …Petitioner(s) Versus The State & another ….Respondent(s) For the Petitioner(s): Mr. Javed Imran Ranjha, ASC Syed Rifaqat Hussain Shah, AOR For the State: Rana Abdul Majeed, Addl. Prosecutor General Punjab with M. Riaz, SI P.S. Civil Lines, M.B. Din. For the Complainant: Mr. Khadim Hussain Qaiser, ASC Date of hearing: 22.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Arif, 52, was shot dead at 2:55 p.m. on 11.12.2019, in front of District Courts, within the precincts of Police Station Civil Lines Mandi Bahauddin, shortly after attending court proceedings while awaiting public transport along with Gul Muhammad, Bashir Ahmed, Tariq Mehmood and Faiz Ahmed, PWs; Tariq Mehmood, deceased’s real brother lodged the report with the police and blamed Khawar Riaz, Atif Nawaz, Muhammad Zubair and Khizar Hayat accompanied by two unknown assailants, with multiple fire shots to the deceased on the instigation of Riaz Ahmad, Muhammad Ashraf son of Ghulam Rasool and Armaghan Asim. Past blood feud is cited as motive for the crime. Autopsy revealed three independent entry wounds while an exiting projectile re-entered the body again with a corresponding exit. Barring Muhammad Zubair, attributed a fire shot to Gul Muhammad PW, remainder of the accused were assigned shots to the deceased. Khizar Hayat co-accused, assigned a specific shot to the deceased, was exonerated during the course of investigation and granted pre-arrest, without challenge by the complainant. The petitioner emerged in the array as one of the unknown assailants; arrested on 25.01.2020 under section 54 of the Code of Criminal Procedure 1898, he alongside Zishan Wali and Muhammad Iftikhar was identified by the Criminal Petition No.923 of 2020 2 witnesses in a test identification parade held on 28.01.2020 as a hired assassin engaged by the co-accused to prosecute their object. 2. Heard. Record perused. 3. Be that as it may, the petitioner was not initially named in the crime report; he has been picked with two others by graduating the number of unknown assailants to three, who according to the complainant had also effectively targeted the deceased, medically found to have three entry wounds, individually assigned to the nominated accused. These circumstances, result of the test identification parade notwithstanding, nonetheless, squarely bring petitioner’s case within the remit of subsection 2 of section 497 of the Code ibid as attribution belatedly assigned to him does not correspond both with the findings recorded by the Medical Officer as well as the number of unknown assailants mentioned in the crime report. In this backdrop, his alleged culpability of being a paid participant in the crime can be best settled after recording of evidence. Criminal Petition No.923 of 2020 is converted into appeal and allowed; petitioner/appellant shall be released on bail upon furnishing bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court/duty Judge. Judge Judge Judge Islamabad, the 22nd September, 2020 Not approved for reporting Azmat/- Criminal Petition No.923 of 2020 3

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 927-L OF 2021 (On appeal against the order dated 22.06.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 31992/B/2021) Ihtisham Ali Cheema … Petitioner VERSUS The State and another … Respondents For the Petitioner: Mr. Khurram Latif Khan Khosa, ASC a/w petitioner For the State: Mirza Muhammad Usman, DPG Mr. Muhammad Zahid, SI Date of Hearing: 21.10.2021 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 22.06.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 228/2021 dated 22.02.2021 under Sections 324/337-D/148/149 PPC at Police Station Sadar, Gujranwala, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearms assaulted upon the complainant party and the petitioner fired with his pistol, which landed on the right side of the chest of one Abu Hurera, brother of the complainant. 3. Learned counsel for the petitioner contends that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case due to connivance of the complainant Criminal Petition No. 927-L/2021 2 with local police. Contends that the petitioner is innocent and has nothing to do with the alleged offence as narrated in the FIR. Contends that the FIR was registered after a delay of 24 hours which shows that it was registered after deliberation and consultation. Contends that during the Police investigation, the petitioner was found empty handed at the place of occurrence and the role of firing at the chest of the injured was assigned to co- accused Zain, who has been arrested and the pistol has been recovered from his possession. Finally contends that the case of the petitioner falls within the ambit of Section 497(2) Cr.P.C. 4. On the other hand, learned Deputy Prosecutor General supported the impugned order declining bail to the petitioner. He contends that the petitioner has been specifically nominated in the crime report with a specific role of firing at the chest of brother of the complainant, therefore, he does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the record with their assistance. It is an admitted position that the petitioner has assailed the jurisdiction of this Court for the grant of pre-arrest bail, which is extraordinary in nature. The superior courts of this country have repeatedly held that the premium of pre-arrest bail is to be extended sparingly. However, if the facts and circumstances do warrant that the person seeking such relief is falsely implicated and there is likelihood of being injustice committed to him, this Court is under obligation to come for the rescue of innocent person while granting the said extraordinary relief. In the instant case, there is no denial to this fact that the case was registered after lapse of 24 hours whereas the distance between the place of occurrence and the Police Station is hardly four miles on a metal road. The inordinate delay per se in this particular case is to be evaluated with care and caution. No doubt the petitioner is assigned the role of causing firearm injury on the right side of chest of the brother of the complainant but this aspect has been found false during the course of investigation, which remained unchallenged. During the course of investigation, it was further found that in-fact it was co-accused of the petitioner who fired at the injured and as such he was taken into Criminal Petition No. 927-L/2021 3 custody and pistol has been recovered from him. During the course of investigation, it was further found that though the petitioner was present at the place of occurrence but he was empty handed and no overt act is ascribed to him. Apart from this it is an admitted fact that the petitioner was taken to hospital after the lapse of three hours and still fresh blood was oozing from the wound whereas the Glasgow Conscious Scale (GCS) was found to be 15/15. All these aspects when taken into consideration conjointly create doubt in the genuineness of the prosecution case. It is established principle of law that the benefit of doubt can even be extended at bail stage. It is an admitted fact that the parties are resident of the same area, known to each other and the occurrence has taken place in the broad day light. As a consequence of all facts and circumstances, we are of the view that putting the petitioner behind the bars at this stage perhaps would result into undue incarceration prior to establishing the guilt of the petitioner, which is to be avoided because of the reason that the liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 22.06.2021 and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 22.09.2021. JUDGE JUDGE Islamabad, the 21st of October, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.93-P of 2015 (Against the judgment dated 04.06.2015 passed by the Peshawar High Court Peshawar in Cr. A. No.657-P/2013) Mst. Rukhsana …Petitioner(s) Versus Rehmanullah and another …Respondent(s) For the Petitioner(s): Mr. Abdul Fayaz Khan, ASC Mr. Muhammad Ajmal Khan, AOR For the Respondent(s): Mr. Muhammad Inaam Yousafzai, Addl. Advocate General, KPK Date of hearing: 26.07.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Islam, 30/32 and Muhammad Said Ghani Shah, 25/26, were shot dead at 4:30 p.m. on 2.2.2011 in the backdrop of a previous brawl within the precincts of Police Station Rustam, District Mardan; incident was reported by Muhammad Inaam PW 5:30 p.m. straight at the police station; respondent along with his brother Abid were arrayed as accused in the backdrop of a previous dispute over the fodder; latter is still away from law; a learned Additional Sessions Judge at Mardan convicted the respondent under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced him to death on two counts with a direction to pay compensation vide judgment dated 13.12.2013, overturned by the High Court vide impugned judgment dated 4.6.2015, vires whereof, are being assailed on a variety of grounds. It is argued that the deceased, both in their prime youth, were brutally done to death in broad daylight under unmistakable premeditation within the view of witnesses who not only established their presence at the scene but also had no axe to grind against the culprits, one of whom is still avoiding justice; that each piece of evidence produced by the Criminal Petition No.93-P/2015 2 prosecution is synchronized with the events within the proximity of time and space, hardly leaving a room to deliberate a false case or entertain any hypothesis of substitution. The bottom line is that ocular account and investigative conclusions squarely constituted “proof beyond doubt” and, thus, High Court’s disproportionate reliance on the peripheral issues purporting inconsequential omissions by the Investigating Officer, witnesses’ inability to point out caliber of weapons with exactitude and reference to entries in the site plan without their having been confronted to the witnesses presents adjudication, diametrically incompatible with the settled norms of appreciation of evidence in administration of criminal justice and, thus, being artificial tends to result in miscarriage of justice, clamouring for intervention by this Court. Contentions merit consideration; leave is granted to reappraise the entire evidence. Send for the respondent through bailable warrant in the sum of Rs.200,000/-, returnable to the Assistant Registrar of this Court at Peshawar. Station House Officer shall execute the warrant within a fortnight. Judge Judge Peshawar, the 26th July, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition Nos.955-L and 973-L of 2016 (Against judgment dated 24.06.2016 of the Lahore High Court Lahore passed in Cr. A. No.70 of 2012 along with M.R. No.101 of 2012) Safdar Abbas & another (in Cr.P. No.955-L/2016) Ghulam Sarwar (in Cr.P. No.973-L/2016) …Petitioner(s) Versus The State & another (in Cr.P. No.955-L/2016) The State & two others (in Cr.P. No.973-L/2016) …Respondent(s) For the Petitioner(s): Mr. Shahid Azeem, ASC (in Cr.P. No.955-L/2016) Mr. Asghar Ali Gill, ASC (in Cr.P. No.973-L/2016) For Respondents No.2 & 3: Mr. Shahid Azeem, ASC (in Cr.P. No.973-L/2016) For Respondent No. 2: Mr. Asghar Ali Gill, ASC (in Cr.P. No.955-L/2016) For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 3.12.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Safdar Abbas and Akhtar Abbas, petitioners, real brothers inter se, are in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Jhang vide judgment dated 23.12.2011; they were tried, through a private complaint, alongside four others for committing Qatl-i-Amd of Muhammad Bukhsh on 5.4.2008 within the precincts of Police Station 18-Hazarvi District Jhang in the backdrop of a motive relating to divergent claims on a piece of agricultural land; one of the accused, namely, Mubeen Saghar is still away from law under a perpetual warrant of arrest; the co-accused were acquitted from the charge while the petitioners stand convicted under clause (b) of section 302 read with section 34 of the Pakistan Penal Code, 1860; they were sentenced Cr.P. No.955-L/2016, Cr. P. 973-L/2016 2 to death, altered into imprisonment for life by a learned Division Bench of Lahore High Court Lahore vide impugned judgment dated 24.06.2016, vires whereof are being assailed, primarily, on the ground that evidence disbelieved qua majority of the accused, each identically placed, cannot be pressed into service, in the absence of independent corroboration, to sustain the charge vis-à-vis the petitioners, a position vehemently contested on behalf of the complainant. 2. Heard. Record perused. 3. Petitioners’ father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case. As a natural corollary, complainant petition seeking enhancement is dismissed. Judge Judge Judge Islamabad 3rd December, 2019 Not approved for reporting Azmat*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.957 OF 2021 (Against the order dated 03.08.2021 of the Lahore High Court, Lahore passed in Crl. Misc. No. 45363-B/2021) Muhammad Nasir Shafique …Petitioner(s) Versus The State through Prosecutor General Punjab and another …Respondent(s) For the Petitioner(s): Mr. Asghar Ali Gill, ASC Syeda B. H. Shah, AOR For the State: Mirza Muhammad Usman, D.P.G. Mr. Muhammad Aslam, S.I. For Respondent No.2: In person Date of Hearing: 23.09.2021 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the order dated 03.08.2021 passed by the learned Lahore High Court, Lahore whereby the post-arrest bail was declined to the petitioner. 2. As per contents of the crime report bearing FIR No.1258/20 dated 03.10.2020 registered under Sections 489-F PPC at Police Station Sargodha Road, Faisalabad lodged by Asif Ali it was alleged that the petitioner borrowed Rs.70,00,000/- from him due to previous relationship to buy a house from his brothers. The petitioner issued a cheque to the complainant against the borrowed amount which on presentation was dishonored resulting into lodging of the aforesaid crime report. CRIMINAL PETITION NO.957 OF 2021 -: 2 :- 3. Learned counsel for the petitioner has vehemently contended that in fact the story narrated in the crime report is false. Contends that the amount which is alleged against the petitioner is an afterthought and as such the petitioner is not liable for the amount which is alleged against him. Further contends that Panchayat was convened which ultimately came to the conclusion that only Rs.8000/- are outstanding towards the petitioner. Lastly, it is contended that maximum punishment for the offence provided in the statute is 03 years, therefore, the petitioner is entitled for the concession of bail on this score alone. 4. On the other land, learned Law Officer along with the complainant, present in person, contends that he had sold one plot against the consideration of Rs.62,00,000/- and the rest of the amount was paid in cash in two installments. Contends that the complainant has been deprived of huge amount and as such the petitioner does not deserve any leniency. 5. We have heard the learned counsel for the petitioner and gone through the record. As per the contents of the crime report, the allegation leveled against the petitioner is of depriving the complainant of huge amount under the garb of friendship. On the previous date of hearing, we had specifically asked the complainant about the mode of payment of the amount to the petitioner, upon which he sought time and the case was fixed for 23.09.2021. Today, during the course of proceedings, the complainant categorically stated that the amount paid to the petitioner was in fact in cash and the same was not paid in lieu of any agreement or receipt in this regard can be furnished. Apart from this, we are told that the petitioner is behind the bars for the last 05 months and the maximum punishment provided under the statute is 03 years. As the amount was paid in installments which is not satisfactorily disclosed by the complainant, therefore, we are hesitant to make any observation in this regard, hence leaving it to be decided by the Trial Court after recording of evidence. Liberty of a person is a precious right which cannot be taken away without exceptional foundations. The law is very liberal especially when it is salutary principle of law that the offences which do not fall within the prohibitory clause, the grant of bail is a rule while its refusal is mere an exception. By following the aforesaid CRIMINAL PETITION NO.957 OF 2021 -: 3 :- principle and taking into consideration all the facts and circumstances stated above, we are of the view that the petitioner has made out a case for the grant of post-arrest bail. Resultantly, this petition is converted into an appeal and allowed, the impugned order is set aside and the petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs.10,00,000/- (rupees one million) with one surety in the like amount to the satisfaction of the learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 23rd of September, 2021 Approved for reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No. 958 of 2020 (Against the order dated 14.4.2020 passed by the Peshawar High Court Peshawar in Crl. MBA No.106-D/2020) Muhammad Irfan …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Ch. Muhammad Ayub Arbab Gujar, ASC For the State: Raja Inaam Ameen Minhas, Ch. Ehtisham ul Haq, Special Prosecutors, ANF For the co-accused: Khawaja Azhar Rasheed, ASC with Dilshad Khan, co-accused. Date of hearing: 15.10.2020. ORDER Qazi Muhammad Amin Ahmed, J.- On a tip off, Muhammad Irfan, petitioner, accompanied by Dilshad Khan, co-accused, was intercepted by a contingent of Anti Narcotic Force, Dera Ismail Khan at 13:00 hours on 17.1.2020; upon search, a substantial cache of cannabis, weighing 12 kilograms, stealthily concealed underneath the rear seat of the vehicle, driven by them, was recovered, a portion whereof, was wrapped around the belly of Dilshad Khan co-accused. The contraband as well as the vehicle bearing Registration No.BHH-686/Sindh were secured vide inventories of even date. After failure with the learned Special Judge, Muhammad Irfan petitioner approached the High Court through Crl. MB No.57-D/2020 for his release on bail, declined by a learned Judge-in-Chamber on 27.2.2020. The same learned Judge, however, granted bail to Dilshad Khan, co-accused in Crl. MBA No.90-D/2020 on 25.3.2020, on the basis whereof, the present petitioner approached the High Court for his release on bail on the principle of requirement of consistency, Criminal Petition No.985 of 2020 2 dismissed by another learned Judge-in-Chamber vide order dated 14.4.2020, impugned before this Court through the titled petition. Prima facie found by us to have been released on bail for reasons unsustainable in law, Dilshad Khan, co-accused, was sent for vide order dated 3.9.2020 to show cause as to why bail granted to him by the High Court may not be cancelled. Khawaja Azhar Rasheed, ASC has defended grant of bail to Dilshad Khan co-accused; citing various judgments of this Court, he contends that once bail is granted, exceptionally strong grounds, pari materia with those applicable to interference with acquittal, are required to rescind the concession; he adds that the concession was never abused and in the wake of commencement of trial, cancellation of bail would be a measure far from being expedient. The Court has traditionally exercised restraint to recall freedom, concluded the learned counsel. Ch. Muhammad Ayub Gujjar, ASC, learned counsel for Muhammad Irfan petitioner has prayed for equal treatment; according to him, the petitioner being identically placed with his co-accused is squarely entitled to avail the same concession. “Sauce for the goose is sauce for the gander”, asserted the learned counsel. 2. Heard. Record perused. 3. A different regime, somewhat narrowly jacketed, is applied to consider the propriety/desirability of cancellation of bail, once granted by a competent tribunal, on the assumption that apprehended fallout of interim freedom under an interlocutory arrangement, even though granted under error, can be indemnified through final adjudication, however, the benign concept of condonation cannot be applied, without being unconscionable in cases structured upon findings inherently anomalous, flawed or mutually destructive and inconsistent, more so in category of offences with restrictions statutorily heavier on offender’s release on bail. In the present case, the learned Judge shortly before releasing Dilshad Khan on bail i.e. 27.2.2020, did not feel persuaded to allow bail to Muhammad Irfan petitioner on the following grounds: “It appears from the record available on file that huge quantity of Charas was recovered on pointation of the accused/petitioner from the motorcar driven by him. The samples of recovered contraband were sent to the FSL as per requirement of law and the report of Chemical Examiner is in positive. The offence with which the Criminal Petition No.985 of 2020 3 accused/petitioner has been charged falls within restrictive clause of Section 497 Cr.P.C. However, the learned Judge proceeded to grant bail to Dilshad Khan co-accused even in the absence of his counsel on 25.3.2020 on the basis of arguments, never addressed at the bar and for reasons diametrically incompatible recorded in the earlier order. Reference to the outbreak of Covid-19 Contagion is also beside the mark in view of decision dated 7-4-2020 by this Court whereby blanket bails granted by all the High Courts on the ground of prevalence of Pandemic were cancelled by this Court. Grant of bail is not an irrevocable charter of freedom; in appropriate cases, while exercising charitable restraint, nonetheless, it is a judicial responsibility to rectify situations leading towards embarrassing anomalies, as is likely to come about in the present case. Grant of bail to Dilshad Khan co-accused cannot be countenanced while withholding the concession to the co-accused, equally disentitled to be released on bail in view of the merits of the case that manifest interception of both the accused in a vehicle carrying a substantial quantity of the contraband, craftily concealed and recovered on disclosures, by both of them, from underneath the seat inside the cabin as well as wrapped around the body, bringing their case within the ‘Prohibition’ provided under section 51 of the Control of Narcotic Substances Act, 1997. Failure by the police contingent to register the case under the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, an error open to rectification, does not by itself mitigate the enormity of the crime nor possibly furnish a ground for their release on bail. Overwhelming evidence, prima facie pointed, equally upon both the accused, admits no space to contemplate any distinction and as such does not allow to countenance the error, therefore, bail granted to Dilshad Khan vide order dated 25.3.2020 is cancelled; he shall be taken into custody to face indictment. Concomitantly, Criminal Petition No.958 of 2020 filed by Muhammad Irfan fails. Leave declined. Judge Judge Islamabad, the 15th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.96-K of 2021 (Against the judgment dated .28.06.2021 passed by the High Court of Sindh in Cr. Bail Application No.S-203 of 2021) Ghulam Hyder …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mian Taj Muhammad, ASC Ms. Abida Parveen Channar, AOR For the State: Mr. Hussain Khan Baloch, Addl. Prosecutor General Sindh Along with Syed Jafar Shah, DSP Tando Allah Yar, Javed Iqbal, SI and Idrees, SI Date of hearing: 10.09.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioner is in the array of accused in a case of homicide wherein one Niaz Ali was shot dead during the night of 11th December, 2020 within the precincts of Police Station B. Section Tando Allah Yar Khan. It is alleged that during the fateful night, the accused six in number, in the backdrop of a dispute over water turn, assaulted the deceased; solitary fatal shot is attributed to Azhar co-accused; remainder of the accused are blamed to have clutched the deceased whereafter he was hit on his forehead, bullet exiting from the rear. The petitioner has been declined bail lastly by the High Court vide impugned order dated 28.6.2021, leave to appeal wherefrom is being prayed for on the grounds that on stated facts the accusation called for further probe inasmuch as five persons could not have held the deceased without risking their own safety in the face of an incoming shot nor there was any necessity for such a dangerous exercise when, according to the prosecution itself, the deceased was allegedly within the reach of the accused targeting him from a short Criminal Petition No. 96-K of 2021 2 distance. The bottom line is that a wider net is cast to rope the entire clan in a midnight affair. 2. Heard. Record perused. 3. Be that as it may, though named in the crime report alongside others of the same brotherhood, the petitioner is assigned role of a facilitator by holding the deceased alongside four others; the question is as to whether in the facts and circumstances of the case as alleged by the complainant himself, such facilitation was at all required, that too, without incurring fatal risk of being unintendedly hit by the shot in the darkness and as such petitioner’s culpability requires further probe within the contemplation of subsection 2 of section 497 of the Code of Criminal Procedure, 1898, paving way for his release on bail, particularly when his continuous detention is serving no useful purpose. The petition is converted into appeal and allowed; the appellant is admitted to bail on his furnishing bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court. Judge Judge Karachi, the 10th September, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL Al-ISAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAVED MAZAHAR ALl AKBAR NAUVI CRIMINAL PETITION NO. 963-L OF 2016 (On appeal against the judgment dated 17.052016 passed by the Lahore High Court, Lahore in Criminal Appeal No, 156/2012 & Murder Reference No. 97/2012) Ijaz Ahmed Petitioner VERSUS The State etc Respondents For the Petitioner: Mr, Muhammad Tahir Alam Qureshi, ASC For the State: Mirza Muhammad Usman, DPG Date of Nearing: 19.04.2022 JUDGMENT SAYVED MAZAHAR ALt AKBAR NAQV1,k- Petitioner along with co-accused was tried by the learned Additional Sessions Judge d Ferozwala pursuant to a case registered vide FIR No. 284 dated 30.05.2009 under Sections 302/392/412 PPC at Police Station Sharaqpur Sharif, District Sheikhupura for committing robbery and murder of Touqir Ahmad, brother of the complainant. The learned Trial Court vide its judgment dated 24.01.2012 while convicting both the accused under Section 392 PPC, sentenced them to imprisonment for seven years and a fine of Rs.10,000/- each. In default of payment of fine, both the accused were to undergo two months SI. The learned Trial Court while acquitting the co-accused for the charge of murder, convicted the petitioner under Section 302(b) PPC and sentenced him to death. The petitioner was also directed to pay compensation amounting to Rs100,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for four months. In appeal, the learned High CRIMINAL PETITION NO- 963-L OF 2016 Court while maintaining the conviction and sentences recorded against the petitioner, altered the sentence of death into imprisonment for life. 2. The prosecution story as given in the impugned judgment reads as under:- "2. Shabbir Ahmacl complainant (PW.7) through written application Ex.P.A got registered FIR alleging that he is resident of Purani Bheni. On 30.05.2009 at about 07:00 PM Hafiz Arshad and Jahangir Abbas were coming from Mohanwal Band towards their village Purani Bheni while riding on motorcycle CD-70, when they reached at Band, two armed persons were standing there, who stopped Hafiz Arshad Ali and Jahangir Abbas on gun point, snatched mobile phone and Rs.6000/-, made them to sit in the jungle and went towards Purani Bheni while riding on the motorcycle of Hafiz Arshad. Hafiz Arshad was having another mobile phone in his pocket by which he informed his brother Akhtar All about the occurrence and told him that he accused persons are coming towards village while riding on a motorcycle which was snatched by them from him. On this information Touqir Ahmad Pannun brother of complainant, Amanat Ali son of Sher Muhammad, and Akhtar son of Akbar Ali, complainant alongwith many people of the village came out, on seeing them accused persons started running away while leaving behind motorcycle. The complainant and the people of the locality chased them. Both the accused started firing with their respective weapons. They alongwith other people of locality encircled the accused persons in Falsa garden of Abdul Wahid, and asked them to surrender but both the accused made straight firing on Touqir Abmad, brother of the complainant, the fire made by accused ljaz Ahmad with his gun 12 bore double barrel hit Touqir Ahmad, brother of the complainant to his abdomen, who succumbed to the injury at the spot. They overpowered both the accused who also sustained injuries during resistance. They snatched gun 12 bore double barrel from accused ljaz Ahmad, while other accused, whose name afterward was disclosed as Munawar son of Shah Muhammad, caste Khokhar, resident of Faridwal, hide his gun 12 bore and snatched amount in the garden. Accused ljaz Ahmad and Munawar, alongwith gun 12 bore owned by accused ljaz Ahmad and snatched motorcycle were handed over to police." 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 14 witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations CRIMINAL PETITION NO. 963-L OF 2016 3 leveled against him. He firstly opted to produce defence evidence but afterwards recorded a statement that he is not willing to produce any evidence in defence. 4. Learned counsel for the petitioner argued that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses of the ocular account, which have escaped notice of the courts below. Contends that the prosecution has miserably failed to prove its case against the petitioner beyond reasonable doubt, therefore, there was no justification to convict the petitioner. Contends that not even a single crime empty was recovered from the crime scene and as such the recovery of weapon of offence is inconsequential. Contends that the prosecution story with regard to the recovery of the allegedly snatched amount from a 'Bagh' and the mobile is unbelievable and as such no case falling within the ambit of 'robbery' has been made out. Lastly contends that the impugned judgment is the result of misreading and non-reading of the evidence available on the record and the same is not sustainable in the eyes of law. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the evidence led by the prosecution in the shape of ocular version duly supported by medical evidence and recovery of 12 bore gun along with snatched articles is sufficient to sustain the conviction of the petitioner, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. As per the prosecution story, the occurrence happened in two episodes. In the first episode, the petitioner along with his co-accused allegedly snatched motorcycle, cash and mobile phone from Arshad Au (PW-8) and Jahangir Abbas (PW-9) and fled away. As Arshad Ali was having another phone in his pocket) he informed his brother about the incident nd thereafter in the second episode Akhtar All, brother of Arshad Ali, CRIMINAL PETITION NO, 963-L OF 2016 4 Shabbir Ahmad, complainant (PW-7), Touqir Ahmad and Amanat Ali along with other villagers intercepted the petitioner while he was proceeding from Mohanwal Band to village Purani Bheni. When the petitioner saw the people, he left the motorcycle and tried to escape. When the petitioner was chased by the complainant and other people and was ultimately encircled by them, he fired from 12 bore gun, which hit Tauqir Ahmad at his abdomen, who succumbed to the injury at the spot, With regard to evidence relating to robbery, we have found that the complainant in his cross-examination candidly stated that he has not seen the petitioner snatching motorcycle and other articles from Hafiz Arshad and Jahangir. It is the prosecution case that during chase, the petitioner concealed the cash under certain trees of Falsa Garden, which was subsequently recovered at his instance. However, this seems to be impassible because when the people were chasing him, it was not possible for the petitioner to dig a hole and conceal the amount therein. There is nothing in evidence as to whether the mobile phone, allegedly snatched by the petitioner, was recovered from him. No identification of said looted articles is established from the record to meet the legal requirements, hence, it cannot be considered sufficient to connect the petitioner with the commission of the crime to the extent of robbery. It is also on record that when the petitioner was apprehended, he was not on or with motorcycle, therefore, it can safely be said that recovery of motorcycle cannot be used against him. We are, therefore, of the opinion that the prosecution could not produce reliable evidence to sustain conviction of the appellant under Section 392 PPC. 7. Now coming to the second episode of the prosecution story, Shabbir Ahmad, complainant (PW-7) got recorded his statement with respect to the subsequent event, which led to murder of Tauqir at the hands of the petitioner. This prosecution witness was subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be brought on record. He remained consistent on each and every material point, therefore, it can safely be concluded that his evidence is reliable, straightforward and confidence CRIMINAL PETITION NO. 963-1.0; 2016 5 inspiring, It is a settled principle of law that it is the quality of evidence which is to be considered and not the quantity of evidence. The evidence of one person, if found confidence inspiring, is sufficient to sustain conviction. This Court in Niaz ud Din Vs. State (2011 SCMR 725) has specifically held that "conviction even in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable; it is the quality of evidence and not the quantity which matters." So far as the medical evidence is concerned, the same is in line with the prosecution story. As far as the question that the complainant was brother of the deceased, therefore, his testimony cannot be believed to sustain conviction of the petitioner is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. Learned counsel for the petitioner could not point out any reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit, who has committed murder of his real brother especially when he was apprehended at the spot after a chase of co-villagers. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the petitioner without any rhyme and reason. As we have held the commission of robbery doubtful due to lack of sufficient evidence, therefore, we are constrained to hold that the motive part of the prosecution is not proved. The recovery is also held to be inconsequential as no empty was recovered from the place of occurrence. So far as the quantum of punishment is concerned, the learned High Court while taking into consideration the fact that the petitioner only fired single shot coupled with the fact that motive has not been proved and the recovery is inconsequential has rightly taken a lenient view and converted the sentence of death awarded to the petitioner into imprisonment for life. No further leniency can be shown to the petitioner. r W CRIMINAL PE7TICN NO. 963-i OF 2016 5 8. For what has been discussed above, while maintaining the conviction and sentence of the petitioner under Section 302(b) PPC along with compensation amounting to Rs.100,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for four months, the conviction and sentence of the appellant under Section 392 PPC is set aside. This petition is converted into an appeal, partly allowed and the impugned judgment is modified accordingly reasons of our short order of even date. Islamabad, the 19th of April, 2022 Approved For Reporting I:liiu Idt.11 II ;ovethe detailed

IN THE SUPREME COURT OF PAKISTAN (APPELLA TE JURISDICTION) MR. JUSTICE MAZHAR A LAM KHAN MIANKHEL MR. JUSTICE SAY Y ED MAZAHAR ALl AKI3AR NAQVI CRIMINAL PETITION NO. 978 OF 2021 (Against the order dated 15.07.2021 of the Peshawar High Court, Peshawar passed in Cr.M(BA) No. 748-Al2021) Fakhar Zaman Petitioner(s) Versus The State through D.A. G. and another Respondent(s) For the Petitioner(s): Mr. Muhammad Nawaz Khan, ASC Syed Rifaqat Hussain Shah, AOR For the State: Syed Nayyab Hussain Gardezi, DAG Sycda Pakeeza, 51 FM For the Complainant(s): Mr. Muhammad Junaid Alchtar, ASC Date of Hearing: 17.09.2021 ORDER SAY Y ED MAZAHAR ALl AKBAR NAQVI, J. This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the impugned order dated 15.07.2021 passed by the learned Peshawar High Court, Peshawar whereby the post-arrest bail of the petitioner was declined. 2. As per the contents of the crime report registered vide FiR No. 1512021 dated 03.06.2021 under Sections 20121124 of Prevention of Electronic Crime Act, 2016 and Section 109 PPC at Police Station Cyber Crime Reporting Center (CCRC) FM, Abbottabad, it is alleged that the petitioner was instrumental in posting photographs of the complainant using cellular device and as such caused sexual harassment to the complainant. During the course of investigation, the petitioner was taken into custody on 08.06.2021 and as such he is behind the bars. He applied for post-arrest bail which was declined by CRIMINAL PETITION NO. 978 OF 2021 -. 2 - the learned Trial Court. The same relief was also declined to him by the learned High Court vide impugned order. 3. At the very outset it has been contended by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that from the bare reading of the accusation against the petitioner, no case of sexual harassment is made out. Further contends that the petitioner is behind the bars since more than 03 months and the maximum punishment under the statute for the offence under which the petitioner is charged is 05 years. Lastly it is contended that as the offence does not fall within the prohibitory clause, therefore, the petitioner is entitled for concession of bait prayed for. 4. On the other hand, the learned Law Officer, assisted by the learned counsel for the complainant, has contended that it is a crime against the society and such like people are not entitled to any concession. Contends that the lfe of womenfolk is at stake because of the act of the petitioner. Further contends that the trend of sexual harassment is at rise in the society, therefore, it has to be curbed with iron hand. S. We have heard the learned counsel for the parties and gone through the record. There is no denial to this fact that this Court being the ultimate court of law has to decide the cases keeping in view the dictates of justice in order to establish safe administration of criminal justice. No doubt there is allegation of sexual harassment which has been made on the basis of sharing certain photographs on social media. The trend of such like activities undeniably is at the verge of rise which clearly shows concerns towards the downfall of the society, but at the same time, a duty is cast upon the court to see whether from the facts and circumstances the case of bail is made out. To resolve this issue, we undesirably asked the Inve.s tigating officer to show us the material collected during the course of investigation. We have observed that there are certain photographs which could be termed as close to nudity but those are not recognizable. The other photographs are in full attire without any question of immorality. This aspect persuaded us to grant post-arrest bail to the petitioner, as he is behind the bars since more than 03 months and this issue can be resolved by the Trial Court after CRIMINAL PETITION NO. 978 OF 2021 -:3:- recording of evidence more authoritatively. As the liberty of a person is a precious right which has been guaranteed, therefore, we are persuaded to grant post-arrest bail to the petitioner subject to his furnishing bail bonds in the sum of Rs.200, 000/- (rupees two hundred thousand) with two sureties in the like amount to the satisfaction of the Trial Court. Resultantly, this petition is converted into appeal and U allowed and the impugned order is set aside. JUDGE Islamabad. the JUDG 1711, of September, 2021 XX approved for reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 982-L OF 2022 (On appeal against the order dated 20.04.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 20379-B/2022) Shameem Bibi … Petitioner VERSUS The State etc … Respondents For the Petitioner: Mian Shah Abbas, ASC (Via video link from Lahore) For the State: Mr. Muhammad Jaffer, Addl. P.G. Mr. Bilal Sulehri, ASP Mr. Muhammad Yasin, S.I. For the Respondent (2): Mr. Muhammad Irshad Ch, ASC Date of Hearing: 22.09.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 20.04.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case registered vide FIR No. 172 dated 02.02.2022 under Sections 394/302/411/109 PPC at Police Station Mangamandi, Lahore, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as stated in the crime report is that on the fateful day and time, two brothers of the complainant namely Saifullah and Muhammad Nawaz were going towards Sundar Estate on motorbike. They were intercepted by the two unknown persons, who on gun point robbed mobile phones and cash amount from his brothers and thereafter made a fire shot in the head of Saifullah, who Criminal Petition No. 982-L/2022 2 succumbed to the injuries at the spot. They also made a fire shot on the leg of the other brother namely Muhammad Nawaz. Subsequently, on the basis of supplementary statement of the complainant, the petitioner, who was wife of Saifullah, deceased, was implicated in the case. The allegation against her is that the whole occurrence was committed by the accused on her behest and she being in league with him provided him information as she was allegedly having illicit relations with one accused namely Waqas Akram. 3. At the very outset, it has been contended by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that except the bald allegations as contained in the supplementary statement, there is no material to connect the petitioner with the commission of the crime. Contends that the Call Data Record (CDR) is not a conclusive piece of evidence. Contends that during investigation nothing has been recovered from the petitioner. Contends that the petitioner is a woman of advanced age and she cannot be incarcerated without any tangible proof against her. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has defended the impugned order declining bail to the petitioner. It has been contended that the petitioner has specifically been nominated in the supplementary statement for the commission of the offence, which entails capital punishment. It was lastly contended that according to the CDR, the petitioner was in contact with the alleged dacoit, who is charged with the murder of her husband, therefore, she does not deserve any indulgence by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record. Admittedly, the petitioner was not named in the crime report and it was subsequent in time that she was implicated in the case on the supplementary statement of the complainant dated 03.02.2022. Criminal Petition No. 982-L/2022 3 The only allegation against the petitioner is that the whole occurrence was committed by the accused on her abetment. However, no specific date, time and place where the conspiracy was hatched has been mentioned in the supplementary statement. Even name and number of witnesses to that extent is not available on the record. Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case. We have specifically asked the learned Law Officer and the learned counsel for the complainant to show us from record any material, which could prima facie connect the petitioner with the commission of the crime but except the Call Data Record (CDR), they could not show us anything. This Court in a number of cases has held that in absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused. On our query, learned Law Officer admitted that as yet there is no evidence that the mobile phone belonged to the petitioner and the SIM was in her name. In these circumstances, the (Call Data Record) CDR in isolation does not advance the prosecution’s case unless and until some credible material in this regard has been collected. We have been informed that challan has already been submitted, which means that the petitioner is no more required for further investigation. The petitioner is a lady of 50 years of age, having five children left at home. This Court has time and again held that liberty of a person is a precious right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be taken away without exceptional foundations. Keeping in view the peculiar facts and circumstances of this case, keeping the petitioner behind the bars for an indefinite period would not be in the interest of justice. In these circumstances, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner. 6. For what has been discussed above, the case of the petitioner squarely falls within the purview of Section 497(2) Cr.P.C. Criminal Petition No. 982-L/2022 4 entitling for further inquiry into her guilt. Consequently, we convert this petition into appeal, allow it and set aside the impugned order dated 20.04.2022. The petitioner is admitted to bail subject to her furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned Trial Court. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 22nd of September, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMAD Criminal Petition No.989 of 2021 (Against the judgment dated 2.7.2021 passed by the Peshawar High Court Peshawar in Cr. Misc. (B.A.) No.422-M/2021) Ejaz Ahmad and another …Petitioner(s) VERSUS The State and another …Respondent(s) For the Petitioner(s): Mian Abdul Rauf, ASC For the Respondent(s): Mr. Shumail Aziz, Addl. A.G. KP with Ziarat, I.O. Date of Hearing: 29.09.2021 O R D E R Qazi Muhammad Amin Ahmed, J.- Mst. Tasleem Bibi is blamed by the complainant, no other than her father, to have married with Ejaz Ahmed, co-accused during the subsistence of her first marriage with one Noorullah; both of them are behind the bars, lastly denied bail by a learned Judge-in-Chamber of the Peshawar High Court, Mingora Bench Swat, vide impugned order dated 2.7.2021. Mian Abdul Rauf, ASC contends that Mst. Tasleem Bibi vehemently denies her alleged nuptial bond with Noorullah PW and had competently married with Ejaz Ahmed co-accused of her free will and volition by exercising discretion vesting in her both under the divine as well as municipal law; he further contends that the edifice of first marriage is resting upon an oral Nikah and in the absence of any judicial declaration jactitating the alleged marriage, it would be inexpedient to detain the couple, Crl. Petition No.989/2021 particularly when it is serving no useful purpose. The learned Law Officer has contested the plea. 2. Heard. Record perused. 3. Be that as it may, without touching upon the merits of the plea raised before us, having regard to the peculiar facts and circumstances of the case, we would prefer to direct that the trial be concluded within a period of three months; it shall be held in jail premises while enabling the accused to arrange their representation through a counsel of choice, in the event of incapacity to arrange a lawyer, the Presiding Officer shall provide them a counsel at State expense so as to positively conclude the trial within the stipulated time frame. Disposed of. JUDGE JUDGE JUDGE ISLAMABAD 29th September, 2021 Ghulam Raza/* “Not approved for Reporting”

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CRIMINAL PETITION NO. 990 OF 2016 (On appeal against the order dated 09.09.2016 passed by the Peshawar High Court, Peshawar in Cr.M/BA No. 1724-P/2016) Wajid Ali … Petitioner VERSUS The State and another …Respondents For the Petitioner: Mr. Hussain Ali, ASC Mir Adam Khan, AOR (Absent) For the State: Mr. Zahid Yousaf, ASC for A.G. KPK Mr. Zahidullah, SI/IO, PS Badabair Date of Hearing: 07.11.2016 ORDER FAISAL ARAB, J.- The petitioner is an accused alongwith his brother Abdul Ghani in FIR No. 967 dated 01.11.2015 registered under Sections 302/324/148/149 PPC at Police Station Badhber, District Peshawar. In the FIR it has been reported that on the fateful day when the complainant and his uncle were busy in repairing the wall of their house, the petitioner and his brother armed with weapons came and the co-accused Abdul Ghani instantly fired at his father, who succumbed to his injuries and died on the spot. It is also stated in the FIR that then the petitioner also fired at the complainant, who got injured, whereas his uncle ran from the scene of the crime to save his life. The petitioner after arrest applied for bail, which plea was rejected Criminal Petition No. 990/2016 2 by the Trial Court. Petitioner’s bail application before the High Court also met the same fate. Hence this petition. 2. Learned counsel for the petitioner argued that insofar as the petitioner is concerned, the only role attributed to him was that of causing fire arm injury to the complainant which is reported to be ‘ghair jaifa’, i.e. not falling within the prohibitory clause therefore bail ought to have been granted to the petitioner. 3. Learned counsel for the State, on the other hand, opposed the grant of bail on the ground that the petitioner along with his brother came with the common intention to commit murder and the father of the complainant was fired upon and killed, therefore, bail was rightly declined to the petitioner. In support of his case, he placed reliance on the case of Munawar Vs. State (1981 SCMR 1092). In the cited case bail was declined to co- accused on the ground that there was common intention evident on the record. 4. In rebuttal, learned counsel for the petitioner submitted that the case cited by the State counsel is not attracted as from the narration of the incident in the FIR in the present case it cannot be said that there already existed common intention to commit murder. He placed reliance on the cases of Muhammad Irfan Vs. State (2014 SCMR 1347), Faqir Hussain Vs. State (2014 SCMR 1502), Inayat Khan Vs. State (1982 P.Cr.LJ 1000) and Muhammad Khalid Butt Vs. State (1993 P.Cr.LJ 1491) wherein there was absence of any material to prima facie establish common Criminal Petition No. 990/2016 3 and, therefore, it was nature of injury caused by the co-accused that was made basis for grant of bail. 5. From the contents of the FIR, it cannot be out-rightly said that there was a common intention to commit crime. It prima facie appears that repairing of the common wall was the reason that provoked the accused. The conclusion that there was common intention can only be reached after the evidence in the matter comes on the record. So far as the role of causing injury on the person of the complainant is concerned, it is admitted position that the said injury was reported to be ghair jaifa. The petitioner in this view of the matter cannot be kept behind the bars for an indefinite period. In the circumstances, the petitioner has made out a case for post-arrest bail. This petition is therefore converted into appeal and is allowed and the impugned order is set aside. Petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.300,000/- with two sureties in the like amount to the satisfaction of Trial Court. JUDGE JUDGE Islamabad, the 7th of November, 2016 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 994 OF 2020 (On appeal against judgment dated 29.11.2019 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 244-P/2019) The State through Director General FIA, Islamabad … Petitioner VERSUS Alif Rehman … Respondent For the Petitioner: Mr. Sajid Ilyas Bhatti, Addl. Attorney General Ch. Akhtar Ali, AOR Syed Kashif Ali, Inspector FIA, Peshawar For the Respondent: Mr. Arshad Hussain Yousafzai, ASC On Court Notice: Mr. Awais, in person Date of Hearing: 15.01.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Criminal M.A. No. 1587/2020: For reasons mentioned in this application, it is allowed and the delay in filing the Criminal Petition No. 2078/2020 is condoned. Criminal Petition No. 994/2020: The petitioner Department has filed this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, and has sought indulgence of this Court while calling in question the legality of the impugned judgment dated 29.11.2019 passed by the learned Peshawar High Court, Peshawar, whereby the Criminal Revision filed by the respondent was allowed. 2. Briefly stated the facts of the matter are that on a secret information it was pointed out that the respondent is involved in foreign currency exchange without having any permission from the concerned authorities and as such he is liable Criminal Petition No. 994/2020 2 to be proceeded against in terms of Foreign Exchange Regulation Act, 1947. In pursuance of the said information, a raid was conducted and respondent was found in possession of foreign currency of Kingdom of Saudi Arabia, as such a case FIR No. 36/2019 dated 28.08.2019 was registered under Sections 4/23 of the Foreign Exchange Regulations Act, 1947 at Police Station FIA/CBC, Peshawar. It is worth mentioning that during the raid, Saudi Riyals to the tune of 1,57,500/- and Pakistan currency to the tune of Rs.42,66,000/-, which was being utilized in lieu of exchange, was taken into possession by the raiding party. In this regard, seizure memo was duly prepared by the Investigating Officer. During the course of proceedings, the accusation against the respondent was found correct and as such report in terms of Section 173 Cr.P.C was submitted in the case which is still pending adjudication before the court of first instance. An application for superdari of the said amount was moved and the learned Trial Court vide order dated 19.10.2019 declined to deliver the Saudi Riyals, however, ordered return of Pakistani currency to the respondent. The order of the learned Additional Sessions Judge-VII, Peshawar, was assailed before the High Court through Criminal Revision, which was allowed vide impugned order dated 29.11.2019. Hence, this petition seeking leave to appeal. 3. The crux of the arguments advanced by the learned Additional Attorney General is that the learned High Court has not taken into consideration that the exchange of currency without approval of the concerned authority is prohibited in terms of Foreign Exchange Regulation Act, 1947; that the learned Trial Court while passing the order dated 19.10.2019 has relied upon the statement of co-accused Khan Bahadar, which was to the effect that he has no objection if the currency is returned to the respondent, and ordered return of Pakistani currency to the respondent, which was not tenable in law; that the Pakistani currency was being used as an exchange currency of Saudi Riyals, which was also seized by the FIA authorities; that the learned Courts have not assigned any plausible reason while ordering return of Pakistani as well as Saudi currency to the respondent and the same are liable to be set aside. Criminal Petition No. 994/2020 3 4. On the other hand, learned counsel appearing on behalf of the respondent tried to controvert the arguments advanced by the learned Law Officer but could not substantiate any legal justification. 5. We have heard learned Law Officer as also learned counsel for the respondent and have gone through the record. 6. To evaluate the legality of the order passed by the learned High Court, it would be imperative to reproduce the Preamble of the Foreign Exchange Regulation Act, 1947. The same reads as under:- “An Act to regulate certain payments, dealings in foreign exchange and Securities and the import and export of currency and bullion. Whereas it is expedient in the economic and financial interests of Pakistan to provide for the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion;” 7. A mechanism has been devised to avail the benefits of such legislation, which could regulate the exchange of foreign currency, which otherwise can be beneficial for the economic and financial interest of the State. However, any deviation while defeating the mechanism devised would adversely affect the interest causing hazardous affect and result into financial debacle. Any person who is citizen of Pakistan is authorized to establish business of foreign currency notes subject to moving an application to the State Bank of Pakistan on a prescribed form after payment of a prescribed fee seeking permission/authorization. The method is duly mentioned in Section 3A of the Act, which is reproduced as under:- “3A. Authorized money changers in foreign exchange. (1) The State Bank may, on application made to it in this behalf, and on payment of a fee prescribed by it, from time to time, authorize any person to deal in foreign currency notes and coins. (2) The power conferred under sub-section (1) shall be exercised on the basis of criteria prescribed, and recommendations made, by a committee consisting of such official and non-official representatives as may be nominated by the State Bank. Criminal Petition No. 994/2020 4 (3) An authorization made under this section may be for a specific period of time, which may be renewed thereafter. (4) An authorized money changer shall, in all his dealings under the authorization, comply with such general or special directions or instructions as the State Bank may, from time to time, think fit to give including those for supply of data, the rate and code of conduct in doing business. Failure to comply with the instructions may lead to suspension of the licence or other actions as necessary.” 8. Similarly the exchange companies can be formed. The procedure is almost the same, which is provided in Section 3AA of the Act. The same reads as under:- “3AA. Exchange Companies.—(1) The State Bank may, on application made to it in this behalf, and on payment of such fee as it may, from time to time prescribe, authorize any company to deal in foreign currency notes, coins, postal notes, money orders, bank drafts, travellers cheques and transfers. (2) For the purposes of sub-section (1), the expression “company” means a company having been formed and registered under the Companies Ordinance, 1984 (XLVII of 1984) pursuant to no objection certificate issued by the State Bank in respect thereof to the Securities and Exchange Commission of Pakistan upon receiving an intimation from the said Commission that it has received an application for the formation of the company. (3) The power conferred under sub-section (1) shall be exercised on the basis of the eligibility criteria prescribed for exchange companies by the State Bank. (4) Exchange Companies shall, in all their dealings, comply with— (i) the terms and conditions of the authorizations issued to them under sub-section (1); and (ii) such general or special directions or instructions as the State Bank may, from time to time, issue including those set out in the circulars and foreign exchange manual of the State Bank. (5) Failure to comply with any such terms and conditions, directions or instructions imposed, given or issued may lead to suspension of authorization or any other action as deemed necessary by the State Bank.” 9. A bare reading of aforesaid provisions would show that there is an ample opportunity to enter into the business of foreign currency while crossing over the required legal impediments subject to satisfaction and authorization by the State Bank of Criminal Petition No. 994/2020 5 Pakistan. However, we have noticed that in the instant case, the respondent neither sought any permission nor produced any document during raid or afterwards during investigation. It has been apprised to us that the report in terms of Section 173 Cr.P.C. has already been submitted before the Court of competent jurisdiction and trial of the case is likely to be commenced in near future. We are in agreement with the learned Additional Attorney General that the learned High Court has extended artificial reasoning while passing the impugned judgment and the same is not supported by the law of the land. As the matter of dealing in foreign exchange is of grave importance, which is also linked with the national interest, an amendment has been brought to Section 23 of the Act on 26.02.2020 whereby after the word ‘with’ the word ‘rigorous’ has been inserted in Section 23(1) and the punishment for the delinquents who contravene or attempt to contravene or abet the contravention of any of the provision of the Act has been enhanced from 2 years to 5 years. In view of the facts and circumstances of the case, we are of the considered view that the order passed by the learned High Court is totally in disregard of the facts and law and the same is not sustainable in the eyes of law. So far as the issue of Pakistani currency is concerned, prima facie it was being used as an exchange currency for Saudi Riyals, otherwise, there seems no reason for keeping such a huge amount in the shop. The matter of handing over the Pakistani currency has not been challenged before us. However, for doing complete justice, this Court under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973, can pass any order or a direction which it deems appropriate. The framers of the Constitution while inserting the aforesaid Constitutional provision in-fact had assigned unfettered powers for a purpose which squarely comes within the ambit of complete justice stricto sensu. The said Article reads as under:- “187. (1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be Criminal Petition No. 994/2020 6 executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final.” 10. In such like cases, this Court in exercise of its inherent jurisdiction under Article 187(1) of the Constitution is required to do complete justice, which must prevail ignoring technicalities. This Court in the case of Khalid Iqbal Vs. Mirza Khan (PLD 2015 SC 50) has categorically held that the power of this Court to exercise its inherent jurisdiction under Articles 187, 184(3) & 188 of the Constitution is not dependant upon an application of a party. In the case of Muhammad Zahid Vs. Muhammad Ali (PLD 2014 SC 488) while relying on earlier judgments of this Court, it was held by this Court that "the approach in all these cases leads to one conclusion that this Court in matter of doing complete justice has not been handicapped by any technicality nor by a rule of practice.” In the case of Martin Dow Marker Ltd, Quetta Vs. Asadullah Khan (2020 SCMR 2147) while relying on the earlier judgments, this Court held as under:- “This Court under Article 187(1) of the Constitution has the power to issue such directions, orders or decrees, as may be necessary for doing complete justice and in doing so, the Court is also empowered to look at the changed circumstances of the case as it has appeared before it and also to mould relief as is just and proper for meeting the ends of justice. Reference in this regard is made to the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shlarif, Prime Minister of Pakistan and 9 others [PLD 2017 SC 265]; Muhammad Zahid v. Dr. Muhammad Ali [PLD 2014 SC 488]; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others [PLD 2014 SC 1]; Mst. Amatul Begum v. Muhammad Ibrahim. Shaikh [2004 SCMR 1934] and Imam Bakhsh and 2 others v. Allah Wasaya and 2 others [2002 SCMR 1985]. 13. We may note that in exercising the jurisdiction to do complete justice and to issue directions, orders or decrees, as may be necessary, this Court is not bound by any procedural technicality when a glaring fact is very much established on the record and even stand admitted. Reference in this regard is made to the case of Muhammad Shafi v. Muhammad Hussain [2001 SCMR 827]; Gul Usman and 2 others v. Mst. Ahmero and 11 others [2000 SCMR 866] and S.A.M. Wahidi v. Criminal Petition No. 994/2020 7 Federation of Pakistan through Secretary Finance and others [1999 SCMR 1904].” 11. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment of the learned Peshawar High Court, Peshawar, dated 29.11.2019 as also the order of the learned Trial Court dated 19.10.2019. The application of the respondent for superdari to the extent of Pakistani currency, already handed over to the respondent, shall be deemed to be pending before the learned Trial Court and shall be decided afresh by a judicious order after affording an opportunity of hearing to both the parties strictly in the spirit of the law. JUDGE JUDGE JUDGE Islamabad, the 15th of January, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.996 of 2020 (Against the order dated 11.08.2020 of the Lahore High Court Rawalpindi Bench passed in Cr. Misc. No.1339-B/2020) Abid Hussain …Petitioner(s) Versus Tassawar Hussain and another …Respondent(s) For the Petitioner(s): Syed Hamid Ali Bokhari, ASC For the Respondent(s): Mr. Haider Mehmood Mirza, ASC Mr. M. Sharif Janjua, AOR For the State: Ch. Sarwar Sindhu, Addl. Prosecutor General Punjab with Majid I.O. Date of hearing: 02.02.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Impugned herein is order dated 11.08.2020 by a learned Judge-in-Chamber of the Lahore High Court Rawalpindi Bench Rawalpindi whereby Tasawar Hussain respondent, one of the accused in a case of murderous assault, blamed for a straight effective shot on the abdomen of Husnain Riaz PW confirmed by medical evidence, has been granted bail in anticipation to his arrest. It is alleged that on the eventful day, in the backdrop of a dispute over the possession of a residential house, located within the precincts of Police Station Chontra Rawalpindi, the respondent along with co-accused, eight in number, differently armed with lethal weapons, mounted an assault at 6:30 p.m, in consequence whereof, Husnain Riaz sustained three entry wounds on the frontal part of his body; his wife Ghazala Bibi, Salma Bibi and Abid Hussain also endured injuries. Avoiding arrest through multiple applications, three in number, the respondent was lastly refused anticipatory bail by a learned Criminal Petition No. 996 of 2020 2 Additional Sessions Judge on 14.7.2020, however, extended protection vide the impugned order, premised upon the following reasons: “It is straightaway observed that though the role of causing a firearm injury to injured PW has allegedly been attributed which injury has been declared falling within the mischief of Section 337-D, PPC yet during the course of first investigation, he has been declared innocent by the Investigating Officer. Further, besides the petitioner, four others accused namely Ejaz Hussain, Waseem Ahmad, Saleem Ahmad and Khurram Shahzad were also implicated in the crime report, with role of firing but during the course of investigation petitioner and co-accused Waseem Ahmad have been declared innocent, whereas Saleem Ahmad, having allegation of firearm injury to Mst. Salma Bibi has been admitted to bail vide order dated 13.11.2019, passed in Crl. Misc. No.1867-B of 2019. Other co- accused namely Khurram Shahzad, with the allegation of causing a firearm injury to Abid injured complainant has also been granted bail vide order dated 29.01.2020 and admittedly so far no cancellation of bail petition has been filed by the complainant. More so, confirmatory report regarding all the empties secured from the place of occurrence has been received, according to which, all have been found fired from the pistol allegedly recovered on the pointing out of co- accused. Moreover, importantly close relatives of the petitioner have been implicated in this case and as such possibility cannot be ruled out that the petitioner being one of the elder and real brother of Ejaz Hussain co- accused has falsely been implicated in this case by throwing wider net. In such backdrop, case against the petitioner has become to be one of further inquiry falling within the ambit of Section 497 (2) Cr.P.C. Liberty of a person is precious right guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away until and unless there is cogent reasoning.” 2. Heard. Record perused. 3. The impugned view fails to commend approval for reasons more than one; first that it is a journey, inordinately lengthy, into forbidden territories as observations recorded by the learned Judge, in the absence of evidence, yet to be recorded, though presumably tentative, nonetheless, transcend far beyond the barriers of tentative assessment; conclusiveness of the impugned findings, being part of a bail order, though judicial viewed as without any bearing upon the final Criminal Petition No. 996 of 2020 3 outcome of the case, a business to be best settled by the trial Judge, nonetheless, tend to have plunged the prosecution into a situation, embarrassing by all means towards its final destination and, thus, ought to have been avoided. Reference to the protection of freedom guaranteed under the Constitution is equally misplaced as the Constitution pledges freedom to the law abiding citizens; an offender, alleged to have committed some crime, is subject to a different legal regime; he is certainly entitled to due process of law and a fair and speedy trial, however, once taken in custody, his release is regulated by the provisions of the Code of Criminal Procedure, 1898 and he must make out a case within the statutory framework provided thereunder, therefore, a pre-arrest bail cannot be granted as a substitute for post arrest bail. Respondent’s previous conduct also escaped notice by the learned Judge; he had been avoiding process of law ever since registration of the case as is evident from the record, before the last dismissal on merits, he twice secured ad-interim bail, each dismissed on account of his failure to appear before the Court on the date fixed. It has been held by this Court in the case of Mukhtar Ahmad Vs. The State & others (2016 SCMR 2064) that such conduct by itself disentitles an applicant to judicial protection. Though there is an oblique reference to a lurking mala fide, yet with no substance therein. In a run of the mill criminal case with four injured unanimously clamouring respondent’s participation in the occurrence with a half cooked theory of his innocence, subsequently recalled by the police itself, the mala fide cannot be readily inferred. Impugned order being inconsistent with the purposes and considerations for extending judicial protection to the innocent, exposed to the horrors of abuse of process of law, for motives oblique and sinister, cannot sustain. Petition is converted into appeal and allowed. Impugned order dated 11.08.2020 is set aside; pre-arrest bail granted to the respondent is cancelled. Judge Judge Islamabad, the 2nd February, 2021 Not approved for reporting Azmat/-

SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam Mr. Justice Maqbool Baqar Criminal Review Petitions No.15 to 18 of 2011 [For review of common Judgment dated 21.04.2011 passed by this Court in Criminal Appeals No.167 to 170 of 2005] Mst. Mukhtar Mai d/o Ghulam Farid Meerwala, Tehsil Jatoi, Muzaffargarh [in all cases] …Petitioner(s) VERSUS Abdul Khaliq & others [in Cr.R.P.15&18] Faiz Muhammad & another [in Cr.R.P.16] Muhammad Aslam & others [in Cr.R.P.17] …Respondent(s) For the Petitioner(s) [in all cases] : Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Shah, ASC For the Respondent(s) [in all cases] : Malik Muhammad Saleem, ASC For the State : Syed Ahmed Raza Gillani, Addl.P.G. Date of Hearing : 13.06.2019 J U D G M E N T GULZAR AHMED, J.— These Criminal Review Petitions have been filed seeking review of common judgment of this Court dated 21.04.2011 passed in Criminal Appeals No.163 to 171 of 2005 and SMC No.5 of 2005. 2. Brief facts of the matter are that FIR No.405 dated 36.06.2002 was got registered by the petitioner with Police Station Jatoi, District Muzaffargarh under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the Ordinance 1979) read with Section 109 of Pakistan Penal Code, 1860 (PPC). 1-Crl.Review Petitions No.15 to 18 of 2011.doc - 2 - Subsequently, Section 19 of the Ordinance 1979 was added along with Sections 354-A, 217, 119 and 342 PPC so also Section 7 of the Anti-Terrorism Act, 1997 (ATA). The trial was conducted, on conclusion whereof the trial Court passed its judgment dated 31.08.2002 on the basis of which, out of 14 accused persons 8 accused were acquitted while the remaining 6 accused were found guilty and were convicted and sentenced, as noted the said judgment. However, all the accused were acquitted of the charge under Section 354-A PPC. Both the complainant as well as the State filed criminal appeals before the Lahore High Court challenging judgment of the trial Court. The acquittal appeals were dismissed by the High Court while the appeals filed by the convicted accused were accepted except that of the convicted accused Abdul Khaliq, whose appeal was partly allowed and his capital punishment was converted into imprisonment for life with benefit of Section 382-B Cr.P.C. Criminal Appeals were filed against judgment of the High Court dated 03.03.2005 by the State, by the Complainant and also by the convicted accused Abdul Khaliq, while Suo Motu Case No.5 of 2005 was also registered by this Court. The criminal appeals as well as the SMC were heard together by a 3-Member Bench of this Court, which through the judgment under review dismissed the appeals and discharged the SMC. 3. The learned Sr. ASC for the petitioner while arguing the criminal review petitions has made the following formulations: 1) Whether any, and if so, what kind of corroboration is required for the testimony of rape victim; 2) Whether a distinction can be drawn between a victim who is a virgin and one who is a divorcee in respect of her credibility in a prosecution for rape; 3) Whether confessions made in cross-examination will not adversely affect the defence, particularly in a case wherein the accused has stated in his statement under section 342 Cr.P.C. that his defence is the same as put in cross- examination by his counsel; 4) Whether the Charge under section 354-A PPC which relates to someone being paraded nude in public can be defended by the accused by merely stating that the victim was handed back her clothes; 1-Crl.Review Petitions No.15 to 18 of 2011.doc - 3 - 5) What is the effect of misreading and non-reading of evidence regarding the injuries on the body of the victim; 6) What is the guilt of the persons forming part of an Akath/tribal Jirga/Panchayat who sit and join the same, as a result of which a gang rape is permitted/committed; 7) How far modern technics like DNA can be insisted upon by the Court in crimes committed in a far-flung rural area where it is not easy to have access to these technics. 4. We have brought to the attention of the learned Sr. ASC for the petitioner that the formulations made by him, as reproduced above, are such which require re-appraisal of the entire evidence and thereafter to take a view different from the one which has been taken by this Court in the judgment under review and that such course of action is not permissible under the law for that while exercising review jurisdiction the reviewing Court cannot go into the merits of the case and take altogether a different view, the learned Sr. ASC for the petitioner frankly conceded that he is aware of this legal obstruction but insisted that the Court may examine the above formulations made by him. 5. We have considered the above formulations and have also gone through the judgment under review. At the outset, we may note that all the formulations and submissions of the learned Sr. ASC, as noted above, appear to be based on the assumption that this Court is sitting as a court of appeal over the judgment under review, which jurisdiction obviously is not vested in this Court under Article 188 of the Constitution, as the Court hearing review cannot re-appraise the evidence to come to a conclusion different from the one adopted by the Court in the judgment under review. All the 1-Crl.Review Petitions No.15 to 18 of 2011.doc - 4 - formulations and submissions of the learned Sr. ASC are based materially on the evidence on record, meaning thereby that the Court, exercising review jurisdiction, is required to read the evidence, the very such exercise, in our view, is not permissible in law while sitting in review jurisdiction. It is now well settled that the power of review stems from the possibility of judicial fallibility and is exercised in exceptional circumstances, in aid of justice, to avoid gross injustice and in view of the necessity to avoid perpetuating such illegality, which cannot be allowed to remain on the record. A review is not synonymous with an appeal and does not include rehearing of the matter in issue nor will be warranted merely because the conclusion drawn is wrong or erroneous but is limited to eventualities where something obvious has been overlooked or where there is a glaring omission or patent mistake of fact or law, which is self-evident, manifest and floating on the surface, materially affecting the outcome of the adjudicatory process. Reliance in this behalf may be made to the case reported as Zakaria Ghani & 4 others v. Muhammad Ikhlaq Memon & 8 others [PLD 2016 SC 229]. 6. The formulations of the learned Sr. ASC do not seem to attract any of the provisions under which the review jurisdiction could be exercised by this Court and thus, we are of the considered view that the present review petitions are not justifiable and are liable to be dismissed on this score alone. Needless to observe that the formulations and 1-Crl.Review Petitions No.15 to 18 of 2011.doc - 5 - submissions, as they appear, are such which can be raised and addressed by this Court in an appropriate proceeding in some other case attracting the same, however, in the instant case under the review jurisdiction, where this Court has already given its judgment, these formulations and submissions cannot be gone into. 7. Thus, for the above reasons, the criminal review petitions are dismissed. Consequently, all the criminal miscellaneous applications filed in these criminal review petitions are disposed of. JUDGE Bench-II ISLAMABAD 13.06.2019 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Review Petition Nos.1 to 6/2016 in Jail Petition Nos.588 to 593/2013 (On review from the judgment dated 22.10.2015 passed by this Court in Jail Petition Nos.588 to 593/2013) Zaid Shah alias Jogi (in all cases) …Petitioner(s) Versus The State (in all cases) …Respondent(s) For the Petitioner(s): Mr. Anis M. Shahzad, ASC (in all cases) For the State: Mirza M. Usman, DPG (in all cases) Date of hearing: 29.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ziad Shah alias Jogi, petitioner herein, was tried alongside co-accused in six different cases of abduction for ransom; the cases were registered at different police stations during the year 2007 and each resulted into conviction; he was initially sentenced to death in each case, however, on appeal the death penalty was converted into imprisonment for life with collateral benefits including concurrent commutation of coordinate charges in each case, upheld throughout. After failure of his jail petitions before this Court, the petitioner addressed his first review petition through jail i.e. Suo Moto Criminal Review Petition No.90 of 2016 in J.P. Nos.588 to 593 of 2013; barred by time, it was dismissed even on merits on 12.5.2016; he once again attempted through a counsel for the review of earlier judgments through Review Petition Nos.1 to 6 of 2016 and it was for the first time, as late as on 16.1.2019 that concurrent commutation of sentences in all the cases was prayed Criminal Review Petition Nos.1 to 6/2016 in Jail Petition Nos.588 to 593/2013 2 through a second review at the bar in the absence of any such plea, specifically taken in the memorandums of the review petitions. Bound by a common thread, the titled review petitions are being decided through this single judgment. 2. Heard. 3. It is by now well settled that a petitioner cannot maintain a second review petition as authoritatively held by this Court in the cases of Khalid Iqbal & 2 others Vs. Mirza Khan & others (PLD 2015 S.C. 50) as well as Moin ud Din & others Vs. The State & others (PLD 2019 S.C. 749). Even otherwise, learned counsel for the petitioner appointed at State expense, despite his strenuous effort, has not been able to point out any error apparent in the judgment rendered by this Court in different jail petitions preferred by the convict. We have thoughtfully attended the prayer/argument, raised for the first time, seeking concurrent commutation of petitioner’s sentences, canvassed primarily on the ground that he would never be able to serve out the consecutive sentences in his expected life span, however, found the plea far from being persuasive for more than one reason. First that it was never pleaded before the Court either in jail petitions or in the memo of first review petition and, thus, in the face of formidable bar, the petitioner cannot be allowed to agitate the randomly taken up plea at the end of the day. Having regard to the facts and circumstances of the cases wherein the petitioner was returned guilty verdicts, we have otherwise found it far from expedient to entertain the plea on the touchstone of expectancy of life. Discretion available with the Court under Sections 35 and 397 of the Code of Criminal Procedure, 1898 has to be exercised with judicial circumspection and caution to strike a balance in order to avoid miscarriage of justice; every request for concurrent commutation is not to be granted in isolation to the facts and circumstances whereunder the crime is committed. In the present case, in a short span of time, the petitioner committed abduction for ransom in no less than six cases; when arrested, he was found guilty in each. Appellate scrutiny both by the High Court as well as this Court confirmed his guilt; heinously shocking, the enormity of his conduct cannot be lost sight of merely on the ground that he would not be able to foot the bill during his life time. Sufferings endured by the victims and their families cannot be consolidated Criminal Review Petition Nos.1 to 6/2016 in Jail Petition Nos.588 to 593/2013 3 into a concessionary package for the petitioner without being callously indifferent to the victims; it would also seriously undermine the criminal justice system, already functioning under raised eyebrows. Review petitions fail. Dismissed. Judge Judge Judge Islamabad, the 29th January, 2020 Not approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (REVIEW/ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CRIMINAL REVIEW PETITION NO. 207 OF 2016 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL M.A. NO. 1758 OF 2016 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 86 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 87 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 404 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011 AND CRIMINAL M.A. NO. 1521 OF 2016 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016 (To review and against the alleged contempt of this Court’s judgment dated 12.06.2013 passed in Criminal Original Petition No. 89/2011 etc) Sr. No. Parties’ names Case No. 1. Hamid Saeed etc Vs. Government of Sindh through Chief Secretary and others Cr. RP 207/2016 in Cr.O.P. 89/2011 2. Khalid Mehmood etc Vs. Syed Tahir Shahbaz and others Cr.O.P. 62/2016 3. Impleadment application on behalf of Shah Nawaz and others Cr.M.A. 1758/2016 4. Application of joinder by Iqbal Ahmed Khan Cr.M.A. 86/2017 in Cr.O.P. 62/2016 5. Application of joinder by Muhammad Asad Cr.M.A. 87/2017 in Cr.O.P. 62/2016 6. Application for impleadment of applicant namely Abdur Rauf Qureshi, DSP/CPO, National Highways and Motorway Police Cr.M.A. 404/2017 in Cr.O.P. 62/2016 7. Rizwan Ahmed Qazi and others Vs. Shaukat Hayat and another Cr.O.P. 22/2017 in Cr.O.P. 89/2011 CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017, CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016 2 8. Syed Khurram Abbas Vs. Syed Tahir Shahbaz and others Cr.O.P. 69/2017 in Cr.O.P. 89/2011 9. Khalid Mehmood and others Vs. Syed Tahir Shahbaz and others Cr.M.A. 1521/2016 in Cr.O.P. 62/2016 For the Petitioners: Raja Muhammad Ibrahim Satti, Sr. ASC (In Cr.R.P. 207/2016) Mrs. Misbah Gulnar Sharif, ASC (In Cr.O.P. 62/2016 & Cr.MA 1521/2016) Rai Muhammad Nawaz Khan Kharal, ASC (In Cr.O.P. 22/2017) Mian Mehmood Hussain, ASC (In Cr.O.P. 69/2017) Ch. Imran Hassan Ali, ASC (In Cr.MA 1758/2016) In person (In Cr.MAs 86, 87, 1016 & 1027/2018) For the Respondent: Ch. Amir Rehman, Addl. Att. General Mr. M.S. Khattak, AOR Raja Riffat Mukhtar, DIG, HQ, NH&MP Mr. Muhammad Iqbal Ahmed, DSP Legal, NH&MP Date of Hearing: 05.10.2018 JUDGMENT CRIMINAL REVIEW PETITION NO. 207/2016, CRIMINAL ORIGINAL PETITION NO. 62/2016, CRIMINAL ORIGINAL PETITION NO. 22/2017 AND CRIMINAL ORIGINAL PETITION NO. 69/2017 FAISAL ARAB, J.- Petitioners in Criminal Review Petition No. 207/2016 were all Sub Inspectors in BPS-14 and were performing duties in National Highway and Motorway Police (‘NH&MP’) as Patrolling Officers. Originally they were employees of different Police departments from all over Pakistan. After the creation of the National Highway and Motorway Police, they joined it on deputation/transfer basis. Subsequently, they were absorbed in the NH&MP. However, in compliance with the judgment of this CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017, CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016 3 Court reported in the case of contempt proceedings against Chief Secretary, Sindh etc (2013 SCMR 1752), NH&MP withdrew/cancelled the absorption/induction of the petitioners in its establishment and repatriated them to their respective parent departments on the ground that their induction in NH&MP was without the recommendations of the Departmental Induction Committee. The petitioners had also approached Islamabad High Court against the order of NH&MP by filing ICAs wherein stay was initially granted but subsequently, in the light of the order passed by this Court in Criminal Original Petition No. 31/2016 dated 10.05.2016, whereby it was observed that the High Court could not exercise its jurisdiction in relation to the matters pertaining to the terms and conditions of service of civil servants in view of the bar contained under Article 212(3) of the Constitution, the said ICAs were dismissed. Hence, the petitioners have come before us to review the judgment of this Court passed in Criminal Original Petition No. 89/2011 etc. 2. In Criminal Original Petition No. 22/2017, the petitioners were civil employees of different government departments. After the inception of NH&MP, they joined it on deputation/transfer basis. Subsequently, they were absorbed in the NH&MP, however, in compliance with the judgment of this Court reported in contempt proceedings against Chief Secretary, Sindh etc (2013 SCMR 1752), the NH&MP withdrew the absorption/induction of the petitioners in its establishment and repatriated them to their parent departments. Hence, they have filed this contempt petition on the ground that the respondent Authority has misinterpreted the judgment of this Court as it was applicable only to the employees of the province of Sindh. CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017, CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016 4 3. The case of the petitioners in Criminal Original Petitions No. 62/2016 & 69/2017 is that they were directly appointed employees of NH∓ that most of the officials were hired from different departments and the petitioners are deprived of their legitimate right of seniority and that most of the deputationists lacked the requisite qualification and experience. According to them this Court in the above said judgment has cancelled all absorptions/appointments by transfer and deputations but the department has partially implemented the said judgment. Hence, they pray that contempt of court proceedings be initiated against the respondent Authority. 4. So far as the case of the petitioners in Criminal Review Petition No. 207/2016 is concerned, we have perused the judgment under review. The respondent Department on the recommendation of the Departmental Committee has repatriated the petitioners on the ground that their induction was without the recommendations of the Departmental Induction Committee, which to our mind is unexceptionable. No ground for review is made out. Criminal Review Petition No. 207/2016 is accordingly dismissed. 5. So far as the case of the petitioners in Criminal Original Petition Nos. 62/2016 & 69/2017 that they are regular employees of NH&MP and the process of absorption of several employees is illegal and has affected the seniority of regular employees is concerned, it would be appropriate to refer to our order dated 16.01.2017 passed in Civil Appeal Nos. 709 to 717 of 2016 etc in which an almost a similar question was raised. Appellants of those appeals, who were working in different Police organizations, were initially appointed on deputation basis in CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017, CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016 5 NH&MP and were subsequently absorbed. However, a dispute arose with regard to their seniority which came up to this Court. With consent of the parties, it was held as under:- 3. We have called the A.I.G. (HRM), NH&MP, and after hearing him and with the consent of the learned Counsel for the parties as well as the learned Additional Attorney General for Pakistan, intend to dispose of the Appeals in the following terms:- “The seniority of the Police Officials in the NH&MP shall be re-fixed. The deputationists (Police Officials) who were inducted in NH&MP by extending the benefit of one step higher than their substantive rank in the parent department, shall be assigned seniority from the date they were permanently absorbed in the department by the notification issued by the competent authority and their seniority shall be placed at the bottom. The one step promotion cannot be equated as out of turn promotion in terms of judgments of this Court reported as Contempt Proceedings against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456). In fact the principles which this Court has enunciated in the case of Ch. Muhammad Akram Vs. The Registrar, Islamabad High Court, Islamabad (PLD 2016 SC 961), would be attracted in the case in hand where the issue of the nature was dealt with by this Court. The seniority of all the Police Officials shall be finalized in the above terms from the date when they were permanently absorbed in the department, placing them at the bottom of seniority as concluded hereinabove.” 6. The above order is very much clear regarding inasmuch as the seniority of all deputationists who are subsequently absorbed and have not been repatriated shall be placed at the bottom. In view of the above order, Criminal Original Petition Nos. . Petition Nos. Petition Nos. CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017, CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016 6 order of this Court is very much clear and it will include all those employees also who were originally inducted in NH&MP from BPS- 1 to BPS-7 but later promoted to higher scales. The respondent Department is directed to strictly follow this principle. So far as the plea that judgment of this Court passed in Criminal Original Petition No. 89/2011 etc was only meant for civil servants of the province of Sindh is concerned, suffice it is to state that in the said judgment this Court has settled the fate of all employees who were sent on deputation, therefore, this principle can be uniformly applied in similar cases as well in rest of the provinces as well. With the above observations, this contempt petition is disposed of. CRIMINAL M.A. NOs. 1758/2016, 86/2017, 87/2017, 404/2017 & 1521/2016 8. In view of the order passed in the connected Criminal Review Petition No. 207/2016, Criminal Original Petition Nos. 62/2016, 22/2017 and 69/2017, these miscellaneous applications have become infructuous and are disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 5th of October, 2018 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Criminal Review Petitions No. 8-L and 10-L of 2013 in Criminal Petition No. 896-L of 2012 (Against the judgment dated 03.01.2013 passed by this Court in Criminal Petition No. 896-L of 2012) Nazir Ahmed (in Cr.R.P. No. 8-L of 2013) Sayyed Mazahar Ali Akbar Naqvi (in Cr.R.P. No. 10-L of 2013) …Petitioners versus The State, etc. (in both cases) … Respondents For the petitioners: Mr. Muhammad Ahsan Bhoon, ASC (in Cr.R.P. No. 8-L of 2013) Khawaja Haris Ahmed, Sr. ASC (in Cr.R.P. No. 10-L of 2013) For the State: Mr. Ahmad Raza Gillani, Additional Prosecutor-General, Punjab (in both cases) For the complainant: Ch. Muhammad Riaz Ahmad, ASC (in both cases) Date of hearing: 15.01.2014 JUDGMENT Asif Saeed Khan Khosa, J.: The jurisdiction of this Court, as is evident from the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, is not just to decide questions of law but it also extends to enunciating principles of law which decisions and principles are binding on all other courts in the country. The principles of law contemplated by Article 189 include principles regulating the practices in vogue in the field of 2 law and some of such practices and the principles enunciated in those regards are the subject of the present judgment. 2. The facts forming the basis for passage of the judgment of this Court under review admit of no ambiguity and the already settled principles of practice and propriety applicable thereto pose no difficulty of comprehension but the judgment under review has been taken exception to not only by the litigant affected by that judgment but also by the learned Judge of the Lahore High Court, Lahore whose order was set aside by this Court through the said judgment. The matter of a litigant filing a review petition before this Court is run of the mill but a Judge of a High Court approaching this Court in person and seeking review of a judgment of this Court is surely out of the ordinary and it may raise many an eyebrow in view of the provisions of Article VI of the Code of Conduct prescribed by the Supreme Judicial Council adherence to which a Judge of a High Court swears while making oath of his office. The said Article of the Code of Conduct reads as follows: “A Judge should endeavour to avoid, as far as possible, being involved in litigation either on his own behalf or on behalf of others.” In this peculiar, and rather disturbing, backdrop we have attended to different aspects of these review petitions with utmost care and have decided to restate some of the relevant principles of law and practice with clarity so that in future no Judge may maintain that he had difficulty in comprehending or applying the same. 3. The facts of the case are that one Muhammad Islam Advocate was murdered and in that respect Muhammad Siddique complainant (respondent No. 2 herein) had lodged FIR No. 733 at Police Station Baseerpur, District Okara on 29.10.2008 for offences under sections 148, 302, 149 and 109, PPC. In the FIR the complainant had implicated six persons as the culprits including Nazir Ahmed (petitioner in Criminal Review Petition No. 8-L of 2013) and one Madad Ali and according to the FIR Nazir 3 Ahmed petitioner had caused multiple firearm injuries in the abdomen of the deceased whereas Madad Ali co-accused had caused firearm injuries on the chest and other specified parts of the body of the deceased. During the investigation Nazir Ahmed petitioner and Madad Ali co-accused were opined by the police to be innocent and they were not even arrested which prompted the complainant to file a private complaint in respect of the same incident and against the same accused persons who had already been nominated in the FIR. After a full-dressed trial conducted in the private complaint the learned Additional Sessions Judge, Depalpur, District Okara found both Nazir Ahmed petitioner and Madad Ali co-accused guilty of the murder and vide judgment dated 19.05.2011 he convicted them for an offence under section 302(b), PPC read with section 34, PPC and sentenced them to imprisonment for life each as Ta’zir besides ordering them to pay a sum of Rs. 1,00,000/- each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. was extended to them. Nazir Ahmed petitioner and Madad Ali co-convict assailed their convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No. 1082 of 2011 jointly filed by them. During the pendency of that appeal Madad Ali co-convict filed Criminal Miscellaneous No. 01 of 2011 seeking suspension of his sentence and release on bail which application was allowed by a learned Judge-in-Chamber of the Lahore High Court, Lahore (Sayyed Mazahar Ali Akbar Naqvi, J.) on 23.01.2012 on the grounds that there was previous enmity between the parties; Madad Ali was found by the police to be innocent; the complainant had filed his private complaint with a delay of six months; and the firearm injuries on some specified parts of the body of the deceased attributed to Madad Ali in the FIR were non-existent in the Post- mortem Examination Report pertaining to the deadbody of the deceased and in his private complaint the complainant had changed the locale of the injuries allegedly caused by Madad Ali so 4 as to bring them in line with the medical evidence. The operative part of the order dated 23.01.2012 reads as under: “6. There is no denial to this factum that the petitioner is nominated in the FIR with specific role, however, previous enmity between the parties is also an admitted fact. During the course of investigation, the petitioner was found innocent by the police and as such he was let off. In view of the premium of innocence, the complainant filed private complaint with the delay of six months, for which no plausible explanation has been rendered by the complainant and in the complaint the complainant has changed his stance qua locale of injuries ascribed to the petitioner. There is contradiction in the ocular as well as medical ocular account. Keeping in view the dictum of law laid down in the cases of 1994 SCMR 453 (Muhammad Afzal and another Versus The State), 2006 YLR 1953 (Muhammad Waheed Akhtar Versus The State) and 2008 MLD 396 (Fayyaz Maqsood and 3 others Versus The State), this Court is persuaded to accept this petition and suspend the sentence awarded to the petitioner and admit him to bail pending disposal of the main appeal subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.” The said order of the Lahore High Court, Lahore was challenged by Muhammad Siddique complainant before this Court through Criminal Petition No. 95-L of 2012 which petition was dismissed by this Court on 14.03.2012 as having been withdrawn. After suspension of Madad Ali co-convict’s sentence and his admission to bail Nazir Ahmed petitioner filed Criminal Miscellaneous No. 01 of 2012 before the Lahore High Court, Lahore seeking the same relief for himself but that application was dismissed by another learned Judge-in-Chamber of the said Court (Abdus Sattar Asghar, J.) on 20.02.2012 for non-prosecution. The order dated 20.02.2012 reads as follows: “Despite repeated calls no one entered appearance on behalf of the petitioner. Name of learned counsel for the petitioner appears in the cause list but there is no intimation with regard to his absence. 2. Dismissed for non-prosecution.” Subsequently Nazir Ahmed petitioner made his second attempt for the same relief through Criminal Miscellaneous No. 02 of 2012 which application was dismissed by Sayyed Mazahar Ali Akbar Naqvi, J. on 11.04.2012 with the following order: 5 “Learned counsel for the petitioner, after arguing the case at some length, wishes to withdraw the instant petition. Dismissed as withdrawn.” Undeterred by failure of his two earlier applications for suspension of sentence and release on bail Nazir Ahmed petitioner made his third attempt for obtaining the same relief through Criminal Miscellaneous No. 03 of 2012 which was not filed through the original learned counsel who had filed and represented him in the earlier two applications but was filed through a different learned counsel and this time the attempt was crowned with success as the same learned Judge-in-Chamber of the Lahore High Court, Lahore who had dismissed the second application of the petitioner for the same relief suspended his sentence and released him on bail on 19.11.2012. The operative part of the order dated 19.11.2012 passed by Sayyed Mazahar Ali Akbar Naqvi, J. reads as follows: “This is the third petition on the subject. The first one bearing Crl. Misc. No. 01/2012 was dismissed for non- prosecution vide order dated20.02.2012, whereas the second petition bearing Crl. Misc. No. 02/2012 was dismissed as withdrawn vide order dated 11.04.2012. ---------------------------------------- ---------------------------------------- 6. From the perusal of the record it reveals that the petitioner was nominated in the FIR with specific role but during the course of investigation, he was found innocent and was let off by the investigating agency and thereafter, the complainant filed private complaint after a delay of six months for which no plausible explanation has been rendered. Moreover, there is previous enmity between the parties. The role ascribed to the petitioner is that he while armed with .222 bore Rifle fired two fire shots, which hit to Muhammad Islaam (deceased), whereas the role ascribed to the co-accused, Madad Ali, is that he also made two successive fire shots with his rifle .222 bore, which hit his chest. Thus, the role ascribed to the petitioner is identical to that of his co-accused, namely Madad Ali, whose sentence has already been suspended by this Court vide order dated 23.01.2012, passed in Crl. Misc. No. 01/2011, filed in Crl. A. No. 1082/2011, which was assailed before the august Supreme Court of Pakistan through Criminal Petition No. 98-L of 2012 and the same was dismissed as withdrawn. 7. For the foregoing reasons, this Court is persuaded to accept this petition, suspend the sentence awarded to the petitioner and admit him to bail pending disposal of the main appeal subject to his furnishing bail bonds in the sum of Rs. 6 1,00,000/- with one surety in the like amount to the satisfaction of deputy Registrar (Judicial) of this Court.” That order passed by the Lahore High Court, Lahore on 19.11.2012 was assailed before this Court by Muhammad Siddique complainant through Criminal Petition No. 896-L of 2012 which petition was converted into an appeal and was allowed by this Court on 03.01.2013, the impugned order was set aside and bail allowed by the Lahore High Court, Lahore to Nazir Ahmed petitioner was cancelled. The relevant parts of the judgment passed by this Court on 03.01.2013 are reproduced below: “6. The complainant in his private complaint ascribed respondent No. 2 the role of causing two injuries on the person of the deceased Muhammad Islam on his abdominal area and Madad Ali co-convict made two successive fire shots with his .222 bore rifle which hit the deceased on his chest. Both the aforesaid accused having been found guilty by the learned trial Court were convicted under section 302(b) PPC and sentenced to imprisonment for life. Madad Ali co-convict of respondent No. 2 filed Crl. Misc. 01/2011 in Crl. Appeal No. 1082/2011 for suspension of his sentence before the learned Lahore High Court, Lahore which stood allowed on 23.01.2012 whereby his sentence was suspended. Thereafter, respondent No. 2 moved an application (Crl. Misc. 01/2012) for suspension of his sentence which stood dismissed for non-prosecution as is evident from the certificate given by the learned counsel for respondent No. 2 at the bottom of Crl. Misc. 03/2012. Thereafter, respondent No. 2 filed Crl. Misc. 02/2012 before the learned Lahore High Court, Lahore, which stood dismissed as withdrawn but on the same grounds the third application (Crl. Misc. 03/2012) was allowed by the learned Lahore High Court, Lahore by totally ignoring the principles for suspension of sentence and other material available on record by suspending the sentence of respondent No. 2 through impugned order. The main ground taken by the learned Judge of the Lahore High Court for suspending the sentence of respondent No. 2 was rule of consistency having similarity of roles ascribed to respondent No. 2 as well as Madad Ali co- convict, as such, the impugned order has been passed in violation of the law laid down by this Court in the case of “The State through Advocate General NWFP vs. Zubair and four others” (PLD 1986 Supreme Court 173) wherein it has been held as under: 8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of 7 the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him.” In such circumstances it is apparent on the face of record that the ground of similarity of role and rule of consistency was available to the petitioner at the time of filing first application for suspension of sentence but the learned Judge has totally ignored it. From the tenor of impugned order it appears that the learned Judge of the Lahore High Court while suspending the sentence of respondent No. 2 has not exercised discretion in a proper and judicious manner rather has not at all adverted to the guidelines laid down in Zubair’s case (supra). 7. In view of the above, we while converting the instant petition into an appeal allow the same, set aside the impugned order dated 19.11.2012 passed by the Lahore High Court, Lahore in Crl. Misc. 03/2012 in Crl. Appeal No. 1082/2011 and cancel the bail granted to respondent No. 2. 8. Before parting with this order we may observe that discretion exercised by the learned Judge while passing the impugned order in the instant case has appeared to us to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground the only difference in the respondent’s third application for the same relief was a different learned counsel for that respondent. Office is directed to send a copy of this order to the learned Judge of the Lahore High Court, Lahore for his information.” Hence, the present review petitions before this Court. Criminal Review Petition No. 8-L of 2013 has been filed by Nazir Ahmed petitioner seeking restoration of his bail and Criminal Review Petition No. 10-L of 2013 has been preferred by Sayyed Mazahar Ali Akbar Naqvi, Judge, Lahore High Court, Lahore praying for expunction of some observations concerning him made by this Court in paragraph No. 8 of the judgment under review. 4. In support of the review petition filed by Nazir Ahmed petitioner it has been argued by Mr. Muhammad Ahsan Bhoon, ASC that keeping in view the facts and circumstances of the case as well as the rule of consistency the learned Judge-in-Chamber of the Lahore High Court, Lahore was quite justified in suspending the sentence of Nazir Ahmed petitioner and in admitting him to bail during the pendency of his appeal, particularly when the case 8 against the said petitioner for such relief was at par with that of his co-convict namely Madad Ali who had already been granted the same relief by the same Court. Mr. Bhoon has also argued that in entertaining and deciding the relevant application of Nazir Ahmed petitioner on its merits the learned Judge-in-Chamber of the Lahore High Court, Lahore had followed the law declared by this Court in the cases of Muhammad Riaz v. The State (2002 SCMR 184) and Ali Hassan v. The State (2001 SCMR 1047) and, therefore, the legitimate exercise of jurisdiction and discretion in the matter by the learned Judge-in-Chamber of the Lahore High Court, Lahore ought not to have been interfered with by this Court through the judgment under review. While referring to the case of Makhdoom Javed Hashmi v. The State (2008 SCMR 165) Mr. Bhoon has submitted that in an appropriate case this Court may suspend the sentence of a convict and grant him bail even through exercise of review jurisdiction of this Court. Mr. Bhoon has lastly maintained that the contents of paragraph No. 8 of the judgment under review tend to cast aspersions not only upon the learned Judge-in-Chamber of the Lahore High Court, Lahore but also upon him as he was the counsel for Nazir Ahmed petitioner in the said petitioner’s third application for suspension of sentence and bail which application was allowed by the Lahore High Court, Lahore. He, therefore, not only seeks review of the judgment of this Court under review but also prays for expunction of the relevant observations made by this Court in that judgment. 5. Khawaja Haris Ahmad, Sr. ASC appearing for Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner has submitted that he only seeks expunction of the remarks made by this Court in paragraph No. 8 of the judgment under review and that he has nothing to say regarding the merits or otherwise of Nazir Ahmed petitioner’s case for suspension of sentence and bail. The main thrust of his submissions has been that the case of The State through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) was not relevant to the case in hand because nothing had been said in that precedent case about maintainability 9 or otherwise of a subsequent application for bail after dismissal of an earlier application for bail as having been withdrawn. According to Mr. Khawaja the only precedent cases relevant to the issue involved in the present case were the cases of Muhammad Riaz v. The State (2002 SCMR 184) and Ali Hassan v. The State (2001 SCMR 1047) and the relevant order passed by Sayyed Mazahar Ali Akbar Naqvi, J. was in accord with the principle laid down in the said precedent cases. Mr. Khawaja has maintained that till the passage of the judgment under review different Honourable Judges of different High Courts of the country had been taking the same view of the matter as was taken by Sayyed Mazahar Ali Akbar Naqvi, J. in the order set aside by this Court through the judgment under review and even Sayyed Mazahar Ali Akbar Naqvi, J. had taken the same view in seven other orders passed by him in different cases decided by him in the year 2012. In this respect he has placed on the record copies of the said seven orders passed by Sayyed Mazahar Ali Akbar Naqvi, J. and has also referred to the cases reported as Wajid Ali v. The State (2009 P.Cr.L.J. 275), Mustaqeem v. The State (2005 P.Cr.L.J. 661), Rasheed Ahmad v. The State (2007 MLD 1440), Muhammad Mansha v. The State (2006 P.Cr.L.J. 47), Muhammad Asif alias Kala v. The State (2007 P.Cr.L.J. 1292), Muhammad Idrees v. The State (2005 MLD 899), M. Latif v. The State (1996 MLD 2041) and Akbar Ali v. Jamshaid Ali and others (2012 P.Cr.L.J. 1301). Mr. Khawaja has gone on to submit that there was no malice on the part of Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner in passing the relevant order in the case of Nazir Ahmed petitioner and the mistake, if any, in the bona fide order passed by him in the said case could only be attributed to confusion and lack of proper understanding of the true import of the principle laid down in the above mentioned cases of Muhammad Riaz v. The State (2002 SCMR 184) and Ali Hassan v. The State (2001 SCMR 1047). He has, therefore, maintained that the remarks or observations made by this Court in paragraph No. 8 of the judgment under review were uncalled for and has urged that this Court may order expunction of the same. In the end Mr. Khawaja has submitted that ordinarily no adverse 10 remark or observation is to be made or recorded in a judgment of a court without issuing notice to the concerned person or before affording him an opportunity of being heard in the relevant connection and in this respect he has placed reliance upon the cases of Muhammad Punhal v. Abdul Wahid Abbasi and another (2003 SCMR 1406), In the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur (PLD 1950 Lahore 34), Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) and Malik Firoz Khan Noon, Prime Minister’s House, Karachi v. The State (PLD 1958 SC (Pak.) 333). 6. The learned counsel for Muhammad Siddique complainant has maintained that the judgment of this Court under review is a just and fair judgment besides being a considered judgment and the same addresses and cures a serious malady creeping into conducting of criminal cases and, therefore, the same does not call for a review. Regarding the scope of review jurisdiction he has referred to the case of Muhammad Riaz v. The State (2011 SCMR 1019). He has complained that despite cancellation of his bail by this Court Nazir Ahmad petitioner has so far managed to avoid his arrest although no interim relief has been granted to him by this Court during the pendency of the captioned review petitions. The learned Additional Prosecutor-General, Punjab appearing for the State has supported the learned counsel for the complainant and has added that these review petitions essentially seek rehearing of the merits of the case which exercise lies beyond the scope of review jurisdiction of this Court. 7. After hearing the learned counsel for the parties and going through the relevant record with their assistance we find that there are many issues involved in these review petitions and, thus, in the background of the facts of this case we have decided to discuss and resolve these issues one by one in the light of the principles concomitant thereto laid down by this Court from time to time. We find that the first issue involved in the review petitions in hand is 11 as to whether the considerations weighing with the learned Judge- in-Chamber of the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for releasing him on bail during the pendency of his appeal were valid considerations for grant of the said relief on the merits of the case. We note in this context that the reasons prevailing with the learned Judge-in- Chamber of the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for admitting him to bail were that in the Challan case the police had found the petitioner innocent; the complainant had filed his private complaint after a delay of six months; there was previous enmity between the parties; and the sentence of a co-convict of the petitioner namely Madad Ali, attributed a role identical to that alleged against the petitioner, had already been suspended and he had been admitted to bail by the Lahore High Court, Lahore through an order which had not been interfered with by this Court. The facts and circumstances of the case, however, show that none of the said reasons provided a valid or sufficient ground for suspending the sentence of Nazir Ahmad petitioner and for his admission to bail during the pendency of his appeal before the Lahore High Court, Lahore. It ought to have been appreciated by the learned Judge-in- Chamber of the Lahore High Court, Lahore that any declaration of innocence of Nazir Ahmad petitioner recorded by the police in the Challan case was irrelevant as the petitioner’s trial had been conducted in the complainant’s private complaint and not in the Challan case and even otherwise opinion of the police regarding the petitioner’s innocence was inadmissible in evidence being irrelevant besides such opinion having already paled into further irrelevance in view of the judicial verdict recorded by the learned trial court in respect of the petitioner’s guilt. The learned Judge-in- Chamber of the Lahore High Court, Lahore had also failed to appreciate that the complainant had filed his private complaint when the investigating agency had disappointed and frustrated him on account of its alleged collusion with the accused party and the reasons for the delay in filing of the private complaint had been explained by the complainant before the learned trial court which 12 reasons had been accepted by it as justified. Mere existence of enmity between the parties was hardly a valid ground for suspending the petitioner’s sentence and for his admission to bail because the learned trial court had already adjudged the petitioner guilty of the alleged murder and the existing enmity between the parties had been found by it to be supporting the motive set up by the prosecution. Apart from that existence of enmity between the parties and a possibility of false implication of the petitioner on the basis of such enmity was a factor which could only be attended to and appreciated by the learned appellate court after a detailed assessment of the evidence at the time of hearing of the main appeal and certainly not at the time of deciding an application seeking suspension of sentence and release on bail during the pendency of the appeal. The learned Judge-in-Chamber of the Lahore High Court, Lahore was also clearly unjustified in holding that the case of Madad Ali co-convict was “identical” to that of Nazir Ahmed petitioner and, therefore, in view of Madad Ali’s admission to bail upon suspension of his sentence Nazir Ahmed petitioner was also entitled to the same relief. The learned Judge- in-Chamber of the Lahore High Court, Lahore had committed a serious error in this respect by not appreciating, or ignoring, the fact that most of the firearm injuries to the deceased attributed by the complainant in the FIR to Madad Ali were non-existent in the Post-mortem Examination Report pertaining to the deadbody of the deceased and, therefore, in his private complaint the complainant had changed the locale of the injuries allegedly caused by Madad Ali to the deceased whereas the complainant had throughout been quite consistent in his FIR as well as in his private complaint regarding the firearm injuries caused by Nazir Ahmed petitioner to the deceased which injuries stood duly reflected in the Post- mortem Examination Report. In view of this factual position it could not be urged with any degree of seriousness or held with any degree of reasonableness that the case of Nazir Ahmad petitioner was identical to that of Madad Ali co-convict for the purpose of treating them alike in the matter of suspension of sentence and release on bail. For all these reasons a conclusion is irresistible 13 and inescapable that the learned Judge-in-Chamber of the Lahore High Court, Lahore was not justified in suspending the sentence of Nazir Ahmed petitioner and in admitting him to bail on the merits of the case and, thus, cancellation of his bail by this Court brought about through the judgment under review cannot be taken any legitimate exception to. The learned counsel for Nazir Ahmed petitioner has remained unable to point out any error patent on the face of the record justifying review of that decision by this Court. 8. The second issue involved in the present review petitions is as to whether all the grounds prevailing with the learned Judge-in- Chamber of the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for releasing him on bail during the pendency of his appeal were available to the petitioner at the time of dismissal of his earlier two applications filed before the Lahore High Court, Lahore for the same relief and, thus, the said grounds could not have been agitated or entertained for granting him the same relief through his third application. It may be recapitulated that Nazir Ahmed petitioner and Madad Ali co- convict had been convicted and sentenced by the learned trial court on 19.05.2011, the sentence of Madad Ali was suspended and he was released on bail by the Lahore High Court, Lahore on 23.01.2012, the first application filed by Nazir Ahmed petitioner for the same relief was dismissed for non-prosecution by the Lahore High Court, Lahore on 20.02.2012, the second application filed by him for the same relief had been dismissed by the Lahore High Court, Lahore on 11.04.2012 as having been withdrawn after the learned counsel for the petitioner had addressed arguments “at some length” but had remained unable to convince the Court on the merits of the case and the third application filed by the petitioner for the same relief was allowed by the Lahore High Court, Lahore on 19.11.2012. It has already been noted by us above that the grounds prevailing with the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for releasing him on bail were that in the Challan case the police 14 had found the petitioner innocent; the complainant had filed his private complaint after a delay of six months; there was previous enmity between the parties; and the sentence of a co-convict of the petitioner namely Madad Ali, attributed a role identical to that alleged against the petitioner, had already been suspended and he had been admitted to bail by the Lahore High Court, Lahore through an order which had not been interfered with by this Court. It is nothing but obvious from the chronological sequence detailed above that all the said grounds were already available to Nazir Ahmed petitioner at the time of filing of his first and second applications for suspension of sentence and release on bail and the said grounds had in fact been mentioned by him in those applications and, thus, the said grounds, none of which could be termed as a fresh ground, could not be taken or urged by him or on his behalf for the purposes of his third application seeking the same relief, particularly when the second application filed by him had been dismissed as having been withdrawn after his learned counsel had argued the matter “at some length” but had remained unable to convince none other than Sayyed Mazahar Ali Akbar Naqvi, J. himself for grant of the desired relief to the petitioner. 9. In the context of the issue under discussion it may be pertinent to mention that on a number of occasions this Court has held that the principles for exercise of jurisdiction under sections 497 and 426, Cr.P.C., one pertaining to grant of bail after arrest at the stage of trial and the other relating to suspension of sentence and release on bail at the stage of appeal against conviction, are essentially the same as the two provisions are analogous, they deal with a similar relief and they are parts of the same statute. A reference in this respect may be made to the cases of Maqsood v. Ali Muhammad and another (1971 SCMR 657), Bashir Ahmad v. Zulfiqar and another (PLD 1992 SC 463), Muhammad Nabi and 4 others v. The State (2006 SCMR 1225) and Raja Shamshad Hussain v. Gulraiz Akhtar and others (PLD 2007 SC 564). Over a passage of time this Court had noticed some mischiefs and malpractices being practised in the matter of applying for bail and 15 from time to time this Court had enunciated and laid down certain principles for curbing such mischiefs and malpractices. One of such mischiefs and malpractices was repeated or successive filing of applications for bail for the same accused person in the absence of availability of any fresh ground and another was getting subsequent applications for bail fixed before a Judge different from the one who had refused the desired relief on an earlier occasion. We deem it appropriate to refer here to the leading judgments handed down by this Court in these regards and the principles of propriety and practice enunciated in the same. In the case of Farid v. Ghulam Hassan and others (1968 SCMR 924) this Court had observed as follows: “It should also have been a matter of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long established practice of his Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for disposal. Such a course would have had the merit of avoiding the possibility of two contradictory orders being passed in the same case by the High Court. It was urged that the plea of alibi was not considered by the High Court while cancelling the bail granted to the respondents, but the plea was neither urged before the Sessions Judge nor before Mr. Justice Jamil Asghar. It could not, therefore, be said that a new circumstance was made to appear which justified the passing of a contradictory order.” In the case of Gul Nawaz alias Gul Mowaz and 2 others v. The State (1970 SCMR 667) it had been observed by this Court as under: “The High Court was in our view also right in holding that repeated applications for bail on the same facts did not lie in the High Court.” This Court had gone a step further in this respect in the case of Chaudhry Muhammad Khan v. Sanaullah and another (PLD 1971 SC 324) as is evident from the following passages of the judgment delivered in that case: “The order passed by the learned Judge allowing bail to the respondent No. 1 was thus based on misconstruction of the record and it also suffered from the impropriety pointed out by this Court in the case of Farid v. Ghulam Hussain and others (1968 SCMR 924). Dealing with a similar case in which a learned 16 Judge had allowed bail to an accused person who had been refused bail by another Judge, it was observed by this Court: "It should also have been a matter of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long established practice of his Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for disposal. Such a course would have had the merit of avoiding the possibility of two contradictory orders being passed in the same case by the High Court. It was urged that the plea of alibi was not considered by the High Court while cancelling the bail granted to the respondents, but the plea was neither urged before the Sessions Judge nor before Mr. Justice Jamil Asghar. It could not, therefore, be said that a new circumstance was made to appear which justified the passing of a contradictory order." We fail to see why the rule laid down in Farid v. Ghulam Hussain and others which must have been brought to the notice of the learned Judge was not followed in the present case. We were told that when interim bail was granted the first Judge was not available. But having granted interim bail to the respondent No. I he should have stayed his hand and sent the case back to the first Judge who had in the first instance refused bail. We do not want to lay more stress on this point except to point out to the learned Judge the constitutional duty that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan and that all Judicial authorities throughout Pakistan shall act in aid of the Supreme Court. If these provisions of the Constitution were given due consideration, we are sure that the second learned Judge would not have passed the order dated 31st July 1970, which in effect was tantamount to countermanding the order of the first learned Judge. In the circumstances, the order granting bail to the respondent No. 1 cannot be sustained on any hypothesis. It is erroneous in law, is based on misconstruction of record and suffers from the impropriety that another learned Judge having refused bail it was necessary that the case be sent to him for passing final orders. We, accordingly, allow the appeal and set aside the order dated 31st July 1970 of the High Court granting bail to the respondent No. 1. He shall surrender to his bail bond forthwith.” Another ground was broken by this Court in this regard in the case of Muhammad Khan v. Muhammad Aslam and 3 others (1971 SCMR 789) by holding as follows: “Since leave was granted this Court has in more than one case pointed out that as a judgment delivered in a criminal case is not 17 open to review under the Code, it is not proper for a learned Judge of the High Court to allow bail to an accused person who has been earlier refused bail by another Judge of the same Court. It does not mean that once bail is refused by the High Court no fresh application for bail will lie. If fresh grounds have come into existence bail may be allowed, but in such a case the rule of propriety and harmony of the Court requires that the case be referred to the same learned Judge who had earlier refused bail.” The case of Saleh Muhammad v. The State and another (1983 SCMR 341) was the next case in line wherein the same principle was reiterated as under: “It will be observed that the request of the respondent for bail was once rejected on merits by the first order of the High Court, dated 14-10-1980 and normally, unless the repeated request was made on grounds other than those available at the time of the first application, no fresh application on merits could be entertained by the High Court.” Both the mischiefs and malpractices under discussion were subsequently commented upon by this Court in the case of Khan Beg v. Sajawal and others (PLD 1984 SC 341) in the following words: “That being the legal position, the plea that the challan had not been filed in the trial Court but is still with the Magistrate could hardly furnish a fresh ground for re-opening of the bail matter disposed of on 4-2-1984. Nor could the interval of ten days between the disposal of the first petition and the filing of the second, be said to amount to delay in the trial of the case. Normally a bail petition should be placed before the same Judge who had dealt with the earlier petition. We are told that the learned Judge who had dealt with the earlier petition had returned to Lahore. Even so, the petition could have been sent to Lahore for hearing by the same learned Judge. The practice of withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that the same be dealt with by another Judge cannot be approved. We are satisfied that no proper or fresh ground existed for making or entertaining the second bail petition. We, therefore, convert this petition into appeal and allow it. The impugned order granting bail to respondents 1 to 7 is set aside.” Then came the landmark case of The State through Advocate- General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) wherein this Court dealt with the mischiefs and malpractices under discussion in some detail and laid down the relevant principles with exactitude and clarity leaving no room for any 18 mischievous machination. The relevant passages of the judgment rendered in that case are reproduced below: “5. We have heard the learned counsel for the parties at length and have also gone through the case-law on the subject. With profound respect to the learned Judges of the High Court who dealt with second bail application, we notice that a salutary and well-established principle relating to the hearing of successive bail applications filed by the accused persons in the same case (or in the cross-case), has been violated in this case. As already mentioned the learned Judge who heard the first bail application declined to hear their subsequent bail application on the ground that he had already expressed his opinion thereon. No doubt, on general principle, a Judge having once expressed his opinion of a lis should, ordinarily, decline to hear the same matter again directly or collaterally. There are, however, well-known exceptions to this rule, one of which is hearing of a review application where ever this power is given by statute. The other is the general practice which has been established by series of judgments delivered by this Court as well as by the High Courts during the last about 20 years, namely, that when a bail application of one or more accused is heard by a learned Single Judge of the High Court, it is he alone who should also hear all the subsequent bail applications filed by the same or other accused in the same case, or the cross-case. The following authorities may be referred to in this connection:- (1) Farid v. Ghulam Hussain 1968 SCMR 924. (2) Muhammad Khan v. Sanaullah PLD 1971 SC 324, (3) Muhammad Khan v. Muhammad Aslam 1971 SCMR 789. (4) Khan Beg v. Sajawal PLD 1984 SC 341. (5) Muhammad Adam v. The State 1968 P.Cr.L.J. 152. (6) The State v. Muhammad Yousaf 1979 P.Cr.L.J. 665. (7) Ghulam Hussain v. Karim Bakhsh NLR 1980 Criminal 248. 6. It is held in some of these judgments that if a Judge of the High Court has heard the bail application by an accused person all subsequent petitions for bail by the same accused or in the same case should be referred to the same Bench which had disposed of the earlier petition. 7. Another principle enunciated in some of the rulings is that it is the duty of the counsel to mention in a bail application filed by him the fact of having filed an earlier bail application, also stating the result thereof. Failure on the part of the counsel to do so would, in fact, amount to professional misconduct because the concealment of the fact of the dismissal of the earlier bail application of the accused or the co-accused and getting a subsequent bail application decided by another Judge of the same Court may result in conflicting judgments and disharmony to the Court. It was held in the case of Farid v. Ghulam Hussain (1968 SCMR 924) that where one Judge of the High Court has expressed himself against the grant of bail, another learned Judge of the same High Court in accordance with the long established practice and rule of propriety, when moved for bail of an accused or his co-accused in the same case should transfer such bail application for disposal to the same Judge who had already dealt with the matter earlier in order to avoid contradictory order. The latest ruling on the subject is Khan Beg v. Sajawal (PLD 1984 SC 341) where, apart from holding that all subsequent bail applications in the same case should be placed before the same 19 learned Judge who had dealt with the earlier bail application, this Court also disapproved the practice of withdrawing a petition from one Judge and then making a fresh bail application, soon thereafter, so that same may be dealt with by another Judge. The aforementioned principles enunciated by these judgments are based on the salutary principles, inasmuch as the practice of filing successive bail applications in the same case by the same person or his co-accused and getting it fixed before a different Judge, is not only likely to result in conflicting judgments but also tends to encourage malpractice by the accused persons and to bring the judicial system into disrepute, because in the event of a conflicting order being given by another learned Judge in a subsequent application, an impression, though false, may be created that the second order was based on extraneous considerations. It is mainly to avoid this that this Court has emphasized, over and over again, that subsequent bail application must be placed for disposal before the same learned Judge who had dealt with the first bail application and also that the counsel must disclose the fact of having filed a previous application and to state the result thereof. It is regrettable that this salutary rule was overlooked by the learned Judges who dealt with the second bail application in the present case. 8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect, that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning is totally misconceived. We are of the view that in the present case the learned Judge who dealt with the second bail application had in fact embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application.” Subsequently some clarifications were made in this regard by this Court in the case of In re: To revisit “The State v. Zubair” [PLD 1986 SC 173 (PLD 2002 SC 1 and 2002 SCMR 171) in the following terms: “6. In the light of the observations made, the case-law referred to in order dated 24.09.2001, the submissions made by the learned Attorney-General for Pakistan, the stance taken at the Bar by the learned Advocates-General/Additional Advocates- General and the reproduced reports of the Registrars of the 20 Federal Shariat Court and the High Courts, there can be no dispute with the proposition that there is a pressing need to lessen the intensity of the ratio in Zubair (supra) vis-à-vis the forum for disposal of second or subsequent bail applications. Resultantly, the interim order dated 24.09.2001 is confirmed with the following modifications/clarifications: (1) Constitution of the Benches is the exclusive function of the Chief Justice. (2) Ordinarily, subsequent bail application by the same accused or in the same case must be placed for disposal before the same Single Judge/Division Bench of the High Court which had dealt with the first bail application. (3) If the learned Single Judge who had dealt with the first bail application is not available and departure from (2) above is unavoidable, the learned Chief Justice concerned may refer the second or subsequent bail application to another learned Single Judge at the Principal Seat or Permanent Benches/Circuit Benches, as the case may be. (4) Where the first bail application is heard and disposed of by a Division Bench which is not available either at the Principal Seat or the Permanent Benches/Circuit Benches at the time of filing of the second or subsequent bail application then such bail application shall be heard by a Division Bench of which one of the Judges was a Member of the Division Bench which dealt with the first bail application. If none of the Members of the Division Bench which heard the first bail application is available, the learned Chief Justice concerned may assign the subsequent bail application to any appropriate Division Bench at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be. (5) Subsequent bail applications shall be filed, heard and disposed of at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be, where the first bail application was filed and finally disposed of. In the event of non- availability of the learned Single Judge or the learned Member/s of the Division Bench, who had dealt with the earlier bail applications, the office at the Principal Seat shall obtain appropriate orders from the learned Chief Justice and the office at the Permanent Benches/Circuit Benches shall obtain appropriate orders from the learned Chief Justice through fax or on telephone for fixation of subsequent bail application before other appropriate Benches, in the interest of expeditious and inexpensive dispensation of justice in bail matters. (6) Subsequent bail application shall not be entertained unless accompanied by copies of earlier bail applications and copies of orders thereon.” 21 The above mentioned principles of practice and propriety laid down by this Court from time to time have consistently been followed by the courts in the country ever since. A later case in the same thread was the case of Ali Sheharyar v. The State (2008 SCMR 1448). 10. The echo or resonance of the principles of propriety and practice enunciated by this Court in the above mentioned cases was also heard in India and in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another (AIR 1987 SC 1613) the Supreme Court of India had observed as follows: “Long standing convention and judicial discipline required that respondent's bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as Vacation Judge. The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court in as much as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different judges there would be conflicting orders and a litigant would be pestering every judge till he gets an order to his liking resulting in the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts' time. Judicial discipline requires that such matter must be placed before the same judge, if he is available for orders. Since Justice Kamleshwar Nath was sitting in Court on June 23, 1986 the respondent's bail application should have been placed before him for orders. Justice D. S. Bajpai should have respected his own order dated June 3, 1986 and that order ought not to have been recalled, without the confidence of the parties in the judicial process being rudely shaken.” Later on in the case of State of Maharashtra v. Captain Buddhikota Subha Rao (1990 PSC 797) the Supreme Court of India had made somewhat similar observations in the following words: “In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. One such application No. 36 of 1989 was rejected by Suresh, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail applications were rejected by Puranik, J. by a common order on 6th June, 1989. Unfortunately, Puranik, J. was not aware of the pendency of yet another bail application No. 995/89 otherwise he would have 22 disposed it of by the very same common order. Before the ink was dry on Puranik, J.'s order, it was upturned by the impugned order. It is not as if the court passing the impugned order was not aware of the decision of Puranik, J., in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realize is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact- situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, we think, is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court's time as a Judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [1987] 2 SCC 684. For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint demands that we say no more.” 11. The discussion made above shows that for suspending the sentence of Nazir Ahmed petitioner and admitting him to bail during the pendency of his appeal on the basis of the grounds which could not have been urged or entertained through his third application for the same relief the learned Judge-in-Chamber of the Lahore High Court, Lahore had failed to follow or had chosen to disregard or trump the well-established principles enunciated by this Court governing successive applications for bail which principles were binding on him by virtue of the provisions of Article 23 189 of the Constitution. In this view of the matter cancellation of Nazir Ahmed petitioner’s bail by this Court through the judgment under review hardly warrants any reconsideration or review. 12. Through his review petition and also through Criminal Miscellaneous Application No. 23 of 2014 filed in his review petition Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner has, however, maintained that the principles governing successive applications for bail enunciated in the precedent cases referred to above were not applicable to a situation where an earlier application for bail had been dismissed as having been withdrawn and in such a situation a subsequent application for bail could be entertained and decided on its merits even on the basis of the same grounds which were available and had been urged before dismissal of the earlier application as having been withdrawn. In view of such stance having been taken before us the third issue relevant to the present review petitions is as to whether dismissal of Nazir Ahmed petitioner’s second application for suspension of sentence and release on bail by the learned Judge-in-Chamber of the Lahore High Court, Lahore as having been withdrawn after his learned counsel had unsuccessfully addressed arguments in support of that application foreclosed any possibility of obtaining a favourable order in that regard from the same Court through the petitioner’s third application when the third application was based upon the same facts and grounds which were available and urged at the time of decision of his second application. In other words, the question is as to whether for the purposes of a subsequent application for bail on the basis of the same facts and grounds dismissal of an earlier application for bail as having been withdrawn after addressing arguments and failing to convince the court has the same legal effect and consequence as dismissal of such application on the merits or not. Such a question came up for consideration before this Court, probably for the first time, in the case of Muhammad Riaz v. The State (2002 SCMR 184) decided on 18.01.2001 and it was observed in that case as follows: 24 “The other vital issue was about the scope of the second bail application and the observations of this Court have been reproduced supra. In the instant case, the earlier bail application Criminal Miscellaneous No. 4101-B-2000 was disposed of by a learned Division Bench of the Lahore High Court comprising Mr. Justice Khalil-ur-Rehman Ramday and Mr. Justice Dr. Munir Ahmad Mughal and the order passed therein dated 24-7-2000 reads as under:-- “Having argued the matter at some length, prays for permission to withdraw this petition. Dismissed as withdrawn." (Sd.) Judges.” A bare reading of the above order clearly shows that decision on merit was not at all pressed and the counsel in his own wisdom or on the instructions of his client desired to withdraw the first bail application. In such-like cases it cannot be said that the case had been decided on merits, nor it can be asserted that certain grounds were raised but were repelled or had found favour with the learned Judges as the case may be. ---------------------------------------- ---------------------------------------- The extract from Zubair's case reproduced in the preceding paragraph of this judgment shows that the case had been heard at length and all grounds which were available were pressed because the first bail application was rejected with the observation that: "As far as rest of the petitioners are concerned, no case has been made out for their release on bail". It was further held that it did not mean that the application had not been disposed of on merits and further that it must be assumed that the learned Judge had considered all the pleas or grounds raised by applicant's counsel before him and that the same had not found favour with him. It was further laid down that notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reason was totally misconceived. We are therefore, of the view that withdrawal of a bail application would not mean that its disposal was on merits or the ground had been taken into consideration, therefore, in our view there is no bar in moving a second bail application after withdrawal of the first one but inevitably the second bail application should be heard by the same Judge or the Judges who had allowed the withdrawal of the first application. In the present case, the first bail application was allowed to be withdrawn by a learned Division Bench of the Lahore High Court consisting of Mr. Justice Khalil-ur-Rehman Ramday and Mr. Justice Munir Ahmad Mughal but the judgment impugned was delivered by a different Bench comprising Mr. Justice Khalil-ur-Rehman Ramday and Mr. Justice Zafar Pasha Chaudhry. On the touchstone and criteria laid down in Zubair's case in our view the second bail application ought to have been heard by the same learned Bench who had permitted the withdrawal of the earlier bail application. For the foregoing reasons, we hold that withdrawal of an application simpliciter does not mean that the same was dealt with on merits or on the grounds pressed. However, the situation would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, of course, the ground which was not urged although 25 the same was available would not constitute a fresh ground justifying the filing of second bail application. Secondly, propriety requires that the bail application dismissed in terms or order impugned be heard by the same learned Bench who had earlier allowed the withdrawal of the first bail application. In this view of the matter, we allow this appeal and remand this case to the learned Lahore High Court for re-hearing of the bail application by the same learned Bench who had permitted to withdraw the first application in terms of order dated 24-7-2000.” 13. The case of Muhammad Riaz (supra) was followed by the case of Ali Hassan v. The State (2001 SCMR 1047) decided on 01.03.2001 wherein the said issue had been dealt with by this Court in the following manner: “5. We have carefully examined the respective contentions as agitated on behalf of the parties. We have gone through the impugned judgment. The controversy revolves around the interpretation of the dictum as laid down in Zubair's case (supra) which has already been interpreted/clarified recently by this Court in Criminal Appeal No. 458 of 2000 (Muhammad Riaz v. The State) and relevant portion whereof is reproduced hereinbelow:-- ---------------------------------------- ---------------------------------------- 6. It transpires from the scrutiny of record that Criminal Miscellaneous Appeal No. 4130-B and Criminal Miscellaneous Appeal No. 1803-M of 1999 were not pressed and withdrawn which makes it abundant clear that the same were not disposed of on merits and in view of the interpretation/clarification of Zubair's case (supra) as mentioned hereinabove, Criminal Miscellaneous Appeal No. 75-B of 2000 is not hit by the dictum laid down in Zubair's case (supra). In such view of the matter the appeal is accepted and the impugned order is set aside and case is remanded back to learned Lahore High Court and Criminal Miscellaneous Appeal No. 75-B of 2000 shall be treated as pending and decided in accordance with law and merits after affording proper opportunity of hearing to all concerned.” 14. We have gone through the judgments delivered in the cases of Muhammad Riaz and Ali Hassan (supra) quite minutely. The case of Ali Hassan had proceeded simply on the basis of what had been held earlier on in the case of Muhammad Riaz and, therefore, it is important to understand as to what was the ratio decidendi of the case of Muhammad Riaz. We find that what was held in the judgment delivered in that case was as under: (i) In Zubair’s case the earlier application for bail had been dismissed on the merits of the case whereas 26 in the case of Muhammad Riaz the earlier application for bail had been dismissed as having been withdrawn. (ii) Dismissal of an application for bail as having been withdrawn “simpliciter” is not to be equated with a dismissal on the merits. (iii) Withdrawal of an application for bail “simpliciter” does not preclude or debar “moving” of another application for bail. (iv) If the earlier application for bail had been decided on the merits then a subsequent application for bail can be “moved” only on the basis of grounds which were not existing or available till the decision of the earlier application. (v) In a case of withdrawal of an earlier application for bail and also in a case of its decision on the merits a subsequent application for bail is to be fixed before and heard by the same Judge(s) who had dealt with the earlier application. We have particularly noticed, and we observe so with profound respect, that in the said judgment no specific comment had been made on as to what constituted withdrawal “simpliciter” and on as to whether there was any difference between withdrawal “simpliciter” and withdrawal after addressing arguments and failing to convince the court on the merits. An indication is, however, available in the said judgment as to what was deemed to be withdrawal “simpliciter” and in this respect the following observation made in the judgment may be referred to: “We are therefore, of the view that withdrawal of a bail application would not mean that its disposal was on merits or the ground had been taken into consideration, therefore, in our view there is no bar in moving a second bail application after withdrawal of the first one” (underlining has been supplied for emphasis) The said observation made in the judgment indicates that filing a subsequent application for bail on the same grounds was held to be permissible where withdrawal of the earlier application was not preceded by consideration of the grounds for bail on their merits. Such understanding of that judgment is fortified by a later observation made in that judgment which reads as under: 27 “For the foregoing reasons, we hold that withdrawal of an application simpliciter does not mean that the same was dealt with on merits or on the grounds pressed.” (underlining has been supplied for emphasis) The above mentioned observations made in that judgment throw some light on what was meant in that judgment by withdrawal “simpliciter” but, with great reverence for the Honourable Judges deciding the said case, we find that exposition of that issue in the said judgment was not the finest example of judicial clarity. We note that on the one hand withdrawal of an application for bail after arguing the matter at some length was held to be withdrawal “simpliciter” and not constituting a bar against filing of another application for the same relief on the basis of the same facts and grounds but on the other hand the above mentioned observations were made which declared that withdrawal “simpliciter” did “not mean that” the application for bail had been “dealt with on merits or on the grounds pressed”. The said observations tended to hold that in a case wherein withdrawal of an application for bail had come about after the grounds for bail had been “pressed” and “dealt with” was not a case of withdrawal “simpliciter”. After a very careful analysis of what had been held and what had been observed in that judgment and after a cautious and judicious examination and scrutiny of the issue involved we understand that what is reasonably discernable or deducible is that if an application for bail was withdrawn without addressing any argument on the merits of the case then another application for bail on the basis of the same facts and grounds can be filed but if the “merits” and the “grounds pressed” had been “dealt with” by the court before allowing withdrawal of an application for bail or, in other words, an application for bail was withdrawn after addressing arguments on the merits of the case but failing to convince the court then a fresh application can be filed and entertained only on the basis of grounds which were not existing or available till disposition of the earlier application for the same 28 relief. This was the understanding and the premise upon which the judgment under review in the present case had proceeded. 15. It may not be out of place to mention here that the judgment under review in the present case has already been approvingly referred to and in fact followed by a different 3-member Bench of this Court in the case of Amir Masih v. The State and another (2013 SCMR 1059 & 1524) decided on 03.05.2013 and it had been observed in that case as under: “5. Learned High Court has dismissed the bail application of the petitioner on the ground that earlier application filed by him was dismissed as withdrawn vide order dated 5.12.2012. In the case of The State through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) it was held by this Court that the grounds which were available at the time of withdrawal of the earlier application shall be deemed to have been considered and dealt with and the second application can only be filed on the fresh ground. The relevant portion is reproduced as under:-- “8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant’s counsel before him and that the same had not found favour with him. It may be pointed out, with great respect that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present, case the learned Judge who dealt with the second bail application had, in fact embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application. 6. As far as the case-law cited by the learned counsel for the petitioner in (i) Ali Hassan v. The State (2001 SCMR 1047) and (ii) Muhammad Riaz v. The State (2002 SCMR 184) is, concerned, the latest case which has been disposed of on this point is 29 Muhammad Siddique v. The State (Criminal Petition No. 896-L of 2012) wherein it has been held by this Court that if earlier application is dismissed as withdrawn, the second application can only be filed on any fresh ground and not on the same grounds which were available at the time of the disposal of the earlier application. Relevant portion from the said judgment is reproduced herein below:-- “In such circumstances it is apparent on the face of record that the ground of similarity of role and rule of consistency was available to the petitioner at the time of filing first application for suspension of sentence but the learned Judge has totally ignored it. From the tenor of impugned order it appears that the learned Judge of the Lahore High Court while suspending the sentence of respondent No. 2 has not exercised discretion in a proper and judicious manner rather has not at all adverted to the guidelines laid down in Zubair’s case (supra).” Thus the latest view of this Court is to be followed and the learned High Court has rightly dismissed the application which could only be entertained on the fresh grounds, hence, this petition being without merits is, hereby, dismissed and leave is refused.” The judgment under review has also been referred to with approval by another 3-member Bench of this Court in the case of Muhammad Naveed v. The State and another (Criminal Petition No. 324-L of 2013 decided on 03.05.2013) in the following terms: “Even this Court in a recent judgment passed in Criminal Petition No. 896-L of 2012 titled Muhammad Siddique v. The State has held that even if the application is dismissed as withdrawn, subsequent application is not entertainable until and unless any fresh ground is urged.” 16. We have also noticed that the understanding of the meanings of withdrawal “simpliciter” propounded above already stands expressed and iterated by this Court in the case of Rizwan Ali v. The State, etc. (Criminal Petition No. 658-L of 2013 decided on 16.07.2013) as follows: “We have heard the learned counsel for the petitioner, the learned Additional Prosecutor-General, Punjab appearing for the State and Saleem Akhtar complainant in person and have gone through the record of this case with their assistance. It has been agreed between the learned counsel for the petitioner, the learned Additional Prosecutor-General, Punjab and the complainant appearing in person that the principle laid down by this Court in the case of Muhammad Siddique v. The State (Criminal Petition No. 896-L of 2012) and in the case of Amir Masih v. The State and 30 another (2013 SCMR 1059) has not been correctly applied by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan to the facts of the present case vis-à-vis the present petitioner namely Rizwan Ali. On the basis of such consensus all of them have requested that this petition may be converted into an appeal and the same may be allowed, the impugned order passed by the Lahore High Court, Multan Bench, Multan on 19.06.2013 may be set aside and the matter of the petitioner’s bail may be remanded to the Lahore High Court, Multan Bench, Multan for its decision afresh on the merits of the case. In the peculiar circumstances of the case we have found the consensus between the parties to be justified because the merits of the petitioner’s case for bail had never been attended to by the Lahore High Court, Multan Bench, Multan in the orders passed by it in all the three successive applications filed by the petitioner for the said relief and every time such application was allowed to be withdrawn the withdrawal so sought and allowed was nothing but withdrawal simpliciter. This petition is, therefore, converted into an appeal and the same is allowed, the impugned order passed by the Lahore High Court, Multan Bench, Multan on 19.06.2013 is set aside, Criminal Miscellaneous No. 2084-B of 2013 shall be deemed to be pending before the said Court and the same shall be decided afresh after attending to the merits of the petitioner’s case for bail.” (underlining has been supplied for emphasis) In the said case of Rizwan Ali all the earlier applications for bail filed by an accused person had been dismissed by the Lahore High Court, Multan Bench, Multan as having been withdrawn without any argument having been addressed or heard on the merits of the case and, therefore, this Court had treated the earlier withdrawals as withdrawal “simpliciter”. The approach adopted in that case was expressly followed by this Court in the later case of Umar Hayat v. The State, etc. (Criminal Petition No. 786-L of 2013 decided on 31.07.2013) as under: “The situation in the present case is almost identical to that in the case of Rizwan Ali v. The State, etc. (Criminal Petition No. 658- L of 2013 decided on 16.07.2013) and, thus, we are minded to pass an order in the present petition similar to that passed in the case of Rizwan Ali (supra) and the learned counsel for the parties have also agreed on that course to be adopted. This petition is, therefore, converted into an appeal and the same is allowed, the impugned order passed by the Lahore High Court, Lahore on 02.07.2013 in Criminal Miscellaneous No. 3987-B of 2013 is set aside, the said criminal miscellaneous petition shall be deemed to be pending before the said Court and the same shall be decided afresh after attending to the merits of the petitioner’s case for bail.” 17. With great regard and respect for the Honourable Judges of this Court deciding the cases of Muhammad Riaz and Ali Hassan 31 (supra) we have observed that it had never been considered in the judgments passed in the said cases that if a Judge had allowed a counsel to withdraw an application for bail after the counsel had addressed arguments on the merits of the case and had remained unable to convince the court in that regard then even if such withdrawal of the application for bail is to be deemed as withdrawal “simpliciter” still on the basis of the same set of facts and on the basis of the same grounds urged through a subsequent application for bail the Judge concerned cannot take a view and reach a conclusion different from that taken or reached by him in the earlier round and that if the Judge concerned takes a different view and reaches a different conclusion in the subsequent round then he may inevitably invite many allegations including those of inconsistency or extraneous influence which may impinge upon his competence or integrity. This aspect of the issue had specifically been adverted to by this Court in the landmark case of The State through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) referred to by us earlier on in this judgment. It had been observed by this Court in that case that permitting such a course to be adopted may open doors for conflicting judgments and encouraging malpractices which may bring the judicial system into disrepute by creating an impression that the subsequent favourable orders were based upon extraneous considerations. It had also been observed in that case that a subsequent favourable order in the same case on the basis of the same set of facts may be perceived as reviewing an earlier unfavourable order which may not be permissible in law. To us even a possibility of creating an impression in respect of extraneous considerations may speak volumes against permitting such a course to be adopted. We may add that the case in hand itself is a case in point as the learned Judge-in-Chamber of the Lahore High Court, Lahore had dismissed Nazir Ahmed petitioner’s second application for suspension of sentence and release on bail as having been withdrawn after the learned counsel for the petitioner had addressed arguments on the merits but had failed to convince the leaned Judge-in-Chamber for grant of the desired relief but 32 through his third application filed through a different learned counsel for the same relief and based upon the same facts and grounds the desired relief had been extended to Nazir Ahmed petitioner by the same learned Judge-in-Chamber. Such inconsistency of approach adopted by the learned Judge-in- Chamber had prompted, nay compelled, this Court to record some observations in the judgment under review concerning the conduct of the learned Judge-in-Chamber expunction of which observations is sought by him through one of the review petitions under consideration. We may add that we have particularly noticed with interest that in the cases of Muhammad Riaz and Ali Hassan (supra) it had only been observed by this Court that after withdrawal “simpliciter” of an earlier application for bail another application for the same relief can be “moved” but it had never been observed therein that the same Judge can be inconsistent and can take a different view or reach a conclusion different from the one reached by him on the same set of facts and on the same grounds in the earlier round. 18. This brings us to the last issue as to whether the observations made by this Court in the judgment under review concerning the conduct of Sayyed Mazahar Ali Akbar Naqvi, J. were justified in the circumstances of the case. We may observe at the outset that it is quite unpleasant to discuss the conduct of a Judge of the superior judiciary through a judgment but we are compelled to undertake such an exercise in this case because it is none other than a Judge of a High Court himself who has formally approached this Court and has insisted that we may comment upon some comments already made by this Court about his conduct. 19. It may be clarified straightaway that Nazir Ahmed petitioner’s bail had been cancelled by this Court because the facts of the case did not justify suspension of his sentence and release on bail during the pendency of his appeal and the law had not been correctly applied to his case by the Lahore High Court, 33 Lahore. A bare perusal of paragraph No. 8 of the judgment under review shows, and shows quite clearly, that the observations made therein regarding the learned Judge had not been made with reference to his wrong decision on the law and facts of the case but the observations were based squarely upon his inconsistency in the matter which inconsistency, unfortunately, created an impression regarding an extraneous consideration coming into play. For facility of reference the said paragraph of the judgment under review is reproduced below: “8. Before parting with this order we may observe that discretion exercised by the learned Judge while passing the impugned order in the instant case has appeared to us to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground the only difference in the respondent’s third application for the same relief was a different learned counsel for that respondent.” In this view of the matter the stance of the learned Judge and his learned counsel before us that the learned Judge had entertained and decided the third application for suspension of sentence and release on bail filed by Nazir Ahmed petitioner in the light of the law declared by this Court in the cases of Muhammad Riaz and Ali Hassan (supra) has appeared to us to be a stance which completely misses the point in issue. The issue fairly and squarely was inconsistency creating an impression of extraneous consideration and not correct application of the law or otherwise. 20. We note that in the case of Noraz Akbar v. The State and another (2011 P.Cr.L.J. 852) decided by Sayyed Mazahar Ali Akbar Naqvi, J. on 29.11.2010 it had been held by him as under: “4. At the outset learned counsel for the petitioner when questioned that what is fresh ground available with the petitioner as his earlier such bail application already stands dismissed, learned counsel states that the earlier bail application was not dismissed on merits and the instant application is to be considered as his first bail petition. To substantiate his version, learned counsel for the petitioner has placed reliance on Muhammad Riaz v. The State (2002 SCMR 184). ---------------------------------------- ---------------------------------------- 7. Firstly I dilate upon the question that whether the instant 34 bail petition being second petition on the subject, can be given weight in absence of any fresh ground, which is pre-requisite for filing such petition. There is no cavil to this proposition that there is no fresh ground available with the petitioner and the grounds taken herein were already available with the petitioner at the time of filing of first bail petition. Therefore, the same is not maintainable in view of ratio decidendi of august Supreme Court of Pakistan in the case of Gul Nawaz alias Gul Mowaz and 2 others v. The State (1970 SCMR 667) wherein Mr. Justice Hamoodur Rahman, the then Hon'ble Chief Justice, being author of the order had held as under; "The High Court was in our view also right in holding that repeated applications for bail on the same facts did not lie in the High Court." 8. Now question arises that whether the instant petition can be termed as second bail petition or the first one. Having much regard for the case law cited by learned counsel for the petitioner, I may submit here that bare perusal of the order dated 4-11- 2010, passed in Criminal Miscellaneous No. 11712-B of 2010, whereby the petitioner's earlier bail petition was dismissed, reflects that after arguing the case at some length, learned counsel for the petitioner requested to withdraw the petition, which in the interest of justice was allowed. Had the petitioner very good case, learned counsel for the petitioner might have not withdrawn the same after arguing at some length.” (underlining has been supplied for emphasis) It is quite noticeable that the case of Muhammad Riaz (supra) had been taken notice of by Sayyed Mazahar Ali Akbar Naqvi, J. in the said order dated 29.11.2010 but still while dealing with the subsequent application for bail he had refused to take a view or reach a conclusion different from that taken or reached by him in the earlier round because the facts of the case and the grounds for bail had not undergone any change. The said order further shows that according to the reported, and therefore considered, view of Sayyed Mazahar Ali Akbar Naqvi, J. dismissal of an earlier application for bail as having been withdrawn after arguments had been addressed in support of such application at some length clearly indicated that the Judge concerned did not feel persuaded to grant bail on the facts disclosed and the grounds urged and, thus, the counsel for the accused person requested for withdrawal of the application which request was acceded to by the Judge. As the facts of that reported case had not undergone any material change and no fresh ground had become available to the accused person in that case for his subsequent application for bail, therefore, Sayyed Mazahar Ali Akbar Naqvi, J. did not want to be 35 inconsistent in the matter in that case. It is unfortunate that in the present case the same learned Judge had decided to proceed otherwise and that had allowed many an eyebrow to be raised. 21. Another aspect of this matter, equally disturbing, is that if the facts of the case and the grounds available to Nazir Ahmed petitioner for suspension of his sentence and release on bail during the pendency of his appeal were the same at the time of applying for such relief through his second and third applications then if such facts and grounds were valid and sufficient for granting the desired relief on the third occasion then the said relief ought not to have been denied to him by the same learned Judge on the second occasion. This implies that either a due relief was denied to the said petitioner on the second occasion or an undue relief was extended to him on the third occasion. In this backdrop engaging the services of a different learned counsel by Nazir Ahmed petitioner for his third attempt for the same relief on the same facts and grounds and the said learned counsel’s crowning with success in that attempt was a matter which ostensibly provided fodder to an impression about an extraneous consideration coming into play and the same seemingly reflected adversely upon the learned Judge’s conduct. The principles of consistency and propriety demanded that if the facts and the grounds were the same and they were valid and sufficient for granting the desired relief then the learned Judge ought to have allowed Nazir Ahmed petitioner’s second application and if the said relief was not due on the same facts and grounds then the learned Judge ought to have been consistent and he should have dismissed the third application as well. In these peculiar circumstances of the case this Court could reasonably entertain an impression that the exercise of discretion in the matter by the learned Judge was “somewhat colourable”. 22. There is yet another aspect of this matter which is also quite disconcerting. Through Criminal Miscellaneous Application No. 23 of 2014 filed by him in his review petition Mr. Justice Sayyed 36 Mazahar Ali Akbar Naqvi petitioner has himself brought on the record of this case copies of seven other orders passed by him wherein after dismissing the earlier applications for bail filed by some accused persons as having been withdrawn after having heard the arguments of the accused persons’ learned counsel at some length on the merits of the case he had allowed bail to the same accused persons through their subsequent applications for the same relief filed on the basis of the same facts and grounds within a few weeks or months of dismissal of the earlier applications. This surely reflects or depicts a conscious pattern being followed by the learned Judge which is a pattern which cannot be approved. It shows that in the first round the learned Judge refuses the desired relief to an accused person but in the second round the same facts and grounds are found to be valid and sufficient for the same relief. Unfortunately the said pattern also fits into the facts and circumstances of the present case. We must admit that we are at a loss to understand why such a pattern is being followed by the learned Judge and what can be the factual or legal justification for adopting such a pattern. 23. It is important to mention here that in the judgment under review this Court had been particularly careful and had deliberately stopped short of naming therein the learned Judge-in- Chamber of the Lahore High Court, Lahore or the learned counsel for Nazir Ahmed petitioner appearing before the said Court in connection with that petitioner’s third application for suspension of sentence and release on bail and the judgment under review had not even been approved for reporting. All that care had been taken by this Court only to save the learned Judge-in-Chamber and the concerned learned counsel from any embarrassment that may be caused to them by naming them in the judgment. In that backdrop there was hardly any occasion for issuing notice to the learned Judge-in-Chamber or the learned counsel before recording the observations made in paragraph No. 8 of the judgment under review because that would have ensured their embarrassment which this Court deliberately wanted to avoid. Apart from that we 37 have heard the learned counsel for Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner and Mr. Bhoon at some length in connection with the present review petitions and such subsequent hearing neutralizes the effects of any previous omission in hearing them. 24. For what has been discussed above both the captioned review petitions are dismissed. Nazir Ahmed petitioner may be arrested forthwith and be lodged in the jail from which he had been released so as to serve the sentence passed against him by the learned trial court. He may, however, approach the Lahore High Court, Lahore for any relief if and when any ground for such relief accrues to him under the law. 25. Before parting with this judgment we would like to, for the benefit of all concerned, restate the principles of propriety and practice enunciated by this Court thus far regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in criminal cases and would expect all the courts below to scrupulously and meticulously adhere to and follow the same. The said principles, as enunciated in the precedent cases referred to above and some others, are as follows: (Note: A reference here to an application for bail may be read as a reference to all applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in the same criminal case or its cross-case filed by the same accused person, any other accused person, the State or the complainant party.) (i) At the bottom of every application for bail it is obligatory to attach a certificate regarding non-filing of any such application before the same court previously and, in case of a repeated or successive application, a certificate disclosing filing of any such application previously by the same accused person, any other accused person, the State or the complainant party before the same court in the same criminal case or its cross-case and such certificate must also disclose the 38 number of the previous application, the date of its decision and the name of the Judge dealing with and deciding the same. No subsequent bail application is to be entertained unless the same is accompanied by copies of the earlier bail applications and copies of the orders passed thereon. (ii) All repeated or successive applications for bail must be fixed for hearing before and heard and decided by the same Judge(s) who had dealt with and decided any earlier application for bail unless the Judge or one or some of the Judges dealing with and deciding the earlier application(s) is/are not available at the relevant station of posting/Principal Seat/Bench. (iii) Dismissal of an application for bail after attending to the merits of the case amounts to rejection of all the grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not. (iv) In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief can be filed and entertained only if it is based upon a fresh ground, i.e. a ground which was not available or in existence at the time of decision of the earlier application. (v) Withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court and its decision by such court on the merits of the case. In all cases of withdrawal of such an application the court must faithfully record in its order as to whether withdrawal of the application had been requested and allowed after addressing and hearing of some or all the arguments on the merits of the case or withdrawal of the application had been requested and allowed before addressing and hearing of any argument on the merits of the case. (vi) In a case of withdrawal of an earlier application for bail after addressing and hearing of some or all the arguments on the merits of the case no subsequent application for the same relief can be filed before or entertained by the same court unless such subsequent application is based upon a fresh ground, i.e. a ground which was not available or in existence at the time of disposition of the earlier application. 39 26. The Office is directed to send a copy of this judgment to the Registrars of all the High Courts in the country who are directed to ensure that every Judge and Magistrate dealing with criminal cases within the jurisdiction of each High Court receives a copy of this judgment and complies with the principles of practice and propriety enunciated or recapitulated herein. Judge Judge Judge Announced in open Court at Islamabad on 22.01.2014 Judge Islamabad 22.01.2014 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam, Chairman Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Dr. Muhammad Al-Ghazali, Ad-hoc Member-I Dr. Muhammad Khalid Masud, Ad-hoc Member-II Criminal Shariat Appeal No.12 of 2017 (On appeal against the judgment dated 22.11.2014 passed by the Federal Shariat Court, Islamabad, in Criminal Appeal No. 8-Q of 2013 and Criminal Murder Reference No.1/1 of 2013) Muhammad Hayat Wakeel and Ghous Bakhsh @ Shshdad @ Ahsan …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Saghir Ahmed Qadri, ASC For the Complainant: Nemo For the State: Syed Baqir Shah, ASC/State Counsel Date of hearing: 01.12.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court impugned herein is Federal Shariat Court’s judgment dated 22.11.2014, whereby appellants’ conviction and sentences awarded by the learned trial Court vide judgment dated 10.02.2013 were upheld; they were tried for committing Qatl-i-Amd of Muhammad Siddique, Liaqat Ali and Abdul Jabbar during a robbery on 23.11.2010 at 8:30 p.m. within the precincts of Police Station Bhag District Kachhi, Balochistan. First Information Report was recorded at 8:45 p.m. on the application of Muhammad Salah-ud-Din (PW-1). According to the complainant, his son Muhammad Siddique and grandson Liaqat Ali, employed respectively in Levies and Police, accompanied by Abdul Jabbar Jaboja, riding on a motorbike, were on way to Goth, followed on Criminal Shariat Appeal No.12 of 2017 2 another motorbike by Asad Khan and Abdul Razzaq PWs, were fired upon by three unknown armed assailants who decamped the scene latter along with the official weapons and the motorbike. Liaqat Ali and Abdul Jabbar Jaboja breathed their last at the spot whereas Muhammad Siddique succumbed to the injuries later. Witnesses viewed the occurrence in motorbikes’ headlamps light. Abdul Jabbar deceased was noted with three entry wounds whereas Muhammad Siddique and Liaqat Ali with two entry wounds each alongwith corresponding exits. As the investigation progressed, the appellants were arrested on 28.12.2010; they were later put to a test identification parade wherein Abdul Razzq (PW-3) and Ahad Khan (PW-4) correctly identified them as the culprits. Pursuant to disclosures, the appellants led to the recovery of Kalashnikovs respectively used by them during the occurrence; these were forensically found wedded with the casings secured from the spot. Snatched official gun was recovered as well. The appellants claimed trial, pursuant whereto, prosecution produced as many as nine witnesses; of them Abdul Razzaq (PW-3) and Ahad Khan (PW-4) furnished ocular account, prosecution’s mainstay. The trial concluded in appellants’ conviction under clause (b) of section 302 as well as section 392 of the Pakistan Penal Code, 1860; they were sentenced to death with a direction to pay compensation in the sum of Rs.200,000/- on each count though erroneously mentioned as fine; on the charge of robbery, the appellants were sentenced to 10-years RI with fine of Rs.50,000/- each. 2. Mr. Saghir Ahmed Qadri, ASC, contends that the assailants, admittedly strangers to the witnesses, were not named in the crime report and as such appellants’ induction in the array on the basis of a momentary glimpse/observation by the witnesses in the darkness of night with a source of light manifestly deficient, the possibility of mistaken identity is looming large on the horizon; he also highlighted witnesses’ inability to assign specific roles with vehemence to argue that prosecution’s failure on the said count drastically diminished evidentiary value of the exercise, otherwise carried out in the police station. To visit the appellants with ultimate and irreversible corporeal punishment on the basis of evidence inherently deficient and flawed would be potentially unsafe, concluded the learned counsel; he has alternately prayed for alteration of death penalty into imprisonment for life on the ground that in the face of joint Criminal Shariat Appeal No.12 of 2017 3 indiscriminate firing, the appellants could not be individually saddled with specific shots, sustained by the each deceased, an ambiguity that can be viewed as extenuating in circumstances. The learned Law Officer has faithfully defended the impugned judgment. 3. Heard. Record perused. 4. There was no previous bad blood; the deceased on way were unsuspectingly surprised in a sudden encounter at 8:30 p.m. in the month of November; complainant presented written application, converted into First Information Report at 8:45 p.m. at the Police Station located at a distance of 3/4 kilometers from the venue. Muhammad Siddique, in injured condition, was medically examined under a police docket at 9:30 p.m, soon whereafter autopsies commenced. There is a remarkable promptitude with none blamed by name. This circumstance by itself conclusively established prosecution’s bona fides in recourse to law. The appellants were put to test identification parade under magisterial supervision on the same day, shortly after their arrest, wherein the witnesses correctly identified them as the ones who targeted the deceased during the robbery. During the process, each witness distinctly pointed each appellant for having targeted the deceased; their identification by the witnesses, without loss of time, rules out possibility of manipulation. Argument that police station was not an appropriate place for the holding test identification parade is entirely beside the mark inasmuch as the law does not designate any specific place to undertake the exercise; on the contrary, Rule 26.32 of the Police Rules, 1934, inter alia, provides as under: (a) “The proceedings shall be conducted in the presence of a magistrate or gazetted police officer, or, if the case is of great urgency and no such officer is available, in the presence of two or more respectable witnesses not interested in the case, who should be asked to satisfy themselves that the identification has been conducted under conditions precluding collusion. (b) Arrangement shall be made, whether the proceedings are being held inside jail or elsewhere, to ensure that the identifying witnesses shall be kept separate from each other and at such a distance from the place of identification and shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification.” (c) …….” Criminal Shariat Appeal No.12 of 2017 4 A combined reading of above Rules with Article 22 of the Qanun-i- Shahdat Order, 1984, does not restrict the prosecution to necessarily undertake the exercise of test identification parade within the jail precincts. Prosecution of offences and administration of justice are not dogmatic rituals to be followed relentlessly in disregard to the exigencies of situations, seldom identical or ideal. All that ‘due process of law’ requires is a transparent investigation and fair trial, in accord with statutory safeguards, available to an accused to effectively conduct his defence without being handicapped or embarrassed. In the absence of any statutory restriction to the contrary, the objection does not hold water. On factual plane, learned counsel has not been able to point out even obliquely any collusion, conspiracy or consideration impelling the witnesses to hurriedly swap innocent proxies to the dismay of devastated families, enduring abiding trauma. Reference to omission of assailants’ features in the crime report as a ground to discard the test identification parade is equally inconsequential; Part C of the Lahore High Court Rules and Orders Volume-III (adopted by the High Court of Balochistan) does not stipulate any such condition. In the natural course of events, in an extreme crisis situation, encountered all of a sudden, even by a prudent onlooker with average nerves, it would be rather unrealistic to expect meticulously comprehensive recollection of minute details of the episode or photographic description of awe- inspiring events or the assailants. The pleaded requirement is callously artificial and, thus, broad identification of the assailants, in the absence of any apparent malice or motive to substitute them with the actual offenders, is sufficient to qualify the requirement of Article 22 of the Order ibid. Darkness possibly impeding identity of the assailants, argued at length, fails to impress us as headlamps of three motorbikes, recovered during investigation, generated sufficient light to enable the witnesses to capture broad facial features of the assailants, encountered at close blank. Three Kalashnikovs, recovered upon appellants’ disclosure, were forensically found wedded with the casings secured from the spot barring six with points of dissimilarity, a minor discrepancy insufficient to tremor the structure of the case resting upon sound foundations of ocular account through sources unimpeachable and free from taints. On an overall analysis of prosecution evidence, the only possible hypothesis is that of appellants’ guilt. Criminal Shariat Appeal No.12 of 2017 5 Alternate plea of commutation of death penalty into imprisonment for life on the ground that simultaneous multiple fire shots by the assailants left no space to possibly determine fatalities distinctly, a circumstance according to the learned counsel, by itself calling for alternate punishment of imprisonment for life, fails to commend approval inasmuch as the totality of circumstances does not admit any space to divisibly draw any such benign distinction within the realm of human wisdom when all the three assailants in a petty criminal pursuit ruthlessly targeted the deceased in cold blood. Scales are in balance and the wage settled by the courts below being conscionable in circumstances merits no interference. Criminal Shariat Appeal fails. Dismissed. Chairman Member Member Member Member Islamabad, the 1st December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam, Chairman Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Dr. Muhammad Al-Ghazali, Ad-hoc Member-I Dr. Muhammad Khalid Masud, Ad-hoc Member-II Criminal Shariat Appeal No.16 of 2017 (On appeal against the judgment dated 03.05.2013 passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeal No.28/I of 2012) Muhammad Hanif …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Ansar Mehmood Mirza, ASC For the State: Ch. M. Sarwar Sidhu, Addl. Prosecutor General Punjab. For the Complainant: Muhammad Zafar, witness. Date of hearing: 01.12.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ziarat Be Jan, 60, was spotted lying dead on a cot inside her home by her sister-in-law Zubaida Bibi (PW-1) and Safeena Bibi (PW-12), residents next door; as they approached the deceased, the appellant was seen, hurriedly leaving the room; the witnesses were joined by Zafar Iqbal (PW-2), Muhammad Sheezan and Muhammad Ayyaz who attempted to intercept the appellant albeit with no success; the deceased was lying without her loincloth with multiple injuries on her face with blood coming out of the nostrils as well as the mouth; the legs were disentangled with constriction; she was suspected to have been done to death with some blunt weapon. The deceased was survived by five sons, statedly married. Looked down in the neighbourhood, the appellant was arrayed as suspect. Autopsy was conducted at 11:00 Criminal Shariat Appeal No.16 of 2017 2 p.m; fracture of hyoid bone suggested asphyxial death; blood was visible in the nasal, oral and vaginal cavities; walls, ribs, cartilages and trachea were fractured; upon dissection, the medical officer noted a bruise 5 x 3 cm on the parietal bone; skull contained intracranial bleeding with rigor mortis found in developing stage; vaginal swabs did not carry seminal stains; death was estimated to have occurred immediately within preceding twelve hours. Inventory from the spot included bloodstained hammer (P-1), ligature (P-2) and pillow cover (P-4). The appellant was arrested on 01.5.2006; indicted for homicide as well as carnal assault, he claimed trial on 30.10.2007 that resulted into acquittal on latter charge whereas on the former, convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to imprisonment for life, maintained by the Federal Shariat Court vide impugned judgment dated 03.05.2013, being assailed through leave of the Court 2. Learned counsel for the appellant contends that after prosecution’s failure on the charge of rape, the very foundation of its case against the appellant is raised to the ground; that hapless lonely widow appears to have been done to death for reasons that remain a mystery as there is far more than what meets the eye requiring a scapegoat conveniently found in the appellant who certainly could not escape the witnesses in a small rural neighbourhood; the bottom line is that petitioner’s nomination is calculated to hush up the tragedy. The learned Law Officer faithfully defended the impugned judgment. 3. Heard. Record perused. 4. The deceased was survived by five sons, each married with a family, ranging 40 years to 19 years in age, admittedly residing in the same household; it is surprising that none, except the deceased, from such a sizable clan was present on the fateful day; their absence clamours for explanation and in retrospect spells out a scenario diametrically incompatible with the story set up in the crime report. Prosecution’s bid to frame the appellant as a suspect in the crime on his questionable credentials is hit by Article 68 of the Qanun-e- Shahadat Order, 1984 and as such by itself does not advance its case. Allegation that the appellant forcibly committed rape upon the deceased stands negated by medical evidence leaving no apparent motive for him in the field to take on the deceased. Magnitude of violence, essentially reflecting a time intensive assault with obvious Criminal Shariat Appeal No.16 of 2017 3 resistance by an able bodied village-hardened woman could not have gone unnoticed by the residents of the houses located nearby. Constricted legs reflecting onslaught of rigor mortis negates the hypothesis of witnesses’ arrival within the timeframe, suggested in the crime report. An assailant actuated by carnal designs is not expected to bring a hammer with him to accomplish the task; web of circumstances, each mindboggling, heavily intrigue upon the integrity of prosecution case, unmistakably found fraught with doubts, deducible from its own record, benefit whereof, cannot be withheld. Criminal Shariat Appeal No.16 of 2017 is allowed; impugned judgment is set aside; the appellant is acquitted of the charge and shall be released forthwith if not required to be detained in any other case. Chairman Member Member Member Member Islamabad, the 1st December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam, Chairman Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Dr. Muhammad Al-Ghazali, Ad-hoc Member-I Dr. Muhammad Khalid Masud, Ad-hoc Member-II Criminal Shariat Appeal No.23 of 2017 (On appeal against the judgment dated 20.09.2011 passed by the Federal Shariat Court, Lahore, in Jail Criminal Appeal No.282/I of 2004, Criminal Appeal No.342/L of 2004 and Criminal Murder Reference No.17/1 of 2004) i. Qaisar Mehmood ii. Muhammad Shaban …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Anis Muhammad Shahzad, ASC For the State: Ch. M. Sarwar Sidhu, Addl. Prosecutor General Punjab. Date of hearing: 02.12.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Hafeez Ullah (PW-3), a street vendor, was in his usual business pursuit at 5:00 p.m. on 13.5.2003, near Qazafi Park located within remit of Police Station City Muridke; his daughter Ramsha, 3 ½, was playing nearby, the appellants emerged at the scene and after cuddling the child affectionately took her inside the nearby factory where they worked; the unsuspecting father did not view child’s departure with any concern or alarm, however, as the child did not return after lapse of considerable time, he along with Muhammad Tufail and Muhammad Asif PWs approached the appellants who informed them that she had already left after a brief stay with them; overnight search yielded no results; in the morning both the witnesses saw the appellants once again while coming out of the factory with a gunny bag thrown by them Criminal Shariat Appeal No.23 of 2017 2 near complainant’s home; it carried corpse of the child with massive marks of violence all over the body, confirmed by autopsy; these included a ligature mark around the neck and a bloodstained swollen vulva; vaginal parts were massively damaged with freshly torn bleeding hymen; fourchette was torn with a tear on right labia minora measuring 0.7 x 0.5 x 0.5 c.m; rectum was noted with an anal tear measuring 1.5 cm x 1 cm around the anus, going deep into the body. Severe hemorrhagic shock coupled by asphyxia led to the cardio respiratory failure as a collective consequence of injuries, inflicted within preceding 24 hours; forensic analysis of the swabs secured during autopsy established seminal stains; the Medical Officer confirmed sexual assault beyond child’s endurance. The appellants, after cleansing their breasts, one by one, before Muhammad Ismail (PW-11), escaping outrage in the neighbourhood, saved themselves by surrendering before the police on 14.5.2003; both of them were medically found potent; seizures, pursuant to their disclosures as well as during spot inspection, comprise string (P-1), bloodstained chaddar (P-2), bloodstained shoe (P-3) and gunny bag (P-4) alongside bloodstained earth, secured vide inventories; upon indictment they claimed trial. Prosecution produced as many as 13 witnesses to drive home the charge; confronted therewith, the appellants shifted the blame onto one Ansar, maternal cousin of factory’s owner as being the culprit, saved through good offices of Ishtiaq Ahmed, a sub-inspector at the same police station; they also produced Muhammad Sharif, milkman (DW-1) and Muhammad Aslam (DW-2) in their defence. The learned trial Judge, vide judgment dated 28.09.2004, returned both the appellants a guilty verdict; they were convicted and sentenced as under: Under Section 364-A PPC Imprisonment for life, each. Under Section 302(b) PPC & Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Death on both counts with a direction to pay Diyat in the sum of Rs.150,000/- each to the legal heirs of the deceased, The Federal Shariat Court upheld the convictions and sentences, albeit conversion of Diyat into compensation within the contemplation of section 544-A of the Code of Criminal Procedure 1898, vide judgment dated 20.09.2011, being assailed through leave of the Court. 2. Learned counsel for the appellants contends that the appellants are victims of a misplaced and misconceived suspicion, Criminal Shariat Appeal No.23 of 2017 3 orchestrated by Ishtiaq Ahmad sub-inspector to save the neck of one Ansar, a relative of the factory owner, who in fact had molested the child and since the appellants worked in the same premises, they were swapped as scapegoats; that extrajudicial confession narrated by Muhammad Ismail (PW-11), being joint in nature, is liable to be excluded from consideration leaving the last seen evidence furnished by Hafeez Ullah (PW-3), Muhammad Asif (PW-4) and Muhammad Tufail (PW-5) in a lurch. One weak piece of evidence cannot corroborate another weak piece of evidence and, thus, it would be unsafe to maintain the conviction with ultimate irreversible corporeal punishment, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment; highlighting abhorrently shocking nature of the crime inflicted upon a child of extreme tender age, he has referred to various pieces of evidence led by the prosecution to argue that prosecution produced straightforward evidence, available under the circumstances, inexorably pointed upon appellants’ culpability, situated within the proximity of time and space, with no animosity or grudge with the complainant or the witnesses, admitting no space to entertain any hypothesis other than their guilt; he has prayed for dismissal of the appeal. 3. Heard. Record perused. 4. Prosecution has relied upon a chain of circumstances comprising child’s departure in appellants’ company, heading towards the factory, seen again while disposing of the corpse concealed in a gunny bag (P-4); their confession shortly before arrest and subsequent recoveries of incriminatory bloodstained articles from their residential room in the factory; these uninterrupted continuing links, synchronized in a chain of circumstances, emerging in quick succession, are tallied by findings, recorded in the autopsy report that unambiguously confirmed a beastly carnal assault within the durations compatible with the incidence of events related by the witnesses; seizure of blood, string (P-1), Chaddar (P-2) and shoe (P-3), each with stains of blood, from inside the room occupied by the appellants, duly depicted in site plan (Ex.PW-13/6), establish beyond an iota of doubt that the child was molested to death in the room located in the factory where both the appellants admittedly worked for good; they were strangers neither to the complainant nor to the child and, thus, in a position to lure the latter without raising any suspicion, Criminal Shariat Appeal No.23 of 2017 4 in a neighbouhood where children are vulnerably exposed. The appellants were identified, with the child before her death and at the time of disposal of the corpse, by the witnesses having no apparent motive either to falsely implicate them or swap them as suggested with one Ansar, a relative of the factory owner, as such substitution could not be manipulated in the small interregnum. Given the horrific magnitude of brutality inflicted upon the poor soul with entire locality in a state of shocking grief, appellants’ selection as scapegoats from the multitude of people by a police officer, without much substance or status, is a story that may not find a buyer. The incident immediately went viral with senior police officers being on board and, thus, it is rather difficult to assume that a sub-inspector of the police would be in a position to divert the course of investigation so as to let off the actual offenders by roping the innocent. Similarly, the argument, articulated at length, to assail the evidence of last seen and extrajudicial confession being inherently weak and, thus, liable to be excluded is entirely beside the mark. There are no empirical parameters to characterize reliability of a particular piece of evidence, either as strong or weak, for the purpose of prosecution of offenders, as the victims seldom fall prey to their tormentors under ideal conditions and thus, it would be rather naïve to expect choice evidence to meet standard of proof, thus, in a given situation the Court is required to assess integrity of available evidence so as to consider its adequacy in a given situation having regard to the universal principles of safe administration of criminal justice; for the said purpose, direct evidence furnished even by the injured witnesses, apparently with no axe to grind, can be dismissed, if otherwise found lacking the ring of truth; likewise, applying the same principle, the Court may rely upon the evidence of last seen, without a demur, if found free from any taint, constituting a reliable link between the offender and the victim within the proximity of time and space. In the present case, appellants’ employment as well as residence in the factory situated next to the complainant’s outlet is a common ground; both of them were seen while taking the child by her father as well as witnesses who are resident of the locality. The family immediately after child’s disappearance set out in her search and approached the appellants in the first place; they jointly pleaded ignorance while they owed an explanation; it is on the following day that they are seen while Criminal Shariat Appeal No.23 of 2017 5 disposing of the corpse for the obvious reasons that it was simply not possible for them to hide it inside the factory, frequented by other workers. Duration of violence endured by the child is compatible with the noted timeframe of assault, death and autopsy; she being a child of extreme tender age could not survive merciless carnal assault and her cavities, both rectal as well as vaginal, with a freshly torn hymen, were noticed by the medical officer as profusely bleeding. In this backdrop, the evidence of last seen against the appellants, in itself, admits no space to entertain any hypothesis other than appellants’ guilt. Appellants’ confession shortly before their arrest, in circumstances reflects, a desperate conduct to ward off the consequences of intense rage that gripped the neighbourhood. Investigative conclusions are consistent with appellants’ culpability; witnesses produced by them, in retrospect aggravated their predicament. In the totality of circumstances established through various pieces of available evidence constitute a chain of circumstances with no missing link between the child and her assassins and, thus, the Courts below rightly served her justice though without possibility of any temporal recompense for most agonizing horror she experienced in disbelief. We discovered from the record that Qaisar Mehmood convict was a minor at the time of commission of crime, therefore, penalty of death inflicted upon him on both counts is reduced to imprisonment for life with concurrent commutation, benefits of pre-trial period inclusive. Convictions and sentences of Muhammad Shaban are maintained. With the above modification qua Qaisar Mehmood, the appeal is partly allowed, however, the same is dismissed vis-à-vis Muhammad Shaban convict. Chairman Member Member Member Member Islamabad, the 2nd December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE DR. MUHAMMAD AL-GHAZALI, HM-I MR. JUSTICE DR. MUHAMMAD KHALID MASUD, HM-II Criminal Appeal No.07(S)/2011 a/w Criminal Shariat Appeal No.26/2009 (On appeal from the judgment dated 15.7.2008 passed by the Federal Shariat Court, Islamabad in Jail. Crl.A.No.195/I/2003 and Crl.MR.No.16/I/2003) Imran @ dully ……Appellant in Crl.Sh.A.No.07/2011 Farzand Ali ……Appellant in Crl.Sh.A.No.26/2009 Versus The State ……Respondent in Crl.Sh.A.No.07/2011 Imran @ Dulli etc ……Respondents in Crl.Sh.A.No.26/2009 For the appellants: Mr. Muhammad Ilyas Siddiqi, ASC (In Crl.Sh.A. 26/09) Mr. Arshad Ali Ch, ASC (In Crl.Sh. A.07/11) For the State: Ch. Zubair Ahmed Farooq, Addl.PG.Pb. Date of hearing: 29.10.2014 JUDGMENT Dost Muhammad Khan, M.— This Criminal Appeal (Sh) alongwith Criminal Appeal No.26(S)/2009 has arisen in the following background:- Allegedly on 10.06.2002 Ms. Zunaira age 9 years, daughter of the complainant went out of the house to purchase french cookies from a nearby Cr.Sh.A7/11 Crl.Sh.A.26/11 2 shop. However, she did not return, which caused alarm in the mind of the complainant, thus, he went out along with Muhammad Riaz (PW-9) and one Muhammad Saleem (not produced) in search of her. Repeated announcements were made through loudspeaker in the area about disappearance of the girl but no body responded nor any clue about her could be found. It was on 11.06.2002 that the complainant again started search along with the same two persons and at 0800 hrs. they discovered her dead body lying naked in the deserted compound of Haji Muhammad Akram in street No.13, Mohalla Rashidabad. The two companions were left behind at the spot, while the complainant reported the matter to PS Jhang Bazar, Faisalabad at 10:20 am, charging unknown culprits for her kidnapping and then killing her. (ii) During the course of investigation on 18.06.2002 the statements of Muhammad Siddique (not produced) and Amjad Ali were recorded alongwith the supplementary statement of the complainant. Both deposed that they had seen the deceased girl in the company of the appellant Imran on 10.06.2002 at about 8:00 pm, who was holding hand of the girl, however, they did not take it much abnormal to inquire from him (appellant) as to why and where he was taking the deceased girl. (iii) On account of the charge laid at the door of the appellant Imran, he was arrested on 26.06.2002. During police custody, he confessed before the investigating officer that he abducted the deceased girl, committed rape upon her and then killed her and threw away her dead body. He also led the police party to his house where blood stained sheet (Chadar) was recovered having been pointed out by him. The same was sent to the Chemical Examiner, Cr.Sh.A7/11 Crl.Sh.A.26/11 3 who returned his opinion that it was human blood, without conducting the test of grouping with the rest of the articles, having blood stains. On 28.06.2002 Local General Councilor Ghulam Abbas (PW-10) and some other locals appeared before the investigating officer. The Councilor claimed that the appellant in the company of his father confessed before him that he was involved in the crime and requested for effecting compromise with the father of the deceased girl. However, he was of a little help to the appellant because in the previous local bodies elections the appellant and his relatives were supporters of the rival candidate. Anyhow, he promised to make effort in this regard. (iv) On the other hand, the dead body was examined by lady doctor Farah Rauf (PW-5). On external examination, she found a blue-printed trouser tied around her neck, both legs were tied with white colour cloth, above the ankles. The shirt and trouser of the deceased were stained with blood. She also found ant-bites all over the body including the face. Her tongue was slightly protruded, which was bitten by teeth on its tip. The lady doctor found a single brownish ligature mark on the neck of the deceased, size 1.5x13 cm. from left to right. Swabs were taken for detection of semen and its analysis by the Chemical Examiner including grouping. Posterior vaginal walls were found torn upto the rectal wall including the anal sphincter. Hymen was found torn and vagina was found bruised. Clotted blood was found in the trachea. According to her opinion, the death was due to asphyxia, caused through strangulation and that sexual assault was probably made on her. 2. At the conclusion of the investigation, charge sheet was filed in the Court and the trial Judge at the Cr.Sh.A7/11 Crl.Sh.A.26/11 4 conclusion of the trial awarded death sentence to the appellant u/s 302(b) PPC with compensation of Rs.50,000/- u/s 544-A Cr.P.C.; he was further convicted and sentenced to 14 years R.I. u/s 364-A PPC; 7 years R.I. +fine of Rs.5,000/- or six months S.I. in default of payment of fine; and 10 years R.I.+ fine of Rs.10,000/- u/s 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or six months S.I. in default of payment of fine. 3. On appeal the learned Federal Shariat Court also found the appellant guilty of the charges, however, his conviction u/s 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, recorded by the trial Court was altered to one u/s 10(3) of the Ordinance, while his conviction u/s 201 PPC was quashed. The rest of the convictions and sentences recorded by the trial Court were maintained except the death sentence, which was reduced to life imprisonment u/s 302(b) PPC. 4. We have heard the learned ASCs for the appellant in both the appeals, the learned Additional Prosecutor, Punjab and have carefully gone through the entire record with an extra degree of care and caution and our findings are as follows:- The entire edifice/structure of the prosecution case is founded on the following pieces of circumstantial evidence:- (i) The last seen evidence given by PW Amjad Ali and Muhammad Siddique (not produced); Cr.Sh.A7/11 Crl.Sh.A.26/11 5 (ii) The recovery of blood stained spread sheet (chadar) having been pointed out by the appellant; (iii) The extra judicial confession made on 20.06.2006 before one Ghulam Abbas, the local councilor of the Union Council of Halqa No.268, in presence of his father and Mubeen Arshad (PW- 11); AND (iv) The confirmatory medical evidence with regard to the rape committed upon the deceased girl and then causing her death through strangulation and also the Chemical Examiner’s report to some extent. In reply to question number 10 put to him u/s 342 Cr.P.C., the appellant stated that some time before his arrest by the local police as suspect, PW Ghulam Abbas (Councilor) extorted money from his parents, he was released by the police on the same day being innocent. However, he quarreled with Ghulam Abbas (PW), when the latter refused to return the money and threatened him of dire consequences and why he became witness against him in the case. (a) First we will take up the last seen evidence provided by the above two witnesses. Both are related to the complainant and are frequent visitors to his residence, also sharing occasions of joys and mourning but they kept mum for more than a week. At the trial, to cover up the delay in giving last seen evidence, they introduced an amazing and intriguing story of having gone to Islamabad and stayed there for about seven days, returned home on 17.06.2002 at night. They came to know about the incident on Cr.Sh.A7/11 Crl.Sh.A.26/11 6 their return, however, they went to the complainant the following morning and told him that they had seen the deceased in the company of the appellant on 10.06.2002. Amjad Ali admitted that he is not on good terms with the appellant. He claimed that he along with Muhammad Siddique was proceeding to the house of one Javed at the relevant time when they saw the deceased in the company of the appellant, however, the said Javed was neither cited as a witness nor produced at the trial to corroborate their claim of visit to his house at evening time on 10.06.2002. His evidence was very crucial to support their version but he was withheld for no good reason. Again no fare ticket of transport/ travel or any other document about stay in a hotel or at any other place at Islamabad for such a long period was produced. They did no business at Islamabad. This is a big question mark, for which they had no plausible answer, thus the evidentiary worth of their evidence has diminished almost to zero. Thus, their delayed statement to police has rendered them false witnesses. It has also not been established through reliable evidence that at what time the girl was ravished and done to death. The distance of the place where the deceased was seen with the appellant and wherefrom her dead body was recovered has remained unexplained, thus, the element of close proximity of time and place being a fundamental and mandatory requirements for accepting last seen evidence are absolutely missing. Again, it was also not their case that it was their routine of passing through the same street regularly, hence, they can also be held to be chance witnesses. This fat shall give a fatal blow to their testimony. Such defective, inadequate and unreliable evidence so given is suggestive of creating a suspicious appearance leading one to an inference that crude Cr.Sh.A7/11 Crl.Sh.A.26/11 7 attempts have been made to lead the Court of law to a wrong conclusion. (b) The legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course. (c) Ghulam Abbas (Councilor) in no uncertain words has confessed that he was not on good terms with the appellant as in the preceding local bodies elections, appellant and his family were supporters of his rival candidate, therefore, if at all the appellant was involved in the crime and was in need of such help then, the appropriate person was the rival candidate/his family and not Ghulam Abbas (PW). The so called venture by the appellant to get the help of Ghulam Abbas was fraught with risks. Only a blind would perceive such proposition as true. Ghulam Abbas(PW) as was expected of him, instead of taking a single step or making any effort towards the settlement/compromise or to help him readily became a witness against the appellant without taking any little pause and stop. This conduct and attitude by itself is sufficient for discarding his testimony. (d) Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source therefore, in our view, this piece of evidence is entirely insufficient to carry conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery. Cr.Sh.A7/11 Crl.Sh.A.26/11 8 (e) The recovery of spread sheet (Chadar) allegedly blood stained at the instance of the appellant is also unbelievable because according to the prosecution the tragedy commenced and was consummated within the compound of uninhabited house and even the last seen evidence, which we have discarded does not suggest that the appellant was carrying the said chadar/sheet when they allegedly saw him in the company of the deceased. No earthly reason existed for keeping this incriminating article by the appellant in his house for days more so, when the blood thereon could be easily washed away. It appears to us of having been planted and fabricated piece of evidence. The same squarely deserves to be rejected. (f) The opinion of the lady doctor is only confirmatory which does not tell the name of the culprit but just confirms the cause of death and sexual assault, made on the deceased girl. Once the recovery of spread sheet (chadar) is disbelieved then Chemical Examiner’s report is also rendered of no intrinsic worth. (g) In view of the above sketchy and shaky evidence leaving behind much to be debated upon and when fabrication of the same cannot be ruled out altogether, then by applying the universal principle, it is a case of no evidence which cannot stand the test laid down in the cases of Fazal Elahi v. The Crown (PLD 1953 FC 214), Muhammad Fayyaz v. The State (PLD 1984 SC 455), MD Nazir Hossain Sarkar v. The State (1969 SCMR 388) and Mst. Sairan v. The State(PLD 1970 SC 56) and the entire structure of the case crumbled down to the ground. (h) In the case of Fazal Elahi Khan Hon’ble Mr. Justice Abdul Rasheed, Chief Justice, while speaking Cr.Sh.A7/11 Crl.Sh.A.26/11 9 for the Full Bench consisting of Mr. Justice A.S.M. Akram and Justice A.R. Cornelius (late) laid down principle of extra ordinary caution for guidance of the courts to be followed while recording conviction on the basis of circumstantial evidence. The relevant para is reproduced below:- “In cases which like the present rest entirely on circumstantial evidence, it is of the utmost importance that such a circumstance should be ascertained with minute care, before, any conclusion or inference adverse to the accused person is drawn. In the ordinary case, this Court is content to accept findings of fact reached in the High Court. The present case, however, rests on nothing but circumstantial evidence, i.e. evidence relating directly to a number of minor facts, which facts, the prosecution regarded as sufficient, in the total absence of direct evidence, to sustain an inference that Fazal Elahi murdered Jamal Din. It may be conceded that “a concurrence of well-authenticated circumstance composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords” (Paley). Nevertheless, where the direct evidence relates only to minor facts, and consequently, the case rests wholly on circumstantial evidence, it is necessary to remember that ‘processes of inference and deduction are essentially involved, frequently of a delicate and perplexing, character, liable to numerous causes of fallacy” (Wills on Circumstantial Evidence). This danger points the need for caution in accepting proof regarding any one of the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt to create specious appearance, which is calculated to lead to fallacious inference. Hence the necessity of accepting, as the basis of inferences, only such circumstances as are “well-authenticated.” Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference.” Cr.Sh.A7/11 Crl.Sh.A.26/11 10 5. By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. As was held in the case of Fazal Elahi (ibid) and in view of the changed social norms and standard of ethics of the society, to which the witnesses belong and also the questionable credibility of the investigating agency and its incompetency to professionally investigate such blind crimes, by now, the Courts have to exercise more and more cautions before accepting and resting its opinion of being guilty on a circumstantial evidence collected apparently in a dishonest, dubious and rough manner. 6. Therefore, we are left with no option but to adopt the same care and caution, keeping in view the peculiar facts and circumstances of this case, which cannot be put apart from the one, cited above. 7. With all respects to the Bench of the learned Federal Shariat Court, these precautions and judicial care so required, was not observed and view of the trial Judge with regard to the guilt of the appellant was endorsed by it. Thus, the approach to the evidence in the case was not in accord with the principle since lon well settled. Cr.Sh.A7/11 Crl.Sh.A.26/11 11 8. Accordingly, while extending benefit of doubt to the appellant, this appeal is allowed and the appellant Imran @ Dully is acquitted of all the charges, leveled against him by setting aside his conviction and all sentences awarded to him. He be set free forthwith if not required in any other case. 9. In view of our above findings, Criminal Shariat Appeal No.26(S)/09 titled Farzand Ali v. Imran @ Dulli etc. has become infructous and is dismissed. Chairman Member Member Member Member Announced on 13.11.2014 at Islamabad Member

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam, Chairman Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Dr. Muhammad Al-Ghazali, Ad-hoc Member-I Dr. Muhammad Khalid Masud, Ad-hoc Member-II Criminal Shariat Appeal Nos.9 & 19/2017 and Jail Shariat Petition No.02/2020 (Against the judgment dated 17.02.2015 passed by the Federal Shariat Court Islamabad in Jail Cr. Appeal Nos.15 to 19-I of 2014 along with Cr. Rev. No.2/Q/2014) Muhammad Siddique (Criminal Shariat Appeal No.9/2017) Jamshaid (Criminal Shariat Appeal No.19/2017) Saif Ullah (Jail Shariat Petition No.02/2020) …Appellant/Petitioner(s) Versus The State (in all cases) …Respondent(s) For the Appellant/ Syed Rifaqat Hussain Shah,ASC/AOR Petitioner(s): (in all cases) For the Respondent(s): Syed Baqir Shah, ASC/Standing counsel Date of hearing: 03.12.2020. ORDER Qazi Muhammad Amin Ahmed, J:- Bakhat Bahadar, 50, was found lying dead in the bushes nearby his poultry farm located within the remit of Police Station Vandar, District Lasbela; the corpse was tied with ropes and plastic pipe; poultry flock comprising 5000 birds along with Saif Ullah and Jamshed, employed as attendants at the farm, were missing from the scene; they were named as suspects in the crime report, laid by deceased’s brother Akhtar Zeb (PW-1). As the investigation progressed, Muhammad Siddique, Nadim Ahmed and Ata Muhammad were apprehended for being privies to the crime; they were indicted before a learned Additional Sessions Judge at Lasbela for committing Qatl-i-Amd of the deceased during the course of Haraba; they claimed trial that resulted into their convictions under section 396 read with section 34 of the Pakistan Penal Code, 1860 vide judgment dated 13.11.2013 whereunder Saifullah and Muhammad Siddique Criminal Shariat Appeal Nos.9 & 19/2017 and Jail Shariat Petition No.02/2020 2 were sentenced to imprisonment for life while Jamshed, Nadim Ahmed and Atta Muhammad to rigorous imprisonment for 10 years. The Federal Shariat Court vide impugned judgment dated 17.02.2015 maintained the convictions, however, enhanced sentence of Jamshed appellant to imprisonment for life; Nadim Ahmed and Atta Muhammad convicts are off the scene for having served out their sentences. Leave has been granted in Shariat Appeal Nos.9 & 19 of 2019 separately filed by Muhammad Siddique and Jamshed, convicts clubbed with Jail Shariat Petition No.2 of 2020 filed by Saifullah; with a common thread, these are being decided through this single judgment. 2. Learned counsel for the convicts contends that the accused have been roped in the case on the basis of a misconceived and misplaced suspicion, subsequently structured upon various pieces of fake evidence, contrived belatedly to drive home the charge; that confession statement Ex.PW-8/C is manifestly bogus, fabricated to secure convictions in the absence of any tangible or reliable evidence. Contrarily, the learned Law Officer has faithfully defended the impugned judgment by arguing that Saifullah and Jamshed convicts were employed at the poultry farm, their absence from the scene after the brutal murder of Bakhtar Bahadar deceased is in itself a circumstance that speaks volumes about their guilt; according to him, subsequent recoveries and evidence furnished by independent witnesses regarding transportation of poultry birds at the weighing station under the supervision of Ata Muhammad accused, confirmed by Malkat Khan (PW-9), an independent witness, squarely framed the accused in the web of incriminatory circumstances that include seizure of sale receipts of the stolen flock from the possession of Nadim Ahmed whose disclosure led to the arrest of co-accused. Different pieces of evidence revolving around the confessional statement Ex.PW-8/C by Jamshed convict successfully drove home charge against all the accused beyond a shadow of doubt, concluded the learned Law Officer. 3. Heard. Record perused. 4. Prosecution case is structured upon various pieces of circumstantial evidence that prominently includes confessional statement of Jamshed appellant, recorded by a Judicial Magistrate (PW-8) on 11.04.2011; he was arrested on 7.4.2011 on the day when the dead body was spotted at the crime scene. Statement of Malkat Khan (PW-9), taken at its best, at the most possibly proves that Ata Criminal Shariat Appeal Nos.9 & 19/2017 and Jail Shariat Petition No.02/2020 3 Muhammad convict accompanied a poultry flock, incapable of being identified; he confronted the witness with a plea of alibi; according to him, on the fateful day, he attended a marriage ceremony as far away as in Karachi on 7.4.2011 and signed the marriage certificate as a witness on the said date; he himself appeared as a witness in disproof of charge with the support of two other witnesses to establish his plea. Saifullah petitioner and Jamshed appellant were surprisingly not confronted with their alleged employment at the poultry farm, a grievous omission that escaped notice by both the courts below. According to the prosecution, the stolen flock was sold at an outlet under the name and style of Al-Habib Agency, though associated with the investigation, however, none from the outlet was produced during the trial to prove the sale and instead prosecution remained content with some computer generated receipts, genesis whereof is shrouded in mystery. Prosecution appears to have rested its case on the judicial confession, retracted by Jamshed appellant at the first available opportunity. We have gone to the confessional statement (Ex.PW-8/C) to find it exasperatingly comprehensive as it contains even minutest details, remotely connected with the incident; spreading over six pages, it is compendium of the prosecution case that cannot be read without disquiet. A deponent struggling to cleans his breast so as to ventilate the remorseful conscience, in the ordinary course of events would prefer to confine himself to the brevity of his crime instead of catering prosecution needs to successfully prosecute its case, otherwise placed in difficult straits. The exercise would essentially require either a prompter or an acquiescent scribe. The cautions administered to Jamshed appellant, on a printed form, mention that he was tortured by police during custody and, thus, in the totality of circumstances, it is difficult to assume, without potential risk of error that statement (Ex.PW-8/C) was a voluntary declaration of guilt that too without any meaningful corroboration. Once found suspect qua its maker, the confessional statement (Ex.PW-8/C) cannot be even considered vis-à- vis the co-accused. Fraught with doubts, compounded by inherent infirmities cumulatively fail to safely structure the charge. Consequently, convictions cannot be maintained. Criminal Shariat Appeals No.9 & 19 of 2019 are allowed; Jail Shariat petition No.2 of 2020 is converted into appeal and is also allowed; impugned judgment Criminal Shariat Appeal Nos.9 & 19/2017 and Jail Shariat Petition No.02/2020 4 is set aside; the appellants are acquitted of the charge and have already been ordered to be released if not required to be detained in any other case by our short order of even date. Chairman Member Member Member Member Islamabad, the 3rd December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Amir Hani Muslim Human Rights Case No.42389-P of 2013 (Action taken on news clipping from ‘Daily Dunya’ dated 4.11.2013 regarding rape on a deaf and mute lady at Nankana Sahib) For the Complainant: Nemo. On Court’s Notice: Malik Faisal Rafique, Addl. AG, Pb. Mr. Irfan Ullah Khan, SP (Ivs.) Mr. Muhammad Ashraf, DSP, Legal Mr. Farmaish Ali, SHO, P.S. Nankana Sahib Date of hearing: 20.11.2013 O R D E R Iftikhar Muhammad Chaudhry,CJ.- In the instant case proceedings were initiated on the press clipping published in ‘Daily Dunya’ dated 4th November, 2013 contents of the same reads as under:- � � � ر�� م� ،�د�ز ��ا � ن�� ى� �� �ا � � ف�ا � � � � � سا� و ش� �و� ہ� �� � ن�� ى�وار)ر� �� ( �� � ن�� ى� �� � �� � �� �� � ��6 ،د� ��و ،�د�ز ��ا � دا�ا  جرد �� � � �� د� زا � � � � �ا� ،� � سا� و ش� �و� ہ� �� � ن�� ،ر�� م� ن�� � � � ��  � �ا � � ے� �� ىد� � � � �ز� ہ� ى� �� � سا � �� � قور� � � آ �د �د ��زور ،ىد � ہو روا �� �� � زا � � �د�ز � م� ہو � � �آ � � � ىزرد �و� � سا � �� ��ر � ��� غ� د� �� � � �� �� �� � � �  �آ10 � � � �ا� � � � � �ز� � � نا � �� روا �� ��ر �� � ��ا  � � ں� � � � ے� �� روا ��ا  د�� �4  � � � ند ر� � �� � � � �� �� � د� �ا � روا � �ر � �� � سا ىر� ىر� � � نا � دا�ا �� � ہ�او �ا روا � آ � � ��او �ا � گ� ہو � � �� ند جرد �� ف� � دا�ا نا روا � � ع�ر � �� � �   � �ا � ل� � � � � قور� � ،� � سا� و ش� ہو � � �� � ےر� سا � �و� � ۔� �او�2 � ا� � ن�� � ىر�� روا �د ل��و� � �آ ىو � �� �ا � ۔� � �او � �ا � �د � م� ےر� ن� �ا � � � روا �اڈ  ۔�� � �ا� ف�ا �ا روا �� � �� د� زا � � سا � � � �ا � � � � قور� HRC-230781-G/2013 2 On having considered the gravity of the incident wherein a deaf and dumb women mother of three children molested report was called for from the Inspector General Punjab Police. In response to the order of this Court and on receipt of the report submitted by Muntazir Mehdi, DPO the following order was passed on 8.11.2013:- “An unfortunate incident of gang rape of a deaf and mute lady namely Mst.Fouzia, mother of three children, by more than two persons took place in District Nankana Sahib on 9.10.2013. Admittedly, she was running from pillar to post for redressal of her grievance but nobody listened to her. Consequently, she went to the Ilaqa Magistrate herself and submitted application praying for her medical examination. It was for the first time that on 12.10.2013, the learned Ilaqa Magistrate, ordered for her medical examination from the D.H.Q. Hospital, which was accordingly conducted and following injuries were noticed on her person : - “Two mild tears and very mild redness on vulva means inner side of wall of labia majora measuring .25 x .5 cm both no need to stitch just like abrasions. Progress with med. 2. Perhaps on having smelled by the Police about adverse action being taken by the Magistrate or some other authority, FIR No.364/13 dated 14.10.2013, under section 376(2) PPC, was registered at Police Station Nankana Sahib on the application of her brother Muhammad Ibrahim, as the victim is deaf and mute. However, taking the advantage of same, the investigation of the case was not conducted honestly, in as much as the victim’s statement was not recorded. When this matter was reported in newspaper “Duniya” on 4.11.2013, the same was brought to the notice of one of us (Justice Iftikhar Muhammad Chaudhry, CJ) by the office for perusal and report was called from the Inspector General of Police, on 6.11.2013. No report was submitted by the Inspector General of Police, Punjab, and it seems that instead of taking prompt action, he handed over the matter to some of his subordinate. In any case, on account of non-receipt of report on 7.11.2013, the case was ordered to be fixed in the Court with notice to the Advocate General, Punjab. 3. The S.H.O of Police Station City, Nankana Sahib, has appeared and placed on record a report dated 6.11.2013, signed by the D.P.O Nankana Sahib, concluding para there-from is reproduced herein below:- “Having been found sensitive incident, I also visited the place of occurrence and interrogate the nominated accused as well as the victim. The victim told through indicators/beckon that she was sleeping at the roof of the house and 03 unknown accused persons committed rape with HRC-230781-G/2013 3 her forcibly while the complainant stated that 06 accused committed rape with her sister in a room. There is contradiction in the statements of brother and sister (victim) and this contradiction makes the story doubtful. It is pertinent to mention here that accused Muddasar and Muzzamal are also real paternal nephews of her husband Nawaz Ahmed and also living in this house so it is very astonishing thing that 06 accused can commit rape in the same house. The complainant also nominated Shahid accused in his supplementary statement but on the next day i.e. 22-10- 13 the complainant, PWs and victim submitted their written stamp papers/affidavit in which they have been declared Shahid Iqbal as innocent. During investigation the complainant failed to produce the PWs. Only one PW Suleman came and stated that he did not see the incident. The victim has also denied to examine her DNA test. During investigation the incident narrated above by the complainant is not proved, please.” 4. We brought to the notice of learned Additional Advocate General, Punjab, the fact that despite the request of victim, the police did not register the case and no action was taken and having left with no option, she went to the Ilaqa Magistrate and on his directions, the victim was medically examined and report was given, which has been reproduced hereinabove, subsequent thereto on 14.10.2013, the case was registered knowing well that, prima facie, a positive report has been given, but the victim was not examined by the police and on the contrary the District Police Officer, Nankana Sahib, has given a clean chit to the accused, in as much as at one stage on having taken affidavit from the brother of the complainant, he has discharged one of the accused person namely Shahid Iqbal knowing well that no such authority vests in the police to exonerate any accused on the basis of affidavit. Similarly, there is a statement of Hafiz Muhammad Suleman, one of the prosecution witnesses, which corroborates the statement of the victim Mst. Fouzia. It appears that after registering the case though reluctantly on 14.10.2013, the police did not take any action, in as much as no proper case diaries were maintained. When we inquired from the S.H.O Farmaish Ali and Muhammad Ashraf DSP (Legal), Nankana, present in court, as to whether they made any attempt to record the statement of the victim by going to her home, they could not show any material from the case diary. 5. When the case was taken up in the morning, the learned Additional Advocate General has stated that some time be given to him to contact the concerned authorities. After some time, the case was again taken up. He informs that the matter has been brought into the notice of high ups and they have promised to take action against the accused. Prima facie, we are of the opinion that the police has been influenced on account of extraneous reasons, because no action has been taken either by the police or the high ups, despite the fact that the matter was brought to their notice. Reliance is placed on the case of Salman Akram Raja and another vs. Government of Punjab (2013 HRC-230781-G/2013 4 SCMR 203). Therefore, in view of the above, we appoint Mr. Nazir Gajana, District and Sessions Judge, who was previously posted at Chiniot, to conduct an inquiry in this case and submit report on 13.11.2013. This order shall be sent to him through the Registrar of the Lahore High Court, Lahore, during course of the day. The S.H.O Farmaish Ali, P.S City Nankana Sahib and Muhammad Ashraf DSP Legal, Nankana, shall appear before Mr. Nazir Gajana on 11.11.2013 along with the F.I.R, medical examination report and other relevant record (police file) of the case. They shall also produce the victim and other P.Ws including Hafiz Muhammad Suleman before him. In pursuance of the above directions, learned District & Sessions Judge has submitted a report wherein he has discussed all the aspects of the case and also pointed out the defects in the investigation particularly about the conduct of the police the following observations were made:- “In this latest statement Fauzia Parveen alleged victim expressed that after last Eid ul Fitar at about 12:00 midnight she was asleep on the roof of their house along with other family member, her cot was at the corner. One person of lean stature with muffled face came upstairs awakened forcibly, threatened her, administered Betal Leaf containing tablets to her and on taking the same her eyes were closed. Fauzi Parveen further stated that he took her downstairs by lifting the other persons one of stout and the second of normal stature were also present with muffled faces and all the three took her into the room, closed the door, stripped off Fauzia’s clothes when she was almost unconscious and the person with lean stature bringing her downstairs committed rape with here, while the other two had just touched her body including breasts but did not commit Zina bil Jabar with her. The alleged victim stated clearly that she could not tell the names of the culprits. She added that she could not recognize them on appearance as they were with muffled faces. She clarified to make the above statement with her free consent and will also with the fear of Allah Almighty only. She maintained that she had not pressure whatsoever of her husband, any of his relatives or any of the policeman. Brother of the victim approached the police station City Nankana Sahib on the next day i.e. Saturday for issuance of docket for medical HRC-230781-G/2013 5 examination of Fauzia Parveen but police did not redress his grievance and then Fauzia was produced before the Magistrate who ordered for medical examination and Fauzia Parveen was ultimately examined medically. Even in the above sorry state of affairs, the role of police of P.S. City Nankana Sahib is not enviable. Medical examination Fauzai Parveen was not got conducted on 12.10.2013 when complainant approached P.S. City Nankana Shaib. Admitted that complainant party succeeded to get Fauzia Parveen examined medically on that very date thorough order of Magistrate but police failed to discharge its duty about it. Delay in lodging of FIR though mainly attributed to the conduct of the compliant party but the police of P.S. City Nankana Sahib was also negligent in this regard. Police did not record the statement of victim till 8.11.2013 and no valid justification whatsoever was presented for this negligence and delay of 17 days after FIR. It is further unfortunate that police showed slackness and negligence for putting the alleged victim and three accused to DNA testing. It is further sorrowful that the alleged accused were made to sit in the P.S. promptly but their formal arrest was not made and the arrest of Mudassar and Muzammil accused was recorded to be postponed with much delay. The exoneration of Shahid accused on the basis of affidavit was another defective of the police of P.S. City Nankana Sahib. Farmaish Ali Inspector/SHO of P.S. City and Maqbool Ahmed, SI/I.O are responsible for the above delinquencies. I have been shown by DSP Legal Nankana Sahib the order dated 8.11.2013 passed by Mr. Abu Bakar Khuda Bakhsh RPO, Sheikhupura Region at Lahore transferring the investigation of this case out of District Nankana Shahib and entrusting the same to Mr. Irfanullah Khan, SP (Investigation) Sheikhupura. This intervention of police high-ups was needed much earlier. In the end it is humbly submitted that though the story of Fauzia Parveen the alleged victim regarding rape is somewhat doubtful but Farmaish Ali Inspector/SHO and Maqbool Ahmed SI/I.O. of P.S. HRC-230781-G/2013 6 City Nankana Sahib committed negligence in dealing with the above matter as detailed earlier. Prima facie, it appears that the DPO, Muntazir Mehdi being in supervisory position did not probe diligently into the inquiry conducted by his juniors and exonerated the culprits on the ground that there was contradiction in the statements of the victim and her brother as to number of the accused; as according to the victim, rape was committed by three accused whereas her brother (complainant) stated that they were six in numbers. Not only this, even one Shahid culprit who was prima facie found to be involved was allowed to go scott free in view of the affidavit which was obtained from the complainant. The complainant has stated in the Court that he had given the affidavit under influence. It is to be noted that as per the medical report the happening of the incident cannot be denied. The opinion of the medical officer is reproduced as under:- “Two mild tears and very mild redness on vulva means inner side of wall of labia majora measuring .25 x .5 cm both no need to stitch just like abrasions. Progress with med. 2. Mr. Muntazir Mehdi, DPO appeared in person and offered explanation pleading innocence but the facts noted hereinabove are sufficient to conclude that on account of his criminal negligence a poor lady who is deaf and dumb subjected to criminal act and the police knowing well about their negligence were trying to cover up their defects. In this view of the matter, we direct the Inspector General Police, Punjab to initiate criminal proceedings against all concerned delinquent police officers/officials including the said Muntazir Mehdi as early as could be possible. He shall make sure an independent investigation without being influenced by anyone who is allegedly involved in the case. In the HRC-230781-G/2013 7 meanwhile, for the purpose of initiating disciplinary proceedings against the DPO Muntazir Mehdi and other delinquents, the matter shall be referred to the concerned authority in accordance with law. The petition stands disposed of in the above terms. Chief Justice Judge Judge Islamabad 20.11. 2013 M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.1037-P OF 2018 AND H.R.M.A.NO.17-G OF 2018 (in the matter of murder of 8 years old minor girl in Kasur) In attendance: On Court’s call Mr. Ashtar Ausaf Ali, AGP Mr. Shakil ur Rehman, AG Punjab Ms. Asma Hamid, Addl. AG. Pb. Mr. Mazhar Sher Awan, Addl. PG Pb. Dr. Ashraf Tahir, DG Punjab Forensic Science Agency Dr. Shahid Masood, Anchor News One TV Channel Mr. M. Amin, Father of Zainab a/w Mr. Aftab Bajwa, ASC Capt.(R) Arif Nawaz Khan, IGP Pb. Mr. Abu Bakar, Addl. IGP (Inv.) Pb. Mr. Muhammad Idrees, DIG/RPO Multan Convener of JIT Mr. Abdul Wahab Chaudhry, DIG Legal Pb. Mr. Saif ul Murtaza, AIG Legal Human Rights Punjab. Mr. Imtiaz Ali, DSP Legal Inv. Pb. Mr. Ahsanullah Chohan, DSP Inv. Pb. Mr. Shahid Siddique, DSP Legal Inv. Pb. Mr. Qadeer Ahmed, Inspector Legal Kasur. Rana M. Ilyas, SP Legal Sheikhupura Mirza Shahid Baig, DIG Prison Mian Aamir, Chairman PBCA Mr. Arif Nizami, Channel 24 Mr. Mujeebur Rehman Shami, Dunya News Ch. Ghulam Hussain, Channel 24 Mr. Saleem Bukhari, Waqt TV Mr. Arif Hameed Bhatti, ARY Mr. Sohail Warraich, GEO TV Mr. Mazhar Abbas, Geo TV Mr. Fahad Hussain and M. Ayaz and Mansoor Ali Khan, Express Mr. Zia Shahid, CPNE Mr. I. A. Rehman Mr. Kamran Khan, Dunya News Mr. Kashif Abbasi, ARY Mr. Hamid Mir, GEO TV Madam Asma Sherazi, Ajj News HRC 1037-P/18 -: 2 :- Madam Naseem Zahra, Channel 24 Mr. Aftab Ibal, Express News Mr. Qayyum Siddiqui, GEO TV Mr. Imran Waseem., Dunya TV Date of Hearing: 28.01.2018 ORDER Learned Additional Advocate General, Punjab states that the Joint Investigation Team (JIT) constituted for this case, has arrested one, Imran Ali, who has been remanded to the police custody for 14 days by the Anti-Terrorism Court Lahore. The head of JIT present in Court states that the investigation is in the progress and hopefully the Challan would be submitted before the Court of competent jurisdiction within a period of two weeks. The head of JIT is directed to ensure the early conclusion of the investigation in accordance with law. 2. Serious apprehensions have been expressed by a number of persons present in Court regarding security and safety of Imran Ali, accused. The Inspector General of Police Punjab and Inspector General of Prisons Punjab were directed on 25.01.2018 to ensure the security and safety of the accused, Imran Ali. The I.G. Police Punjab once again has given undertaking that he will personally ensure that no harm is caused to the accused namely Imran Ali while he is in police custody. 3. The Inspector General of Police Punjab is also directed to submit details/profiles of all the police officers/officials, who remained posted in those Police Stations in whose jurisdiction such like incidents took place during the last five years. 4. We have taken note that the Prosecutor General Punjab is not present in Court. He is directed to remain present in Court on all subsequent dates of hearing. He is further directed to HRC 1037-P/18 -: 3 :- personally supervise the proceedings of the prosecution before the Trial Court at the time of hearing of the case. 5. We have been apprised that there are media talks and press conferences regarding this incident which may effect the fair investigation and proceedings before the learned Trial Court, therefore, we direct that all concerned, including the media houses/anchor persons shall act in a very responsible and cautious manner while expressing their views/opinions in the print and electronic media. We also restrain Mr. Muhammad Amin, father of the victim, his counsel Mr. Aftab Bajwa, learned ASC, the complainant of the case and all concerned from holding any press conference, appearing in talks shows or interacting with press or electronic media with regard to the present incident. 6. So far the accusations/allegations leveled by Dr. Shahid Masood are concerned, the learned Additional Advocate General Punjab present in Court states that the investigation team has probed into those allegations, particularly the allegations that the accused, Imran Ali, has 37 bank accounts. In this respect a report was requisitioned from the State Bank of Pakistan. In its report dated 27.01.2018 the State Bank of Pakistan has confirmed that the said accused, Imran Ali, has no bank account except a mobile account having only Rs.130/- in his credit. 7. So far as the issue of Dr. Shahid Masood is concerned, we have patiently heard the media personnel present in Court namely, Mr. Arif Nizami, Channel 24, Mr. Mujeebur Rehman Shami, Dunya News TV, Ch. Ghulam Hussain, Channel 24, Mr. Arif Hameed Bhatti, ARY TV, Mr. Sohail Warraich, Geo News, TV, Mr. Mazhar Abbas, Geo TV, Mr. Saleem Bukhari, Waqt TV, Mian HRC 1037-P/18 -: 4 :- Aamir, Chairman PBCA, Mr. Fahad Hussain and Mansoor Ali Khan, Express News, Mr. Zia Shahid, Chairman CPNE, Mr. I. A. Rehman, Columnist, Mr. Kamran Khan, Dunya News TV, Mr. Kashif Abbasi, ARY TV, Mr. Hamid Mir, GEO TV, Madam Asma Sherazi, Ajj News, Madam Naseem Zahra, Channel 24, Mr. Aftab Ibal, Express TV. Dr. Shahid Masood, has been heard twice in detail and ample opportunity has been afforded to him to explain his position. 8. In view of the serious accusations/allegations leveled by Dr. Shahid Masood in his television show “Live with Dr. Shahid Masood” telecast on 24.01.2018 on News One TV Channel and his media talk on 25.01.2018 outside this Court, we consider it appropriate to constitute the following Inquiry Committee to find out the truth and determine the veracity in the allegations leveled by Dr. Shahid Masood: 1. Mr. Bashir Memon, Director General, Federal Investigation Agency (FIA) (Head of the Committee.) 2. Mr. Anwar Ali, Joint Director, Intelligence Bureau, Islamabad. (Member) 3. Mr. Asmatullah Junejo. Assistant Inspector General (Operation Division) Islamabad Police. (Member) The above Committee may associate any senior officer of the State Bank of Pakistan for probe into the alleged bank accounts of the accused, Imran Ali, and associate such other experts or officer/official that it may consider helpful for the purpose of conducting its inquiry and probing the issue raised by HRC 1037-P/18 -: 5 :- Dr. Shahid Masood in his said programme and the statement given by him outside the Court premises. The Committee, after recording the statement of Dr. Shahid Masood, considering the material he desires to produce in support of his claim during the inquiry and collecting any other relevant material available from other quarters shall submit its report within a period of 30 days. The Committee shall check the veracity of the allegations and give a clear finding whether those allegations are correct or otherwise. 9. Mr. Shahid Masood present in Court is directed to fully cooperate with the Inquiry Committee and appear before the Committee as and when required by it. The Committee shall have the power to summon and examine the record/material from any Government Department, Agency, Authority etc. All such Departments/Agencies/Authorities/offices/officers of the Federal and Provincial Governments shall fully cooperate with the Inquiry Committee. The Committee shall submit its report to the Registrar of this Court within the period mentioned in para-08 supra. Re-list. CHIEF JUSTICE JUDGE JUDGE LAHORE 28th January, 2018. Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, ACJ Mr. Justice Mushir Alam Mr. Justice Maqbool Baqar Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Human Rights Case No. 10842-P of 2018 (Regarding registration of second FIR in respect of a police encounter wherein the petitioner’s son namely Mohsin Ali was killed at the hands of the local police) Mst. Sughran Bibi … Petitioner versus The State … Respondent In attendance: Petitioner in person Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan assisted by Barrister Asad Rahim, Mr. Muhammad Usman Rauf, Mirza Moiz Baig and Mr. Nousherwan Niazi, Advocates Mr. Qasim Ali Chauhan, Additional Advocate-General, Punjab Nemo. on behalf of the Advocate-General, Sindh Mr. Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa Mr. Ayaz Swati, Additional Advocate- General, Balochistan Mr. Tariq Mehmood Jehangiri, Advocate- General, Islamabad Human Rights Case No. 10842-P of 2018 2 Mr. Saeedullah Khan, ASC Mr. Babar Nadeem, Advocate Mr. Abu Bakar Khuda Bakhsh, Additional Inspector-General of Police, Punjab Barrister Salman Safdar, ASC (Amicus Curiae) Date of hearing: 09.05.2018 JUDGMENT Asif Saeed Khan Khosa, ACJ: If the first information to the police reporting commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1898 is called an FIR (First Information Report) then through the same logic the second information to the police in respect of commission of the same offence ought to be called an SIR and the third information regarding commission of the same offence may be called a TIR but there is no provision in the Code of Criminal Procedure for an SIR or a TIR. For reasons never exhaustively attended to before, parties to a criminal case other than the party which has already lodged an FIR about commission of a cognizable offence often insist upon registration of their own version regarding commission of the same offence through another FIR and it is argued that the different version of the same incident advanced by such a party is being reported to the police for the first time and, therefore, such new version regarding commission of the same cognizable offence is to be treated as the first information to the police about that version. In view of some conflicting judgments of different Courts, including this Court, on the issue the present Larger Bench has been constituted so as to put the controversy at rest through an authoritative pronouncement on the subject. The background in which this issue has cropped up before this Court through the present petition is briefly narrated in the following paragraph. 2. On 21.03.2008, more than a decade ago, one Mohsin Ali had lost his life through the hands of the police and FIR No. 177 was Human Rights Case No. 10842-P of 2018 3 lodged by Zulfiqar, SI in respect of the said incident on the same day at Police Station Shahdara Town, District Lahore for offences under sections 324, 353 and 186, PPC read with section 34, PPC and section 13 of the Pakistan Arms Ordinance, 1965. It was alleged in that FIR that Mohsin Ali and others had launched a murderous assault upon a police party and in exercise of its right of private defence the police party had fired back resulting in death of Mohsin Ali. After completion of the investigation a Challan was submitted in that case before the Court of Session, Lahore for trial of the accused persons implicated therein. On 12.01.2010 the present petitioner namely Mst. Sughran Bibi (mother of Mohsin Ali deceased) instituted a private complaint in respect of the selfsame incident alleging that as a matter of fact Mohsin Ali had cold- bloodedly been murdered by the local police by managing and staging a fake encounter. On 19.05.2010 a learned Additional Sessions Judge, Lahore seized of the case summoned 16 accused persons to face a trial in connection with the said private complaint. As per the legal norms the private complaint filed by the petitioner was taken up first for trial and on 18.06.2015 a Charge was framed against the summoned accused persons and, we have been informed, no progress has so far been made in that trial of the complaint case. Now through the present petition filed as a Human Rights Case under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 Mst. Sughran Bibi petitioner has sought issuance of a direction to the local police to register a separate FIR containing the different version of the same incident being advanced by her. 3. The issue before us, to put it very simply, is as to whether a separate FIR can be registered for every new version of the same incident when commission of the relevant cognizable offence already stands reported to the police and an FIR already stands registered in that regard or not. An ancillary issue is that if no separate FIR can be registered for any new version of the same incident then how can such new version be recorded and investigated by the police. We have heard elaborate arguments on Human Rights Case No. 10842-P of 2018 4 these issues and have carefully gone through all the precedent cases cited before us on the subject. 4. The emotionally charged and visibly grieved petitioner appearing in person has passionately submitted that her son namely Mohsin Ali was cold-bloodedly murdered by the local police through a managed and staged encounter whereafter an FIR containing a false story was registered at the local Police Station in respect of the incident at the instance of a police official depicting the deceased as the aggressor. She has maintained that in some ensuing administrative and judicial inquiries the local police were found to be guilty of a calculated murder but no separate FIR was registered in that regard at the petitioner’s instance which had led the petitioner to institute a private complaint in respect of her allegations and the accused persons in her private complaint have already been summoned by the trial court to face a trial in the complaint case. She has lamented and bemoaned that no progress has been made in that complaint case so far despite a Charge having been framed by the trial court against the accused persons about three years ago. In the end she has urged that justice would be served if a separate FIR is registered in terms of her version of the relevant incident and the persons being accused by her of the murder most foul are ordered to be arrested. 5. The learned Attorney-General for Pakistan has taken us through different provisions of the Code of Criminal Procedure, 1898 (usually referred to as Cr.P.C.) and the Police Rules, 1934 and has maintained that the statutory scheme of the criminal law in vogue in the country envisages registration of only one FIR regarding an incident involving commission of a cognizable offence and every fresh version of the same incident brought to the notice of the investigating officer during the investigation of the case is to be recorded under section 161, Cr.P.C.. He has submitted that the investigating officer is legally obliged to investigate the case from every possible angle and to probe into every version of the incident brought to his notice and then he is to submit his final report in Human Rights Case No. 10842-P of 2018 5 the matter in terms of the facts found by him and not in terms of any particular version of the incident advanced by any person. The learned Attorney-General has referred to the judgments rendered by this Court in the cases of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149), Kaura v. The State and others (1983 SCMR 436), Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) and Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC 484) which are the only reported pronouncements of this Court on the issue under consideration and he has highlighted that not only contradictory views were expressed in such judgments but all such judgments were also completely shorn of any meaningful discussion about the issue with reference to the relevant statutory provisions. He has, thus, urged that a comprehensive treatment of the issue by this Court is called for so as to remove the prevailing confusion. The learned Additional Advocates-General, Punjab, Khyber Pakhtunkhwa and Balochistan and the learned Advocate-General, Islamabad Capital Territory have adopted the arguments addressed before the Court by the learned Attorney-General for Pakistan. Barrister Salman Safdar, ASC has assisted the Court as an amicus curiae and while approaching the issue from diverse angles he has maintained that ordinarily there is to be only one FIR in respect of an incident but there is no statutory bar against registration of multiple FIRs in respect of the same occurrence if different versions of the incident are advanced with different sets of accused persons and such versions disclose commission of different cognizable offences. He has also impressed upon the Court as to why people insist upon registration of separate FIRs qua their own versions of the incident and as to why the remedy of filing a private complaint is generally not considered to be an adequate alternate remedy in that regard. The learned amicus curiae has also extensively referred to the above mentioned five reported judgments of this Court available in the field and has respectfully highlighted the deficiencies in those judgments. Human Rights Case No. 10842-P of 2018 6 6. After hearing the petitioner, the learned Law Officers and the learned amicus curiae, attending to all the statutory provisions relevant to the legal issue involved and perusing the precedent cases available on the subject we find that for a proper resolution of the controversy at hand it is imperative to correctly understand the scheme of the Code of Criminal Procedure, 1898 and the Police Rules, 1934 regarding registration of a criminal case through an FIR and its investigation by the police and also to minutely examine all the precedent cases available on the subject. In the following paragraphs we undertake such an exercise to develop and elucidate such understanding of the scheme. 7. As regards the precedent cases available on the subject there appears to be an utter confusion prevailing in the field and different Courts have in the past been taking different positions on the issue of registration of multiple FIRs in respect of commission of the same offence through different versions advanced in respect of the same occurrence. In the first category of the precedent cases it has been declared quite categorically that there is to be only one FIR in respect of an occurrence wherein a cognizable offence has been committed and any other version of the same incident advanced by any person during the investigation of the case is to be recorded under section 161, Cr.P.C. The following cases decided by different High Courts fall in this category of cases: Mansur Ali and 2 others v. The State (1970 P.Cr.L.J. 287) “Another thing to be pointed out here is that there cannot be two first information reports in a case. It appears that the learned Additional Sessions Judge has used both the reports as first information reports in this case and marked them as Exhs. 1 and 3. Section 154, Cr.P.C. contemplates only one first information report and only one such report can go into evidence in a case. Law never permits two first information reports to be admitted in evidence …” Kaura v. The State (NLR 1979 Criminal 3) “It is quite obvious from the above that the primary purpose of the F.I.R. is to inform about the commission of a cognizable Human Rights Case No. 10842-P of 2018 7 offence which a police officer is empowered to investigate under Section 156 Cr.P.C. … All other informations with regard to that occurrence coming out later in point of time have to be taken down as statements of those persons before the police under section 161 Cr.P.C. … The order to register a second F.I.R. in that situation, was not justified in law, even if there was a concession made on the part of the State.” Qazi Rehmat Ullah, General Secretary, Jamat-e-Islami, Rawalpindi v. Dr. Ghulam Hussain, Former Federal Minister for Railways and 13 others (1979 P.Cr.L.J. Note 36) Law does not require recording of as many reports as versions of same occurrence by different persons – Police Officer not to prefer one over another or to prefer one giving more complete picture – Priority to be considered in point of time and not in elaborateness of report or its being correct. Ghulam Siddique v. Station House Officer, Saddar, Dera Ghazi Khan and 8 others (PLD 1979 Lahore 263) “It is quite obvious that the primary purpose of the F.I.R. is to inform about the commission of a cognizable offence, which a Police Office is empowered to investigate under section 156, Cr.P.C. The Police Officer receiving that information may question the informant to find out his source of information about the names of the offenders and the witnesses and whether the informant himself was an eye-witness as laid down in rule 21.1(4). All other informations with regard to that occurrence coming out later in point of time have to be taken down as statements of those persons before the police under section 161, Cr.P.C. The version given by Ghulam Siddiq, therefore, should have been considered as a statement under section 161, Cr.P.C. only. The order to register a second F.I.R. in that situation, was not justified in law, even if there was a concession made on the part of the State.” Muhammad Aslam v. Station House Officer, Police Station Mamun Kanjan, Faisalabad (PLD 1980 Lahore 116) “It will be seen that distinction is to be drawn between a version being given for purpose of defence only and a version being given by way of a grievance. In the former category, the accused and the offences are ordinarily the same and information in amplification of that recorded earlier is being conveyed. In the latter category of cases separate offences are disclosed and even the persons complained against may be different. The distinction is material for whilst in the former case the registration of an F.I.R. is required by law, in the latter it need not be recorded as an F.I.R. but as observed in Ghulam Siddique's case may be recorded as a statement under section 161 of the Cr.P.C.” Mushtaq Ahmad v. The S.H.O., Police Station, Munawan (1984 P.Cr.L.J. 1454) “When a case has been registered in respect of an occurrence, no second case can be registered giving a counter-version thereof by the accused persons. Human Rights Case No. 10842-P of 2018 8 It is by now clearly established law that no direction can be issued for registration of a case when a F.I.R. has already been registered in respect of the occurrence for giving counter-version of the other side.” Wali Muhammad and 4 others v. The State and another (1985 P.Cr.L.J. 1342) “It is true that in respect of one and the same occurrence, only one F.I.R. should be recorded and that where the accused persons set up a counter version, the same should be investigated by the police on the case file of the same F.I.R. and not by recording any subsequent F.I.R. It is also true that where a counter version is set up by the accused, the police should find out the truth and submit the challan only in respect of the version found true by them and not submit both the versions to the Court for trial.” Hafiz Haji Muhammad v. The Superintendent of Police Dera Ghazi Khan and others (1986 P.Cr.L.J. 2167) “Since a criminal case stands already registered against the petitioner, he seems to overawe the police and others by getting a case registered against them so that proper investigation may not be carried out. He has an alternate remedy of filing a private complaint. He may pursue the same.” Ghulam Mustafa v. S.H.O. and others (KLR 1987 Cr.C. 134) “In these circumstances I am not inclined to exercise discretion in favour of the petitioner when according to his own showing a case stands already registered in respect of the afore-said vehicle at Police Station Sharqpur. If the petitioner has any claim to the vehicle in question he may approach the Investigating Officer who can take into consideration his version as well.” Muhammad Younas v. Senior Superintendent of Police, Faisalabad and others (1987 P.Cr.L.J. 1464) “It is contended that the complainant-party was guilty of aggression and had caused fire-arm and other injuries to Muhammad Younas and Khushnood and despite the fact that their medico-legal reports were produced before the Investigating Officer with the request of registering a counter-case he has refused to do so. It is further stated that the Investigating Officer has even refused to receive the medico-legal certificates or to record their statements. In the above circumstances, S.S.P. Faisalabad is directed to issue necessary orders to the S.H.O. Police Station Dijkot for carrying out the investigation faithfully and to record the statements of the aforementioned persons and the petitioner without any addition or omission and also to receive their medico-legal certificates. He is also directed to proceed strictly in accordance with law and place the correct version before the Court.” Rahmat Ullah v. Station House Officer and others (1987 P.Cr.L.J. 2197(2)) Human Rights Case No. 10842-P of 2018 9 “I do not feel inclined to direct S.H.O. to register the case for the reasons that the challan in case of murder against Munawar Ali and others, having been sent up the case is at trial stage and the prosecution evidence has partly been recorded; that the S.H.O. has stated that Rehmat Ullah was examined by the police and on his own showing he had not seen the occurrence; that Munawar Ali, the victim of murderous assault has neither approached the police for the registration of the counter-case nor has he moved any petition before this Court for direction to the S.H.O. to register the case and that adequate alternative remedy of complaint was/is available to the petitioner.” Sharifan Bibi v. M. Ilyas etc. (KLR 1987 Cr.C. 739) “In view of the circumstances aforementioned and particularly the fact that the challan in the case under section 302/34 P.P.C has already been submitted in Court and that an alternative remedy of filing a private complaint is available to the petitioner I am not inclined to issue the direction prayed for by her.” Muhammad Azim v. The S.H.O. Police Station Abbas Nagar and 4 others (1988 P.Cr.L.J. 41) “Conversely, in Kaura v. The State and others 1983 SCMR 436 it has been held that when a case has been registered in respect of previous occurrence, then the registration of a fresh case is not called for notwithstanding divergent version contained therein and the Police is not only competent but also duty bound to unearth true facts and trace real culprit. This principle enunciated in the said ruling was followed in Mushtaq Ahmad v. The S.H.O., Police Station, Munawan 1984 PCr.LJ 1454 and Wali Muhammad and 4 others v. The State and others 1985 PCr.LJ 1342. The facts of this case are peculiar. The petitioner and others have been challaned in the case registered by Muhammad Sadiq and prosecution evidence has been summoned on 27-9- 1987. The counter-version stated by Muhammad Azeem has already been investigated by the Police and in the circumstances a second F.I.R. shall not serve any useful purpose. The private complaint is efficacious remedy for Muhammad Azeem, if he so likes. I, therefore, decline to issue a direction for the registration of second F.I.R. regarding the counter version put forth by Muhammad Azeem and dismiss this writ petition.” Malik Muhammad Anwar Khan v. The State and 4 others (1988 P.Cr.L.J. 986) “In the circumstances discussed above, I do not feel persuaded to interfere in the matter at this stage but would direct the police to carry out the investigation faithfully, record statements of the petitioner and the injured persons and to receive their medico- legal certificates. They are further directed to proceed strictly in accordance with law and place correct version before the Court by bringing to book all those who are found to have participated in the occurrence. If the petitioner feels dissatisfied with the role of the police he may resort to an appropriate remedy in the Court of competent jurisdiction in accordance with law by filing a complaint which by no means is less efficacious remedy than the registration of case with the police.” Human Rights Case No. 10842-P of 2018 10 Ch. Zafaryab v. Mian Bashir Ahmad, S.H.O./Inspector Police Station Shalimar Lahore, etc. (NLR 1990 U.C. 38) “The learned counsel, however, submits that the version of the first informant is false and the counter version of the petitioner represents the true and correct factual position. This counter version has however, not been placed before the police as according to the SHO the petitioner did not join the investigation. … Let the petitioner appear and place his version before the Superintendent of Police who shall give it due consideration in accordance with law.” Yousif v. The State (NLR 1990 U.C. 149) “In these provisions, once the investigating machinery is set in motion after registration of FIR, there is no room for filing of second FIR but the investigation can continue without hindrance even if in the result of the investigation culprits are found to be different persons who are not mentioned in FIR.” “In the instant case therefore we hold that there was no need or justification for the Investigating Officer to file himself as a complainant of second FIR because even without doing so he was quite competent under the law to continue the investigation and arrest persons against whom there was material to connect them with the offence regardless of the fact whether they were named in FIR as accused persons or not.” Sadiq Masih v. S.H.O. and others (1994 P.Cr.L.J. 295) “It is now well-settled that when an F.I.R. stands already registered regarding an incident, no direction for registering second F.I.R. based on cross-version put forth by other side can be issued because it is not so provided in law, as has been held by a Division Bench of this Court in Mushtaq Ahmad's case 1984 PCr.LJ 1454.” Arif Khan v. Additional Sessions Judge, Kabirwala District Khanewal and 2 others (2006 P.Cr.L.J. 1937) “The only point in this case which requires determination is whether in presence of first F.I.R., second F.I.R. can be registered or not.” “Rule 24.1 of the Police Rules, 1934, deals with the recording of the first information relating to an offence, whether cognizable or non-cognizable. It is provided therein that every such information shall be recorded in writing, by the officer incharge of the police station. The Police Officer thus, is obliged to record in writing every information relating the commission of any offence. The only distinction made here is that the information disclosing commission of a cognizable offence is to be recorded in the First Information Report Register as well as station diary under Rule 24.1(2) while the information with regard to non-cognizable offence is to be recorded in the station diary only under Rule 24.3. The information given by respondent No.3 in the shape of cross-version disclosed a commission of non-cognizable offence, Human Rights Case No. 10842-P of 2018 11 as such it should have been considered as a statement under section 161, Cr.P.C. the order to register a second F.I.R. in that situation was not justified in law.” “…plea was to be investigated and recording of cross-version, if any, was the proper answer rather than registering a separate F.I.R.” “In view of the above circumstances, I am of the view that the learned Additional Sessions Judge was not justified in giving direction to respondent No. 2 to record F.I.R. as it was a case of cross-version which was ordered to be recorded.” Syed Wahid Bux Shah alias Chacho Shah and another v. The State (2011 MLD 64) “Admittedly first F.I.R. No. 21 of 2008 was registered by brother of deceased Ghulam Qadir and that F.I.R. was fully investigated and challan was submitted in the Court of law, which is pending adjudication. … In existence of first F.I.R. which was lodged by the brother of deceased Ghulam Qadir second F.I.R. by his cousin cannot be considered as true. In the above circumstances, the impugned order, dated 20-11-2009, passed by learned Civil Judge and Judicial Magistrate, Thull, is set aside. The proceedings arisen out of Crime No. 184 of 2009, of Police Station Thull are also hereby quashed.” 8. The second category of the precedent cases comprises of those cases decided by different High Courts wherein it has been held that after registration of an FIR a new version of the same incident depicting a different story and a different set of accused persons can be recorded through a separate FIR and the following cases fall in this category: Sawant v. S.H.O., Police Station Saddar, Kasur and another (PLD 1975 Lahore 733) “The basic question of law involved in this case is whether the police can refuse to register a case on the basis of the counter version given on behalf of the accused party on the ground that they consider that version to be false.” “In my view, the correct legal procedure for the police should have been to record the F.I.R. containing the counter version and to have investigated it. If they found that the evidence adduced by the petitioner did not sustain the charge they could have submitted a report to the Magistrate for cancellation of the case.” Akram Ali Shah v. Station House Officer, Police Station Kotwali, Kasur and 2 others (PLD 1979 Lahore 320) Human Rights Case No. 10842-P of 2018 12 “It cannot be laid down as a proposition of law that if one F.I.R. pertaining to a particular occurrence has been registered then another F.I.R. containing the counter-version of the same occurrence cannot or ought not to be registered.” “On the other hand, however, if the accused of a particular case have a counter version by way of a grievance, then unless a formal F.I.R. containing that grievance exists, the accused of the counter case could get away without any punishment therefore in a situation of the latter type the existence of a counter F.I.R. would appear to be equitable, as a private complaint is erroneously not given the due importance. This view is consistent with the practice established over centuries of submitting challan in cross-cases in a Court of law.” Mirza v. The S.H.O. (1982 P.Cr.L.J, 171) “The learned counsel for the petitioner contends that according to petitioner's version the members of the opposite party have committed cognizable offences, therefore, the respondent was under a statutory obligation to register the case. On the other hand, the learned counsel for the respondent S.H.O. vehemently argues that as the same occurrence has been reported through F.I.R. No. 185 dated 10th August, 1981 there is no question of recording another F.I.R. and the investigating agency can be directed to take down the petitioner's version during the investigation. … In the circumstances, I accept this petition and direct the respondent S.H.O. to receive a written complaint from the petitioner and act in accordance with section 154 Cr.P.C.” Abdul Ghani v. S.H.O., P.S. Saddar, Sheikhupura and others (1983 P.Cr.L.J. 2172) “It may well be that the occurrence reported about is the same but then there are two cross-versions of the occurrence and not two different versions of the same occurrence. The version on the basis of which the F.I.R. has already been registered is distinct .... whereas the version given by the petitioner is totally on a different premises ….” “In the context of the above position it appears that the respondent is under statutory obligation to register the case and proceed with the investigation in accordance with law.” Muhammad Ibrahim v. S.H.O. Police Station Mansehra and another (1983 Law Notes (Peshawar) 686) ““In the circumstances we are of the view that the SHO (respondent no.1) has failed in his duty by not registering and investigating the counter version of the case given in the report of the petitioner.” Halim Sarwar v. S.H.O., Police Station Headmarala and 2 others (PLJ 1984 Cr.C. (Lahore) 369) “Even if an FIR has been registered on the basis of one sided version, registration of a second FIR showing a different grievance Human Rights Case No. 10842-P of 2018 13 could not be refused by the Police Officer in proper performance of his legal duty under Section 154 Cr.P.C.” Fateh Sher v. S.H.O etc. (1984 Law Notes (Lahore) 1169) “No doubt, it was held in the aforementioned cases reported as PLD 1979 Lahore 320, PLD 1980 Lahore 116 and 1982 P.Cr.L.J. 171 that if the accused of a particular case have counter-version by way of a grievance and the counter-version discloses commission of cognizable offence, it is the duty of the Station House Officer to register a counter FIR and in case of his failure to do so, he can be commanded by this Court to perform his statutory obligation. However, there is no dearth of case-law on the point that so far as this Court is concerned, it is not necessary that in each and every case, where there is an omission to perform a statutory duty, a direction must issue. Facts and circumstances of each case have to be taken into account and it has also to be seen if filing of a private complaint, in the circumstances of the case, is not as adequate or efficacious a remedy as the registration of a case.” Karim Bibi v. Station House Officer, Police Station Rajana (Faisalabad) and others (1985 P.Cr.L.J. 213) [The investigating officer] “did not take down the counter-version nor made any investigation on that line despite the same having been brought to his notice in the form of various applications.” “… it is enough that the version of Mst. Karim Bibi was not taken down and in that respect the A.S.I. did not perform his statutory duty under section 154 of the Code of Criminal Procedure. His failure to do so was illegal. Consequently the petition is accepted and it is directed that let an F.I.R. be registered on the statement of Mst. Karim Bibi.” Ghulam Hussain v. Siraj-ul-Haq and others (1987 P.Cr.L.J. 1214) “As regards the last contention, the petitioner has made allegation in the report against police and army personnels. The incident is admitted and F.I.R. has also been registered. There is no bar of recording a second F.I.R. of the same incident giving counter- version of the incident.” Mst. Rehmi etc. v. S.H.O. Basirpur etc. (KLR 1987 Cr.C. 442) “From the above observations, it would be quite clear that informations can be laid one after the other, to be recorded as F.I.Rs. if these disclose separate cognizable offences, the second or later not being the mere amplification of the first but the disclosure of other criminal activities. Recording of a second F.I.R. or a direction to that effect therefore depends upon the circumstances of each case. Counter cases are often recorded and tried. No hard and fast rules or principles can be laid down as to when a second FIR can or should be recorded. The matter has to be seen in the context of the totality of the circumstances and the allegations. … But if a new case is made out or allegations of a cognizable case are levelled showing a genuine grievance, then Human Rights Case No. 10842-P of 2018 14 the aggrieved party is entitled to have his case registered and investigation made.” “Therefore, it cannot be said that the learned Single Judge fell in error in directing the registration of a case on the motion of the side who had lost a life simply because the other side who had suffered an injury on a finger had succeeded to get a FIR recorded earlier.” Manzoor Hussain (Chaeywala) v. Station House Officer, etc. (NLR 1989 Cr.L.J. 39) “… learned counsel appearing for the petitioner, has vehemently urged that the mere fact that an FIR has already been registered does not debar the petitioner to lodge the second FIR in respect of the same offence and that it is the statutory duty of the officials respondents to record the same. … There cannot be any cavil with proposition of law laid down in the above cited cases …” Abdul Rehman v. S.H.O. Police Station Karianwala, Tehsil and District Gujrat and another (1989 Law Notes (Lahore) 885) “The law enjoins upon the police to register the counter version and to proceed with the investigation in accordance with law. The respondent S.H.O. is directed to register a case on the basis of the counter version and to proceed with the investigation according to law.” Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119) “Reference to the case-law, therefore, indicates that there is no hard and fast rule that a second F.I.R. cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a police officer, which discloses a different offence, also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police. Therefore, direction to the police to record a second F.I.R. would depend upon the circumstances of each case. If true facts in respect of an occurrence are not reflected by the first F.I.R., then refusal to record a genuine version of the same occurrence would not be justified. The question has, therefore, to be examined in the light of the circumstances of a particular case.” Muhammad Ishaque v. S.P. Jaffarabad and another (PLJ 1998 Quetta 1) “The conclusion of the above discussion would be that the police was under bounded duty to have registered the counter-version of the petitioner through a separate F.I.R. Then, it was duty of the SSP to conduct impartial and honest investigation through an independent police officer of the second version as directed by Mr. Justice Javed Iqbal. I, therefore, agree with his conclusions.” Mst. Razia Sultana alias Gogi Butt v. Deputy Inspector- General of Police and others (1999 P.Cr.L.J. 694) Human Rights Case No. 10842-P of 2018 15 “I would express that the case-law is not bereft of the judicial decisions to the effect that in the presence of the registration of a criminal case the order for the registration of the 2nd F.I.R. about the same occurrence can be passed by the High Court … However, in the circumstances of this matter when case F.I.R. No. 442, dated 8-9-1998 registered at Police Station Nawan Kot under section 436, Pakistan Penal Code is under investigation wherein the version of the petitioner can be recorded thereof, there is no legal and factual necessity to pass the order in the matter. … I declare that there is no legal justification to pass the order for the registration of the 2nd First Information Report as required and desired by Mst. Razia Sultana alias Gogi Butt petitioner.” Ahmad Yar v. Station House Officer, Shah Kot, District Sahiwal and 8 others (2007 P.Cr.L.J. 1352) “As held by the Honourable Supreme Court of Pakistan in the case Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi and 12 others PLD 2005 SC 297 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119, also relied upon by the learned Single Judge in the impugned order, there is no embargo with regard to registration of second F.I.R. in respect of different version given by the aggrieved party of the same occurrence and the only impediment is that second F.I.R. should not contain the facts for the mere amplification of the first version.” Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others (PLD 2008 Lahore 103) “Similarly, it has been repeatedly held by superior Courts of the country that where a different, opposite or a cross version is put forth by the complainant which discloses commission of cognizable offence, second F.I.R. is not barred. In this regard, reference may be made to PLD 1978 Lahore 187 and Miss Ghanwa Bhuttoo and others vs. Government of Sindh and others, PLD 1997 Karachi 119.” Mst. Allah Rakhi v. D.P.O. Gujranwala and 5 others (2009 MLD 99) “Insofar as the registration of the second F.I.R. is concerned, by now, it has been settled that there is no bar against the registration of second F.I.R. regarding the same occurrence, rather, in the case of Mrs. Ghanwa Bhutto (supra), the order of registration of third of F.I.R. was passed by Hon'ble Karachi High Court, which was upheld by the Hon'ble Supreme Court in the case of Wajid Ali Durani and another (supra).” 9. The third category of the precedent cases is where different High Courts have clarified that a separate FIR is to be registered if the new version being advanced pertains to a different occurrence or discloses commission of a different cognizable offence. The following cases fall in this category of cases: Human Rights Case No. 10842-P of 2018 16 Muhammad Rafique v. Ahmad Yar and another (NLR 1982 Criminal 638) “In the present case, however, the earlier F.I.R. … relates altogether to a different incident and transaction …. The F.I.R. sought to be lodged … was not a counter version … and it therefore, cannot be said that Ahmad Yar as an accused in the earlier case was trying to give his own version in respect of the same incident or transaction.” “In the present case, the learned Single Judge has exercised his discretion [by ordering registration of second F.I.R.] which he undoubtedly possessed and nothing has been shown … to warrant interference in the Intra Court Appeal.” Allah Ditta and 3 others v. The S.H.O., P.S. Basirpur, District Okara and 3 others (PLD 1987 Lahore 300) “From the above observations, it would be quite clear that informations can be laid one after the other, to be recorded as F.I.Rs. if these disclose separate cognisable offences, the second or later not being the mere amplification of the first but the disclosure of other criminal activities. Recording of a second F.I.R. or a direction to that effect, therefore, depends upon the circumstances of each case. Counter cases are often recorded and tried. No hard and fast rules or principles can be laid down as to when a second FIR can or should be recorded. The matter has to be seen in the context of the totality of the circumstances and the allegations. … But if a new case is made out or allegations of a cognizable case are levelled showing a genuine grievance, then the aggrieved party is entitled to have his case registered and investigation made.” Pervez Akhtar v. The State (1989 P.Cr.L.J. 2199) “In this view of the matter, being bound by the principle laid down by this Court in Akram Shah's case PLD 1979 Lah. 320, Muhammad Aslam's case PLD 1979 Lah. 907, Malik Muhammad Aslam's case PLD 1981 Lah.138, Mirza's case 1982 PCr.LJ 171 and Abdul Ghani's case 1983 PCr.LJ 2172, 1 do not see any illegality in the registration of the second F.I.R. at the instance of Fazal Din. Since the two versions contained in the two F.I.Rs. are different versions of two different occurrences and not two versions of the same occurrence and recoveries have to be made from the five accused, I would not like to interfere in this matter.” Firdous Barkat Ali v. The State (1990 P.Cr.L.J. 967) “The second First Information Report which was filed on the basis of the written complaint included certain fresh instances concerning the involvement of the present applicant. The second First Information Report in the circumstances could competently be lodged. In any event the argument that the second First Information Report is merely a statement of a witness under section 161, Criminal Procedure Code can always be raised before the trial Court and it is up to the trial Court to thrash out the facts and determine whether the second First Information Report Human Rights Case No. 10842-P of 2018 17 would amount to a statement under section 161, Criminal Procedure Code or a new complaint giving information of newly- detected instances of misappropriation.” Muhammad Latif v. S.H.O., Police Station Saddar, Dunyapur and 14 others (1993 P.Cr.L.J. 1992) “It is now a settled proposition of law that informations can be laid one after the other, to be recorded as F.I.Rs. if these disclose separate cognizable offences, the second or later not being the mere amplification of the first but the disclosure of other criminal activities. Although recording of a second F.I.R. or a direction to that effect depends upon the circumstances of each case but counter-cases are often recorded and tried. No hard and fast rules or principles can be laid as to when a second F.I.R. can or should be recorded. The matter has to be seen in the context of the totality of the circumstances and the allegations. After the registration of the first F.I.R. if a new case is made out or allegations of a cognizable case are levelled showing a genuine grievance, then the aggrieved party is entitled to have his case registered and investigated.” Hamayun Khan v. Muhammad Ayub Khan and 4 others (1999 P.Cr.L.J. 1706) “It was, therefore, obligatory upon the police to register a separate report there being no bar of the first F.I.R. as a new case was made out by the respondent disclosing allegations of separate cognizable offences, as recording of a second F.I.R. shall depend upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and the allegations made in second F.I.R. Reliance is placed on the case of Muhammad Latif v. S.H.O. and others 1993 PCr.LJ 1992.” Muhammad Anwar, Sub-Inspector, Railway Police Lahore v. Station House Officer, Railway Police, Kasur and 2 others (PLD 1999 Lahore 50) “There is no cavil with the proposition that when two or more versions with regard to one incident or offence are given after recording of the F.I.R., second F.I.R. cannot be recorded on the basis of every subsequent version but if in a case it is found that a counter version is given by a party which discloses a distinct and separate offence, another F.I.R. will have to be registered and shall be investigated upon.” Rana Ghulam Mustafa v. Station House Officer, Police Station Civil Line, Lahore and 2 others (PLD 2008 Lahore 110) “From reading the language of section 154, Cr.P.C. it is clear that information can be laid before the S.H.O. about an occurrence at any time even if already an F.I.R. stands registered about the same occurrence. In such circumstance, there is no bar laying information one after the other, to be recorded as F.I.R. if such an information discloses commission of a separate cognizable offence. The second or later information should not be merely an amplification for the first F.I.R. but is should be a disclosure of a different criminal activity. Recording of a second F.I.R. or a Human Rights Case No. 10842-P of 2018 18 direction to that effect, therefore, depends upon the facts and circumstances of each case. No. hard and fast rules or principles can be laid down as to when a second F.I.R. can or should be recorded. The matter has to be seen in the context of the totality of the circumstances and the allegations.” Independent Media Corporation (Pvt.) Ltd. through Attorney and another v. Prosecutor General, Quetta and 7 others (PLD 2015 Balochistan 54) “The moot question for consideration arises as to whether investigation and further proceedings on the basis of all the FIRs is permissible? Though a straitjacket formula cannot be laid down, yet the only test whether 75 FIRs can be permitted to exist. In such case, the Court has to examine the facts and circumstances giving rise to all the FIRs and the test of sameness is to be applied to find out whether all the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents, which are two or more parts of the same transaction. If the answer is in the affirmative, the second or the remaining FIRs are liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible.” Pervaiz Rasheed and others v. Ex-officio Justice of Peace and others (2016 YLR 1441) “It is well settled proposition of law that second FIR can be registered if a distinct and separate cognizable offence is disclosed or if any aggrieved person got reservation about the first FIR grousing that contents of the FIR already registered does not disclose the true picture of the occurrence. However, second FIR cannot be registered if it is just an amplification or elaboration of earlier.” Imtiaz Ali v. Province of Sindh through Home Secretary and 8 others (2017 MLD 132) “It is well settled that lodgment of second FIR against the same offence is neither prohibited nor restricted by the law, nevertheless the controverting set of allegations narrated in second FIR must emanate a quite separate and distinct offence, and same should be examined prudently in the purview of facts stated regarding the incident in earlier FIR as well as documentary evidence collected and statements of PWs recorded under section 161, Cr.P.C. by earlier Investigating Officer, to curb and defeat the fabrication of events with mala fide intention and false involvement of any innocent person.” 10. The Privy Council and this Court have also dealt with the issue at hand in the following cases: Emperor v. Khwaja Nazir Ahmad (AIR (32) 1945 Privy Council 18) Human Rights Case No. 10842-P of 2018 19 “The argument as their Lordships understood was that the only information report under Ss. 154 to 156, Criminal P.C., was that recorded on 31st August 1941, that the allegations recorded at a later stage of 5th September were not an information report, but a statement taken in the course of an investigation under Ss. 161 and 162 of the Code, that there was therefore no reported cognisable offence into which the police were entitled to enquire, but only a non-cognisable offence which required a Magistrate’s order if an investigation was to be authorized. Their Lordships cannot accede to this argument. They would point out that the respondent in his case treats each document as a separate information report and indeed, on the argument presented on his behalf, rightly so, since each discloses a separate offence, the second not being a mere amplification of the first, but the disclosure of further criminal activities.” Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) “Jamshed Ahmad petitioner has felt aggrieved by the order of a learned Single Judge of the Lahore High Court, dated 8-7-1974, whereby his petition under Clause 22 of the Letters Patent read with section 154 of the Cr.P.C. praying for the issuance of a direction to respondent No. 1 who is S.H.O., Police Station, City Khanpur, Rahimyar Khan, for the registration of a case under section 467/468/420/471/109/114/116, P.P.C. read with section 81/82 of the Registration Act and conduct of preliminary investigation by some higher police officer was dismissed in limine on the ground that in respect of the same transaction a case had already been registered with the petitioner as one of the accused therein. 2. In support of the petition for leave, learned counsel contended that respondent No. 1 was under an obligation to register the case at the instance of the petitioner reflecting his own version of the incident notwithstanding the fact that in respect of the same transaction a case had already been registered. In support of this, learned counsel has relied on the plain language of the statutory provision contained in section 154, Cr.P.C. 3. We are not impressed by the argument. A perusal of the record shows that on receipt of the petition, the learned Judge had called for a report from respondent No. 1 who gave three reasons for the non-registration of the case at the instance of the petitioner: Firstly, that no case could be registered against the Tehsildar/Sub-Registrar, whom the petitioner wanted to rope in as one of the accused-persons, without the previous approval of the Provincial Anti-Corruption, Council/Divisional Anti- Corruption Committee. Secondly, that according to his information the report sought to be recorded was false, and Thirdly, that a case of forgery and cheating etc. was already under investigation in respect of the same transaction, the petitioner having been named as one of the accused therein. 4. The petition could be thrown out on the short ground that the High Court was under no obligation to grant the relief prayed for by the petitioner. It was a matter resting entirely in its discretion and there is nothing to indicate that it was improperly exercised. Even otherwise, by no means does the impugned order shut the door on the petitioner who is at liberty to initiate Human Rights Case No. 10842-P of 2018 20 criminal proceedings by lodging a complaint. The position is too well known to be reiterated that the Supreme Court does not sit as a Court of appeal and interferes only in cases of grave injustice, the present case being certainly not one of those. The petition is, therefore, dismissed.” Kaura v. The State and others (1983 SCMR 436) “It appears to us that once the case was registered vide FIR 23 … the registration of a fresh report notwithstanding the divergent version contained therein was not called for inasmuch as the ball had already been set rolling and the police was not only competent but also duty bound to unearth the true facts and trace the real culprits.” Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556) “These two petitions for leave to appeal are directed against the judgment dated 7-11-1996 passed by the High Court of Sindh at Karachi whereby the learned Judges gave direction to the S.H.O., Clifton Police, Karachi, to register another F.I.R. sought to be lodged by Mst. Ghanwa Bhutto and Mst. Badrunnisa in respect of the incident in which their husbands, namely, Mir Murtaza Bhutto and Ashiq Jatoi lost their lives.” “3. As however, widows of the deceased were not satisfied and felt that the two previously registered F.I.Rs did not reflect the true facts, they filed Constitutional Petition in the High Court of Sindh, seeking direction to the Clifton Police Station to record another F.I.R. disclosing the true facts of the incident. During the hearing of the Constitutional Petition, the petitioners wanted to be impleaded as respondents to the petition, but the High Court declined such request. The Constitutional Petition was resisted on behalf of the State on the grounds that the two earlier F.I.Rs. in respect of the same incident having been already registered at the same police station, the lodging of third F.I.R. by the widows of the deceased was not warranted in law and that if the petitioners were not satisfied, they had an alternate remedy of filing a direct complaint in the Court.” “In the result, the learned High Court allowed the Constitutional Petition and gave direction to the Clifton Police Station to register a third F.I.R. at the behest of the widows of the deceased. Hence, these petitions.” “6. We see no force in the contentions raised by the learned counsel. Perusal of the impugned judgment passed by the learned High Court would show that the first contention of the learned counsel was precisely raised before the learned High Court, who dealt with it elaborately and repelled it for the reasons shown in the judgment, to which no exception can be legitimately taken and the learned High Court in the circumstances of the case, was within its jurisdiction in giving the direction to the police for registering another F.I.R. at the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third F.I.R., regular challan has been submitted in the Court in which the petitioners have been named as accused persons and the trial is yet to take place.” Human Rights Case No. 10842-P of 2018 21 “Similarly, the contention that the learned High Court has not followed the view expressed by this Court in 1983 SCMR 436 is misconceived, as perusal of the impugned judgment would also show that in the circumstances pointed out in the judgment the learned High Court had correctly appreciated the views expressed in several cases by the superior Courts including the case referred to by the counsel in giving the direction for registering another F.I.R.” Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) “7. Admittedly, petitioner from the day of incident has been agitating that the murder of her husband was managed by his real brothers, namely, Abdul Khaliq, Abdul Malik and Latif in league with respondents Siddiq, Saifur Rehman, Muhammad Raza-ul-Haq, Akbar Ali and S.I. Malik Nazir. In such circumstances, the veracity and truthfulness of F.I.R. lodged by respondent Muhammad Yousuf, the Manager of the Company, became highly doubtful and the petitioner was right in asking for registration of another F.I.R. at her own version. It is on record that she had been moving applications and making representations to the high-ups in the police but because of influence of private respondents, all in vain, therefore, she rightly invoked the Constitutional jurisdiction of the learned High Court and urged for registration of the case at her own version which apparently was not disposed of in legal manner. No doubt, exercise of the jurisdiction under Article 199 of the Constitution is discretionary with the High Court but according to the principles laid down by the Superior Courts, the discretionary powers must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances. Examining the case of petitioner in the light of above principles, we are of the considered opinion that the High Court has not only exercised its jurisdiction improperly but also disposed of petition without adverting to the grievance of the petitioner only on technical grounds. This Court in the case of Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 maintained the order of High Court whereby registration of third F.I.R. was allowed on the ground that the two F.I.Rs earlier registered by police do not reflect the true facts of the case. It has also been held in this case that if information given to a police officer, which discloses a different offence was also cognizable by the police, then unless it is a mere amplification of the first version, must be recorded by the police. In the case of Muhammad Ishaque referred (supra), the petitioner therein approached the learned High Court for registration of second F.I.R. as the police has refused to register his version with regard to a cognizable offence under section 154, Cr.P.C. By majority view, it was held that it was the duty of the police to register counter version of the petitioner through a separate F.I.R. and also directed for impartial and honest investigation by the police.” “10. For the foregoing reasons, we are of the considered opinion that in the instant case petitioner has been able to make out a case for registration of second F.I.R.” Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC 484) Human Rights Case No. 10842-P of 2018 22 “3. Regarding this incident, an FIR was earlier lodged with misleading and incorrect statement of facts, therefore, she filed an application under Section 22-A Cr.P.C. before the Justice of Peace/Sessions Judge Pishin with the following assertions: ---” “5. We have heard arguments of the learned ASC for the appellants. He contended that indeed there is no specific prohibition under the provisions of Cr.P.C. which precludes registration of another FIR with respect to the same incident; nevertheless, depending upon the facts and circumstances of each case, such practice has been deprecated particularly when the proceedings in a criminal case arising out of earlier FIR have reached at an advanced stage; however, this important legal aspect has not been duly taken into consideration by the High Court in its impugned judgment. He, however, could not refer to any case law in support of his argument that registration of another FIR is unwarranted by any specific provision of law. 6. The learned Additional Advocate General Balochistan in his submissions did not oppose findings of the High Court of Balochistan in the impugned judgment. He referred to before us the judgments in the cases of Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556) and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297), which lay down a general principle in this regard as under: “no definite rule could be laid down barring the registration of another F.I.R. when a different version of the same occurrence is given by an aggrieved party. Moreover, any direction to the police to record another F.I.R. would depend on the facts and circumstances of each case, however, refusal to record/register a genuine version of the same occurrence is unwarranted in law.” 7. In another earlier case Kaura v. The State and others (1983 SCMR 436) while dismissing the CPLA, the Court had suggested the aggrieved party to move the High Court for review of its order regarding registration of another FIR with the observation that the police was not only competent but also duty bound to unearth the true facts and trace the real culprits while conducting investigation of the crime. This judgment was taken into notice in the case of Mst. Anwar Begum (supra) but not commented upon, while in the other case of Wajid Ali Khan Durani (supra) similar contention of the learned counsel was repelled as being misconceived. It was further held that in the circumstances discussed, the learned High Court correctly appreciated the view expressed in several other cases of the superior Courts for giving direction to register another FIR. 8. We have considered submissions of the learned ASC for the appellants on short controversy involved in the matter relating to registration of another FIR. In the instant case, perusal of contents of the earlier FIR lodged at the instance of Ali Muhammad Defedar Levies on 09.06.2010 and the contents of other FIR lodged by Respondent No.1 on 27.08.2015, in terms of the impugned judgment, reveals two entirely different and conflicting stories about the actual occurrence. It is, thus, obvious that in case prosecution leads its evidence on the basis of contents of earlier FIR and the investigation made on that basis, then from no stretch of imagination the grievance of Respondent No.1, attributing criminal liability of whole occurrence to the complainant and his party ("the appellants" herein), could be Human Rights Case No. 10842-P of 2018 23 considered or adjudicated upon by the Court. In such circumstances, considering the allegations of Respondent No.1 about mala fide of the complainant in the earlier FIR so as to exonerate himself from the liability of Qatl-i-amd of her son, followed by distorted and collusive investigation, the impugned judgment of the High Court directing registration of another FIR seems fully justified and in accordance with law, wherein no specific bar or prohibition is provided in this regard. The two cases referred to by the learned Additional Advocate General Balochistan in support of the impugned judgment also fully support this view. 9. The whole gambit of controversy in hand revolves around the import and application of Section 154 of Cr.P.C. hence for ready reference it will be useful to reproduce the same as under: “154. Information in cognizable cases.-Every information relating to the commission of a cognizable offence if given orally to an officer-in- charge of a police station, shall be reduced in writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.” 10. As could be seen from the plain reading of above reproduced provision of law, the requirement of Section 154 Cr.P.C. is to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf. Meaning thereby, that it is not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye-witnesses etc. But it is a matter of common experience that usually the entries made in Section 154 Cr.P.C. book, as per practice, contain invariably all such details so much so that in the ordinary parlance/sense it is considered as the gist of the prosecution case against the accused. In such state of affairs, if a collusive, mala fide or concocted FIR, registered at the instance of some individual with some ulterior motive, is taken as sacrosanct, it is likely to divert the whole course of investigation in a wrong direction and spoil the entire prosecution case on that premise. The Court while considering the crucial point of registration of another FIR cannot remain oblivious of these ground realities so as to non-suit the aggrieved party from agitating his grievance in an honest manner, or ensure regulating proper investigation of a crime in the right direction, or apprehend the real culprits and brought them before the Court of law for justice. 11. Though our criminal legal system proceeds on the presumption of honest, God fearing and fair police officers, impartial and honest investigation system, but this is far from reality in the society we live in. In such circumstances when the Courts feel that due to mala fide, dishonest, colourful and motivated acts or omissions, entire investigation of the crime has been misled or it is going to be misled and on that account the Human Rights Case No. 10842-P of 2018 24 case of the prosecution is likely to fail, then they are not denuded of their powers to order recording of another FIR disclosing a different version to check such nefarious design meant to save the real culprits vis-a-vis misleading the investigation/prosecution, at any appropriate stage of the proceedings. However, where need be, such powers are to be exercised with extreme care and caution and not in a routine manner so as to merely fulfill the wish of an individual who, as per his whims, is not satisfied either with the contents of earlier FIR or the direction of investigation based thereon or wants registration of another FIR with some ulterior motive. It is more so important in the circumstances when the procedure of direct complaint under Section 200, Cr.P.C. is also provided to meet such eventualities. However, it may be clarified here that there may be circumstances where registration of another FIR will be the only proper course as adopting the alternate course provided in Section 200, Cr.P.C. may not be equally efficacious and effective for the aggrieved person. The case law on the subject, which has been referred to above, lend support to the view that provisions of Section 154, Cr.P.C. are to be read in a pragmatic, holistic and realistic manner in order to ensure that its true spirit and object is achieved and it is not abused at the hands of individuals or police, who may be adamant to make mockery of this system. It is for these reasons that no definite principle can be laid down barring the registration of another FIR. 12. It is unfortunate to note that in the instant case due to one-sided version disclosed in earlier FIR No.17/2010, the investigating agency never bothered to look into the crime from another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR. The short and long of the above discussion is that the impugned judgment of the Balochistan High Court warrants no interference.” 11. The confusion gripping the issue, we observe so with great respect and deference, is because of the fact that in none of the precedent cases detailed above the actual scheme of the Code of Criminal Procedure, 1898 and the Police Rules, 1934 regarding registration of a criminal case through an FIR and its investigation by the police had been examined in any detail and we venture to undertake such examination in the following paragraphs. 12. Section 154, Cr.P.C. is the legal provision under which an FIR is registered in respect of commission of a cognizable offence and the relevant part of that provision reads as follows: “154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a police station, shall be reduced to writing Human Rights Case No. 10842-P of 2018 25 by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. ---” It is straightaway to be noticed that the heading of this section speaks of “cognizable cases” meaning thereby that after entering the first information relating to commission of a cognizable offence in the prescribed book, i.e. after registration of an FIR the matter becomes a “case”. We have found the learned Attorney-General to be entirely justified in maintaining that an FIR is essentially an “incident report” which informs the police for the first time about an occurrence in which some cognizable offence has been committed and after registration of the FIR the occurrence is treated as a “case” and thereafter every step taken in the ensuing investigation under sections 156, 157 and 159, Cr.P.C. is a step taken in that case. The steps to be taken during the investigation of the case include gathering of information about the circumstances of the case and such information may or may not be in accord with the facts narrated in the FIR. Section 160, Cr.P.C. quite clearly indicates that and the same reads as under: “160. Police officer’s power to require attendance of witnesses.-- Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.” This section clearly dispels the impression that the investigating officer is to be guided or controlled by the contents of the FIR or that the investigation to be conducted by him is driven by any duty to establish that the story of the incident contained in the FIR is correct. In fact, to the contrary, after registration of the FIR the investigating officer is to embark upon an exercise to discover the actuality of the matter irrespective of the version of the incident narrated by the first informant through the FIR and in the process he is expected to collect information from any number of persons Human Rights Case No. 10842-P of 2018 26 who appear to him “to be acquainted with the circumstances of the case”. Every new information received by him during the investigation of the case or every new circumstance in which the relevant offence was committed coming to his notice during the investigation of the case is not to require registration of a separate FIR because such further information or knowledge is a part of investigation of the same case which had taken birth at the time of registration of the FIR. Section 161, Cr.P.C. also deals with examination of any person supposed to be acquainted with the facts and circumstances of the case. The said section reads as follows: “161. Examination of witnesses by police. (1) Any police officer making an investigation under this Chapter or any police officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination, under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records.” The “case” already stands registered through an FIR and thereafter any person can supply any information about the facts and circumstances of the case to the investigating officer. There is no bar in the matter against an information which may disclose circumstances and culprits different from those mentioned in the FIR. According to section 173(1)(b), Cr.P.C. the action taken under section 173(1), Cr.P.C. by the officer-in-charge of the police station is to be communicated through the public prosecutor “to the person, if any, by whom the information relating to the commission of the offence was first given”. This by itself is a recognition of a possibility that any other information about commission of the relevant offence (including information about different circumstances and different culprits) may also be provided to the Human Rights Case No. 10842-P of 2018 27 investigating officer by any other person as well during the course of investigation of the case commenced upon registration of the first information received, i.e. the FIR and no fresh FIR needs to be registered on the basis of a new information provided by a different person. 13. The same distinction between a “case” and an “information” about commission of an offence also appears to be writ large in the relevant Police Rules, 1934 as well. Rule 24.1 of the said Rules in Chapter XXIV dealing with ‘Information to the Police’ speaks of “information relating to an offence” received under section 154, Cr.P.C. and Rule 24.5 makes that distinction absolutely clear. Rule 24.5 of the said Rules provides as follows: “24.5. First Information Report Register.-- (1) The First Information Report Register shall be a printed book in Form 24.5 (1) consisting of 200 pages and shall be completely filled before a new one is commenced. Cases shall bear an annual serial number in each police station for each calendar year. -------” It is clear from Rule 24.5 reproduced above that commission of a cognizable offence, when reported to the police through the first information and registered in the FIR register, is treated as a “case” bearing an annual serial number and such “case” carries the same number for ever irrespective of any number of different versions received by the police regarding commission of the said offence or any number of different circumstances or sets of culprits brought to the notice of the investigating officer during the investigation of the “case”. At this stage an analogy may be apt vis-à-vis registration of motor vehicles. After rolling out of a motor vehicle from the assembly line and before it is brought on the road such motor vehicle is required by the law to be registered with the relevant authority and upon such registration the relevant motor vehicle is allocated a registration number. After its registration and allocation of a registration number such motor vehicle is to carry the same registration number throughout its life and utility even when its ownership changes hands, its user is transferred to different persons, its colour is changed or its shape is modified at Human Rights Case No. 10842-P of 2018 28 any subsequent stage. Similarly, the FIR number allocated to a criminal case is the number of that case in the police record and till culmination of the case the said criminal case is to carry the same number and is to be identified by that number alone. This by itself is a sure indication of the scheme of the law that in respect of an incident involving commission of a cognizable offence there is to be only one FIR and every step taken during the investigation of the case is to be with reference to that FIR. Rules 24.12 to 24.18 deal with Special Reports submitted and received by different officers during the investigation of a case and Rule 24.17 reads as follows: “24.17. Continuation and final reports.-- (1) Each successive special report in the same case shall bear the same number as the first report and shall be distinguished by the addition of a capital Roman letter in the order of the alphabet. Illustration-- The first special report of the murder of X is No. 20. The next special report shall be numbered 20-A, the next 20- B and so on. -------” This Rule again makes it evident that the case and its number in the police record remains the same whatever development may take place during the investigation of the case and that is also true of any new version advanced or any new set of culprits introduced during the progress of the investigation. 14. Chapter XXV of the Police Rules, 1934 deals with ‘Investigation’ and Rule 25.1 falling in that Chapter provides as follows: “25.1. Powers to investigate.-- (1) An officer-in-charge of a police station is empowered by Section 156, Criminal Procedure Code to investigate any cognizable offence which occurs within the limits of his jurisdiction. (2) He is also empowered under Section 157(1), Criminal Procedure Code, to depute a subordinate to proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offenders. -------” This Rule shows that the power to investigate is relatable to the offence and is not confined to the circumstances reported to the Human Rights Case No. 10842-P of 2018 29 police through the first information reduced to writing as an FIR. The first information only sets the ball rolling and according to this Rule the investigation to follow is about “the facts and circumstances of the case”, not just those reported by the first informant but including any other information received through any other informant or source. This aspect of the matter comes out very clearly through Rule 25.2(3) which reads as under: “(3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.” This Rule should suffice to dispel any impression that investigation of a case is to be restricted to the version of the incident narrated in the FIR or the allegations leveled therein. It is quite evident from this Rule that once an FIR is registered then the investigating officer embarking upon investigation may not restrict himself to the story narrated or the allegations leveled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under section 173, Cr.P.C. is to be based upon his final opinion and such opinion is not to be guided by what the first informant had stated or alleged in the FIR. It is not unheard of that sometimes in the final report submitted under section 173, Cr.P.C. the first informant is put up before the court as the actual culprit. 15. The confusion prevailing in the matter of registration of multiple FIRs in respect of the same offence stems from a misunderstanding that an FIR is the version of the incident reported to the police whereas the legal position is that an FIR to be registered under section 154, Cr.P.C. is only an information about commission of a cognizable offence and not an information about the circumstances in which such offence was committed or by whom it was committed. If the information supplied to the Human Rights Case No. 10842-P of 2018 30 police not only reports commission of a cognizable offence but also contains a story as to how and by whom the offence was committed then such further information is just a version of the informant and during the investigation the investigating officer is free to entertain any number of versions advanced by any number of persons and it is his duty “to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person” as mandated by Rule 25.2(3) of the Police Rules, 1934 reproduced above. All subsequent or divergent versions of the same occurrence or the persons involved therein are to be received, recorded and investigated by the investigating officer in the same “case” which is based upon the one and only FIR registered in respect of the relevant “offence” in the prescribed book kept at the local police station. 16. Now we turn to the judgments rendered by this Court so far on the issue of registration of multiple FIRs in respect of commission of the same cognizable offence depicting different versions of the same incident. In the case of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) this Court had found the High Court to be justified in refusing to order registration of a second FIR because an FIR already stood registered in respect of “the same transaction” and the case was already under investigation. 17. In the case of Kaura v. The State and others (1983 SCMR 436) this Court had categorically held that a case had already been registered through an FIR and, therefore, registration of another FIR “was not called for” merely because the subsequent information supplied to the police contained a divergent version of the same incident. It was observed by this Court that “the ball had already been set rolling and the police was not only competent but also duty bound to unearth the true facts and trace the real culprits.” Human Rights Case No. 10842-P of 2018 31 18. The subsequent case of Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), however, struck a different note and, therefore, the same requires a close scrutiny. It was alleged in that case that the two FIRs already registered with the local police in respect of the same incident “did not reflect the true facts” and, therefore, another FIR ought to be registered “disclosing the true facts of the incident” and in that backdrop the High Court had ordered the local police to register a third FIR in respect of the selfsame incident. When the said order of the High Court was assailed before this Court it was upheld and maintained simply by observing that “the learned High Court in the circumstances of the case, was within its jurisdiction in giving the direction to the police for registering another F.I.R. at the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third F.I.R., regular challan has been submitted in the Court in which the petitioners have been named as accused persons and the trial is yet to take place.” This Court had gone on to observe that “Similarly, the contention that the learned High Court has not followed the view expressed by this Court in 1983 SCMR 436 is misconceived, as perusal of the impugned judgment would also show that in the circumstances pointed out in the judgment the learned High Court had correctly appreciated the views expressed in several cases by the superior Courts including the case referred to by the counsel in giving the direction for registering another F.I.R.” A careful examination of the said judgment handed down by this Court shows three things: firstly, it was presumed without referring to any legal provision or basis that the High Court had the jurisdiction to order registration of a third FIR in respect of the same incident; secondly, the third FIR had already been registered on the basis of the impugned order passed by the High Court and upon completion of the investigation on the basis of the third FIR a Challan had already been submitted before the trial court for holding a regular trial of the accused persons implicated through the third FIR; and, thirdly, the judgment passed by this Court earlier on in the case of Kaura v. The State and others (1983 SCMR 436) had not been correctly Human Rights Case No. 10842-P of 2018 32 appreciated. We understand, and it is submitted with great respect, that in that case this Court did not feel persuaded to interfere in the matter primarily because the case had already reached the trial court after completion of the investigation stage and it was presumably on account of that development that this Court had paid little attention to the legal issues involved in registration of multiple FIRs in respect of the same incident. It, thus, appears to us that the said judgment had proceeded on the basis of its own peculiar facts and, therefore, the same could not readily be treated as the law declared. 19. The case of Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) was a case in which the High Court had refused to order registration of a second FIR regarding an incident in respect of which an FIR already stood registered with the local police but this Court issued such an order. In this case a second FIR containing a different version was ordered by this Court to be registered because it was found that “the veracity and truthfulness of F.I.R. lodged by respondent Muhammad Yousuf, the Manager of the Company, became highly doubtful and the petitioner was right in asking for registration of another F.I.R. at her own version”. The investigation of the case was still in progress when this Court had observed in that case that the veracity and truthfulness of the FIR originally registered was “highly doubtful” which observation, it is submitted with deep reverence, was not only presumptuous but also premature. Apart from that while issuing an order regarding registration of a second FIR this Court had referred to the judgment of this Court passed in the case of Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), it had made no mention of the judgments rendered by this Court in the cases of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) and Kaura v. The State and others (1983 SCMR 436) and it had placed reliance upon the case of Muhammad Ishaque v. S.P. Jaffarabad and another (PLJ 1998 Quetta 1) decided by a High Court. Unfortunately no provision of the Code of Human Rights Case No. 10842-P of 2018 33 Criminal Procedure, 1898 or of the Police Rules, 1934 was discussed in that judgment and as a matter of fact no discussion of the relevant law had taken place in the said judgment of this Court at all. 20. The last of the precedent cases from this Court is the case of Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC 484) wherein the High Court had ordered registration of a second FIR containing a different version of the same incident and this Court had upheld that order of the High Court. In that judgment this Court had observed in the very beginning that “Regarding this incident, an FIR was earlier lodged with misleading and incorrect statement of facts, therefore, she filed an application under Section 22-A Cr.P.C. before the Justice of Peace/Sessions Judge Pishin with the following assertions: ---”. With utmost respect, this Court could have been more circumspect before making an observation about misleading or incorrect nature of the facts asserted in the original FIR especially when the stage of the case was premature and the investigation of the case was still in progress. This Court had then gone on to notice the case of Kaura v. The State and others (1983 SCMR 436) but unfortunately the ratio decidendi of that case was not even adverted to. It appears that the main consideration persuading this Court in favour of registration of a second FIR about the same incident was what was observed in the following paragraph of the judgment: “8. We have considered submissions of the learned ASC for the appellants on short controversy involved in the matter relating to registration of another FIR. In the instant case, perusal of contents of the earlier FIR lodged at the instance of Ali Muhammad Defedar Levies on 09.06.2010 and the contents of other FIR lodged by Respondent No.1 on 27.08.2015, in terms of the impugned judgment, reveals two entirely different and conflicting stories about the actual occurrence. It is, thus, obvious that in case prosecution leads its evidence on the basis of contents of earlier FIR and the investigation made on that basis, then from no stretch of imagination the grievance of Respondent No.1, attributing criminal liability of whole occurrence to the complainant and his party ("the appellants" herein), could be considered or adjudicated upon by the Court.---” Human Rights Case No. 10842-P of 2018 34 It appears that the Court was not properly assisted on that occasion and it was erroneously made to understand that the police are to investigate the case only on the lines asserted in an FIR and then it is to lead evidence before the trial court only in terms of the accusations made in the FIR. As already noticed in the preceding paragraphs of the present judgment, the scheme of the law is totally the opposite of it and according to the same after commencement of an investigation on the basis of an FIR the investigation officer is to collect every possible information about the facts and circumstances of the case, he is to receive or record any information in that regard becoming available from any source whatsoever, he is not to prematurely commit himself to any particular version of the incident and after finding out the actual facts the final report under section 173, Cr.P.C. is to be submitted not in terms of the allegations leveled in the FIR but in accordance with the actual facts discovered during the investigation. 21. In the same judgment this Court had further observed as follows: “10. As could be seen from the plain reading of above reproduced provision of law, the requirement of Section 154 Cr.P.C. is to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf. Meaning thereby, that it is not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye-witnesses etc. But it is a matter of common experience that usually the entries made in Section 154 Cr.P.C. book, as per practice, contain invariably all such details so much so that in the ordinary parlance/sense it is considered as the gist of the prosecution case against the accused. In such state of affairs, if a collusive, mala fide or concocted FIR, registered at the instance of some individual with some ulterior motive, is taken as sacrosanct, it is likely to divert the whole course of investigation in a wrong direction and spoil the entire prosecution case on that premise. The Court while considering the crucial point of registration of another FIR cannot remain oblivious of these ground realities so as to non-suit the aggrieved party from agitating his grievance in an honest manner, or ensure regulating proper investigation of a crime in the right direction, or apprehend the real culprits and brought them before the Court of law for justice.” Human Rights Case No. 10842-P of 2018 35 In this paragraph of the judgment the scheme of the law did not appear to be correctly presented before the Court and the Court was led to understand that investigation of a case by the police is to be driven exclusively or predominantly by the FIR originally registered whereas the legal position, as already discussed by us above, is to the contrary. As a matter of fact the scheme of the law did not support the Court’s observation that the version of the first informant advanced through his FIR is to “non-suit” any other version of the same incident advanced by any other person or party to the case. In the same vein, the reference made by the Court to the so-called “ground realities”, a subjective notion, could have been avoided while interpreting legal provisions and enunciating the law. 22. It was also observed by this Court in the same judgment that: “11. Though our criminal legal system proceeds on the presumption of honest, God fearing and fair police officers, impartial and honest investigation system, but this is far from reality in the society we live in. In such circumstances when the Courts feel that due to mala fide, dishonest, colourful and motivated acts or omissions, entire investigation of the crime has been misled or it is going to be misled and on that account the case of the prosecution is likely to fail, then they are not denuded of their powers to order recording of another FIR disclosing a different version to check such nefarious design meant to save the real culprits vis-a-vis misleading the investigation/prosecution, at any appropriate stage of the proceedings. However, where need be, such powers are to be exercised with extreme care and caution and not in a routine manner so as to merely fulfill the wish of an individual who, as per his whims, is not satisfied either with the contents of earlier FIR or the direction of investigation based thereon or wants registration of another FIR with some ulterior motive.---” The first thing said in this paragraph was that in our society the police officers are no longer “honest, God fearing and fair” and the system of investigation is no longer “impartial and honest”. We feel, with great regard, that making of such sweeping remarks or recording of such pervasive observations about the police or any other department of public service as a whole was unnecessary besides being uncharitable. Interpretation of law by this Court Human Rights Case No. 10842-P of 2018 36 ought not to be premised on damning generalizations which are nothing but subjective. The second thing said in this paragraph was that a subsequent FIR may be ordered to be registered “when the Courts feel that due to mala fide, dishonest, colourful and motivated acts or omissions, entire investigation of the crime has been misled or it is going to be misled and on that account the case of the prosecution is likely to fail”. What it meant was that at such a premature stage of the case the Courts are to pass a value judgment and record a finding that the original FIR lodged by a person about commission of a cognizable offence is “mala fide, dishonest, colourful and motivated” and that the “entire investigation of the crime has been misled or it is going to be misled and on that account the case of the prosecution is likely to fail”. Such an approach sets up the Courts as monitors or supervisors of the investigation, a role which the law forbids and the precedent loathes. The third thing said in this paragraph was a word of caution according to which “However, where need be, such powers are to be exercised with extreme care and caution and not in a routine manner so as to merely fulfill the wish of an individual who, as per his whims, is not satisfied either with the contents of earlier FIR or the direction of investigation based thereon or wants registration of another FIR with some ulterior motive.” While making these observations no guidance had been provided as to how “extreme care and caution” is to be exercised, as to how the jurisdiction is not to be exercised “in a routine manner” and as to how, without delving deep into the facts and circumstances of a case at the investigation stage, the Courts are to detect, decipher or fathom the motivation on the part of the person seeking registration of another FIR according to his own version of the incident. 23. Towards the end of that judgment this Court had observed as under: “12. It is unfortunate to note that in the instant case due to one-sided version disclosed in earlier FIR No. 17/2010, the investigating agency never bothered to look into the crime from Human Rights Case No. 10842-P of 2018 37 another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR. The short and long of the above discussion is that the impugned judgment of the Balochistan High Court warrants no interference.” It appears that this Court was heavily influenced by the assertion of the party seeking registration of a second FIR that “the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR.” Acceptance of such an assertion by this Court indicates that the Court laboured under an impression that any other version of the same incident advanced by any other party can be brought on the record of the investigation only through an FIR to be registered under section 154, Cr.P.C. and such divergent version can be investigated by the police only after registration of a separate FIR in that regard. Such an impression entertained by this Court on that occasion, it is submitted in all humility, was not correct and the same ran counter to the scheme of the law referred to in the earlier part of the present judgment. 24. The discussion made above leads us to an inescapable conclusion that the judgments delivered by this Court in the cases of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) and Kaura v. The State and others (1983 SCMR 436) came closer to the scheme of the relevant law whereas the judgments handed down by this Court in the cases of Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) and Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC 484) drifted away from that scheme and in fact contributed towards disturbing and distorting the same and that had been occasioned mainly due to the reason that the Court had not been assisted on those occasions properly and the scheme of the law on Human Rights Case No. 10842-P of 2018 38 the subject with reference to the Code of Criminal Procedure, 1898 and the Police Rules, 1934 had not been brought to its notice at the time of deciding those cases. 25. During the course of hearing of this petition we had inquired from the petitioner as to why she was insisting upon registration of a separate FIR in respect of her version of the incident especially when she had already instituted a private complaint containing her version of the incident and the accused persons in her private complaint had already been summoned by the trial court to face a trial and a Charge had been framed against them. In response to that query the petitioner had categorically stated that she wanted the accused persons in her version of the incident to be arrested and recoveries to be affected from them which was not possible through the medium of a private complaint. Such understanding of the law on the part of the petitioner, which understanding is also shared by a large section of the legal community in our country, has been found by us to be erroneous and fallacious. By virtue of the provisions of section 202(1), Cr.P.C. a court seized of a private complaint can “direct an inquiry or investigation to be made by any Justice of the Peace or by a police officer or by such other person as it thinks fit”. If in a given case the court seized of a private complaint deems it appropriate to direct an investigation to be carried out in respect of the allegations made then the powers available during an investigation, enumerated in Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(l) of the same Code, include the powers to arrest an accused person and to affect recovery from his possession or at his instance. Such powers of the investigating officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case. 26. The impression entertained by the petitioner that if a separate FIR is registered in terms of her version of the incident then the accused persons nominated by her would automatically Human Rights Case No. 10842-P of 2018 39 be arrested has been found by us to be not only misconceived but also discomforting. The law does not permit arrest of a person merely on the basis of a bald allegation levelled against him. The powers of the police to arrest a person accused of commission of an offence are provided in sections 54 and 55, Cr.P.C. and some provisions in the Police Rules, 1934 also deal with the same. Writing for a Full Bench of the Lahore High Court, Lahore in the case of Khizer Hayat v. Inspector-General of Police (Punjab), Lahore and seven others (PLD 2005 Lahore 470) one of us (Asif Saeed Khan Khosa, ACJ) had observed on the subject as follows: “20. ------- The powers of arrest in both the said sections are the same but they relate to different situations. In the case of Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993 P.Cr.L.J. 91) this Court had an opportunity to attend to the requirements of section 54, Cr.P.C. and it was observed by this Court as follows: “Under the provisions of clause first of section 54, Cr.P.C., the Police Officer can arrest a person in the following four conditions:- (a) The accused is involved in a cognizable offence; (b) Against the accused a reasonable complaint has been made for the said offence; (c) A credible information is received by the Police Officer that he is involved in a cognizable offence; and (d) Reasonable suspicion exists that the said person is involved in the cognizable offence. The expression ‘credible information’ is not a technical legal expression importing that the information must be given upon oath or affirmation. It includes any information which in the judgment of the officer to whom it is given appears entitled to credit in the particular instance and which he believes. The credible information mentioned therein need not be in writing. ------- The object of section 54, Cr.P.C. is to give the widest powers to the Police Officers to arrest the persons who are involved in cognizable cases and the only limitation placed upon their power is the necessary requirement of reasonability and credibility to prevent the misuse of the powers by the Police Officers. As the powers mentioned above given to the Police Officers under section 54, Cr.P.C. encroaches upon the liberty of a person, this wide power has to be construed, interpreted and defined strictly. A general definition of what constitutes reasonableness in a complaint or suspicion and credibility of information cannot be given. Both must depend upon the existence of tangible legal evidence within the cognizance of the Police Officer and, he must judge whether the evidence is sufficient to establish the reasonableness and Human Rights Case No. 10842-P of 2018 40 credibility of the charge, information or suspicion. It has been laid down by this Court in 1992 P.Cr.L.J. 131: ‘An arrest which is beyond the provisions of section 54, Cr.P.C. would be illegal and void per se’.” Prior to that in the case of Muhammad Shafi v. Muhammad Boota and another (PLD 1975 Lahore 729) this Court had observed that “The words “reasonable suspicion” (in section 54, Cr.P.C.) do not mean a mere vague surmise, but a bona fide belief on the part of the Police Officer that an offence has been committed or is about to be committed. Such belief has to be founded on some definite averments tending to show suspicion on the person arrested. --- The action of a police Officer under section 54, Cr.P.C. must be guarded inasmuch as he should first satisfy himself about the credibility of the information which, as stated already, should relate to definite facts. It was not at all the intention of the law-giver that the Police Officer should at his own sweet will arrest anybody he likes, although he may be a peace loving citizen of the country.” The Hon’ble Sindh High Court had also observed in the case of Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others (PLD 1992 Karachi 358)(DB) that “It will thus be seen that the first sub-clause of section 54(1), Cr.P.C. a person can be arrested without a warrant in the following circumstances:- (a) If he be concerned in any cognizable offence. (b) Against whom a reasonable complaint has been made. (c) Against whom credible information has been received that he is concerned with commission of such offence. (d) If reasonable suspicion exists about him being so concerned. It is true that a Police Officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he be concerned with commission of such offence. But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in section 54(1), Criminal Procedure Code.” In the case of Mst. Razia Pervez and another v. The Senior Superintendent of Police, Multan and 5 others (1992 P.Cr.L.J. 131) this Court had observed as follows: “No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of his having been concerned in any cognizable offence but power given to the Police Officer under this section (section 54, Cr.P.C.) being an encroachment on the liberty of a citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting to be under this section would be illegal unless the circumstances specified in the various clauses of Human Rights Case No. 10842-P of 2018 41 the section exist. This section does not give free licence to a Police Officer to arrest anybody he may like. In order to act under this section, there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. An arrest of a citizen in a reckless disregard of the conditions imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relevant rules.” The above mentioned precedent cases clearly show that an arrest of a person in connection with a criminal case is not to be a matter of course and the power to arrest is conditional upon fulfillment of the requisite legal requirements. 21. One of the cardinal principles of criminal law and jurisprudence is that an accused person is presumed to be innocent until proved guilty before a court of law. However, of late we have noticed a growing tendency on the part of the complainant party to insist upon arrest of an accused person nominated by it in the F.I.R. and an increasing willingness, nay eagerness, on the part of the investigating officer of a criminal case to affect arrest of the accused person even before initiating or launching a proper investigation of the allegations levelled in the F.I.R.. Such an approach has been found by us to be absolutely against the spirit of the relevant law, to be wrought with inherent dangers to cherished liberty of citizens who may ultimately be found to be innocent and to amount to putting the cart before the horse! It had been observed by the Hon’ble Supreme Court of Pakistan in the case of Brig. (Retd.) F. B. Ali and another v. The State (PLD 1975 Supreme Court 506) that “In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such a person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an “accused” as a person “charged with a crime” and an “accusation” as an “indictment”. Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore, that a person becomes an accused only when charged with an offence. The Criminal Procedure Code also uses the word “accused” in the same sense, namely; a person over whom a Court is exercising jurisdiction.” Even the Hon’ble Federal Shariat Court had remarked in the case of Mst. Asho and 3 others v. The State (1987 P.Cr.L.J. 538) that “Mere leveling accusations against a person in F.I.R. does not make him an accused person unless and until some evidence implicating such person in the commission of the offence is available.” We may add in this context that a general impression entertained by some quarters that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime is Human Rights Case No. 10842-P of 2018 42 misconceived and the same portrays scant knowledge of the relevant statutory provisions. We may briefly allude to such statutory provisions here. Section 46, Cr.P.C. provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by a police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc. by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where a private person may affect an arrest and section 151, Cr.P.C. authorizes a police officer to arrest a person in order to prevent commission of a cognizable offence. Section 169, Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer finds no sufficient evidence or reasonable ground for suspicion against him. The parameters of such arrests are essentially those already discussed in the above mentioned precedent cases. According to Article 4(1)(j) of the Police Order, 2002 it is a duty of every police officer to “apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist”. Rules 24.1, 24.4 and 24.7 of the Police Rules, 1934 (which are still in vogue due to the provisions of Article 185 of the Police Order, 2002) clearly contemplate situations where an information received by the police regarding commission of a cognizable offence may be doubted or even found false. Rule 25.2(1) of the Police Rules authorizes an investigating officer to associate “any person” with the investigation and Rule 25.2(2) categorically provides that “No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained”. Rule 25.2(3) clinches the issue by clarifying that “It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person” (emphasis has been supplied by us). As if this were not enough, Rule 26.1 emphasizes that “Section 54, Code of Criminal Procedure, authorizes any police officer to arrest without a warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. The authority given under this section to the police to arrest without a warrant is, however, permissive and not obligatory. Whenever escape from justice or inconvenient delay is likely to result from the police failing to arrest, they are bound to do so; but in no other cases. The law allows a police officer to apply to a magistrate for a warrant or a summons instead of making the arrest immediately, and this discretion shall be exercised whenever possible and expedient. The law also allows a police officer in any bailable case to take security under section 170, Criminal Procedure Code from an accused person to appear before a magistrate without first arresting him” (emphasis has been supplied by us). Rules 26.2 and 26.9 provide further guidelines to the police officers involved in investigation of crimes requiring them not to unnecessarily interfere with the liberty of suspects “until the investigation is sufficiently complete” and “the facts justify arrest”. According to Rule 26.1 the facts justifying an immediate arrest may include a possibility of the suspect escaping from justice or inconvenient delay likely to result from the police failing to arrest. 22. All the statutory provisions and the precedent cases mentioned above manifestly point towards the intention of the law that a suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course and that, unless the situation on the grounds so warrants, the arrest is to be deferred till such time that sufficient material or evidence Human Rights Case No. 10842-P of 2018 43 becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled by the complainant party against such suspect or regarding his involvement in the crime in issue. If the law itself requires an investigating officer to be generally slow in depriving a person of his liberty on the basis of unsubstantiated allegations then insistence by the interested complainant party regarding his immediate arrest should not persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes of the complainant party. - ------ It must always be remembered that delaying the arrest till after formation of an opinion regarding prima facie correctness of the allegation against a suspect goes a long way in deterring false, frivolous and motivated complaints and also that there may not be any adequate recompense or reparation for an unjustified arrest. It would be preposterous and a mockery of justice if a person may be deprived of his liberty first and later on the allegations against him may be found by the arresting agency itself to be bogus, trumped up or false. That surely would be, as observed above, putting the cart before the horse.” Enunciation of the law in the above mentioned case ought to suffice for the purpose of dispelling the impression entertained by the petitioner in the present case that registration of a second FIR in terms of her version of the incident would automatically entail arrest of the accused persons nominated by her. 27. As a result of the discussion made above we declare the legal position as follows: (i) According to section 154, Cr.P.C. an FIR is only the first information to the local police about commission of a cognizable offence. For instance, an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for registration of an FIR in that regard. (ii) If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth. Human Rights Case No. 10842-P of 2018 44 (iii) Upon registration of an FIR a criminal “case” comes into existence and that case is to be assigned a number and such case carries the same number till the final decision of the matter. (iv) During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case. (v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 “It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.” (vi) Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the Human Rights Case No. 10842-P of 2018 45 allegations levelled against such suspect or regarding his involvement in the crime in issue. (vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident advanced by the first informant or any other version brought to the notice of the investigating officer by any other person. 28. As an FIR had been registered in the present case regarding the same occurrence and the offences allegedly committed therein and upon completion of the investigation of the case a Challan had been submitted before the trial court and as the present petitioner had instituted a private complaint depicting her version of the same incident and after summoning of the accused persons nominated therein a trial is already in progress in connection with that private complaint, therefore, ordering registration of another FIR based upon the petitioner’s version of that very incident is not legally warranted. This petition is, thus, dismissed. 29. Before parting with this judgment we are constrained to observe that the occurrence in the present case had taken place more than a decade ago and the trial court is seized of the trial of this case for the last many years but unfortunately no significant progress has been made by the trial court in the trial of the case so far. The delay caused and the apathy displayed in the matter has been found by us to be shocking, to say the least. The trial court is, therefore, directed to conclude the trial of this case within the next four months without fail and then to submit a report in that regard before the Registrar of this Court for our perusal in Chambers. 30. The office of this Court shall send copies of this judgment to the Inspectors-General of Police of all the Provinces and the Islamabad Capital Territory who are directed to apprise all the Human Rights Case No. 10842-P of 2018 46 Station House Officers of all the Police Stations in the country of the law declared by this Court through the present judgment and to make sure that the law so declared is followed in its letter and spirit. (Asif Saeed Khan Khosa) Acting Chief Justice (Mushir Alam) Judge (Maqbool Baqar) Judge (Manzoor Ahmad Malik) Judge (Sardar Tariq Masood) Judge (Mazhar Alam Khan Miankhel) Judge (Sajjad Ali Shah) Judge Announced in open Court at Islamabad on 23.05.2018. (Asif Saeed Khan Khosa) Acting Chief Justice Islamabad May 23, 2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN Human Rights Case No.11827-S of 2018 IN THE MATTER REGARDING SELLING OF NATIONAL ASSETS INCLUDING PIA AT THROWAWAY PRICE. In attendance: Mr. Anwar Mansoor Khan, Attorney General for Pakistan Syed Asghar Haider, P.G. NAB Mr. Farid-ul-Hassan, Spl. Prosecutor, NAB Syed Nayyar Abbas Rizvi, Addl.A.G.P. Mr. Naeem Bukhari, ASC Dr. Musharaf Cyan, C.E.O., PIACL (For PIA) Ms. Asma Bajwa, Chief HR Officer, PIA Mr. Bilal Hassan Minto, ASC (For Mr. Shujaat Azeem) Mr. Umar Lakhani, ASC (In HRMA No.249/2018) Raja Ikram Amin Minhas, ASC (in HRMA-534/2018) Kh. Azhar Rasheed, ASC Mr. Junaid Younis, Ex. M.D. PIACL Mr. Nadeem Yousafzai, Ex-M.D. PIACL Sardar Mehtab Abbasi, Ex- Advisor to PM on Aviation Muhammad Saeed Tawana, Director Legal for Auditor General Mr. Nayyar Hayat, Ex. M. D. PIACL Date of hearing: 03.09.2018 ORDER IJAZ UL AHSAN, J-. This matter emanates from an application addressed to the Chief Justice of Pakistan wherein serious allegations of favoritism and cronyism were leveled against top officials of the Pakistan International Airlines Corporation (PIAC). It was alleged that these officials were holding office without lawful authority, were bent upon selling national assets (PIAC) at throwaway prices, had closed Human Rights Case No.11827-S of 2018 � 2 down profitable routes of the national airlines and given the same to other airlines, who were operating on the said routes and generating revenues that could have been earned by PIA by operating flights on these routes. In light of these allegations we found it expedient to take up the matter having come to the conclusion that it was a matter of public interest, involved fundamental rights of citizens and their enforcement. It was then fixed as Human Rights Case No.11827-S/2018 and notices were issued to all concerned to apprise the Court about the affairs of the PIAC. 2. In this case an application was also filed by the Pakistan International Senior Staff Association (PISSA) which was numbered as HRMA No.249/2018. PISSA challenged the appointment of the Chief Executive Officer of PIAC namely, Mr. Musharraf Rasool Cyan and other top management officials of the PIAC. Notices were issued on 12.04.2018 and vide order dated 08.05.2018 in exercise of its power to issue writs of quo warranto, this Court directed these top officials to file their respective replies so as to show, under what authority of law they purported to hold public offices. In pursuance thereof Mr. Musharraf Rasool Cyan filed a concise statement wherein, the procedure adopted for his appointment to the post of CEO of PIAC as well as his eligibility to hold the same was explained. 3. At the very outset we may observe that for the purposes of issuance of a writ of quo warranto, it has been held by this Court in several of its pronouncements that the Human Rights Case No.11827-S of 2018 � 3 person laying information before the Court need not be an aggrieved person. Hence, we do not feel the need to go into this aspect of the law as highlighted by the learned ASC for Mr. Cyan. The power of this Court to entertain such petitions and pass appropriate orders is well known, well recognized and settled. Reference is made to Farzand Ali v. Province of West Pak. (PLD 1970 SC 98); Muhammad Naseem Hijazi v. Province of Punjab (2000 SCMR 1720); and Hamdullah v. Saifullah Khan (PLD 2007 SC 52). 4. �The PIAC is a body corporate, established under the Pakistan International Airlines Corporation Act, 1956 (The Act). By way of the Pakistan International Airlines Corporation (Conversion) Act, 2016 the status of the Corporation was converted into a Public Limited Company incorporated under the Companies Ordinance, 1984. The Chairman of the Corporation as per Section 8 of the Act is appointed by the Federal Government and is also the Chief Executive of the Corporation. As a result of the Conversion Act, 2016, the office of the Chairman has been abolished. Now the post vests with the Chief Executive Officer (CEO). The appointment of the CEO is made by the Federal Government on the recommendation of the Board of Directors. The relevant law, under which appointments to Public Sector Companies such as the PIAC are made, is the "Public Sector Companies (Corporate Governance) Rules, 2013" (the Rules). It is not disputed that the said rules are applicable to PIAC. Human Rights Case No.11827-S of 2018 � 4 5. �Rule 2A of the Rules 2013 requires the appointments of CEO and Directors' of Public Sector Companies to conform to the 'fit and proper criteria' and in order to determine which, criteria have been spelt out. The appointment of the CEO however, is specifically dealt with under the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 issued by the Securities and Exchange Commission of Pakistan (SECP). For the purposes of the instant matter we intend to confine ourselves to the appointment process of the CEO and to that effect the step by step process as required by the law (Schedule I of the Guidelines, 2015), is paraphrased in the table below: Sr. Steps Requirement I. Development of Job profile Developing a job description in light of the requirements and the 'fit and proper' criteria 2. Advertisement � for � the position Publishing an advertisement in print media and posting the same on the website 3. Short-listing process Board is to shortlist applicants from three sources: • Those � shortlisted � through database • Those � who � have � applied against the advertisement. • Those � derived � through succession plan 4. Evaluation of Candidates The � Board � is � required � to � Evaluate � the candidates on the fit and proper test and arrange due diligence from all the concerned govt. departments/agencies for e.g. SECP, FBR, NADRA, SBP, HEC etc 5. Interviewing Process The � Board � shall � conduct � preliminary interview � of � the � candidates � taking � into account numerous factors as enumerated in Rule 5 of the 1st Schedule 6. Recommendations by the Board to the Competent Authority Three � candidates � are � then � to � be recommended by the Board to the Ministry (Aviation Ministry) and if the Ministry is not in concurrence with any of the candidates, reasons should be assigned thereof and the Board may either re-evaluate the candidates from the pool of available applicants or reinitiate the appointment process. 7. Appointment After concurrence of the competent authority the Board shall appoint the Chief Executive Human Rights Case No.11827-S of 2018 � 5 6. �Step four, as is discernable from the table above, pertains to evaluation of the candidates on the 'fit and proper criteria' which is spelt out both in the Rules of 2013 as well as the Guidelines referred to above (2nd Schedule of the Guidelines, 2015). Candidates aspiring for the position of CEO must conform to the 'fit and proper' test. It has been so emphasized by the SECP through various rules, regulations, circulars and pronouncements as well as the law for appointment against top management positions of Public Sector Companies. Therefore, it is fundamentally important that evaluation of applicants for the said post, in terms thereof, is properly and meticulously conducted, in an impartial and unbiased manner. "Fit and Proper Criteria for Appointment as Chief Executive of a Public Sector Company 1. In order to determine whether a candidate proposed to be appointed as a chief executive of a public sector company is fit and proper for the position, the following factors shall be taken into consideration: (1) Competence and capability - he must have the necessary skills, experience, ability and commitment to carry out the role efficiently and effectively. (2) Probity, personal integrity and reputation - he must possess personal qualities such as honesty, integrity, diligence, independence of mind and fairness, and has the ability to represent a cohesive vision and strategy to all. Financial integrity - he must be capable to manage his debts or financial affairs prudently. 2. The Board of the public sector company shall also ensure that that the person is not ineligible to act as a chief executive pursuant to section 201 read with section 187 of the Companies Ordinance, 1984. 3. The assessment of the above criteria shall have regard to the considerations set out below: (1) Competence and Capability: (a) � Competence and capability are demonstrated by a person who possesses the relevant competence, experience and ability to understand the technical requirements of the business, the inherent risks and the management process required to perform his role effectively as a chief executive. (3) Human Rights Case No.11827-S of 2018 � 6 (b) In assessing a person's competence and capability, the appointing authority shall consider matters including, but not limited to the following: whether the person has the appropriate qualification, training, skills, practical experience and commitment to effectively fulfill the role and responsibilities of the position; and whether the person has satisfactory past performance or expertise in the nature of the business being conducted. (c) To undertake the aforesaid assessment effectively, the following parameters are prescribed for consideration: (i) He must I. � Possess a graduate degree from a well-reputed institute or such other professional qualification relating to the principle line of business of the public sector company, including manufacturing, mining, science, technology, � agriculture, � social science, or any other field commensurate to the job, or 77. � Be a member of a recognized body of professional accountants, or Be a recognized businessman or professional with a postgraduate degree in business administration or public administration or finance or commerce or marketing or equivalent; and (ii) He must possess demonstrated experience of not less than ten years: I. in governance or business administration or public administration or finance or commerce or marketing or any other field commensurate to the job in significant organizations with a commercial orientation, Or II. as chief executive or at a senior management level in similar organizations that have commercial attributes, or III. at senior positions in relevant professional areas including, inter-alia, science, technology, finance, law, business, agriculture, social sciences, etc., or IV. in community or professional organizations; or V. at the level of member of governing body of a professional institute or as a head of department. (2) Probity, Personal Integrity and Reputation: (a) � Probity, personal integrity and reputation are values that are demonstrated over time. These attributes Human Rights Case No.11827-S of 2018 � 7 demand a disciplined and on-going commitment to high ethical standards. (b) � In assessing a person's level of probity, integrity and reputation to hold a position of a chief executive, the appointing authority shall consider matters including, but not limited to the following: whether the person is or has been subject to any adverse findings or any settlement in civil/ criminal proceedings particularly with regard to investments, formation or management of a company or body corporate, or the commission of financial business misconduct, fraud, financial crime, default in payment of taxes or statutory dues, etc.; (ii) whether the person is or has been removed/ dismissed in the capacity of an employee, director/ chairman or from a position of trust, fiduciary appointment or similar position because of issues arising on account of his misconduct; (iii) whether the person is or has, directly or indirectly, i.e. through his spouse or minor children, been engaged in any business which is of the same nature as and directly competes with the business carried on by the company of which he is the chief executive or by a subsidiary of such company; (iv) whether the person has contravened any of the requirements and standards of a regulatory body, professional body, government or its agencies; (v) whether the person, or any business in which he has a controlling interest or exercises significant influence, has been disciplined, suspended or reprimanded by a regulatory or professional body, a court or tribunal, whether publicly or privately; (vi) whether the person has been engaged in any business practices which are deceitful, oppressive or otherwise improper (whether unlawful or not), or which otherwise reflect discredit on his professional conduct; (vii) whether the person has been associated as a partner or director with a company, partnership or other business association that has been refused registration, authorization, membership or a license to conduct any trade, business or profession, or has had that registration, authorization, membership or license revoked, withdrawn or terminated; (viii) whether the person has been a director, partner or chief executive of any company, partnership or other business association which is being or has been wound up by a court or other authority competent to do so within or outside Pakistan, or of any licensed institution, the license of which has been revoked under any law; Human Rights Case No.11827-S of 2018 � 8 whether the person is free from any business or other relationship which could materially pose a conflict of interest or interfere with the exercise of his judgment when acting in the capacity of a director or chief executive or member of a governing body which would be disadvantageous to the interest of the public sector company; and (x) � whether the person is a Pakistani citizen or a foreign national or both. (3) Financial Integrity: (a) � Financial integrity is demonstrated by a person who manages his own financial affairs properly and prudently. (b) � In assessing a person's financial integrity, the appointing authority shall consider all relevant factors, including but not limited to the following: whether such person's financial statements or record including wealth statements or income tax returns or assessment orders are available; (ii) whether the latest Credit Information Bureau report of the person shows no overdue payments or default to a financial institution; Provided that such a person will be treated as a defaulter if he has failed to repay his loan exceeding one million rupees to a financial institution or is a defaulter of a stock exchange. (iii) whether the person has been and will be able to fulfil his financial obligations, whether in Pakistan or elsewhere, as and when they fall due; and (iv) whether the person has been the subject of a judgment debt which is unsatisfied, either in whole or in part, whether in Pakistan or elsewhere. (c) � The fact that a person may be of limited financial means does not in itself, affect the person's ability to satisfy the financial integrity criteria. 4. While making appointment of chief executive to a public sector company, the appointing authority shall conform to a merit-based selection procedure and shall also give due consideration to the following: (a) Sectoral expertise (b) Organizational awareness; (c) An understanding of the role of the government as a shareholder; (d) Financial literacy and business acumen, irrespective of the professional background; (e) A knowledge of the statutory responsibilities of a chief executive; The capability for a wide perspective on issues; and (g) � Leadership qualities." Human Rights Case No.11827-S of 2018 � 9 7. In addition to the criteria for appointment of CEO the Rules 2013 provide for the Responsibilities, powers and functions of the Board of Directors of a public limited company. It is clear from the language thereof that the Board owes the company and its stakeholders a fiduciary duty, performance whereof is solely for the best interests of the company. Rule 5(2) makes the Board responsible for the planning, succession and appointment of the Chief Executive of the company and in doing so it has to evaluate the potential candidates on the 'fit and proper criteria' as reproduced above. It cannot be over emphasized that in undertaking such evaluation, the board must act independently, transparently and in a totally impartial and unbiased manner so as to select the best and most suitable candidate purely and strictly on merit. 8. Apart from informing the stakeholders of all the material events the Board has been mandated to create a `code of conduct' for functioning of the Board as well as all senior and/or junior management of the company. Strict compliance with the fundamental principles of probity, propriety, objectivity, integrity and honesty has been cast upon the Board so as to make sure that the public assets are not plundered or that no situation entailing a conflict of interest catering to personal benefit, or vested or political interest arises. To this end all the directors are required to declare their interests in the shape of a 'register of interests' coupled with a declaration to the effect that they would not Human Rights Case No.11827-8 of 2018 � 10 accept any compensation, remuneration or other benefits in any shape or form, on any account, apart from the remuneration that they receive from the company. The Board is also required to formulate policies to minimize corruption, identification and monitoring of risks, procurement of goods as well as services, including but not limited to acquisition of assets along with disposal of these assets and other investments. Even the services rendered by the company as a public service obligation have to be quantified whereafter appropriate compensation is requested from the Government. 9. In the above backdrop, we have carefully examined the process and various stages which Mr. Cyan's appointment went through or ought to have gone through under the law and did not. We also directed Mr. Cyan and his counsel to define and justify his appointment. He was specifically confronted with the allegations and given ample opportunity to explain the deviations from law and procedure which had prima facie occurred in the process of his appointment. 10. The irregularities and illegalities in the appointment of Mr. Cyan, as alleged in HRMA No.249/2018 and the replies thereto given by Mr. Cyan, are reproduced in the table below: Allegations Reply of Mr. Cyan Mr. Cyan was a staff officer of Mr. Mehtab Abbasi (Advisor to PM on Aviation) in 1998 and was granted undue favour Denied that he was appointed at the behest of Mr. Abbasi He has no aviation industry experience � and � his � basic degree is MBBS. Denied that his basic degree is MBBS. PIA, the national airline of Pakistan, Is implementing. Its focused revive/ strategy to steer the company on path of growth and success. The airline requires a highly experienced, dynamic and passionate professional with strong operational, financial end commercial acumen to be hired as a full time Chief Executive on contract basis. The Chief ENCCUtkat position shall be the Fecal position to implement the turnaround strategy for the national carrier. The Meal candidate IS required to share a passion for reshaping Pit and bring It to stand in the league of rigger national airlines. The selected person-shall be required to develop and lead a major Change Management Program re address PIACI. financial, operational, commercial end cultural turn-around including goidIng and motivating its people to deliver their best performance, as a team. • The sucsessiul candidate will also be expected to hove excels/int people management and communication skills with a 'cantles' attitude. CHIEF EXECUTIVE a. EDUCATIONAL QUALIFICATIONS: I- Possess a graduate degree from a well-reputed institute or such other, professional qualification relating to the principle ,Tine of aviation business. oil ills De a recognized OusineSsman or professional with a ,Postgraduate degree in Business Administration or Public Administration or Finance or Commerce or Marketing at equivalent from any recognised institute. b. WORK EXPERIENCE: Minimum 25 years of working experience preferably in international airlines of repine. with minimum of 10 years experience in a senior professional position in relevant protessionaf areas Including intenalla, .sdence, technology, finance. law, business, social sciences etc. Having an esmblisited worldwide network in Airline industry. c. SKILLS / SPECIAL REQUIREMENTS: • Strategic Management • Professional liminess Skills • Leadership Qualities • Vision to steer the omariPation towards success antigrowth d. PROFESSIONAL TRAINING / COURSES: • Strategic Management • Leadership Qualities • People Management & Delegation • Problem Solving & Decision Making C. JOB DESCRIPTION & RESPONSIBILITIES: • Envision, lead and encourage the efforts ofentire organiZarion towards achieving overall business objectives. Responsible for devising corporate strategies, formulating growth Mans and enswing maximum returns for alt stakeholders. Laying a foundation to achieve long terms benefits through strategic policy making and continuous improvement for future development of organization. Ensure that the objectives of the organization. as agreed by the board. are fully, promptly anti properly implemented. • Shaping organizational activities and utilising•full potential of ad employees to attain blithest Standards of acevice at all levels. Creating a rengentat and user friendly work environment for all employees of the organization. • Fostering a culture of employee best practices. work ethics and zero tolerance for corruption. Aliening established policies, procedures and work practices to achieve effectiveness and efficiency in all areas. • Allocation of funds / capital to organisations priorities and ensere that the necessary firranciat and operational data are made available for the annual.report and its external audit. L. OPERATIONAL RESPONSIBILITIES: Establish roles for the top layer of the organisation covering duties, responsibilities and recourses. Develop a skilled and capable top.management seam. Develop and implement a Strategy to attract and retain existing and potential business. Propose long term operational and corporate growth plans covering the development of routes, fleet. major facilities and revenue. • Indoctrinate systems leading to the production of detailed . plans and allocated budgets for business units and supporting functions that are required throughout the network • To be fully aware of all safety and service quality requirementt, and to he responsible for the outcomes and findings of alt Internal & external safety/quality audits_ • To ensure effective functioning of liSECt Steering and Working Committees. Assume responsibility for recording end reporting of all occupational hazards, accidents, Incidents, neat miss -cases to the concerned agencies as per the Management approved system procedure. 0. EXTERNAL RESPONSIOILITIES: • Develop and maintain the reputation and image of the corporation In official, financial and public circles and represent PIACL at official functions. Also develop and maintain relationships with interfacing envernment departments. Civil Aviation Authority and otherinternationet and domestic orfmnIzationsfagencies at senior management level for obtaining bilateral agreements and other facilities/services. • Ensure adequate representation at International Cell Aviation Organisation (ICAO) anti International Air Transport Association (IATA) meetings. Ensure that PIACI. interest,. are appropriately represented on the platforms of lobt venture or subsidiary companies and high image of PIACI. at all rnedia forms. h. PAY PACKAGE • Successful candidate will be offered market based salary and Binge benefits. NOTE: • The position is merit based • The Selected candidates will be given employment on contract hags for a period of two (2) years. which may be extended. • The applicant shall be required to complete and sign Application Fenn (available on PIA websee) and furnish detailed CV. However at the time of interview the eligible candidate will be required to brine original A photocopies of the degrees / testimonials duly verified by the Higher Education Commission orthe professional hotly or association, whichever is relevant. • The applicant shall also submit a declaration on a non-judicial stamp paper of niquIsIte value (available on PIA webslte) that he is not ineligible to act as a Chief Execut Ks% in accordance with the prevision of the ordinance and the rules. • The application must reach at the following address not later than 15 days from the date of publication of this advertisement. APPLICATION PROCEDURE/GUIDELINES: Applications are-Invited on the prescribed FORM available (free of Cost) from the PIA Recruitment & Placement Office at Karachi, and from other PIA Offices in different stations besides being available on PIA's websltoi www.plac.aaro/careers Interested candidates should send their application forms along with the said declaration, CV, national identity card and 02 recent passport site photographs accompanied by Pay Order of Memos 1000/- (non.refondable) in the name Of PIAC (PIA NTN No. 080.3450-B) through courier to the following address not later than 15 days from the date of publication of this advertisement MANAGER RECRIJITME.NT A PLACEMENT, NEAR PIA TRAINING CENTER. KARACHI AIRPORT 75200 Email: jobs@plac.aero Cosset. No.021-99044295 .• � • www.placaercs /PekThwumnesriniorindatypt UANO) 402-21-1111,7861.705. Human Rights Case No.11827-S of 2018 � 11 Dispute regarding age of Mr. Cyan � as � his � matriculation certificate � shows � one � DOB whereas � the � CNIC � reflects another A suit for declaration has been filed by him for correction of the DOB on the Matriculation certificate which is pending adjudication Mr. Cyans' appointment is in violation � of � the � PSC (Corporate Governance) Rules, 2013 Simply stated that his appointment is in line with the relevant law, rules & guidelines. Salary � of � Mr. � Cyan � is exorbitant and not in line with others holding the same posts The same had been approved by the Board and comparatively, is lower than CEOs' of other PSCs' 1 1 . �The starting point of Mr. Cyan's appointment was the advertisement dated 20.05.2017, published by the PIAC for appointment of the CEO. Educational qualification and work experience, as required by the advertisement were: Human Rights Case No.11827-S of 2018 � 12 12. �It is essential that suitability and eligibility of a candidate is ascertained through an objective procedure and appointment thereof needs to have a nexus with the object of the job. This principle was laid down by this Court in Muhammad Yasins case' in the following terms: "36. To test the validity of the appointment process in this case, it would be useful to adopt a test based on the following considerations: (a) whether an objective selection procedure was prescribed; (b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e. selection of the sort of candidate envisaged in section 3 of the Ordinance; (c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law." We find that the antecedents of Mr. Cyan are lacking on all of these counts. As per the Curriculum Vitae (CV) of Mr. Cyan (HRMA No.403/2018) provided by him in his concise statement, his basic degree is MBBS. Before being appointed as the CEO of PIAC, Mr. Cyan was working as a Research Assistant in Georgia State University where he had received his Ph.D degree in Economics. No educational qualification worth anything relating to the Aviation Industry (as required by the advertisement) was possessed by him. The only relevant qualification shown by him in this regard pertains to a one-month Corporate Aviation Management course, shown to have undertaken from May 2017 till June 2017 i.e. the time around which the advertisement was floated. This is obviously of no help to Mr. Cyan's case. It shows a desperate 1 Muhammad Yasin Versus Federation of Pakistan [PLD 2012 SC 132] Human Rights Case No.11827-S of 2018 � 13 attempt at "window dressing" a candidate whose qualification for the job was seriously deficient. 13. As far as his work experience is concerned the same is also not in line with what had been required by the advertisement for the post of CEO of a company in the aviation business which happened to be the national flag carrier of Pakistan. It is noteworthy that PIAC for which a CEO was being appointed had been running in huge losses. It had to be rescued, restructured and overhauled by the Federal Government at great public expense. He had no experience whatsoever in the aviation industry let alone in salvaging companies which were in dire financial trails which fact is discernable from the Employment application as well as the CV attached by Mr. Cyan in his concise statement. In Asraf Tiwanas case2 this Court while dealing with a similar issue, examined the issue of verification of CVs in the following manner: "Once again there is nothing at all on the record and there was no submission made by learned counsel for the respondents which would show that any inquiry let alone due diligence was undertaken to ascertain the correctness or otherwise of the contents of the CVs. So much so, even the most cursory exercise to verify such contents from any source mentioned in the CVs, was not attempted by the Government. In the absence of such due diligence, we are clear that it would be impossible to ascertain objectively the qualifications of recommendees in the Summary as to integrity, expertise, experience and eminence etc. as required by section 5(1) of the Act." 14. After the process of advertisement the next logical step for a valid and lawful appointment is the short-listing process which is to be conducted by the Board. Mr. Cyan claimed to have been shortlisted by a duly constituted 2 Muhammad Ashraf Tiwana Versus Pakistan & Others [2013 SCMR 1159] Human Rights Case No.11827-5 of 2018 � 14 "Selection Committee". As a matter of fact the self-styled committee that shortlisted him consisted of the Chairman/ Secretary (Mr. Irfan Ellahi), Mr. Tariq Pasha and Mr. Mahtab Abbasi, the then Advisor on Aviation to the Prime Minister who was a stranger to the Board or any Committee constituted by it. It is clear and obvious to us who handpicked this committee and why. Neither Mr. Abbasi nor the learned counsel for Mr. Cyan has denied that Mr. Abbasi was indeed a member of the Committee that short listed Mr. Cyan, and participated in its meetings. It has however been urged that he was just an observer and did not participate in its deliberations. We are neither convinced by the said explanation nor are we willing to believe the same. It is settled law that the presence of a stranger in a Board Meeting vitiates the entire proceedings specially so when the stranger is in a position of strength and can influence the outcome of the proceedings. In the instant case, the constitution, working and membership of this supposed 'Selection Committee' was ex facie a highly questionable and dubious exercise in itself. It does not figure anywhere in the Law nor in the Rules or Guidelines. In such circumstances "The Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provision for appointment. "3 3 Muhammad Naseem Hijazi Versus Province of Punjab [2000 SCMR 1720[ Human Rights Case No.11827-S of 2018 � 15 15. The importance of following the specific criteria for appointment provided by the Statute has been elaborated by this Court in Ghulam Rasools case4 where it was held that "the matter of appointment of heads of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities etcetera are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism. We have noted that various Acts/ Ordinances lay down a specific criteria/ qualifications for high-level appointments and empower the Federal Government to make such appointments". 16. Moreover, Mr. Cyans' statement that the meeting was attended by two Board Members too is contrary to the record as one Member of this Selection Board was Mr. Mehtab Abbasi, Advisor to the Prime Minister for Aviation as is expressly stated in the Board of Directors Minutes of 13th Meeting held on 07.07.2017 for appointment of the CEO. To say that the Advisor to the then Prime Minister was an innocent onlooker, did not participate in the meeting nor exercised any influence despite his association with Mr. Cyan, boarders on naivety. 17. In addition to the grave illegalities pointed out above there is nothing on record to show that necessary due diligence as per the evaluation requirements of candidates qua the PSC Guidelines, 2015 was undertaken by the Board. 4 Ghulam Rasool Versus Govt. of Pakistan [PLD 2015 SC 6] Human Rights Case No. 11827-S of 2018 � 16 There is no record of the workings of the so called 'Selection Board' and whether in evaluating Mr. Cyans' eligibility, the 'fit and proper' criteria was adhered to. Also, had the due diligence been conducted as per the PSC Guidelines, 2015, the discrepancy of Mr. Cyans' date of birth would have come to fore. We are surprised to note that In contravention of the PIAC manual, instead of asking Mr. Cyan to follow the prescribed procedure, an affidavit was obtained from him to the effect that the date of birth in the computerized national identity card (CNIC) was correct as opposed to the other record. The said discrepancy was condoned as a special favour and in violation of the procedure consistently followed by PIAC. 18. No interview of Mr. Cyan was conducted by the Board as required by the Guidelines. This fact is corroborated by the Minutes of the 14th Meeting of the Board of Directors where two of the Members of the Board objected to the selected candidate as they were denied the opportunity to shortlist and interview the candidates, but to no avail. The candidate ear marked for selection by those who were calling the shots had already been selected and the board was to be used as a rubber stamp only. 19. After the so-called and illegal short-listing PIACL requested the Aviation Division, vide letter dated 21.07.2017, for onward submission of names of candidates to the Federal Government. The letter of the PIAC Chief Human Resource Officer dated 21.07.2017 is available on record. However, Human Rights Case No.11827-S of 2018 � 17 neither the summary sent by the Aviation Division to the Prime Minister is appended nor the actual approval is available on record. The approval was however communicated to PIAC vide letter of the Aviation Division dated 10.08.2017 whereas the approval accorded by the Cabinet Division was given on 22.08.2017. On this score alone, the appointment of Mr. Cyan is ex facie contrary to the law as elucidated by a pronouncement of this Court in the case of Mustafa Impex Versus Government of Pakistan 85 Others JPLD 2016 SC 8081. 20. Furthermore, the contract period as provided in the advertisement was 2 years (further extendable). The letter of appointment issued to Mr. Cyan also stipulated a 2 year contract. The contract appended with the concise statement of Mr. Cyan too, reflects that it was for a period of 2 years extendable to another 2 years. In stark contrast to the same, the terms of the contract were unauthorizedly and unilaterally changed by the Board of Directors to 3 years vide minutes of the 19th Meeting held on 08.02.2018. This is clearly contrary to the policy of the government as well as the advertisement, published in the newspapers inviting applications from candidates for appointment against the post of CEO of PIA. 21. We had directed the Auditor General of Pakistan to conduct an independent audit of the affairs of PIAC. Independent confirmation of the abovementioned gross illegalities has been done by the Auditor General of Pakistan Human Rights Case No.11827-S of 2018 � 18 in his preliminary report. In addition to the irregularities highlighted above, misuse of corporate resources was also highlighted by the Auditor General Pakistan (AGP). It has been recommended by the AGP that: • � The Employment of Mr. Cyan be terminated without delay; • Immediate recovery of salary and emoluments be initiated; and • The case be referred to independent agency to probe the external pressure applied by the Advisor to the PM on Aviation, namely Mehtab Abbasi, in effectuating this irregular appointment. We are therefore, in no manner of doubt that Mr. Cyan was selected in an arbitrary, illegal and unfair manner which was clearly in violation of law and the rules. The rules and regulations were ignored, the Board of Directors was virtually bypassed by using it as a mere rubber stamp and the candidate who enjoyed the goodwill of a politically strong and well placed individual was hoisted at the head of a very large government Corporation worth billions of rupees, which he was not qualified to run. The result is not surprising. A Corporation and a national asset which was already running into huge losses, is in dire straits and on the verge of collapse. We find this to be the worst form of cronyism at public expense without any regard to the interest of the institution or the people of Pakistan who have the largest stake in their national airline. 22. �Selection of persons to be appointed against senior positions bereft of merits has been frowned upon by this Court in the past, which went on to observe in Ashraf Tiwanas case supra that "We wish to add that issues of Human Rights Case No.11827-S of 2018 � 19 appointments to senior positions in public bodies, which have been highlighted in this petition and in other cases which have come up before us, have under-scored the need for a transparent, inclusive and demonstrably fair process for the selection of persons to be appointed to such senior positions. The Federal Government may consider the necessity of putting in place independent mechanisms and of framing open, fair and transparent processes so that the objectives for which public bodies are established can be efficiently achieved and at the same time the pernicious culture of arbitrariness, favouritism and nepotism is eliminated." 23. Unfortunately and regrettably favouritism and cronyism was allowed to prevail over merit and competence and a national asset was treated like a personal fief. 24. Until and unless strict compliance with the provisions of the statute and rules governing appointment to these senior positions are adhered to in letter and spirit, such appointments will always be subject to challenge on the ground of arbitrariness and non-compliance with the law and settled principles. It cannot be stressed enough that the Board of Directors is a body that owes a fiduciary duty to the stakeholders of the company and its role, as explained above, is not of a mere by-stander. The role of the Board envisaged by law is central and pivotal, and has clearly been articulated in the Rules, 2013 whereby the Board has an active duty to safeguard the rights of its stakeholders. Such duty needs to be performed by employing independent and honest Human Rights Case No.11827-S of 2018 � 20 individuals with training and experience in the relevant field, with the highest level of integrity, probity and honesty. 25. �Personal bias, political affiliations and a lack of empathy displayed by those mandated to make these appointments defeat all ideals, hopes and mechanisms of good governance in place. In Ashraf Tiwanas case this Court has encapsulated this entire problem as follows: "It has by now become well settled that Courts will look into the process of appointments to public office. It is the process which can be judicially reviewed to ensure that the requirements of law have been met. In the case of Muhammad Yasin supra, the process of appointment to public office has been made the subject of judicial review to ensure adherence to the command of the law. This is also a requirement of good governance and has been a subject of comment from ancient times. Abu al-Hassan al-Mawardi (d. 1058 A.D), the famous scholar from Baghdad devoted a substantial portion of his 11th century treatise on constitutional law, the al- Ahkam al Sultaniyyah, to the qualifications for holding public office. These are universal principles of good governance and are reflected in sections 5 and 6 of the Act which lay down stringent criteria for the kind of person the Federal Government may appoint as Commissioner/ Chairman SECP. Section 5(1) of the Act specifies that a Commissioner "shall be a person who is known for his integrity, expertise, experience and eminence in any relevant field, including the securities market, law, accountancy, economics, finance, insurance and industry." Under the law, the federal Government has the authority to appoint the Chairman and Commissioners of SECP. The Federal Government, however, has no absolute and unbridled powers in this behalf. It is constrained by the aforesaid requirements of the Act. We have come a long way from the days of the whimsicality of Kings and Caesers, such as Caligula who could conceive of appointing his horse Incitatus as Consul of Rome. The element of subjectivity and discretion of the Government has been severely limited by the legal requirement that an appointee � must be a person having integrity, expertise, eminence etc. This requirement imposes a duty on the Federal Government to put in place a process which ensures that the requirements of the law are met." We note with regret that clear, unambiguous and unequivocal pronouncements by this Court on these issues have fallen on . Human Rights Case No.11827-S of 2018 � 21. deaf ears and no heed has been paid to the same which has Ted to disastrous and cataclysmic consequences. PIAC is a grim example of the same. 26. �Above are the detailed reasons for our short order of even date. The same for ease of reference is reproduced below:- "For the reasons to be recorded later, we, inter alia, hold that Mr. Musharraf Rasool Cyan, the Chief Executive Officer (CEO) of Pakistan International Airlines Corporation Limited (PIA) was not qualified to be appointed on such post. Besides, the procedure adopted for his appointment does not conform to the law and rules on the matter. As a consequence whereof, this application is allowed and his appointment is set aside with immediate effect. The Federal Government is directed to take necessary steps to appoint a new CEO of PIA strictly on merit and in accordance with law." C.M.A. No.5566 of 2018 in S.M.C. No.23 of 2018:- 26. As the main case, i.e. S.M.C. No.23 of 2018 has already been disposed of vide order dated 30.06.2018, therefore this application has lost its relevance and is accordingly disposed of. H.R.M.A. No.534 of 2018:- 27. Learned counsel wants to withdraw this application. Dismissed as withdrawn. ISLAMABAD, THE 3rd of September, 2018 ZR/* NOT APPROVED FOR REPORTING . AA*.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Khilji Arif Hussain Mr. Justice Amir Hani Muslim Human Rights Case No.12271-S/2010 (Complaint by Mst. Ameer Zadi) Complainant : Ameer Zadi in person In attendance : Mr. Adnan Karim Memon, Assistant A.G. Sindh. Mr. Ali Sher Jakhrani AIG Legal. Mr. Niaz Ahmed Khosa SP/AVCC. Mr. Ghulam Muhammad Bhutto, Registrar University of Sindh. Date of hearing : 16/08/2013. ORDER Pursuant to the orders of this Court, Mr. Ghulam Muhammad Bhutto, Register, claiming to be the Registrar of the Sindh University, has put in appearance and has informed that Mohammad Nawaz Narejo, who was required to appear has been transferred from the office of Registrar on 03.08.2013 and has been appointed as Advisor (Planning) of Sindh University and in his place Mr. Bhutto has been appointed as Registrar. This Court has repeatedly directed appearance of Mohammad Nawaz Narejo, the then Registrar of Sindh University, but for one or the other reasons, he managed to avoid appearance and now it is claimed that since the order which was passed on 17.07.2013 requiring appearance of the Registrar, therefore, he being the Registrar has put in appearance. We are surprised to notice the conduct of the Vice Chancellor, Sindh University, who after the orders of this Court has transferred him. Once this Court has ordered appearance of Mohammad Nawaz Narejo the then Registrar, against whom there are serious reservations of the complainant and it is claimed that he patronized Ghulam Rasool Narejo, the accused in these proceedings and has failed to take action against Mohammad Haq Nawaz Narejo and Rab Nawaz Narejo, employees of the Sindh University though they were absent from their duties since months altogether. On intervention of this Court Mohammad Nawaz Narejo the then Registrar by his letters dated 22.04.013 terminated their services. In this regard on 14.05.2013 this Court has passed the following order:- “Mr. Niaz Ahmed Khosa, S.P., C.I.A/Anti Violent Crime Cell, Karachi has submitted his report, which is taken on record. It seems that two of the nominated accused namely Mumtaz Ali Narejo and Ghulam Rasool Narejo are still absconding. Mr. Niaz Ahmed Khosa is, therefore, directed to take all possible measures for their arrest so that they may face judicial proceedings in accordance with law. Two Office Orders dated 22.4.2013 regarding termination of services of Haque Nawaz Jarejo, Security Guard and Rab Nawaz Narejo, Junior Assistant Librarian, University of Sindh, Jamshoro have been placed on record, which show that despite their absence from duty from 6.9.2009 and 28.4.2009, no appropriate action was taken by the Registrar, University of Sindh against them and it is only when order in this regard has been passed by this Court on 10.4.2013 that such long awaited action has been taken against them. In this regard Registrar, University of Sindh is, therefore, required to be present in Court alongwith original record to show upto what period the two absconding accused, now in custody, were paid salaries and other emoluments despite their long absence from the duty. 2. Mr. Manzoor Hussain Soomro brother of Abrar Ahmed Soomro, alleged abductee submit that after the removal of above named two accused persons from the service of University of Sindh son of one of the alleged accused Rab Nawaz Narejo has been appointed in the University of Sindh and all this has happened at the behest of the Registrar of the University, who is all along patronizing the accused party. Registrar, University of Sindh is also directed to answer this query. 3. Hearing of this human rights case is adjourned to a date after three weeks, whenever a Bench is available at Karachi.” 2. The matter was fixed on 17.07.2013, when Mohammad Nawaz Narejo did not appear and a specific order for his appearance was passed, which reads as under:- “It seems that office has failed to issue notice to the Registrar of University of Sindh as contemplated in our earlier order dated 14.5.2013. Let such notice be issued to him through D.P.O Jamshoro for his personal appearance in terms of above referred order. Office to relist this case in the next session.” 3. After this order, DPO Jamshoro must have informed him and in his place Mr. Ghulam Mohammad Bhutto has put in appearance claiming that on 03.08.2013, he became the Registrar, therefore, Mohammad Nawaz Narejo has not appeared, who was transferred by the Vice Chancellor and presently holding the office of Advisor (Planning) of Sindh University. 4. We are of the tentative view that order of transfer after order of this Court, which was passed on 17.07.2013 does not preclude him from appearing in the Court when there are serious allegations against him and he is patronizing the accused persons by extending them favours in getting their brothers/sons employed in the University. After this order of 17.07.2013, the Vice Chancellor ought to have refrained from transferring him to some other office, when this Court has directed him to appear in person. 5. Under these circumstances, we are compelled to direct the Assistant Advocate General Sindh and Mr. Ali Sher Jakhrani AIG (Legal) to procure the attendance of Vice Chancellor Sindh University as well as Mohammad Nawaz Narejo the then Registrar in Court by tomorrow at 10:00 AM, on which date the learned Advocate General Sindh shall also be in attendance. The entire record of the University pertaining to the appointment of relations of the accused Ghualm Rasool Narejo shall be placed before the Court. Copies of this order be faxed to the Advocate General Sindh, Mr. Ali Sher Jakhrani AIG (Legal) and Vice Chancellor Sindh University for their information and immediate compliance. JUDGE JUDGE JUDGE Karachi. In the Supreme Court of Pakistan (Original Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Khilji Arif Hussain Mr. Justice Amir Hani Muslim H.R.C. No.12271-S of 2010 Complainant: In person alongwith her son Manzoor Ahmed On Court notice: Mr. Khalid Javed Khan, Accountant General, Sind Mr. Adnan Karim, Asstt. Advocate General, Sind Dr. Nazir Mughal, Vice Chancellor, University of the Sindh, Jamshoro. Mr. Muhammad Nawaz Narejo, former Registrar University of the Sindh, Jamshoro. Mr. Ghulam Muhammad Bhutto, Acting Registrar, University of the Sindh, Jamshoro. Mr. Ali Sher Jakhrani, AIGP (Legal) Dr. Wasi Hyder Shah, DPO/SSP, Jamshoro. Date of hearing: 17.8.2013 Order In response to our earlier order passed yesterday, the worthy Vice Chancellor, University of Sindh, Jamshoro Dr. Nazir Mughal, is present in Court, so also Mr. Muhammad Nawaz Narejo, former Registrar, University of Sindh. The latter is directed to submit his reply to the allegations leveled against him as regards harbouring and protecting the two employees of the University, namely, Rab Nawaz Narejo and Haq Nawaz Narejo, despite being not only involved in F.I.R. No.314 of 2009 under sections 364/506-B/34 PPC, but also they being convicted in the said crime. The Vice Chancellor, University of the Sindh shall also submit his reply explaining the circumstances for justifying transfer of Registrar, Mr. Muhammad Nawaz Narejo, in the month of August, 2013, before the fixation of this case for hearing before us, when there were specific directions for his personal appearance in the Court in the matter, as such action on his part, prima-facie, seems to be colourful exercise of his authority to obstruct the course of justice. Office is directed to re-list this case in the next Session. 2. At this stage, complainant and her son Manzoor Ahmed have filed a written request for protection due to fear to their lives at the hands of Narejo tribe. The application is taken on record with directions to the Advocate General and the concerned police officers to ensure the safety of the complainant and her son. Karachi, 17th August, 2013 Not approved for reporting. Riaz Judge Judge Judge In the Supreme Court of Pakistan (Original Jurisdiction) Human Rights Case No.39604-S of 2012 (News clipping Daily Dawn dated 27.11.2012 Two Jirgas decide fate of four girls) For the complainant: Nemo. On Court notice: Mr. Adnan Karim, Asstt. A.G. Sindh Mr. Ali Sher Jakhrani, AIGP( Legal) Date of hearing: 16.3.2013 Order Anwar Zaheer Jamali, J – Mr. Ali Sher Jakhrani, AIGP (Legal) has placed on record fresh report dated 16.8.2013, submitted by Senior Superintendent of Police Shikarpur, which is accompanied with some photographs and other documents. The perusal of this report reveals that spirit of the order dated 1.3.2013 is being maintained, as regards the three minor girls. 2. This being the position, this human rights case is disposed of with the observation that as far as possible the care of three minor girls be taken till they attained puberty and/or get married as per their own wishes and wishes of their parents. Karachi, 16th August, 2013. Riaz Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Ijaz ul Ahsan HUMAN RIGHTS CASE NO.13316-P OF 2018 (In the matter regarding Colossal Losses incurred by Pakistan Railways) On Court Notice : For Federation of Pakistan : Ch. Aamir Rehman, Addl. Attorney General For M/o Railways : Mr. Habib-ur-Rehman Gillani, Secretary Mr. Dost Muhammad Leghari, CEO/SR/GM Mr. M. Liaqat Memon, Member Finance Mr. Farrukh Tamur, Secy., Railway Board Mr. M. Saleem Khan, Joint Director Mr. Mazhar Ali Shah, D.G. (Planning) Mr. Zubair Shafi Ghori, AGM-I Mr. Shoaib Adil, DS, Multan Mr. Nisar Ahmed, AGM-I Mr. Suffain Dogar, CPO/HQ Mr. Sajjad Butt, ASC/D.G. (Legal) Syed Rifaqat Ali Shah, AOR Mr. Khurram Shahzad, Legal Advisor Mr. Imran Hayat, Dy. Legal Advisor For M/o Planning, Development and Special Initiatives : Syed Waqar-ul-Hassan, Additional Secretary Mr. Zohair Fazil, Chief (Transport & Communication) For Auditor General of Pakistan : Mr. Moeed Ali, D.G. (RA) Mr. Kashif Farooq Ch., A.O. For Government of Sindh : Mr. Muhammad Qasim Mirjat, ASC/AOR Date of Hearing : 09.07.2020 ORDER A report has been submitted by the Secretary/Chairman, Ministry of Railways, Islamabad, wherein, reference has been made to the up-gradation of Railways trough ML-I, under the China Pakistan Economic Corridor (CPEC) and also to the Karachi Circular Railway (KCR). HRC No.13316-P of 2018 2 2. As regards ML-I, it is informed that PC-I is now pending with ECNIC for approval and as soon as the said approval is received, work will be started. We expect that ECNIC shall consider and have PC-I approved, as per rules within a period of one month. 3. As regards KCR, it has been stated that considerable work on the ground has been done and that there are bottlenecks because of a Nala near Urdu University and Green Line near Nazimabad. The Secretary Railways states that if the Government of Sindh takes immediate action and makes way for the Railways at these two bottlenecks, the remaining work of KCR will be completed and it will be made operational. 4. The Secretary Railways also states that there are railway crossings at which the Government of Sindh has undertaken to provide for construction of either overhead or underground roads/paths, so that there is no eventuality of any one crossing the railway line. 5. We direct the Chief Secretary, Government of Sindh to ensure that the above three items of work are expeditiously completed to enable KCR to run in Karachi. Let a report, in this regard, be submitted by the Chief Secretary, Government of Sindh within a period of two weeks. The Chief Secretary, Government of Sindh so also the Commissioner, Karachi shall be present on the next date of hearing. 6. We have noted that the overall Railways in Pakistan is not being operated in a way it should be operated; more so, in accordance with the Rules and Manuals of Railways, on account of which accidents are taking place frequently, in which precious lives are being HRC No.13316-P of 2018 3 lost and great damage to the Railways is caused. There seems to be nothing in sight by which the operation of the Railways in Pakistan could be improved, as not only is the infrastructure of the Railways altogether bad and non-workable but also its employees are apparently not fit to operate the Railways. There needs to be serious thinking on the part of the Government of Pakistan regarding the operation of the Pakistan Railways and overhauling the Secretariat from top to bottom to ensure that the Railways operate in Pakistan safely. We expect that such measures will be taken by the Government of Pakistan immediately to ensure that the Railways do not play with the lives of the people and its properties are not lost. A report, in this regard, may be made available to the Court by the Government of Pakistan through the Planning Commission within one month. 7. Adjourned. To be fixed after one month. Chief Justice Islamabad, the, 9th July, 2020 Mahtab/* ‘NOT APPROVED FOR REPORTING’ Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HACJ. MR. JUSTICE EJAZ AFZAL KHAN. H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND H.R.M.A. NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016. (Alleged gross corruption in supply of Oxygen. Nitrogen gas and theft of medicine from hospital). In attendance : Mr. Nayab Hassan Gardezi, Standing Counsel. Mr. Shehryar Qazi, Addl. A. G. Sindh. Mr. Umar Farooq Adam. A. G. KPK. Mr. M. Ibrahim Memon, Dy. Secy. Health Sindh. Mr. Bakhtiar Ali, S.O. (Health) KPK. Mr. Mudassar Khalid Abbasi, AAG. Pb. Dr. Yadallah, Dy. Secy., Primary Health Punjab. Mr. Tayyab Fareed, Addl. Secy. Health Punjab. Mr. M. Asif Iqbal, Sr. Law Officer Health Punjab. Dr. Waqar Aftab Malik. Dr. Arshad Rana. Dr. Anjum Javed (PIMS) Dr. Aftab Ali Malik. Dr. Sartaj Ali. Dr. Shaista Habibullah (NIRM) Dr. Tahir, DHQ, ILD. Dr. Iftikhar Naru. Date of hearing: 12.08.2016 O R D E R On the last date of hearing we having discussed irregularities committed in the hospitals summed up as under:- “2. How are the life saving drugs dealt with and how are the pharmacies in the hospitals managed are some of the important aspects to be attended and inquired into. We would, thus, direct the law officer to collect data in this behalf of the hospitals at least in the capital and submit a detailed report before the next date of hearing. Dr. Muhammad Arshad, the mover of CMA. No. 16/2016 is also directed to provide the necessary details in the matter which is being pored over by this Court. Dr. Waqar is also eager to provide data in this behalf. He too is directed to submit a CMA setting out all the irregularities he happens to be posted with. CMA. No. 17 of 2016 may further be vouched and documented to lay bare the necessary details. We also direct the Advocates General of the Provinces to collect details from the Chief Executives of the hospitals as to the state of laboratories and the other equipments installed therein to show whether they are in functioning order or otherwise. The needful be done within two weeks. Relist on 12.08.2016.” 2. Some data in compliance with the order mentioned above has been given but that appears to be deficient on many counts. Data has also been submitted about the equipments installed in the hospitals with the relevant details showing how many of them are in functioning order H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND H.R.M.A. NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016. 2 and how many of them are inoperative. The picture painted in the CMAs appears to be rosier but the grave ground realities are to the contrary. Some of the facts and figures appear to be fudged. Total number of ventilators available in the Polyclinic Hospital Islamabad has been shown to be 22 out of which 6 are non-functional. This figure also appears to be exaggerated. Refilling of Nitrous oxide cylinder 16200 liters is had at the rate of 22000 in Polyclinic but no authentic figure has been provided so far by the private hospitals. The learned Standing Counsel for the Federation is directed to collect information from Medicsi, Quaid-e-Azam and Shifa International Hospitals in this behalf. Though one of the surgeons working in Shifa International Hospital stated that the refilling of Nitrous oxide cylinder is done at the rate of 3000/- per cylinder, which in any case has to be supported by documentary evidence. Dr. Arshad Rana and Dr. Sartaj have undertaken to provide the authentic data from the above mentioned hospitals and the pharmacies therein. How the medicines having proven efficacy are eliminated to force way for prescription of more expensive and less efficacious medicines is another sordid and seamy aspect of the controversy which too cannot be over-sighted. This shows that the right to life is overarched by the right of freedom of trade which in no case is unfettered, unrestricted and unqualified if considered in terms of Article 18 of the Constitution of the Islamic Republic of Pakistan. What is the state of laboratories in the hospitals in public sector and why are they out of order and in case they are in order why their results do not conform to those of reputed laboratories established in the private sector. Doctors like other professionals have a right to add to their riches but not at the cost of the ailing humanity. Statement of Dr. Shaista Habibullah representing National Institute of Rehabilitation Medicines (NIRM) that the equipments in the hospitals are enough to cater for the needs of the patients requiring long term management and that destitute are treated free of cost is indeed gladdening but why more than half of the equipments are out of order has to be accounted for. The state of healthcare is not only pathetic and H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND H.R.M.A. NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016. 3 painful but in shambles despite the fact that the people manning and managing it are under Hippocratic Oath. Dr. Waqar Aftab Malik has undertaken to provide information over and above what can be beamed in from the internet as to what has been happening in the hospitals ever since their establishment with the connivance and complicity of the persons at the helm. Let him do so before the date fixed. The Advocates General of the Provinces are also directed to provide details about the machineries and other equipments in the DHQ Hospitals and their states of being operative and otherwise before the date fixed. Relist on 18.08.2016. Copy of this order be dispatched forthwith to all concerned including Advocates General of the Provinces for doing the needful. ACJ Judge ISLAMABAD 12.08.2016. M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED HUMAN RIGHTS CASE NO.14392 OF 2013 (Action on News Clipping published in the Daily Pakistan dated 17.4.2013 with regard to unprecedented load shedding in the country) On Court notice: For WAPDA: Syed Moazzam Ali Rizvi, ASC Mr. Shahzad Asif, AD (Legal) Date of hearing: 26.04.2013. ORDER The learned counsel appeared on behalf of WAPDA and stated that at present the WAPDA is responsible for the generating of hydroelectricity, which is 32% of the total electricity and at present it is generating about 60% of its capacity for a variety of reasons, including the fact that Indus River System Authority, which manages water flow from the Dams, is not allowing sufficient flow of water for WAPDA to achieve its target. He is directed to put up a comprehensive note in this behalf. 2. The WAPDA and all concerned Departments are also directed to put up a combined figures of generating of electricity from the hydroelectricity, GENCO, IPPs and RPPs, if any, for the last six months commencing from 1.10.2012 to 31.3.2013 and subsequent thereto a separate report from 1st April, 2013 to-date. All these Companies are directed to achieve the maximum target of production of the electricity for the purpose of supply to all the categories of consumers so they may be facilitated during the Summer Season, which has already commenced. 3. Notice to the PEPCO, NTDS and Indus River System Authority through their respective Chairman, be issued to file their replies along with the facts, figures and the reasons relating to the shortage of electricity in the country. 4. The Court will welcome the voluntary opinion of any expert, on the subject, for generating electricity from all the available sources and its distribution. 5. Adjourned to 2.5.2013. Chief Justice Judge Islamabad, the 26th April, 2013. Judge *M Safdar Mahmood*

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.17599 OF 2018 (Regarding alarming high population growth rate in the country) In attendance: Mr. Anwar Mansoor Khan, Attorney General Syed Nayab Hassan Gardezi, DAG Mr. Tariq Mehmood Jehangiri, A.G. Islamabad Mr. Sibtain Mehmood, AAG, Sindh Mr. Zahid Yousaf Qureshi, Addl. A.G. KP Mr. Ayaz Swati, Addl.A.G. Balochistan Mr. Qasim Ali Chowhan, Addl. A.G. Punjab Cap. Retd. Zahid Saeed, Secretary M/o NHS&RC Mr. Imran Gichki, Secy. Population Balochistan Mr. Abdul Ghaffar, D.G. Population Welfare Department, Govt. of Pakistan Mr. Asghar Ali, Secy. Population, KP Mr. Fazal Nabi Khan, DG, PW, KPK Mr. Muhammad Jahangir for PBS, ILD Mr. Muhammad Riaz for PBS, ILD Date of hearing: 03.01.2019 . . . JUDGMENT MIAN SAQIB NISAR, CJ.– As of 2017, Pakistan is ranked as the fifth most populous nation in the world, with a population of over 200 million. While all nations and economies rely on population growth and a creation of future younger generations, such growth must be sustainable and proportionate to the resources available. Approximately 14,000 babies are born in Pakistan which is already struggling to feed, educate and provide employment for its existing population. Pakistan has experienced unchecked population growth since its creation in 1947. From 1998 (the previous comprehensive census) to 2017, Pakistan’s population has increased by 57%, with the addition of approximately 76 million people to the population. Projected growth trends from the United Nations suggest that if this population growth rate does not slow considerably, Pakistan can expect to have its population increase by 50% resulting in an estimated 306 million people, surpassing the United States, Indonesia, Brazil, and Russia H.R.C. No.17599/2018 - 2 - to become the world's third largest country in terms of population trailing behind India and China. The steadily increasing population rate in Pakistan is a ticking bomb which will certainly not wait till it is convenient for us to take note of it. What will follow this population explosion is starvation, famine and poverty, the likes of which are already visible in areas like Thar. Other indicators of overstretched resources and infrastructure are apparent in Pakistan’s unemployment rate, maternal and child mortality rate, literacy and educational enrolment figures, and access to clean water and adequate food. A brief overview of the above figures reveals the extent of the resource and infrastructure shortcomings for an already large populace. Pakistan currently has a very high mortality rate for children under the ages of five years (75 deaths per 1000 live births), an above average maternal mortality rate (178 deaths per 10,000 births), and approximately 44% of the population lacks access to clean drinking water. Furthermore, Pakistan’s literacy rate is 58% while over 22 million children are out-of-school. Future projections indicate the number of educational institutions to reduce in number. The above figures make it clear that Pakistan is not equipped to handle the addition of another 100 million people to its ranks. 2. After the Proclamation of Teheran, 19681 (Proclamation) at the 1968 International Conference on Human Rights, ‘family planning’ was recognised by the international community as both a right and a means of enabling other human rights. In this regard, paragraphs 16 and 17 of the Proclamation are relevant which read as under:- “16. The protection of the family and of the child remains the concern of the international community. Parents have a basic human right to determine freely and responsibly the number and the spacing of their children; 1 Pakistan was amongst the 84 members who adopted the Proclamation of Teheran by consensus on 13.05.1968. The Proclamation affirmed, for the first time in a global agreement, the basic right of parents “to determine freely and responsibly the number and the spacing of their children” (paragraph 16). H.R.C. No.17599/2018 - 3 - 17. The aspirations of the younger generation for a better world, in which human rights and fundamental freedoms are fully implemented, must be given the highest encouragement. It is imperative that youth participate in shaping the future of mankind;” As obvious from the language of the above reproduced paragraphs, the right to freely and responsibly determine the number and spacing of children involves imparting sufficient information and means to the parents to control reproduction as well as providing them with adequate knowledge regarding the advantages and disadvantages of such determination. Also apparent from the above language is the interdependence of planned births with the right of the younger generation to be afforded all fundamental and human rights recognised by the international community. Thus, the right to well-informed and controlled pregnancies is a right that paves the path for enabling several other rights; for an overburdened economy cannot be expected to juggle with a growing population while struggling to provide a better facilities and opportunities for its progeny. This right, which forms part of the international commitments of Pakistan, originates from the right to life under Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), and other fundamental rights such as the right to education, equality, speech, information and due process (Articles 4, 25, 25- A, 19, 19-A and 10-A of the Constitution respectively), which are in turn inevitably linked to the economic progress of the State expected to make such rights available to its people. Unfortunately, by failing to prioritise the provision of information and means of controlling unplanned and unwanted births, the country now faces a surplus of unskilled and unemployed manpower for whom basic human and fundamental rights are luxuries they can at best only hope for, but never attain. 3. As the guardians of the fundamental rights of the people of Pakistan, this Court has for decades safeguarded the fundamental rights H.R.C. No.17599/2018 - 4 - guaranteed under the Constitution, and in pursuance of the above mentioned international commitment, recognised that such rights cannot be severed from principles of socio-economic progress under Articles 37 and 38 of the Constitution. As aptly observed by this Court in Miss Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416):- “Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio-economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio-economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while judicially defining them and testing the law on its anvil and also, if necessary, with the co-related provisions of the Objectives Resolution which is now a substantive part of the Constitution. The liberties, in this context, if purposefully defined, will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peace Through Law Conference: “Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under-nourished people or of the Freedom of Press to an illiterate population. The rule of law must make for the establishing of social, economic and cultural conditions which H.R.C. No.17599/2018 - 5 - promote men to live in dignity and to live with aspirations”” [Emphasis Supplied] Fortified with the above cited paragraph, we are inclined to conclude that fundamental rights such as the right to free speech or information are of no use to those struggling with malnutrition, hunger and starvation. Economic prosperity is thus a sine quo non for the implementation of all fundamental rights, the paramount right being that of life. A plethora of judgments of this Court have sufficiently emphasised that Article 9 of the Constitution does not merely protect the right to ‘exist’ or ‘live’ but embodies the right to live a meaningful life with a minimum standard of living. In Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693) it was held that:- “The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally.” 4. Similarly in the judgment passed in Suo Motu Case No.19 of 2016 (2017 SCMR 683) it was held that “[t]he Fundamental Right to life (Article 9), includes the right to adequate and safe drinking water and basic health care”. In Pir Imran Sajid and others Vs. Managing Director/General Manager (Manger Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257) and Abdul Wahab and others Vs. HBL and others (2013 SCMR 1383) Article 9 of the Constitution was held to include a right to livelihood. In the judgments reported as Barrister Zafarullah Khan Vs. Federation of Pakistan (2018 SCMR 2001), General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum Vs. The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061), Suo Motu Case No.10 of 2010 (Contamination of Water of Mancher Lake due to Disposal Effluent from MNV Drain now converted H.R.C. No.17599/2018 - 6 - into RBPOD) (2011 SCMR 73), Shahab Utso Vs. Government of Sindh through Chief Secretary and other (2017 SCMR 732), Shehla Zia’s case (supra) the said Article was held to include the right to safe drinking water and a safe and health-friendly environment. In OGRA through Secretary Vs. Midway II, CNG Station (2014 SCMR 220) and Iqbal Zafar Jhagra and Senator Rukhsana Zuberi Vs. Federation of Pakistan (PTD 2014 SC 243) the said fundamental right was held to include the right to provision of electricity and gas. In Younas Abbas Vs. Additional Sessions Judge, Chakwal (PLD 2016 SC 581) and National Engineering Services Pakistan [NESPAK] (Pvt.) Limited Vs. Kamil Khan Mumtaz (2018 SCMR 211) the right to life was interpreted in the following terms:- “It is now well established that right to life as envisaged by Article 9 of the Constitution includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. In the case of Employees of Pakistan Law Commission v. Ministry of Works (1994 SCMR 1584), it has been laid down that Article 9 of the Constitution which guarantees life and liberty according to law , is not to be construed in a restrictive manner. Life has larger concept which include the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights.” [Emphasis supplied] In the recent judgment of this Court passed in Barrister Zafarullah Khan Vs. Federation of Pakistan etc. (Constitution Petition No.57/2016 etc.) wherein the Federal Government was directed to construct the Diamer- Bhasha and Mohmand Dams, the right to life and the importance of water in this regard was elucidated in the following terms:- “For the last several decades, there has been reference to the right to clean water, as stemming from the right to life enshrined in the Constitution as a fundamental right. On a national level, various judgments including those reported as H.R.C. No.17599/2018 - 7 - General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum Vs. The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061), Suo Motu Case No.10 of 2010 (Contamination of Water of Mancher Lake due to Disposal Effluent from MNV Drain now converted into RBPOD) (2011 SCMR 73) and Shahab Utso Vs. Government of Sindh through Chief Secretary and other (2017 SCMR 732) robustly discuss how clean and safe drinking water is necessary for the existence of life, and that contaminated and polluted water poses a threat to human existence. The oft-quoted words of Saleem Akhtar, J. in the case of Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693), where the immediate context was regarding the hazards of electromagnetic fields, are equally germane here:- “Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally.” Therefore water is a resource to which everyone is entitled, is indispensable to those who wish to lead a dignified life, and forms the basis of many other rights including the right to life, health and quality of life. It is a fundamental right that emanates from the right to life enshrined in Article 9 of the Constitution…” [Emphasis supplied] As evident from the above precedents, it is by now established law that the right to life includes a right to basic amenities and living standard, access to clean drinking water, electricity, employment etc. and there is no denying that the same is heavily dependent on the economic progress of the H.R.C. No.17599/2018 - 8 - country which suffers a constant handicap on account of the rapidly growing population. Poverty is thus deeply intertwined with each fundamental right guaranteed in the Constitution, since divorced from an economically thriving environment, there remains no meaning of the fundamental right to life as explained above, nor can other fundamental rights be implemented in their true letter and spirit. The threat of over- population, or “population explosion” is a doom the country is unknowingly moving towards if a national crusade for population control is not launched in time. It is an unfortunate reality that the earth is becoming too small to accommodate our growing numbers and its resources are rapidly decreasing at an alarming rate. This is not only adversely affecting the general quality of life but also threatening the mere existence of life on earth. Hence in pursuance of its duty to safeguard the fundamental rights of the people which is inseparable from socio-economic progress, the Supreme Court has suo moto commenced this long and hard but necessary journey to control the rate at which our population is multiplying. 5. Pakistan’s family planning programme began with private sector initiatives in 1953 and expanding to include public sector support and involvement in the early 1960s onwards. In 1953 the Family Planning Association of Pakistan was established and received a lukewarm response from the Government. However, in 1959 General Ayub Khan attended an Family Planning Association of Pakistan (FPAP) conference and spoke about the need to combat overpopulation. In 1965, with the introduction of the third 5-year plan, family planning received renewed funding and support from the public sector. In the late 1970s the family planning programme fell prey to opposition from General Zia Ul Haq, who opposed publicising or expanding the programme due to religious opposition. The next major step forward came in 1990 with the introduction of a new National Health Policy which required all healthcare outlets to provide family planning services. A social action programme was developed which incorporated family planning H.R.C. No.17599/2018 - 9 - in tandem with rural development, education, and sanitation efforts. An ongoing issue with the previous decades of the family planning programme was the high degree of centralization which has undoubtedly damaged the effectiveness of such programmes. Although Pakistan had success in increasing contraceptive use in the 1980s and 1990s, a plateau was ultimately reached. The contraceptive prevalence rate (CPR), or the percentage of married, non-pregnant women using both modern and traditional methods of contraception, rose from 12% in 1990-91 to 28% in 2000-01, but between 2000 and 2009, there was hardly any change in CPR which was 30% in 2000 and remained unchanged in 2006. In 2012, Pakistan made a commitment to Family Planning 2020 (a global partnership to empower women and girls by investing in rights-based family planning). A number of service providers are trained to dispense contraceptives, fit intrauterine devices (IUDs), or advise on other birth control measures. Although two other Muslim countries, Iran and Bangladesh, had simultaneously launched population control campaigns during the 1970s (examined later in this opinion), they had remarkable success in such efforts while the campaign in Pakistan miserably failed and thereafter for decades the subject of family planning remained a taboo for elected governments whose five-year plan could never accommodate population planning initiatives. 6. Therefore, in the absence of policy initiatives to curb the startling population growth and in our capacity as the guardians of the fundamental rights guaranteed by the Constitution, this Court was constrained to help relaunch this campaign. Initially when this Court took cognizance of the instant matter, the Federal and all the Provincial Governments (including the respective Chief Secretaries) were required to file their concise statements. The learned Attorney General for Pakistan, the learned Advocates General of all the Provinces and other stakeholders unanimously agreed that a uniform policy for all the Provinces is required to control the population of Pakistan. A Task Force was constituted comprising of the H.R.C. No.17599/2018 - 10 - persons mentioned below, to prepare a policy for this Court’s consideration:- i. Secretary, Inter-Provincial Coordination (Chairman); ii. Director General Population, Ministry of National Health (Member); iii. Secretaries, Population & Welfare of all Provinces (Members); and iv. Director General, Population of all Provinces (Members). The said Task Force submitted its report and after lengthy deliberations, a Committee was constituted comprising of the names and having the Terms of Reference (TORs) proposed by Capt. (R) Zahid Saeed, Secretary, Ministry of National Health Services, Regulations and Coordination who was appointed as the convener of the meetings authorized to co-opt any other person on account of their expertise in the matter and modify/add the TORs as deemed necessary. The said Committee submitted a comprehensive report in which Recommendations (hereinafter referred to as the “Recommendations” reproduced later in this opinion) have been made to curb the alarming population growth rate in Pakistan. In order to sensitize the matter and to increase public awareness on the issue, the print and electronic media was also directed to print and broadcast the Recommendations continuously for three days free of cost. Thereafter, the Council of Common Interests (CCI) held its meeting which ultimately approved the Recommendations submitted to this Court. Additionally, a symposium was held by the Law & Justice Commission of Pakistan (LJCP) and the Ministry of National Health Services, Regulations & Coordination (Population Programme Wing) wherein valuable suggestions have been made by experts, academics, religious scholars and social activists (which shall be examined below). Subsequently, on 29.12.2018, this initiative of relaunching a nationwide population planning campaign, alongwith the Recommendations, received unanimous endorsement from the elected representatives from all Provinces, major political parties and religious H.R.C. No.17599/2018 - 11 - scholars at a national dialogue organized by the Population Council. Before dilating upon these Recommendations, we deem it expedient to provide a brief overview of efforts made by other countries including Iran, Bangladesh, India and China in this crusade for population control and planning and examine the role of the legislature, executive, judiciary, public functionaries and other stakeholders in this arduous task. 7. The Islamic Republic of Iran:- In Iran, in less than one generation the population growth rate of 4.06% in 1984 fell to 1.15% in 1993 and a total fertility rate of 6.4 births per woman in 1984 declined to 1.9 in 2010. The reason behind this was a development plan passed by the Iranian Parliament in 1989, which included a birth control programme, as a part of which, inter alia a huge media campaign was initiated to encourage women to space their pregnancies for three to four years, to limit the number of children to two, and to avoid pregnancy under the age of 18 and above 35. Following this the Iranian Parliament removed previous incentives for high fertility and clergy bodies and the judicial system issued the authorisation for family planning and supported the policy. In 1993, the Iranian legislature passed a law regarding family planning which, inter alia, provided for incentives for smaller families including for instance some social benefits for the first three children in a family. The said law focused on reducing infant mortality, promoting women’s education and employment, and extending social security and retirement benefits to all parents so that they no longer consider children as cushions/security for their old age. The magnitude of success received by this family planning program can be accredited to the government-backed awareness, information and education program in this regard and to a health care delivery system that was able to meet reproductive health needs. The Ministry of Health of Iran established pre-marital counseling classes throughout the country which the government made mandatory for couples planning to marry to participate in before they could receive their marriage H.R.C. No.17599/2018 - 12 - license; population education became part of the curriculum at all educational levels; university students were required to take a course on population and family planning; and family planning services were provided for free by the country’s primary health care system, which is based on different levels of care and an established referral system. In rural areas, the Ministry of Health and Medical Education is the main provider of health care services, and trained health workers proactively provide door-to-door family planning related information and services. In urban areas on the other hand health services are largely provided by the private sector which equally play a significant role in awareness and services for family planning. In order to increase and meet the supply of modern contraceptives, many are now manufactured in Iran, in fact the only condom factory in the entire region is in Iran, which exports its products to neighboring and Eastern European countries. As a result of these measures, today 74% of married women in Iran between the ages of 15 to 49 practice family planning; 60% use a modern method; and one-third of modern contraceptive users have relied on a permanent method, i.e., female or male sterilization. 8. The Republic of India:- In India, legislative efforts to curb population growth began as early as 1994 when for example, under Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, any person having more than two children was deemed to be disqualified from being a member of the Gram Panchayat, Panchayat Samiti or Zila Parishad. When the constitutionality of the said provision was assailed before the Indian Supreme Court, it was upheld in the judgment of Javed & Others Vs. State of Haryana & Others [2003 (8) SCC 369] recognising that the purpose behind such legislation is inter alia to popularize the Family Welfare/Family Planning Programme which was in line with the National Population Policy holding that “In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right H.R.C. No.17599/2018 - 13 - nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest.”. The importance laid by the Indian Supreme Court on the implementation of the population control policy to secure the fundamental rights of the people of India is evident from the following paragraph of the judgment supra:- “…Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights and these principles are deducible from those very decisions which have been relied on by the learned counsel for the petitioners. It is necessary to have a look at the population scenario, of the world and of our own country. The torrential increase in the population of the country is one of the major hindrances in the pace of India's socio- economic progress. Everyday, about 50,000 persons are added to the already large base of its population…It is a matter of regret that though the Constitution of India is committed to social and economic justice for all, yet India has entered the new millennium with the largest number of illiterates in the world and the largest number of people below the poverty line. The laudable goals spelt out in the Directive Principles of State Policy in the Constitution of India can best be achieved if the population explosion is checked effectively. Therefore, the population control assumes a central importance for providing social and economic justice to the people of India (Usha Tandon, Reader, Faculty of Law, Delhi University, - Research Paper on Population Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-131). In the words of Bertand Russell, "Population explosion is more dangerous than Hydrogen Bomb." This explosive population over-growth is not confined to a particular country but it is a global phenomenon. India…has the population problem going side by side and directly impacting on its per capita income, and resulting in shortfall of food grains in spite of the green revolution, and has hampered improvement on the educational front and has caused swelling of unemployment numbers, creating a new class of pavement and slum-dwellers and leading to congestion in urban areas due to the migration of rural poor. (Paper by B.K. Raina in Population Policy and the Law, 1992, edited by B.P. Singh Sehgal, page 52)… H.R.C. No.17599/2018 - 14 - …The above facts and excerpts highlight the problem of population explosion as a national and global issue and provide justification for priority in policy-oriented legislations wherever needed… …Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A. Under Article 38 the State shall strive to promote the welfare of the people and developing a social order empowered at distributive justice - social, economic and political. Under Article 47 the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally down-trodden. Under Article 47 the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. None of these lofty ideals can be achieved without controlling the population inasmuch as our materialistic resources are limited and the claimants are many. The concept of sustainable development which emerges as a fundamental duty from the several clauses of Article 51A too dictates the expansion of population being kept within reasonable bounds.” Another illustration of legislative efforts to combat the menace of growing population can be found in the judgment of Air India Vs. Nergesh Meerza and Others [(1981) 4 SCC 335] where the rapid multiplication of population was judicially noticed and the constitutional validity of legislative means to check the population was upheld as the Indian Supreme Court found no fault with the rule which would terminate the services of air hostesses on the third pregnancy with two existing children, holding the rule to be both salutary and reasonable for two reasons:- "In the first place, the provision preventing a third pregnancy with two existing children would be in the larger interest of the health of the Air Hostess concerned as also for the good upbringing of the children. Secondly…when the entire world is faced with the problem of population explosion it will not H.R.C. No.17599/2018 - 15 - only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world.” The foregoing extracts clearly reflect the conviction and certitude of the legislature and the judiciary that the national interest of India lay in population control of the severity that disqualifications from elections and posts etc., was deemed to be an appropriate and necessary measure to enforce India’s two-child policy. For breach of the two-child norm several states put together a package of punitive measures including exclusion from elections, exclusion from ration cards, kerosene and other BPL incentives, denial of education in government schools to the third child and withdrawal of welfare programmes. This phased manner of implementing the two-child policy, was soon followed by stringent measures in the form of Indian Ministry of Health and Welfare’s Guidelines on Standards of Female Sterilization, enacted in October 1999. Through a public interest litigation decided through the judgment reported as Ramakant Rai Vs. Union of India and Others [2009 (16) SCC 565], data from the States of Uttar Pradesh, Bihar, and Maharashtra surfaced regarding government practices for female sterilization, which largely revealed that the poor, female population was targeted which lacked counselling or informed consent, lacked pre- and post-operative care, and included unhygienic and un- anesthetized operating conditions, sterilization of minors, coercion and cruelty. In light of evidence of the morbidity suffered by women, along with the unreported deaths due to the lack of quality care in sterilisation camps the Indian Supreme Court in the noted judgment issued directives specifying the quality of care standards along with appropriate protocols that were to be stringently followed. While the issue of health concerns and human rights violation arising from targeted sterilization of a certain H.R.C. No.17599/2018 - 16 - deprived class of the population has been addressed by the Indian Supreme Court in Devika Biswas Vs Union of India (UOI) and Others [2016 (10) SCC 726] as well, the Courts and the legislature and executive in India nevertheless remained uncompromising in the object of population reduction. As a result of these stringent legislative measures complimented by judicial support, in the year 2017 the annual population growth percentage in India has decreased to 1.1% while that of Pakistan remains at 2.0%. 9. The People’s Republic of Bangladesh:- In contrast to India, the national family planning program in Bangladesh is considered to be “culturally sensitive” because it uses strategies that acknowledge and account for gender inequality. A mixed contraceptive method was adopted prioritising oral pills over other methods such as sterilization or clinical services like IUDs which are met with hesitance, particularly among rural populations. The Government of Bangladesh formed a National Committee and a National Plan of Action was developed following the International Conference on Population and Development (ICPD) in 1994 for implementation of the goals set in the Plan of Action. Under the integrated approach of population and development, national policies were formulated on population, maternal health and strategies were developed for reproductive health, population, health and nutrition. Taking a community- based approach, married, literate village-women were recruited and trained in basic medicine and family planning to go door-to-door dispensing birth- control pills and barrier contraceptives, providing outreach services to couples, particularly married women with limited mobility outside the home or compound and referring women for clinical contraception. Simultaneously, the government prioritized girls’ education which lead to delays in marriage and childbearing as knowledge, status and confidence gave them greater control over family-planning decisions. This led to remarkable success in population control since prevalence of contraceptive H.R.C. No.17599/2018 - 17 - use increased dramatically from 3% to 45% among married women since 1971 and the fertility rate declined from about seven births per woman in the mid-1970s to 3.4 births per woman in 1993. These can largely be attributed to its Government’s efforts, particularly over the past 15 years to expand access to family planning methods and services and awareness campaigns. 10. The People’s Republic of China:- China, the most populous country in the world which unlike Pakistan can sustain its rapid growth of population due to its progressive economy, has been able to control its growth rate by adopting the ‘carrot and stick’ rule. Article 25 of the Chinese Constitution and Article 12 of the Marriage Law require that family planning be promoted by the State. Attractive incentives in the field of education and employment were provided to couples following the ‘one- child norm’. At the same time drastic disincentives were cast on the couples breaching such norm which even included penal action. These stringent measures have led to a radical decrease in the population growth rate in China, therefore, China’s Family Planning Commission, which for nearly four decades enforced the country’s notorious one-child policy, will be absorbed by a new agency as the government attempts to go back on its one-child policy. 11. It is pertinent to mention that the elucidation of the population control measures of various countries was only for illustration purposes. Although Pakistan is at a disadvantage for having launched this population control campaign decades after similarly populated countries such as Iran, China, India and Bangladesh, we also remain at an advantage to benefit from the errors that have surfaced decades after the implementation of the respective strategies employed with regard to their population control campaigns. Be that as it may, understanding the policy efforts to promote birth control and family planning methods only provides half the context required to formulate an effective plan. Indeed, a number of the failings of H.R.C. No.17599/2018 - 18 - the previous family planning initiatives stem from an ignorance of the unique cultural and religious milieu of Pakistani society. A perusal of data from the annual Demographic and Health Survey reveals a number of preconceived notions, obstacles and misconceptions regarding family planning, family size, childbearing and religious instructions regarding birth control and spacing pregnancies. Looking to fellow Muslim countries, or those nations with similar cultural ideals, it is clear that an effective family planning policy is an achievable goal even in spite of cultural, societal, or religious hesitance. 12. In order to learn from the mistakes of other countries in such campaign and to ensure that the efforts made in this relaunched campaign do not suffer the same fate as the previous one, a National Population Symposium was held by the Ministry of National Health Services, Regulations & Coordination (Population Programme Wing) in conjunction with the LJCP under the auspices of this Court on 05.12.2018 where several experts made valuable contributions to sketching a roadmap for this campaign of population control. One of the points raised was that family planning campaigns involves a two-fold process of (1) raising the demand for contraception use and (2) reducing the unmet need for contraception which comprises of a fair percentage of married women. The foremost task should be the meeting of demand of contraceptives and making them easily assessible to people while increasing the awareness with regards to the need of contraceptives. Moreover, the best global practices in family planning must be adopted including modern tested and effective methods in addition to a contraceptive mix method which has proven to be effective in many countries. Global evidence also supports task sharing/shifting strategies which should be quickly rolled out in Pakistan to enable mid-level and community-based service providers to provide services to rural, peri-urban and urban poor communities. We must emphasise the need to resort to reproductive health programming which H.R.C. No.17599/2018 - 19 - involves the participation of men in contraceptive use and supporting women for use of contraception. Subscribing to family planning methods will benefit the country in the form of a higher GDP per capita and reduced unemployment, increased health benefits including reduced maternal mortality, improved infant and child health and fewer abortions; these would in turn lead to greater freedom to determine the number and spacing of children; environmental benefits include reduced pressure on natural resources (water, agriculture, energy, etc.) as well as reduced air water and soil pollution; and it will also result in increased resources per capita for schooling and healthcare sectors and infrastructure. If resources are not increased by rationing the amount of births burdening the economy each year, this working population age will either be unemployed or due to lack of education and skill training will be working in unskilled and menial jobs. In order to ensure that this working age population is productively employed, a drastic decline in the population is required which must be supplemented with an education ‘emergency’ whereby education and technical training for the working age population is provided targeting both genders equally. Additionally, strong policy reforms are required centred on capturing the demographic dividend, the total fertility rate (TFR) must be reduced to a sustainable rate, a national action plan is required to be introduced in order to train our human resource and match skills to the available work opportunities, and ensure an increase in work opportunities for women so as to increase the source of income of each familial house. The United Nations Fund for Population Activities2 (UNFPA) is ready to assist Pakistan in building consensus on high quality, equitable and voluntary family planning as a national priority working with key stakeholders including development partners. Under the current Country Programme for Pakistan (2018-2022) UNFPA will focus on increasing capacities at all levels to accelerate delivery and accessibility of high-quality family planning 2 The principle global inter-governmental organisation in the UN system with a mandate for family planning. H.R.C. No.17599/2018 - 20 - information and services; UNFPA stands ready to foster partnerships and provide technical support to the implementation of the Recommendations approved by CCI and endorsed by the Provincial Legislators. This strategic decision will also enable Pakistan to honour the commitments made at international and national level particularly those made in the 1994 International Conference on Population and Development Programme of Action and the commitment made to reaching Sustainable Development Goals. Finally, coordination must be strengthened at all levels starting from the existing fora which include the Country Engagement Working Group (CEWG), Provincial FP2020 Working Groups, Family Planning Donor and Reproductive Health working groups, civil society organisations and the private sector working for the cause of population planning. 13. Be that as it may, as mentioned earlier in this opinion, the set of eight key Recommendations which have been prepared by the Task Force and approved by CCI are reproduced below:- RECOMMENDATION RESPONSIBILITY TIMEFRAME 1. Establish National and Provincial Task Forces for steering, providing oversight and taking critical decisions to reduce population growth, lower fertility rate and increase contraceptive prevalence rate (CPR): a. National TF chaired by Prime Minister to include Chief Ministers of all the Provinces, Federal and Provincial Ministers of Population, Health, Education, Finance, Planning and representatives of civil society. M/o NHS By 31.12.2018 b. Provincial TFs chaired by respective Chief Ministers to include Provincial Ministers of Population, Health, Education, Finance, Planning and representatives of civil society. PWDs By 31.12.2018 c. Progress towards reducing population growth rate, lowering fertility and increasing contraceptive prevalence rate to be monitored through a robust data collection system and assessments of results and presented before National and Provincial Task Forces. M/o NHS and PWDs Bi-annually (NTF) Quarterly (PTF) 2. Ensure Universal Access to FP/RH Services: H.R.C. No.17599/2018 - 21 - i. Mandate all public health facilities (BHUs, RHCs, THQHs, DHQHs, Teaching Hospitals) to deliver family planning services as part of the essential service package. Federal/Provincial Governments By 30.06.2019 ii. All general registered private sector practitioners and hospitals to provide FP counselling, information and services to male and female clients. Federal/Provincial Governments By 30.06.2019 iii. Lady Health Workers to provide FP, ante-natal and post-natal counselling, and contraception services on priority basis. Federal/Provincial Governments By 30.06.2019 iv. Current cadre of male mobilizers to be made active and accountable for counselling men on family planning. Federal/Provincial Governments By 30.06.2019 v. NGOs and Civil Society Organizations to work in close coordination with provincial DOHs and PWDs to extend FP/RH services to underserved and unserved areas. Federal/Provincial Governments By 31.03.2019 vi. Federal and Provincial Governments to link population programs with Social Safety Net programs like Benazir Income Support Program and introduce conditional cash transfer schemes or incentivized schemes for adoption of FP service and institutionalized birth delivery. M/o NHS, PWDs and BISP By 30.06.2019 3. Finances: i. Federal Government to create a five- year non-lapsable Special Fund for reducing Population Growth Rate with annual allocation of Rs.10 billion. The Fund shall be set up exclusively from federal resources without any cut from provincial funds. The Fund will: M/o Finance and M/o NHS By 30.06.2019 a. Meet, for five years, 50% amount of additional allocations made by the provinces for procurement of contraceptive commodities over and above the budget provision of FY 2018-19 in the respective head. M/o NHS in coordination with PWDs and Finance Div. & PD&R Div. FY 2019-20 through FY 2023-24 b. Meet, for five years, 50% cost of increase in LHWs for 100% coverage for doorstep services in rural and peri-urban areas. M/o NHS in coordination with DOH and Finance Div. & PD&R Div. FY 2019-20 through FY 2023-24 c. Support innovative approaches of Federal and Provincial Governments for reaching poor and marginalized population to reduce population growth and M/o NHS in coordination with DOH and Finance Div. & PD&R Div. FY 2019-20 through FY 2023-24 H.R.C. No.17599/2018 - 22 - increase contraceptive prevalence rate (CPR). ii. Federal and Provincial Population and Health budgets for FP/RH to be doubled over the next two years and protected from reallocation to other programs and departments while ensuring timely releases. M/o Finance, M/o NHS, DOH and PWDs FY 2019-20 through FY 2020-21 iii. Donor financing to NGOs and private sector organizations involved in FP/RH to be streamlined through an effective coordination mechanism. EAD and M/o NHS in coordination with PWDs and DOH By 31.03.2019 iv. Corporate Sector to allocate CSR funds for FP services and advocacy. SECP/FBR By 31.01.2019 4. Legislation: i. Family Planning and Reproductive Health (FP&RH) Rights Bill ensuring mandatory FP/RH services by all general health care facilities in public and private sector. M/o NHS, M/o Law and Justice and Provincial Governments/PWDs By 31.03.2019 ii. Early Child Marriage Restraint Act be introduced by Federal and Provincial Governments (Sindh passed this Act in 2013). M/o NHS, M/o Law and Justice and Provincial Governments/PWDs By 31.03.2019 iii. Pre-marital counselling on family planning should be mandatory for Nikah registration; LHWs or appropriate service providers to provide the requisite counselling. M/o NHS, M/o Law and Justice and Provincial Governments/PWDs By 31.03.2019 iv. “Right to promotive and primary health care for mother and child be made mandatory” as the right to education given in Article 25-A of the Constitution. M/o NHS/M/s Law and Justice By 31.03.2019 5. Advocacy and communication: i. A national narrative to be developed in consultation with Provinces and other stakeholders to create a sense of urgency and necessity of reducing population growth rate and achieving socio-economic wellbeing for all. M/or NHS, M/o Information, M/o Religious Affairs and PWDs By 28.02.2019 ii. Mass movement leading to a call of action to be launched involving political leaders, corporate sector, academia, judiciary, executive, ulema, media, intelligentsia, civil society and youth. Federal and Provincial Governments and all stakeholders Immediate iii. PEMRA to provide free airtime for FP messages on radio and TV channels at prime time. M/o Information and PEMRA By 15.03.2019 H.R.C. No.17599/2018 - 23 - iv. Behavioural Change Communication campaign to highlight the role and responsibilities of men in family planning. Federal/Provincial Governments/Media and Civil Society Immediately 6. Curriculum and Training: i. Health and hygiene to be included at primary school level. PWDs and Federal and Provincial Education Departments By 30.06.2019 ii. Life Skills Based Education and Population Studies to be included in Secondary and Higher Secondary schools. PWDs and Federal and Provincial Education Departments By 30.06.2019 iii. Population Dynamics in Pakistan to be included in College and University level education. HEC, Federal and Provincial Education Departments By 31.03.2019 iv. Population modules to be included in training at all Civil Services and Judicial Training Institutions. National School of Public Policy By 31.03.2019 v. PMDC and PNC to include modules on FP/RH in MBBS and Nursing Degree Programs, respectively. M/o NHS, PMDC and PNC By 31.03.2019 vi. Training to be provided to all public and private health care providers on all modern contraceptive methods. M/o NHS, DOH and PWDs By 31.12.2019 7. Contraceptive Commodity Security: i. Incentivizing Local Production of Contraceptives: Federal and Provincial Governments should encourage/incentivize the pharmaceutical companies/investors to establish contraceptive production units in Pakistan on WHO/FDA standards. M/o NHS in coordination with relevant Federal and Provincial authorities By 30.06.2019 ii. Pooled Procurement model to be adopted by the Federal and Provincial Governments (subject to their consent) to garner the benefits of economy of scale. M/o NHS, PWDs and DOH FY 2019-20 onwards iii. Supply Chain Management System to be strengthened to ensure availability of all contraceptives at Service Delivery Points. M/o NHS, PWDs and DOH By 30.06.2019 iv. FP Commodities should be included in the essential drug list of primary, secondary and tertiary drug list. PWDs and DOH By 31.03.2019 8. Support of Ulema i. Joint Declaration of Ulema made at Population Summit-2015, Islamabad M/o NHS, M/o Religious Affairs, On continuous basis H.R.C. No.17599/2018 - 24 - to be widely advocated. M/o Information, PWDs and DOH ii. Training courses on family planning to be arranged at Provincial Judicial Academies and relevant training institutes for Ulemas and Khateebs. DOH/PWDs and Provincial Judicial Academies By 30.06.2019 Adopting an approach similar to that of Iran, and focusing on the main impediment to the cause of population planning, these recommendations involve increasing the demand and utilization of contraceptives for which a mass movement is suggested taking on board political leaders, Ulema and clerics, the corporate sector, academia, executive, judiciary, media, intelligential and youth. The Ulema and Islamic scholars must also be urged to promote Islamic teachings in the context of controlled birth so that each child may be assured an enlightened and prosperous life. For this national cause, the Pakistan Electronic Media and Regulatory Authority (PEMRA) should allocate free airtime for family planning messages on all radio and television channels in prime time. Adopting the community-based approach of Bangladesh, these recommendations include the mandatory delivery of family planning services by all public health facilities and hospitals, as part of the essential service package, as well as the mandatory provision of family planning counselling, information and services by all registered private sector practitioners and hospitals. After thorough training the lady health workers and the current cadre of male mobilizers are suggested to be reactivated targeting the women and men of each family and ensuring active and accountable counselling for them. More crucially, it has been recommended that Federal and Provincial Governments introduce conditional cash transfer schemes for adoption of family planning services and institutionalised birth delivery and financial support programs such as the Benazir Income Support which should be linked with population planning initiatives. Moreover, it has been recommended that the Pakistan Medical and Dental Council (PMDC) and the Pakistan Nursing H.R.C. No.17599/2018 - 25 - Council (PNC) should include mandatory modules on Family Planning and Reproductive Health so we may rope in our future doctors and nurses to this national crusade. Obviously, the general cooperation of our NGOs and civil society is also expected and requested for this national cause. The Federal and Provincial Governments should also consider incentivising the local production of contraceptives by investors and pharmaceutical companies to increase their supply and accessibility and consider pooled procurement of contraceptives. The executive must play an active role in ensuring effective implementation of such laws. The Federal and Provincial Governments have agreed to allocate a sustainable amount of funds for this urgent cause, which will be a commitment that they must stick to in order to achieve any success in this population control campaign. 14. The Recommendations are expected to accelerate government efforts to reduce the population growth rate, lower the total fertility rate, and increase the contraceptive prevalence rate. These Recommendations which are aligned with provincial population policies and recognize the Federal Government’s role in fostering, coordinating, and facilitating national progress, specify clear priorities, roles and responsibilities, and timelines for action. All that remains is for stakeholders at all levels to translate these Recommendations into urgent action. Because further complacence in controlling population by engaging in futile debates of responsibility or blame fixing, will prove to be a sure drift towards disaster. Immediate action by all pillars of the State and the public at large is not only the need of the hour, it is now a question of survival and thus must commence without any delay. As mentioned in the beginning of this opinion, it is undeniable that the right to life and several other rights are meaningless if owing to overpopulation, people are deprived of basic amenities such as food, water etc. Even otherwise, being one of the most populated countries in the world, Pakistan needs to realise its responsibility and play its role in curbing its uncontrol and unplanned population before H.R.C. No.17599/2018 - 26 - starvation, malnutrition, illiteracy, poverty and unemployment become the fate of a large segment of its population. 15. The population explosion that we so rightly fear can only be overcome if we stand against it together as one; if we successfully convince the common man that our limited resources cannot feed more than two children per house; if we accept that required transformative investments in human development can only be made if our hands are not tied by severe economic constraints and depleting resources; if we admit that the ratio of mouths to feed has long outweighed our resources; if all stakeholders, including policymakers, legislators, care providers, civil society activists and religious scholars, play their roles in unison to support responsible parenthood behaviours in our society; and if we can convince ourselves that population planning is not a plan for the future, but a remedial step that has already been taken too late: only then can we diffuse this ticking bomb. Having equipped the nation with the above Recommendations, collaboration of the three pillars of State and all stakeholders and the words of wisdom and caution of experts for this campaign reduce the population growth rate, this journey we have embarked upon will indeed be one that our posterity will thank us for. CHIEF JUSTICE Announced in open Court on __________ at __________ Approved for Reporting Waqas Naseer JUDGE JUDGE

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH HUMAN RIGHTS CASE NO. 17842 OF 2018 (in the matter regarding removing educational and commercial buildings etc. from cantonments areas in Pakistan) Date of Hearing: 26.04.2018 ORDER The Human Rights Cell of this Court has placed a note before the Court, which postulates that all the schools in the Cantonment areas across Pakistan are being directed to be shifted from the Cantonment areas within a period of 15 days. Although vide order dated 24.10.2017, passed by a two Member Bench of this Court in Civil Appeal No.800/2012, it has been directed that the exercise of removing educational and commercial buildings etc., from the concerned areas be made gradually, yet from the note put up before us, it seems that the said order has not been complied with in letter and spirit and thus, the educational career of a substantial number of students would be at stake if immediate action of removal of the said school is allowed. 2. In the light of the above, we issue notice to all the Cantonment Boards in Pakistan to submit their replies about the question as to why action has been taken in such haste and what was the urgency therein. Till the next order to the contrary, the order of this Court dated 24.10.2017 is held in abeyance, meaning thereby that no school shall be vacated/transferred from the Cantonment areas till such order is passed by this Court. Relist. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 26th April, 2018. Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Sh. Azmat Saeed Human Rights Case No.19526-G of 2013 (Application by Mst. Bibi Zahida for arrest of accused of murder of her daughter Waheeda) Applicant: In person with her daughter Ms. Fareeda On Court Notice: Mr. Sajid Ilyas Bhatti, DAG Syed Arshad Hussain Shah, Addl. A.G. KPK Mr. Naveed Akhtar, Addl. A.G. KPK For KPK Police: Mr. Abdul Latif Afridi, ASC Mr. M. Zahoor Qureshi, AOR with Mr. Ihsan Ghani, IGP, KPK Mr. Imran Shahid, SSP Operation Peshawar Mr. Muhammad Faisal SP Cantt, Peshawar Rana Umer Farooq, ASP U/Town Peshawar Mr. Rizwanullah SI, U/Town For Islamabad Police: Mr. Bani Amin Khan, IGP Mr. Yasin Farooq, SSP Operation Mr. Jamil Ahmed Hashmi, SP Saddar Mr. Abdul Rasheed Niazi, DSP Mr. Sajjad Bukhari, Inspector/SHO Mr. Rashid Ahmed, SI (All in person) Date of hearing: 11.07.2013 ***** JUDGMENT Iftikhar Muhammad Chaudhry, CJ. Instant proceedings under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 have originated from an application received from Mst. Bibi Zahida wife of Darya Khan. Petition has been entertained for enforcement of fundamental rights involving question of public importance about the denial of right of the general public to have excess to justice by the law enforcing agency i.e. the police, as a 2 result whereof victims continuously suffered at the hands of culprits, leading to the increase of unrest/uncertainty in the society. 2. In the instant case, petitioner Mst. Zahida alleges murder of her daughter Waheeda @ Palwasha @ Honey, which took place on 19.05.2013 at the hands of her husband Darya Khan and son Khalid- ur-Rahman within jurisdiction of police station University Town, Peshawar. 3. Recapitulating facts of the events which had given rise to the instant case can only be appropriately explained by reproducing the contents of her application in extenso herein below:- 3 4 4. At the hearing of the petition, it revealed that the case of deceased lady could not be handled as per criminal law prevailing in the country against culprits, reasons of which are still required to be unearth because insistence of petitioner to register FIR of murder of her daughter was not conceded to by Peshawar police at highest level. Inasmuch as, without conducting autopsy, her dead body was dispatched from Peshawar to Islamabad in an ambulance but on her hue and cry, the police was compelled to get back the dead body from a place known as Tarnol near Islamabad, to Peshawar, where allegedly post-mortem was conducted at 4:00 pm. Statedly instead of issuing post-mortem report, one of the parts of her body i.e. heart was sent to Forensic Science Laboratory, Lahore as it was difficult to ascertain her cause of death. As such no FIR was registered except recording report vide Entry No.16 in Daily Diary of PS Shalimar, wherein her case was 5 treated to be covered under section 174 Cr.PC. It is stated that deceased’s husband is resident of Islamabad where she was living with him along with her two children, therefore, her dead body was again brought back to Islamabad in the house of her father-in-law, Bani Amin Khan who is IGP, Islamabad. 5. The petitioner did not permit her burial without registering FIR and getting Post-Mortem. On this, FIR No.134/2013 dated 19.05.2013, under section 302/34 PPC was registered at Police Station Shalimar, Islamabad, knowing well that incident had taken place in the area of Town Police Station, Peshawar (KPK). 6. On having issued process under HRC, reportedly no effective progress was made by concerned Authority, therefore, petitioner, Mst. Bibi Zahida submitted another application, contents whereof are reproduced as under:- “نﺎﺗﺳﮐﺎﭘ فآ ٹروﮐ مﯾرﭘﺳ بﺣﺎﺻ سﭨﺳﺟ فﯾﭼ بﺎﻧﺟ تﻣدﺧﺑ ﯽﻟﺎﻋ بﺎﻧﺟ از ﯽﺑ ﯽﺑ ةﺎﻣﺳﻣ ﻼﯾﺋﺎﺳ ہﮐ ﮯھ شرازﮔ ہﺧروﻣ ںﯾﻣ تﻣدﺧ ﯽﮐ روﺿﺣ ﮯﻧ ادھ۲۵ ﯽﺋﻣ۲۰۱۳ ﺎھﺗ ﺎﯾﮔ ﺎﯾﮐ رﺎﯾﺗﺧا فﻗوﻣ ںﯾﻣ سﺟ ۔ﯽھﺗ یرازﮔ تﺳاوﺧرد ددﻋ کﯾا ہﮐ ﯽﮐ نﯾﻣﺎﻧﺑ دﻟو نﯾﻣا ﯽﻠﻋ ہﮐ وﺟ ﯽﻧھ فرﻋ ہﺷوﻠﭘ هدﯾﺣو ﯽﭨﯾﺑ یرﯾﻣ ہﮐ ﯽھﺗ یوﯾﺑ IG ںﯾﻣ سﯾﻟوﭘ دﺎﺑآ مﻼﺳا تﻗو سا رﺳﺳ ﺎﮐ ﯽﭨﯾﺑ یرﯾﻣ روا وﮐ ﯽﭨﯾﺑ یرﯾﻣ روا ﮯھ ہﺧروﻣ19.5.2013 وﮐ ںﯾﻣ تﺑﺎﺑ ﯽﮐ سﺟ ۔ﺎﯾﮔ ﺎﯾد رﮐ لﺗﻗ ںﯾﻣ روﺎﺷﭘکﯾا ﮯﻧ ںﯾﻣ ہﺧروﻣ ٹروﭘر19.5.13 روﺎﺷﭘ ہﮐ وﺟ لﺗﻗ ہﯾ ۔ﮯھ ﯽﮐﭼ وھ جرد ںﯾﻣ نٰٔوٗﺎﭨ ہﻧﺎھﺗ ثوﻠﻣ ںﯾﻣ سا ﮯھ اوﮨ ںﯾﻣ پﺷ نٔوﺎﭨ ہﯾزوﻓ یوﯾﺑ ﯽﮐﺳا نﺎﺧ دﻟﺎﺧ ﮯھ ﺎﭨﯾﺑ ﺎﮔﺳ ارﯾﻣ روا۔ںﯾھ ثوﻠﻣ ںﯾﻣ لﺗﻗ سا نﯾﻣا ﯽﻠﻋ دﻧوﺎﺧ ﺎﮐ ﯽﻧھ فرﻋ ہﺷوﻠﭘ هدﯾﺣو ﯽﭨﯾﺑ یرﯾﻣ شﺷوﮐ نﮐﻣﻣ رھ نﯾﻣﺎﯾﻧﺑ دﻟاو ﺎﮐ نﯾﻣا ﯽﻠﻋ روا شﮔﻧﺑ نﺎﺧ ﺎﯾرد دﻟاو ﺎﮐ نﺎﺧ دﻟﺎﺧ ہﮐﺑﺟ ےرﺎﻣھ ہﮐ ںﯾھ ﮯﮨر رﮐ ﭨرﺎﭘ وﻧود وﮐ ﯽﭨﯾﺑ ںﺎﻣ مھ روا ںﯾﺋﺎﺟ ﭻﺑ ﮯﭨﯾﺑ نﺎﺟ ﮯﺳ ںوﯾ وھ رود ﮯﺳ سﯾﮐ سا مھ ہﮐ ںﯾھ ﯽﮨر لﻣ نﺎﯾﮐﻣھد لﺳﻠﺳﻣ ںﯾﻣھ روا ﮯھ هرطﺧ ﺎﮐ 6 ﮯﺳ پآ ۔ںﯾد ﺎﺑد وﮐ لﺗﻗ سا روا ۔ںﯾﻟ رﮐ ٹﻧﻣ لﭨﯾﺳ ںﯾﻣ سﭘآ ںوﻧود هو روا ںﯾﺋﺎﺟ FC ٖ ﮯﺋﻠﯾﮐ تظﺎﻔﺣ ﯽﮐ نﺎﺟ یرﺎﻣھ ہﮐ ﮯھ شرازﮔ یرﯾﻣ ﯽﭨروﯾﮐﯾﺳ ﯽﮐ زرﺟﻧﯾر ﺎﯾ وﭘ ﯽﮐ دﺎﺑآ مﻼﺳا ہﮐﻧوﯾﮐ ﮯﺋﺎﺟ ﯽﮐ ﺎﯾﮩﻣ سﯾﻟ IG ﮯ����ﮐ ﮯھ ںﯾﻣ لورﭨﻧﮐ لﻣ ازﺳ وﮐ لﺗﺎﻗ لﺻا ہﮐ ﺎﺗ ﮯﺋﺎﺟ ﯽﮐ ددﻣ یرﺎﻣﮨ ہﮐ ﮯھ دﺎﯾرﻓ ﯽﮐ ںﺎﻣ کﯾا ﮯﺳ پآ ۔ﮯﮐﺳ ﮯﮐﺳﺟ ﯽﭨﯾﺑ یرﯾﻣ روا ﮯھﺟﻣ2 ﮯﮐ ںوﭼﺑ ﮯﮐﺳا روا ﮯھ هوﯾﺑ ہﮐ وﺟ ںﯾﮨ ﮯﭼﺑ O ںﯾﮩﻧ شﺋﺎﮨر رﭘ ہﮔﺟ یرﺳود ںﯾﮩﮐ مھ ﮯﺳ ہﺟو ﯽﮐﺳﺟ ںﯾھ ﮯﮨروھ زرﭘﯾﭘ ﮯﮐ لوﯾﻟ آ ﮯﯾﺋﻟ سا ۔ﮯﺗﮐﺳ ﮫﮐر ﮯﺋﯾﻠﯾﮐ تظﺎﻔﺣ یرﺎﻣھ پ FC رﭘ رھﮔ ےرﺎﻣھ زرﺟﻧﯾر ﺎﯾ ںﯾدرﮐ تﺎﻧﯾﻌﺗ ۔ﯽﮔوھ ﯽﻧﺎﺑرﮩﻣ یڑﺑ یڑﺑ ﯽﮐ پآ ۔۔۔۔۔۔۔۔ -------- هدھاز ﯽﺑ ﯽﺑ ةﺎﻣﺳﻣ رﺑﻣﻧ نﺎﮐﻣ۳۲۳ رﺑﻣﻧ ﯽﻠﮔ۲۱ ٹﻧﻣﺳﯾﺑ E-11/4 دﺎﺑآ مﻼﺳا 7. The hearing of the case commenced on 03.07.2013 when Mr. Yasin Farooq SSP Operation conceded that in respect of murder of daughter of petitioner, namely Mst. Waheeda @ Palwasha @ Honey, FIR should have not been registered at Islamabad. Contents of his statement read thus:- “Statement regarding case FIR No.134 P.S. Shalimar, Islamabad On 19.5.2013, at around 8 p.m. all officers were in the residence of I.G. Islamabad regarding the funeral of his daughter in law Miss Waheeda. The mother of the deceased sat in front of the Ambulance and insisted for an FIR before the burial. At this IG Islamabad directed SHO Shalimar Sajjad Haider and DSP Margalla Rashid to record their statement and register the FIR. In compliance of his orders FIR No.134/13 u/s 302/34 PPC P/S Shalimar was registered. Sd/- 7 YASEEN FAROOQ SSP/Islamabad” The above statement was followed by another statement of the same officer, which has been incorporated in the following para of the proceedings dated 04.07.2013:- “4……. Since the occurrence/incident had taken place at Peshawar, hence registration of FIR at Islamabad is not legally justified. It may be noted that undersigned has not passed any orders for registration of FIR. It is further submitted that after verifying that the incident has actually taken place in the jurisdiction of PS Town, Peshawar and legal proceedings were already underway, cancellation report in the subject case was prepared on 25.05.2013 and the matter was referred to the Home Department, Government of KPK.” 8. On 04.7.2013 IGPs of KPK and Islamabad were asked to furnish lists of officers/officials to whom they consider that right of hearing should be provided to them, lest, injustice may not be caused to them, if any adverse order is passed. Following lists were according furnished:- List of KPK Police Officers 1. Mr. Ihsan Ghani, IGP 2. Mr. Imran Shahid, SSP (Operations) 3. Mr. Faisal, SP (Cantt) 4. Mr. Umar Farooq ASP, Town 5. Mr. Sardar Hussain, SHO Town 6. Mr. Rizwan Ullah, I.O. List of Police Officers of Islamabad 1. Mr. Bani Amin Khan, IGP, Islamabad 8 2. Mr. Yaseen Farooq, SSP (Operations), 3. Mr. Jameel Hashmi, SP Saddar Zone 4. Mr. Rasheed Niazi, DSP, Margalla 5. Mr. Sajjad Haider, SHO, PS. Shalimar 6. Mr. Rasheed Ahmed, SI, P.S. Shalimar 9. Mr. Latif Afridi, ASC filed HRCMA No.98/2013, whereas Mr. Bani Amin Khan, IGP Islamabad also filed HRCMA 97/2013. Similarly Jamil Hashmi, SP filed separate application. 10. We have heard to all of them in support of contentions put forward by them. 11. Learned counsel for IGP, KPK contended that as per facts disclosed to police, no evidence was available to conclude prima facie that she died because of unnatural death, therefore, police after recording report No.16 dated 19.05.2013 in the Daily Diary Register of Police Station, proceeded to consider incident covered under section 174 Cr.P.C. because in the meanwhile incomplete Post-Mortem report was received and police surgeons/doctors were waiting for the result of Forensic Laboratory to whom, heart of deceased was sent for examination to ascertain whether her death was natural or due to administrating poison to her or due to asphyxia. 12. However, in his presence, Mr. Ihsan Ghani, IGP, KPK stated that Bani Amin was insisting for registration of the case but he refused to do so. Such statement he had also made on 03.07.2013 during the hearing of the case. As per Mr. Bani Amin Khan, IGP, Islamabad, he approached to everyone, responsible for registration of case, including Moharar to IGP, KPK but no body listened him. 9 13. It is important to note that learned counsel for IGP, KPK also conceded that Police should have registered the case at Peshawar as there were allegations of murder against the father and brother of the deceased. 14. Learned Additional Advocate General, KPK also agreed that as per section 154 Cr.P.C. police had no option except to register the case at the police station where incident of murder of deceased allegedly took place. 15. It is to be observed that when there is no difference of opinion amongst all of them that case should have been registered u/s 154 Cr.P.C. when matter was reported, the police administration is bound to follow the dictate of law, which has been explained by this Court time and again. Reference may be made to the following paras of the judgments in the case of Muhammad Bashir v. Station House Officer, Okara Cantt (PLD 2007 SC 539):- 27. The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are asunder:- (a) no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. where the information conveyed, disclosed the commission of a cognizable offence. (b) no authority vested with an Officer Incharge of a Police Station or with any one else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the S.H.O. for the purposes of recording of an F.I.R. (c) any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the 10 information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C. (d) existence of an F.I.R. is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; (e) nor does the recording of an F.I.R. mean that the S.H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested; and finally that (f) the check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs, but punishment of such informants under S.182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C. 16. Prior to above dictum, this Court in the case titled as the Human Rights Case No.3212 of 2006 (2006 SCMR 1547) observed as under:- 3. I.G. Police is appearing in another case, which pertained to District Sialkot, therefore, the above matter was brought to his notice as he was present in the Court. D.P.O. Sheikhupura stated that now the case has been registered by the police vide F.I.R. No.138, dated 28-4- 2006 under section 302, P.P.C. and investigation is going on. Non-registration of a criminal case wherein a murder has taken place for a period about 2-1/2 years clearly demonstrates inefficiency, and gross negligence on the part of the concerned Police Officers. It is well-settled that during the investigation it is always better to collect evidence if available, as early as possible. We are not in 11 a position to understand that in such a case where murder has taken place what would be the result of the same and particularly poor lady Mumtaz Bibi who has appeared and is complaining against the police attitude saying that she had been approaching them again and again for the purpose of registration of the case but no one had listened her and at the end of the day D.P.O. came to her rescue and directed the registration of the case and entrusted investigation to S.P. Investigation. We understand that matter will be investigated and evidence will be collected, sufficient or otherwise for the purpose of submitting challan but what would be the recompense to the lady whose son has been killed in a gruesome manner. 4. As far as the system of the law is concerned, the constitution says that everyone is entitled to the protection of the same and is entitled to get justice in all the circumstances but the attitude of the police in this case is irresponsible and on account of such attitude, mother of the deceased Mumtaz Bibi is bound to suffer throughout her life, so long as she lives. As per her claim she is a widow and after the death of her husband she had taken it as a mission to bring up her children but in the meanwhile this incident took place. The facts and circumstances of the case which have been narrated before I.G. Police and Advocate-General, Punjab, her plight can be well-imagined by all of us. However, we direct I.G. Police to take personal interest in the investigation of the case. 5. Let this case remain pending and I.-G. Police shall submit report personally after every week in respect of the progress of the case and even after the submission of challan it would be his responsibility to ensure that evidence is produced if ultimately evidence is not available then it would be the liability/responsibility of 12 the police department to compensate her in any manner whatever they deem fit, under the circumstances. In the meanwhile I.G. Police shall take strict disciplinary action against officers/officials who are responsible for not registering the case ultimately after the happening of the incident as this Court observed time and again that it is the duty of the police to register the case without any delay and submit challan as far as possible within the period of fifteen days in terms of section 173, Cr.P.C. Reference in this behalf may be made to Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590. 17. Unfortunate aspect of the case is that IGP, KPK is taking responsibility as noted above upon his shoulder not once but twice that he had declined to register the case. 18. Whereas on the other hand Bani Amin I.G.P, Islamabad, whose daughter-in-law (wife of his son Ali Amin) has been murdered, maintained that deceased was poisoned as according to him he had noticed that: (i) her hands and feet were bluish; (ii) there were wounds on her lips; and (iii) spots on cheeks. To substantiate his plea, he had also produced photographs of dead body, which were taken after her death. Contention so raised, seems to be true as per photographs. Not only this, he had also shown another photo to show that a sign of administering injection was visible on her forearm, which has also been confirmed by petitioner when picture was shown to her in Court. 19. Prima facie these facts are sufficient to establish that police of KPK abused their powers in not registering of FIR on 19.05.2013 as in view of principles discussed hereinabove, in the 13 judgments and the law on the subject u/s 154 Cr.P.C. The IGP, KPK and his subordinates had no lawful authority to deny access to justice to petitioner. This is nothing but clearly a case of either inefficiency or criminal negligence of the police for the reasons best known to them, including external pressure on all of them but a law abiding officer is not supposed to deny due process of law to victim party. 20. Importantly it is to be noted that during hearing of matter, a case has been registered vide FIR No.366/2013, PS Town, District Peshawar dated 19.5.2013 u/s 302/34 PPC. Copy of FIR has been placed on record. 21. Now turning towards the conduct of Islamabad Police, which needs no discussion as per facts noted above and same are sufficient to conclude that all of them acted with sheer criminal negligence, favouritism and inefficiency. 22. The statement of IGP Bani Amin noted above is not acceptable as he being a senior police officer, without getting registered FIR at Peshawar brought back dead body of her daughter- in-law to Islamabad where under his direction in respect of incident of Peshawar a case was got registered in Islamabad and subsequently a guard was posted on her grave, disclosure of which has been made by him during hearing when pointed out by Mst. Bibi Zahida, reason should be known to him. Inasmuch as, none amongst other officers whose named he has furnished himself, refused to accede his illegal demand including SP Jamil Hashmi, who now is trying to distance him from the illegal act. 14 23. Learned Additional Advocate General pointed out that provincial government of KPK has constituted a committee to probe into the incident of killing of Mst. Waheeda on 19.05.2013 for non registration of the case in Peshawar and SSP Imran Shahid has been suspended. 24. Learned Deputy Attorney stated that Federal Government has been conveyed about hearing of the case and registration of FIR at Shalimar Police Station. He also agreed that no FIR in respect of incident, which had taken place about the alleged unnatural death of Mst. Waheeda in the area of Town Police Station, Peshawar could have been registered at Shalimar Police Station. 25. It is to be noted that heavy responsibility lies upon the law enforcing agencies, particularly, police to ensure that life and property of the people in terms of Article 9 of the Constitution is protected by them but we are constrained to observe that in our country police is not fulfilling its commitments efficiently, as a result whereof, law & order situation, all over the country, is worsening day-by-day. There could be acceptable reasons, on account of which the forces including the police, with other duties, maintain peace in society and bring the culprits to book without being influenced from anyone because once the accused is involved in an offence, he and his near ones try their best to ensure that he is saved from the clutches of law. 26. We have in our police department such officers who are known for their efficiency, credibility, commitment and whenever any task is assigned to them, they do discharge their duty strictly in accordance with the Constitution and the law. However, justice does 15 not mean that it should only be done to the culprits, because at the same time, victims/sufferers also deserve for the same and their grievance can only be redressed, if the accused are brought to book immediately. 27. In the instant case, as we have noticed, petitioner Bibi Zahida is agitating that her daughter Waheeda @ Palwasha @ Honey has been killed by her husband Darya Khan and son Khalid-ur-Rahman but no one is ready to listen her, with the result she has to run from pillar to post and ultimately matter reached in Human Right Cell of this Court, where jurisdiction is exercised under Article 184(3) of the Constitution along with all other enabling provisions of law on individual or collective requests, to ensure enforcement of fundamental rights, particularly, in public importance cases. 28. There could be numerous complaints against the police throughout in the country and some of them reach to this Court in its Human Rights Cell, which is functioning continuously to redress the grievances but despite of issuing directions, the law enforcing agencies failed to redress the grievances of the complainants. In this context reference to the reported judgment in the case of the Human Rights Case No.3212 of 2006 (ibid) may be made, wherein a lady had been waiting for a period of 2 ½ years but no one registered FIR of the murder of her son and ultimately she succeeded in getting the justice from this Court. This is one case, there could be more than that. 29. Thus, under the circumstances we direct that: (i) The Federal and Provincial governments may take initiative for improving the professional efficiency of the police 16 department enabling them to meet with all types of challenges to ensure that whosoever has taken the law in his hands, notwithstanding the status, he has to face the consequences. (ii) The Police Department in all the Provinces and Islamabad should strictly adhere to the Constitution and the law, while dealing with the criminal cases instead of showing any leniency or favouritism, either to the complainant or to the accused, whatsoever the case may be. (iii) As far as registration of the cases is concerned, they should follow the law under section 154 Cr.P.C and the principles discussed hereinabove in light of Muhammad Bashir’s case (ibid). (iv) As in the instant case FIR has been registered at Peshawar but on having seen the facts and circumstances, noted hereinabove, let the Federal and Provincial Governments ensure that no influence is used by any of the police officers who have already committed criminal negligence in not handling the case of the deceased lady. The competent authority should also deal with them in accordance with law on the subject. (v) To ensure transparent and independent inquiry, the Chief Secretary of KPK and Secretary Interior shall take steps to constitute a team of independent police officers who shall be responsible to conduct the investigation and submit challan in the court of law accordingly. Both these functionaries shall submit report compliance of the 17 direction within a period of two weeks because any further delay in concluding the investigation of the case is likely to cause further injustice and prejudice to the petitioner. 30. Petition stands disposed of accordingly. Chief Justice Judge Judge Announced in open Court on 24.07.2013 At Islamabad Chief Justice Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez Human Rights Case No.19 of 1996 [APPLICATION BY AIR MARSHAL (R) MUHAMMAD ASGHAR KHAN] Air Marshal (R) Muhammad Asghar Khan Petitioner VERSUS 1. Gen(R) Mirza Aslam Baig, Ex-Chief of Army Staff; 2. Lt. Gen(R) Asad Durrani, Ex-DG, ISI; and 3. Younas Habib, Ex-Chief Mehran Bank Limited. Respondents For the Petitioner : Mr. Salman Akram Raja, ASC a/w Petitioner For Respondent No.1 : Mr. M. Akram Sheikh, Sr.ASC a/w Respondent No.1 For Respondent No. 2 : In person. For Respondent No.3 : In person. For Defence Ministry : Raja Abdul Ghafoor, AOR Comdr. M. Hussain Shahbaz, Director (Legal) For Applicant : Sheikh Khizar Hayat, Sr.ASC (in CMA.918/97) Date of Hearing : 08.03.2012 ORDER In obedience to order dated 29.02.2012, the office has placed on record a sealed envelop under the cover “TOP SECRETE” “REPORT OF THE COMMISSION TO REVIEW THE WORKING OF SECURITY & INTELLIGENCE Human Rights Case No.19 of 1996 2 AGENCIES”. The envelop has been opened in Court, which contains four folders Part-II (Report of the Commission to Review the Working of Security & Intelligence Agencies (MARCH – 1989); Part-III (Correspondence); again Part-II (photocopy of the same report of the Commission (March-1989); and again Part-III (Correspondence). 2. A perusal of the same indicates that the Report of the Commission to Review the Working of Security & Intelligence Agencies has not been filed. However, Comdr. Muhammad Hussain Shahbaz, Director (Legal), representing Ministry of Defence, is allowed to go through these documents in the office of Registrar of this Court, who shall facilitate him in this behalf. He is directed to file the requisite reports pertaining to the year 1990 as well as up-to-date reports on the Working of Security & Intelligence Agencies. In the interest of nation, these documents shall be kept CONFIDENTIAL. 3. The envelop produced before us has been given to Mr. Rafaqat Hussain, CA/Branch Incharge, Civil-II, who shall handover the same to Registrar of this Court, who shall put them under seal. 4. Another envelop has been produced, which contains the following items:- “Item No.1 1. 2 Audio Cassettes relating to HRC.19/1996 containing detail, as under:- Cassette No.1: Dated 20.11.1997 timings 10.30 to 11.00 a.m. Human Rights Case No.19 of 1996 3 Cassette No.2: Dated 25.11.1997 timing, 10 am to 11 am and 11.30 to 1.00 pm. (side A) dated 26.11.1997 timings 11:45 am to 1:15 pm (side B) Item No.2 File No.1: Consisting 3 pages in original Page No.1: (Note dated 28.5.1999 of the then Additional Registrar with regard to obtaining the orders of HJ (1) whether Lt. General ® Nasirullah Babar and Lt. General ® Asad Durrani may be asked to read their statements and sign them in the presence of an officer of this Court). Page No.2 Note dated 1.6.1999 regarding submission of un- signed statements/cross-examination of Maj. ® Nasir Ullah Babar and Lt. General Asad Durrani to the then HJ(1) Page No.3 Order dated 2.6.1999 of Justice Said-uz-Zaman Siddiqui File No.2 in original Srl. Nos. Detail (All in original) Pages 1 Cross examination of Maj. Gen.(R) Nasir Ullah Babar by Genl. Mirza Aslam Baig 1-3 2 Explanation of Gen Babar with regard to his cross examination 4 3 Cross examination of Maj. Gen. (R) Nasir Ullah Babar by Habib-ul-Wahab-ul-Khairi (in Urdu) 5-9 4 Cross examination of Maj. Gen. (R) Nasir Ullah Babar by Mr. Muhammad Akram Sheikh. 10-21 5 Cross examination of Lt. Gen.(R) Asad Durrani 22-25 6 Cross examination of Lt. Gen.(R) Asad Durrani by Habib-ul-Wahab-ul-Khairi 26-33 7 Cross examination of Lt. Gen.(R) Asad Durrani by Maj. Gen.(R) Naseer Ullah Babar 34-35 Item No.3 Copy No.08 of 11 Copies:- Folder with regard to the report of the commission to review the working of Security and Intelligence Agencies (March-1989) submitted by (i). Air Chief Marshal Zulfiqar Ali Khan, Chairman, (ii). S.K. Mahmud, Secretary Interior, Member, (iii). Mr. M.A.K. Chaudhry, Member and (iv) Air Commodore Muhammad Yamin, Secretary. (Pages 1-57). Item No.4 ADO letter No.RC/1/89 dated 27.3.1989 addressed to the Mohtarma Benazir Bhutto, Prime Minister of Pakistan, Prime Minister’s Secretariat, Rawalpindi by the Air Chief Marshal, Zulfiqar Ali Khan along with its synopsis of the Commissioner’s Report for facility of reference. (Pages 1-8)”. 5. The office has also made efforts to find out as to whether examination-in-chief of Gen.(R) Naseer Ullah Khan Human Rights Case No.19 of 1996 4 Babar and Lt. Gen.(R) Asad Durrani was recorded; according to the report, no such document is available on record. However, Mr. Salman Akram Raja, learned ASC, appearing for the petitioner, states that they were subjected to cross-examination on the affidavits, which have already been filed. As these proceedings were drawn in camera, therefore, the same be sealed and are handed over to Mr. Rafaqat Hussain for depositing the same with the Registrar. As regards proceedings drawn by the office of Registrar to locate these documents, the same are also made part of the record and are ordered to be deposited with the Registrar. 6. In pursuance of order dated 29.02.2012, Mr. Younas Habib, Ex-Chief of Ex-Mehran Bank Limited, has appeared and stated that earlier at the time when the proceedings were conducted in this case no statement was filed by him. It seems that might be he had filed or given statement before the investigating agencies under Section 161, Cr.PC in connection with some criminal cases against him, as reference of the same is available at page 220 of the file. However, today he has placed on record a handwritten statement/affidavit, which was not sworn on oath, although such statement or affidavit is required to be sworn under Supreme Court Rules, 1980. It seems that as he is a sick person and attending the Court on Wheelchair, therefore, we accept the affidavit and direct the office to manage attestation of the same, which has been done. Human Rights Case No.19 of 1996 5 7. Initially, Mr. Younas Habib claimed that the affidavit filed by him be considered as a classified document. However, on having gone through the same we are of the opinion that it does not fall within the category of the documents, in respect whereof privilege could be claimed, thus the same is declared not to be the classified one. He has read out the contents of the affidavit in Court and also handed over three copies of the same along with a photograph wherein he has been shown to be one of the persons along with the then President of Pakistan Ghulam Ishaq Khan (Late) and uniformed officer of Pakistan Army having conversation with Mirza Aslam Baig, Ex-Chief of Army Staff. The same be also kept on record. 8. The office is directed to prepare photostat copies of the affidavit filed by Mr. Younas Habib and handover the same to Mr. Muhammad Akram Sheikh, learned Sr.ASC, Mr. Salman Akram Raja, learned ASC; Mr. Asad Durrani and Sheikh Khizar Hayat, learned Sr.ASC. They may go through the same and if desire or instructed may opt to file their replies to the same by tomorrow i.e. 09.03.2012. Re-list on 09.03.2012. Chief Justice Judge Judge ISLAMABAD 08.03.2012 Zubair

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed HUMAN RIGHTS CASE No.20107-G/2013 (Action on News clipping in the daily “Dawn” dated 26.05.2013 regarding incident of burning of school van in Gujrat) On Court’s Notice : For the Federation : Mr. Dil Muhammad Khan Alizai, DAG For M/o Petroleum : Mr. Irshad Ali Khokhar, DG Mr. Mansoor Ahmad Raja, Chief Engineer (HDIP) For Department of Explosives : Mr. Muhammad Hussain Channa, Chief Inspector of Explosive For OGRA : Mr. Afnan Karim Kundi, ASC Mr. Saeed Ahmed Khan, Chairman Mr. Farrukh Nadeem, ED (Enforcement) Mr. Rizwan ul Haq, ED (Law) For Govt. of Punjab : Mr. Jawwad Hassan, Addl.A.G. Mr. Salahuddin Khan, Secretary RTA Mr. Asif Bilal Lodhi, DCO Gujrat For the State : Mr. Asjad Javaid Ghurral, Addl. P.G. Mr. Dar Ali Khattak, DPO, Gujrat Mr. Ijaz, SHO, PS Kunjah For Motor Vehicle Examiner : Mr. Aftab Ahmed Bajwar, ASC Dates of Hearing : 13-06-2013 O R D E R Iftikhar Muhammad Chaudhry, CJ. :- This case was initiated by the Court under Article 184(3) of the Constitution, 1973 on the basis of a news item that appeared in the daily “Dawn” on 26.05.2013 titled “All are responsible: Van fire tragedy”. The item referred to the HRC No.20107-G/2013 2 death of sixteen schoolchildren and one teacher in Gujrat on 25.05.2013 when the vehicle they were travelling in exploded. The news item, reproduced hereinbelow, clearly depicts the apathy and desensitisation to bloodshed that has become the norm in our society. “REACTING to the tragic van fire near Gujrat town on Saturday, a local official said lives could have been saved if the driver of the vehicle had shown some courage. That statement provides the starting point of a probe to identify all those responsible for the heartbreaking, horrible tragedy. The killing of at least 15 young school-bound children and a teacher in the fire was no accident. This was nothing short of murder or at least manslaughter. The guilty include money-minded transporters who justify the low safety standards they maintain by boastfully stressing on the affordability factor. Never is their greed more obscenely manifested than in the hot summer months. The routine sight of children crammed in rundown vehicles in the suffocating heat is the worst advertisement for our education system. It is a horrifying throwback to those dark times that we would like to pretend we have left far behind. Sadly, the same era of ignorance and negligence continues, frequently throwing up tragedies of this sort. Those responsible also include school administrations and the officials who run the affairs of government. Finally, cruel though it may sound considering the grief of those whose children have perished, parents too must bear part of the blame for not demanding a better deal for their offspring, for being the meek of the earth who accept their fate unquestioningly. In a saner country, the Gujrat fire would be the only news worth pondering over for days and weeks if not months. In Pakistan, it is likely to be quickly overtaken by other, ‘more pressing’ events, as has happened in the aftermath of similar incidents in the past. Such incidents have included the killing of children in gas cylinder blasts, deaths of school-bound students at a railway crossing at HRC No.20107-G/2013 3 one place and a bus overturning during a school excursion at another. After a period of initial mourning, these tragedies are forgotten in the interest of the continuation of the system. A similar pattern appears to be emerging now and the design could succeed once again unless a genuine effort is made to devise and enforce safety measures in transport used by our schoolchildren — and urgently. The blaming of one individual — the driver of the van — and the convenient, standard identification of short- circuiting as the cause of the fire are dire signs of the guilty seeking to take the old escape route. They are no less than murderers. If they are allowed to flee now, they will return to kill again.” 2. The Court took notice of the case on 29.05.2013. On the same date, the Court passed an Order which called upon the Secretary of the Ministry of Petroleum, the Chief Secretary of the Government of Punjab, the Secretary of the Transport Department of Punjab, the Inspector-General (IG) of the Punjab Police and the administration of the Jinnah School, Mangowal (the school concerned) to submit reports. In further hearings, the Chairman of the Oil and Gas Regulatory Authority (OGRA) was directed to explain whether any mechanism is followed to ensure the safety of CNG cylinders used in vehicles. The Secretary Transport, Punjab was directed to submit reports on whether any action was taken against the concerned Motor Vehicle Examiner (MVE) and the officials who were responsible for issuing certificates to the school van and whether action was taken to ensure the protection of the lives of people who travel in such vehicles. 3. The Secretary, Ministry of Petroleum submitted an Inspection Report that was particularly helpful in elucidating the facts of the incident. The Inspection Report stated, inter alia, the following: HRC No.20107-G/2013 4 i. According to the children, the vehicle went out of order frequently in the days prior to the incident. ii. The driver, Muhammad Irfan, was smoking at the time of the incident. iii. The petrol tank of the vehicle was not working. The petrol was inside the passenger compartment in a can from where it supplied fuel to the engine through a plastic pipe. Another can filled with petrol was also inside the vehicle. Both these cans were placed adjacent to the engine behind the front seat of the van. iv. One minute before the incident, at least four children complained to the driver that they smelled the odour of petrol in the vehicle. The driver did not pay any heed to the complaints. v. The fire started from the front of the vehicle where the petrol cans were situated and proceed to engulf the entire vehicle. vi. The incident was exacerbated by the fact that the sliding doors of the vehicle could not be opened from the inside; and the back door of the vehicle was out of order. It was through the gallantry and heroism of the teacher that five children survived the incident. The teacher sacrificed her own life; pushing children out the window of the van whereas she perished in flames. vii. The driver ran from the site of the incident without even trying to open the door of the van. viii. None of the CNG cylinders exploded in the incident. ix. Drivers in the district of Gujrat have been observed to use unauthorised plastic cans for storage of petrol to save money that would be spent on replacing petrol tanks. x. The main cause of the incident was the spillage of petrol on the floor of the vehicle, which most probably ignited a fire due to contact with the hot engine surfaces. Short circuiting of wiring and the HRC No.20107-G/2013 5 fact that the driver was smoking while sitting near petrol cans cannot be ruled out as causes. xi. The fitness certificate of the vehicle was expired. xii. OGRA is mandated to conduct a full-fledged inquiry into the incident and fix responsibility to prevent such incidents from occurring. 4. The administration of the Jinnah School, Magowal averred in its report dated 01.06.2013 that it owns two vehicles for the purposes of transportation of schoolchildren and employees; one of which was involved in the tragic incident. Apparently, the CNG cylinders that the said vehicle was outfitted with were purchased and installed from a private distributor and were not affirmed by any competent authority. The vehicle ran on a dual-fuel basis, i.e. it could run on either petrol or CNG. It was sated that the incident occurred when the driver switched the fuel setting from CNG to petrol. On the direction of the Chief Secretary, Punjab, the Punjab Forensic Science Agency (the “Agency”) submitted a report which stated, inter alia, that the probable cause of the fire was the spark produced at the CNG kit during conversion of CNG to petrol. The Report of the Chief Secretary, Punjab dated 03.06.2013 countenanced this difference of opinion as to whether the incident occurred when the driver switched the fuel setting of the vehicle from CNG to petrol or due to spillage of petrol. It is helpful to reproduce the following portion of the Chief Secretary’s Report: “However, the difference of opinion has no material bearing for the following reasons: a) Both the reports indicate that the van was not roadworthy and was also subjected to unauthorized modifications as mentioned above. Of the five available doors, three had problems; the right sliding HRC No.20107-G/2013 6 door was permanently closed, the other sliding door could not be opened from the inside while the back door was out of order. Thus the chances of escaping the fire were almost obliterated. b) The van’s fitness certificate had expired on 24.04.2013, i.e. a month prior to the accident and was not renewed. c) The said van had no valid route-permit.” 5. The report of the IG, Punjab stated that FIRs were registered against the driver, Muhammad Irfan s/o Muhammad Younas as well as the owners of the vehicle and Jinnah School, Mangowal, namely Shafqat Hussain s/o Muhammad Hussain, Rizwan s/o Ali Ahmad and Muhammd Ehsan s/o Nazir Ahmad. It was further stated that action was taken against decanting of Liquified Petroleum Gas (LPG), illegal sale of petrol and unfit vehicles. The Traffic Police also carried out a special campaign whereby a number of challans were issued from 26.05.2013 – 30.05.2013 to counter those driving without route permits, fitness certificates, and driving licenses. It is pertinent to mention a letter dated 10.12.2011 from the Additional IG of the Punjab Traffic Police to the Secretary Transport, Punjab which is annexed to the Report of the IG Punjab. The said letter clearly states that fitting of fuel tanks in the passenger area of a vehicle is a clear violation of Rule 199 of the Motor Vehicle Rules, 1969. The said letter also expressly gives the direction to remove illegally-fitted LPG and CNG cylinders from vehicles and to cancel the fitness certificates of such vehicles. 6. A report was also submitted by a committee headed by the Commissioner, Gujranwala, which fixed responsibility for the incident as under: HRC No.20107-G/2013 7 i. Mohsin Riaz, the Secretary, District Regional Transport Authority (DRTA), failed to carry out inspections to ensure that vehicles without route permits and fitness certificates do not run. ii. Farrukh Sohail, the MVE, failed to check the fitness of vehicles that came within his purview. iii. The District Traffic Police failed to implement the provisions of the Motor Vehicles Ordinance, 1965 (MVO). iv. The District Excise and Taxation Department failed to record the change in ownership of the vehicle and the fact that the engine of the vehicle had been changed from diesel to petrol to CNG in violation of the MVO. v. The District Education Department registered The Jinnah School, Mangowal without proper inspections by the said department, which is a violation of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984. vi. The management of The Jinnah School, Mangowal failed to conduct any investigations as to the fitness and safety of the vehicle. vii. The driver did not validly procure a driving licence. viii. The parents of the children were unaware of the state of the vehicle; some had never even seen the vehicle. Pursuant to the aforementioned report, Mohsin Riaz, the Secretary, DRTA and Farrukh Sohail, the MVE were suspended from duty by the Secretary Transport, Punjab. Directions were also issued to the District Education and Excise and Taxation Departments to initiate inquires in light of the findings of the Commissioner, Gujranwala’s report. 7. Mr. Afnan Karim Kundi, learned ASC, appeared on behalf of Chairman, OGRA. His primary contention was that the regulation HRC No.20107-G/2013 8 and monitoring of proper and safe installation of CNG kits and the certification of vehicles for that purpose are in fact the domain of the Chief Inspector of Explosives (CIE), not OGRA. The learned ASC substantiated this contention by referring to the following provisions of the OGRA Ordinance, 2002 in his Concise Statement:  Section 2(1)(iii) defines CNG as “natural gas compressed for vehicular or other mobile use.”  Section 2(1)(xxxii) defines “regulated activity” as “an activity requiring licence.” CNG consumption by automobiles/vehicles is not a “regulated activity” and is therefore not licensed by OGRA.  Section 2(1)(xxxiv) defines “retail consumer for natural gas” as “a person who purchases or receives natural gas for consumption and not for delivery or resale other than resale for vehicular use or self consumption by a licensee in connection with its regulated activity”.  Section 2(1)(xxxvii) defines “sale” as “a sale of natural gas to retail consumers of natural gas but does not include sale of CNG for vehicular use or self-consumption by a licensee in connection with its regulated activity”. Importantly, sale of CNG for vehicular is clearly ousted from sale of natural gas.  Section 6(1) states that “the Authority shall be exclusively responsible for granting licenses for the carrying out of regulated activities and regulating such activities”. Regulation by OGRA is thus limited to “regulated activities”.  Section 23(2)(b) and (d) refer only to construction and operation of CNG testing facility, construction and operation of CNG operation of CNG storage facility and transportation, marketing or distribution of CNG as “regulated activities” with respect to CNG.  Sections 41 and 42 empower OGRA to make rules and regulations for carrying out the purposes of the HRC No.20107-G/2013 9 OGRA Ordinance but they do not add to the list of “regulated activities”.  OGRA only gives licenses for CNG filling stations; it is the responsibility of authorities like the CIE and the Hydrocarbon Development Institute of Pakistan (HDIP) to ensure that filling stations only fill those vehicles whose cylinders are properly fitted and are validly certified. 8. In asserting the responsibility of the CIE, Mr. Afnan Karim Kundi, learned ASC placed particular emphasis on Rule 18(1) of the CNG (Production and Marketing) Rules, 1992 (CNG Rules), which is reproduced as under (with emphasis added by the learned ASC): “18. Protection to the public.-(1) No licensee shall locate or construct any new works and CNG refuelling station in any residential area. A licensee shall locate, construct and operate his pipeline and all works connected with CNG Refuelling Station, and installation of CNG equipment in automobiles in accordance with the license granted by the Chief Inspector of Explosives under the Mineral Gas Safety Rules, 1960, and strictly comply with the provisions of the Petroleum Rules 1937 and the Gas Cylinder Rules, 1940, so as to avoid any danger to the public health or safety.” 9. Mr. Afnan Karim Kundi, learned ASC, averred that the Federal Government has now vested the CIE with elaborate licensing, monitoring and enforcement powers in respect of inter alia installation of CNG cylinders, valve and fittings under the Mineral Industrial Gases Safety (MIGS) Rules, 2010, which repealed the 1960 Rules, as detailed hereunder: HRC No.20107-G/2013 10  Examination, testing and condemning of cylinders [Rules 28 and 29].  Recognition of testing stations for periodical testing and examination or cylinders [Rule 28(2) read with Schedule III].  Licensing import of gas cylinders including CNG cylinders [Rule 80].  Prohibition on filling or possession of cylinders and valves unless of type and standard approved by CIE [Rules 129 and 130].  Approval of type of safety relief devices fitted in cylinders [Rule 131].  Restriction on delivery or dispatch of cylinders except to licensees of CIE unless exempted [Rule 136].  Overseeing maintenance of cylinders, valves and other fittings in good condition [Rule 141(1)].  Prevention of leakage from cylinder/valve [Rule 141(4)].  Prohibition and special precautions against acts causing fire or explosion relating to cylinders [Rule 142].  Ensuring a competent and experienced person to oversee all operations (filling etc.) of cylinders [Rule 143].  Periodical retesting of cylinders [Rule 152].  Ensuring maintenance of record by owners of cylinders [Rule 153].  Prohibition on filling any cylinder with CNG unless same along with valve and other fittings are of type and standard approved by CIE, have passed applicable testing and are otherwise compliant with Rule 130 through Rule 134 [Rule 157].  Power to grant or to refuse to grant, renew, amend or transfer licenses [Rules 163 and 170].  Power to suspend or cancel license for violation of anything objectionable, including without hearing the licensee in the public interest or in the case of imminent danger to the public [Rule 171]. HRC No.20107-G/2013 11 10. Mr. Afnan Karim Kundi, learned ASC, also contended that MVEs are mandated by the Motor Vehicles Rules, 1969 (MVR) to physically examine Public Service Vehicles (PSV), including their fuel tanks, such as the one in question. The learned ASC relied on the definition of “gas cylinder” in Rule 2(xl) of the MIGS Rules, 2010 in asserting that a “gas cylinder” includes a “(CNG) cylinder fitted to a motor vehicle as its fuel tank”. (emphasis added by the learned ASC). 11. The CIE submitted a reply controverting the above contentions raised on behalf of Chairman, OGRA. The CIE averred that OGRA was attempting to shift its responsibilities on the shoulders of the Department of Explosives. In this regard, he referred to a letter dated 02.03.2011 from OGRA to the Secretary, Cabinet Division. In the said letter, OGRA protested the promulgation of the MIGS Rules, 2010 and the Explosives Rules, 2010. In the letter, OGRA stated that the said Rules were in conflict with the provisions of the OGRA Ordinance. In particular, the letter stated, “8. ...OGRA Ordinance is a special law and therefore its provisions must prevail upon the provisions of all other general laws including but not limited to the Explosives Act, 1884, Petroleum Act, 1934 and the rules made there under. 10. In view of the above it is evident that the newly promulgated rules under the Explosives Act, 1884 and Petroleum Act, 1934 are inconsistent with the provisions of OGRA Ordinance and rules regulations (sic) made there under. Hence, these rules have no legal effect, having being (sic) made under statutes which ceased to have any effect on the commencement of OGRA Ordinance.” HRC No.20107-G/2013 12 Furthermore, in its letter dated 09.08.2011, OGRA mentioned that the Explosives Act, 1884 and Petroleum Act, 1934 do not mention any powers of the CIE with respect to Gas Cylinders; and that in any event the OGRA Ordinance repealed these laws. Therefore, the basic contention of the CIE was that previously, OGRA was arguing that the MIGS Rules have no legal effect whereas in the instant case they argued that the MIGS Rules mandate the responsibility of the CIE with regards to CNG cylinders. 12. From the aforementioned facts and contentions, one point is clear above all others. This is a case of criminal negligence on the part of the responsible authorities. Because of this patently obvious criminal negligence, the liability of those responsible must not only be founded in terms of laws such as the OGRA Ordinance, MVO, MVR, MIGS Rules and CNG Rules etc. The responsible parties must also be dealt with under the provisions of the Pakistan Penal Code, 1860 (PPC) relating to culpable homicide and grievous bodily harm depending on the facts and circumstances of the case. 13. The question remains; who are the responsible parties? The report of the Commissioner, Gujrat is particularly thorough and has proved instructive in fixing responsibility for the incident. The liability of Farrukh Sohail, MVE, and Mohsin Riaz, Secretary DRTA is apparent in the terms of the MVR, which provide at Rule 35: “35. Issue and renewal of certificate of fitness.- (1)(a) The authority prescribed to issue or renew a certificate of fitness... shall be:- (ii) ...the Motor Vehicles Examiner appointed by the Inspector-General, Police... HRC No.20107-G/2013 13 ...Provided that the Regional Transport Authority may authorise any licensed Automobile Workshop to perform the functions of the Motor Vehicles Examiner.” It is the responsibility of the MVE to inspect and ensure that PSVs in particular are roadworthy; and as is apparent from Rule 35, the Secretary, DRTA oversees the functions of the MVE because he can appoint automobile workshops to perform the functions of the MVE. Moreover, the Secretary, DRTA is admittedly responsible for issuing route permits. 14. The omissions by these two officials are numerous. Firstly, the petrol cans inside the vehicle constitute a violation of Rule 199(3) of the MVR, which reads, “The fuel tank of every public service vehicle shall be so placed that no over-flow therefrom shall fall upon any woodwork or accumulate where it can readily be ignited. The filling points of all fuel tanks shall be outside the body of the vehicle...” Not only did Farrukh Sohail, MVE fail to take action, these dangerous violations of the MVR were not even in his notice. In this regard it is pertinent to recall the letter dated 10.12.2011 noted above which referenced Rule 199 and the obligation to remove illegally fitted CNG cylinders. Such directions were issued numerous times by a number of authorities but their implementation was never ensured. Secondly, and even more glaringly, the vehicle involved in the incident had an expired fitness certificate and was utilising unauthorised and unapproved CNG cylinders. This is apparent from the Commissioner, Gujrat’s report, which states, “As per office record the fitness certificate of this vehicle had already been expired on 30.04.2013 and the vehicle was presented for obtaining fitness certificate on 01.05.2013. The stickers regarding cylinder and CNG kit was not HRC No.20107-G/2013 14 produced therefore the case was refused.” Thirdly, Mohsin Riaz, Secretary DRTA, admittedly neglected to even once visit Sarghoda road (where the incident occurred) during the month of May, 2013. Fourthly, the vehicle was on the roads despite the fact that it had not been issued a route permit by the DRTA. Therefore, Farrukh Soahil, MVE, and Mohsin Riaz, Secretary DRTA abjectly failed to perform their duties by allowing dangerous vehicles to ply the roads. The lives of sixteen innocent children and a brave teacher would have been saved had they performed their duties to even the bare minimum as mandated by law. Their gross omissions are criminal in nature and should be dealt with under the PPC. 15. The opposing contentions of OGRA and the CIE shall now be addressed. We are of the opinion that both OGRA and the CIE are responsible in the present case. Under section 23(2)(b) and (d) of the OGRA Ordinance, it is the responsibility of OGRA to grant licenses to those who “construct or operate... CNG testing facility or... CNG storage facility”, as well as those who “undertake transporting, filling, marketing or distributing of LPG, LNG or CNG”. Therefore, it is the responsibility of OGRA to ensure that CNG is safely stored in cylinders which have been manufactured in Pakistan. With respect to cylinders which are imported, Rule 80 of the MIGS Rules provides: “80. Licence for import of gas cylinders.- No person shall import any cylinder filled or intended to be filled with any compressed gas except under and in accordance with the condition of the licence granted under these rules.” Therefore, both OGRA and the CIE bear responsibility for being criminally negligent regarding the use of unauthorised CNG cylinders. OGRA has admittedly taken responsibility to tackle the proliferation of HRC No.20107-G/2013 15 unauthorised CNG cylinders. This is evident from the letter dated 19.11.2012 from OGRA to the Chief Secretaries of all four provinces wherein OGRA has expressly stated, “...OGRA is initiating action against the CNG stations found involved in refuelling uncertified commercial CNG vehicles.” OGRA has sent many such letters and notifications but has been lax on the implementing the same. The CIE also has responsibility to test and condemn cylinders, to ensure that owners of cylinders keep record of the maintenance of cylinders, to periodically retest cylinders and to cancel or suspend licenses where there is imminent public danger under the MIGS Rules. It is pertinent to highlight the obligation to oversee the filling of cylinders by a competent person appointed by the CIE under Rule 143 of the MIGS Rules. If only this is ensured, many lives can be saved. We are of the considered opinion that the presence of such a competent person will result in the prevention of tragic incidents such as the one in the present case. 16. Moreover, the fact that the driver of the vehicle, Muhammad Irfan, kept cans of petrol in the vehicle highlights the illegal availability of open petrol, which is a violation of Rule 21 of the Petroleum Rules, 1985, which must be checked by OGRA. OGRA has also issued a number of notifications and letters in this regard but has failed to ensure their implementation. Thus, it is abundantly clear that OGRA and the CIE have also completely failed to fulfil their obligations under the relevant laws and are thereby liable for criminal action under the PPC for the deaths of sixteen children and the teacher. HRC No.20107-G/2013 16 17. The report of the Commissioner, Gujrat also highlights the responsibility of the Excise and Taxation Department in failing to register the change in ownership and fuel setting of the vehicle as well as the Punjab Education Department in registering the Jinnah School, Mangowal without conducting the proper inspections. It is also not out of place to mention that the vehicle had third-party insurance, whereas PSVs should not be covered by such insurance under the MVR. The conclusion that is apparent from these multiple failures on the part of multiple public authorities is highly disturbing due to magnitude of the loss in the case at hand. It is difficult to find words to completely describe the utter paralysis of the bureaucracy that has been showcased in the present case. If just the MVE had ensured that a vehicle with petrol cans inside it could not be used as a PSV, the children would be alive today. If just the Secretary, DRTA had ensured that a vehicle without a route permit was not plying the road, the children would be alive today. If just OGRA had ensured that only licensed CNG cylinders were available to the masses, the children would be alive today. If just the CIE had inspected the CNG cylinders as provided in the MIGS Rules, the children would be alive today. In short, if just one of the authorities had performed its functions in accordance with law, we would not have had to hear of this tragedy. These egregious omissions therefore deserve to be countenanced in terms of culpable homicide and grievous bodily harm under the PPC. 18. It is unfortunate that ours is a country replete with regulation with little emphasis on implementation. The various rules and regulations mentioned hereinabove are voluminous; teeming with provisions that seem to cover a multitude of eventualities and situations. However, as evidenced by the unfortunate incident in the HRC No.20107-G/2013 17 instant case, there is absolute apathy when it comes to implementation of these provisions. Motor vehicles, fossil fuels and potential explosives are subject to all of the regulation that has been detailed hereinabove for one basic reason above all: the protection and preservation of the life of the citizens of this country. It is trite law that Article 9 of the Constitution, 1973 guarantees the protection of the life of citizens. It is the duty of the State to ensure such protection by following relevant laws which are made to protect and preserve life. In this behalf, reference may be made to Suo Motu Action regarding law and order situation in Karachi (PLD 2011 Supreme Court 997) wherein we relied on the celebrated judgement in Shehla Zia v. WAPDA (PLD 1994 Supreme Court 693) in dilating upon the concept of the right to life. In Shehla Zia’s case, we held as under:- “Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of-law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person- in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the HRC No.20107-G/2013 18 legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward.” 19. As a consequence of above discussion it is held as under:- (i) All public carrying vehicles, including buses, vans, trucks, taxies, rikshaws, etc., not worthy of roads and are being driven throughout in the country contrary to the provisions of Motor Vehicle Ordinance, 1965, without obtaining fitness certificates as well as rout permits, are hereby ordered to be kept off the roads forthwith. A comprehensive report in this behalf shall be submitted by the Provincial Chief Secretaries and Chief Commissioner ICT within 30 days for our perusal in Chambers and passing further orders, if need be. (ii) All the Regional Transport Authorities in the Provinces are directed to issue fitness certificates strictly in accordance with the rules and not to allow any vehicle not worthy of roads to come on roads, thereby allowing the owners and HRC No.20107-G/2013 19 the drivers to cause insecurity to the lives of the passengers, so that their lives could be protected from road accidents in future. (iii) Chief Inspector of Explosives, in exercise of powers conferred upon them under the Mineral Industrial Gases Safety (MIGS) Rules, 2010 read with Petroleum Rules, 1937, shall ensure action against decanting of Liquefied Petroleum Gas (LPG), illegal sale of petrol and unfit vehicles, by carrying out inspection from time to time. (iv) The OGRA is also directed to ensure strict action against the license holders running the petrol pumps and CNG stations, if they are found selling lose petrol or providing CNG to the vehicles which have either unbranded cylinders or cylinders of substandard brands not approved by concerned authorities, as it appears that the reasons invariably of such like incidents are, either extinguishing of fire due to lose petrol lying inside the vehicles or due to explosion of cylinders which are manufactured contrary to the provisions of MIGS Rules, 2010 read with Gas Cylinder Rules, 1940. All commercial vehicle owners are hereby directed to remove from their vehicles the CNG cylinders which have not been fitted by the approved companies/authorized dealers, to avoid any such incident in future. (v) IGP, Punjab is directed to take appropriate action against the persons who are responsible for the happening of incident of Gujrat dated 25.05.2013. The Government of HRC No.20107-G/2013 20 Punjab is also directed to provide compensation to the aggrieved families of the children and the teacher, who lost their lives in the said incident, if already they have not been compensated. 20. Petition stands disposed of in the above terms. Chief Justice Judge Judge Announced in open Court on 09.12.2013 at Islamabad Chief Justice Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.20171-B OF 2018 (In the matter regarding murder of non-payment of victims of terrorist attack on church in Quetta on 17.12.2017) In attendance: Mr. M. Rauf Ata, A.G. Balochistan Sheikh Haq Baloch, Addl.A.G. Mr. Aurangzeb Haq, Chief Secy. Balochistan Mr. Wajih Ullah Kundi, Special Secretary, Home Department, Balochistan Syed Moazzam Ali, I.G.P. Balochistan Mr. Samuel Payara, Chairman International Minority Rights Forum On Court’s call Mr. Naseebullah Kakar, ADC (G) Quetta Mr. Babraq Kakar, AC Saddar Mr. Jawwad Ahmed, SSP Investigation Mr. Ali Mardan Police Surgeon Date of Hearing: 11.05.2018 ORDER Quetta incident: Compensation issue We have been informed that on 17.12.2017, a suicide terrorist attack took place in the Methodist Church at Quetta. Eight persons lost their lives while 58 were injured. The Federal Government as well as the Provincial Government promised compensation package in the sum of Rs.1 million each for the deceased, Rs.500,000/- for the critically injured whereas Rs.1,00,000/- for less critically injured. It is stated that the Federal Government has made a sum of Rs.26.4 million available to the Provincial Government to be disbursed as compensation. In this behalf the Deputy Commissioner Quetta has been charged with the responsibility of disbursing the same amongst the legal heirs of the victims. We have been informed that before any compensation is H.R.C.No.20171-B of 2018 etc. -: 2 :- disbursed, there is a requirement of a Succession Certificate so that the compensation could be paid to the legal heirs who are lawfully entitled to receive such compensation. According to the record produced before us, out of the 8, the legal heirs of only one has so far submitted the succession certificate. Presumably the applications of the rest are pending before the competent fora. 2. In order to expedite the matter, we direct the Deputy Commissioner Quetta to immediately transmit the amount of compensation lying in his account to the account of the Sessions Judge Quetta, who is directed to ensure that all the applications of the legal heirs are decided within a period of one month from today. As soon as such applications are decided, he shall supervise and ensure that disbursement is made immediately to those found entitled. 3. We have also been informed that the Provincial Government has also released Rs.8 million as compensation which has already been deposited with the Deputy Commissioner Quetta for its release to the legal heirs of the victims. A further sum of Rs.16.2 million has also been released by the Provincial Government for payment of compensation to the injured persons. We have asked the concerned official whether such compensation has been disbursed. He has informed us that the matter is still under process before the District Compensation Committee. 4. We are disappointed and alarmed at the slow pace for which cases of compensation are being processed. It appears that the District Compensation Committee consists of Government officials including the ADC (G), Assistant Commissioner Quetta, Police Surgeon Quetta, Mr. Hakeem Khan and representative of the police department. Let the members of the District Compensation Committee appear before this H.R.C.No.20171-B of 2018 etc. -: 3 :- Court after Juma Prayer today at 2:00 p.m. to explain as to why compensation cases have so far been not decided. 5. We have noticed with dismay that all the injured who were entitled to receive compensation have not so far been paid. This is despite the lapse of number of months. The Compensation Committee comprising of Mr. Naseebullah Kakar, Additional D.C., Quetta, Mr. Babraq Khan, Assistant Commissioner, Mr. Ali Mardan, Police Surgeon and Mr. Jawwad Ahmed, SSP Investigation have been summoned. They have not been able to offer any plausible reason for the delay caused in payment of compensation to the injured. 6. Let payment be made to the persons entitled within three days. Notice is issued to the above named as to why the case of misconduct not be initiated against them departmentally for the delay caused and for the lapse committed by them. Besides why they should not be personally held liable to pay markup to the persons entitled for the period they have been deprived of the money. Let this matter be listed for hearing 17.5.2018 at Principal Seat, Islamabad. Complaint regarding use of the word Esai 7. It has been complained despite the decision taken by the Council of Islamic Ideology in its 175th meeting held on 28-29th September, 2009 that there was no harm, as per Shariah Injunctions, to refer to the members of Christian community as “Masihi” instead of “Esai”, no steps have been taken by the government in this regard. 8. Let the recommendations of the Council of Islamic Ideology be implemented in letter and spirit and arrangement should be made in all official records, documents, correspondence H.R.C.No.20171-B of 2018 etc. -: 4 :- etc. to refer to the Christian community as “Masihi” instead of “Esai”. CHIEF JUSTICE JUDGE QUETTA. 11th May, 2018. Not approved for reporting Mudassar/

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Human Rights Case No.20883 of 2018 [In the matter of Excessive and Unannounced Load Shedding in Sindh] In Attendance : Mr. Khalid Javed Khan, Attorney General for Pakistan. Mr. Sohail Mehmood, Deputy Attorney General Mr. Farrukh Dall, Assistant Attorney General Umer Rasool, Secretary, Power Tauseef Farooqi, Chairman, NEPRA Mr. Kashif Hanif, ASC (for NEPRA) Mr. Abid S. Zuberi, ASC (for K-Electric) along with Syed Moonis Abdullah Alvi, CEO, K-Electric (via video link from Karachi) Mr. Muhammad Munir Paracha, ASC Syed Rifaqat Hussain Shah, AOR (for HESCO & SEPCO) Muhammad Yaqoob, CEO, HESCO Zaheer Sheikh, Chief Operating Officer, HESCO Muhammad Saleem Khan, CEO, SEPCO, Sukkur Sattar Bux Soomro, Director, SEPCO Mr. Arshad M. Tayebaly, ASC Mr. Tariq Aziz, AOR (in CMA No.76/2020) Mr. Faisal Siddiqui, ASC (via video link from Karachi) Date of Hearing : 01.09.2020 O R D E R Gulzar Ahmed, CJ.— Power Division, Ministry of Energy has filed its reply by way of H.R.M.A. No.78 of 2020. Such S-1-H.R.C.No.20883 of 2018 (RO).doc - 2 - reply has been examined by the Court and found to be thoroughly unacceptable and does not comply with the Court’s order, pursuant to which this reply has been filed. 2. Mr. Umer Rasool, Secretary, Power has appeared before the Court and states that this reply has been filed by him. It seems that this very reply of Power Division, Ministry of Energy goes contrary to what NEPRA is doing and taking action against K- Electric and there seems to be no coordination between the Power Division and NEPRA and further with NTDC. The Ministry of Energy (Power Division) is required to ensure that there is proper coordination between all the departments and whatever is to be done with regard to K-Electric a coordinated decision should be taken by all the relevant departments, agencies and companies, and the same should be executed by one department, in that, there should be one window operation with the K-Electric. K-Electric should not be allowed to go about various departments of the Government or companies or agencies for achieving of its objectives. 3. The learned Attorney General for Pakistan has contended that since the last date of hearing regarding K-Electric matter i.e. 13.08.2020, situation in Karachi has become worse and becoming more and more worse day by day, as on the present day, almost half of the Karachi does not have supply of Electricity. Mr. Abid S. Zuberi, learned ASC states that this state of affairs is because of the rains in the city of Karachi as the infrastructure of K-Electric has submerged or inundated in the water. If that be so, S-1-H.R.C.No.20883 of 2018 (RO).doc - 3 - K-Electric being a private company, should apply its own resources for ensuring clearing of its sub-stations and other distribution network from the rain water and it in this regard cannot wait for any assistance from the Government, in that, the K-Electric is a private company, who has to do its own work and its basic work being supply of electricity to the city of Karachi, such work cannot be interrupted for mere reason that its installations have been affected by rain. As a private institution, it should immediately care for such installations and have it cleared immediately, so that, electricity supply is restored to its consumers. K-Electric cannot blame any institution of the Government in this regard, for that, K-Electric has to do its own work and maintain its installations and also to secure them from any whether effect. 4. The learned Attorney General for Pakistan states that he has not been able to consult the officials of the Ministry of Energy (Power Division) and that he needs time for such consultation and thereafter, shall give a proper report to the Court. At the same time, learned Attorney General has referred to provision of Section 26 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (the Act of 1997), which is as follows: - “26. Modifications. If the Authority is of the opinion that it is in the public interest, it may, with the consent of the licensee, amend or vary the conditions of any licence issued (or generation granted) under this Act and in the absence of licensee’s consent, the Authority S-1-H.R.C.No.20883 of 2018 (RO).doc - 4 - shall conduct a public hearing on whether the proposed amendment or variance is in the public interest and shall make a determination consistent with the outcome to this hearing.” 5. The learned Attorney General has contended that the issue of electricity in Karachi is that K-Electric has exclusive right of generation and distribution of electricity in the city of Karachi and therefore, to overcome the issue of exclusivity, the above quoted provision of law has to be given effect and the determination has to be made by the Authority. As the law has provided the provision, we do not see any impediment as to why the Authority is not empowered to give effect to the said provision of law. The Authority may proceed to implement Section 26 of the Act of 1997 and make its determination. While making such determination, the Authority shall not be hampered by any Court, either by issuing of any injunctive order or issuing of any writ. The Authority, after making the determination, which it shall do within one month, will file a report before this Court. 6. Under Section 12A of the Act of 1997, the Federal Government is required to constitute an Appellate Tribunal (the Tribunal). It is stated that notification of constitution of the Tribunal has already been issued but members of the Tribunal have not been appointed yet. Let such members be appointed by the Federal Government within 10 days hereof and make the Tribunal functional and provide all necessary infrastructure for its immediate working. S-1-H.R.C.No.20883 of 2018 (RO).doc - 5 - 7. Adjourned to a date after four weeks. CHIEF JUSTICE Bench-I ISLAMABAD 20.05.2020 NOT APPROVED FOR REPORTING Rabbani*/ JUDGE

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Iqbal Hameedur Rahman CMA No.8032/2013 (Compliance report of order dated 10.12.2013 passed by this Court in HRC No.29388-K/13) And CMA No.8033/2013 (For correction of order dated 10.12.2013 passed by this Court in HRC No.29388- K/13) IN H.R.C. No.29388-K/13 (Application by Mohabbat Shah for recovery of Yaseen Shah, missing person) For the Applicant: Mr. Tariq Mehmood Khokhar, Addl.A.G.P. Mr.Shah Khawar, Addl.A.G.P. (in second half) Date of Hearing: 10.01.2014 ORDER After the hearing conducted in H.R.C. No.29388-K/13, a comprehensive order was passed on 10.12.2013. In this order, it was inter alia declared that Army authorities have removed 35 persons from Malakand Internment Centre out of whom only 7 persons have been produced. It had also been directed that the authorities, whether of the Army or otherwise, had no authority to detain these persons illegally. As a consequence, the Chief Executives of the Federal Government and Government of the Province of KPK were directed to “immediately proceed with this case and ensure recovery of these persons within 07 days and submit report to the Registrar for our perusal.” Furthermore, persons responsible for such detention were ordered to be ‘dealt with strictly in accordance with law”. It is apparent that this order has not been 2 complied with. Instead, an application (CMA No.8032/13) has been filed seeking permission to file an additional document in Court. The additional document purports to be a notification dated 20.12.2013. In view of its relevance the said document is reproduced in extenso:- “ GOVERNMENT OF PAKISTAN MINISTRY OF DEFENCE NOTIFICATION Subject:- COMMITTEE TO IMPLEMENT THE ORDER OF SUPREME COURT DATED 10TH DEC, 2013 IN HRC NO.29388-K OF 2013 : APPLICATION BY MUHABAT SHAH S/O QABAL SHAH The Hon’ble Prime Minister has been pleased to constituted a Committee for implementation of the Hon’ble Supreme Court order dated 10.12.2013. The Committee shall include:- (i) Minister for Defence - In Chair (ii) Attorney General for Pakistan - Member (iii) Secretary Defence Member (iv) Secretary Interior Member (v) Secretary Law, Justice Member and Human Rights 2. The Committee is mandated to discuss the issue in depth and submit recommendations with time lines for compliance of order dated 10th December, 2013 passed by the Hon’ble Supreme Court of Pakistan. The committee may also propose draft law as per directions of the Court vide para 18 of the said order. 3. The date and venue for the first meeting will be communicated shortly. Sd/- (Hasan Mahmud) Deputy Secretary (Army-A) Ph:9271127 ” We note that there is no report of compliance of our order and the directions contained therein. Furthermore, the persons responsible for illegal/unconstitutional acts were directed to be dealt with in accordance with law. This also has not been done. Since there is prima facie non compliance of an order of this Court, consequential proceedings are required to be initiated. 3 2. Notice shall therefore, issue initially to the Secretary to the Prime Minister who shall bring the above noted non-compliance to the notice of the Chief Executive/Prime Minister. Likewise, notice shall issue to the Chief Secretary, KPK who shall bring the above noted non- compliance of Court order to the attention of the Chief Executive KPK. Notice shall also issue to the Secretary, Law, Justice & Human Rights. The learned Additional Attorney General, upon being questioned as to why the Court order has not been complied with, states that he needs some time to obtain instructions. He may obtain instructions today. The Chief Executive of the Federal and Provincial governments respectively may also file comments in light of the above. 3. In addition to the above, we have observed in our order dated 10.12.2013 that there is no law which allows for undeclared internees. We had therefore, expressed the view that ”there must be some legislation to control such like activities and the Federation through Chief Executive must ensure that in future no enforced disappearance takes place.” The notification dated 20.12.2013 reproduced above, apart from being irrelevant in terms of the directions of this Court dated 10.12.2013, has merely mandated a Committee “to discuss the issue in-depth and submit recommendations with timeline” for compliance of our order dated 10.12.2013. 4. Mr. Tariq Mehmood Khokhar, Additional Attorney General, on his request, was granted some time to obtain instructions in respect of any compliance with the order dated 10.12.203 and the current status of legislation, if any, in terms mentioned in sub-para 2 of para 18 of our order dated 10.12.2013. After about 40 minutes, the case was taken up 4 again when Mr. Shah Khawar, learned Additional Attorney General appeared and stated that according to his instructions a report was submitted in the office of the Registrar of this Court on 19.12.2013. The said report is not on our file. Nevertheless, a copy which purports to be “an interim reply” to the Court order of 10.12.2013 has been submitted in Court. Since confidentiality is being claimed in respect of the “interim reply” the same is ordered to be placed in a sealed envelope to be kept with the Registrar; but we may briefly observe that compliance of the order of 10.12.2013 has not been shown in the said “interim reply”. 5. Furthermore, we have, since July last year, been consistently told that the government is serious in addressing the issue of missing persons and in this behalf legislation is also being made. Regrettably, despite various statements made on behalf of the Federation, even today there is no legislation in respect of enforced disappearances other than the Action (In Aid of Civil Power) Regulations, 2011. These regulations however, do not address the questions which have arisen in relation to missing persons and the enforcement of Fundamental Rights guaranteed, inter alia, by Articles 9 and 10 of the Constitution. 6. We have repeatedly, at least since July last year, been emphasizing to the government that in view of said Articles 9 & 10 of the Constitution, no person can be detained/incarcerated without the backing of a valid law. It has also been emphasized by us from time to time that deviation from the Constitution and law by the government would also constitute violation of Article 5 of the Constitution, quite apart from undermining the authority of the government. In our 5 judgment in the case of Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879), it was noted that it would “be for the representatives of the people … to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which permeates our society today…“ 7. Let this matter be listed for hearing on 20.01.2014. All the relevant quarters mentioned above may file comments/replies by 17.01.2014. On the next date of hearing, further orders shall be passed to ensure compliance of our order dated 10.12.2013. CMA No.8033/2013. 8. The learned Additional Attorney General has drawn our attention to para 8 of our order dated 10.12.2013 and has pointed out that at two points a statement has been referred to as having been made by the Attorney General. He states that the statement was made by the Additional Attorney General and likewise the direction mentioned in para 8 was also made to the Additional Attorney General, not to the Attorney General. This submission prima facie is correct, since Mr. Tariq Mehmood Khokhar, the Additional Attorney General was present on 10.12.2013 and has confirmed that the order when dictated mentioned Additional Attorney General. The application has been moved by Mr. Tariq Mehmood Khokhar, Additional Attorney General himself and the same is supported by his own affidavit. The omission of the word ‘Additional’ appears to be inadvertent. The same is therefore, directed to be corrected. He also points out that the reference 6 to the order in para 8 should to be to the order passed on 24.10.2013 and not on 24.8.2013. Having seen the file it does appear that the date of 24.8.2013 is on account of a typographical/clerical error. The same is, therefore, ordered to be corrected to 24.10.2013. The present Application stands disposed of accordingly. Judge Judge ISLAMABAD 10th January, 2014 (Nasir Khan)         184(3)                  8032/2013       29388-K/13       10-12-2013              8033       29388-K/13      10-12-2013         29388-K/13                                           2014   10      1     10-12-2013       29388-K/13                                       7     35                                "                           "             "                "                    8032/13          20-12-2013  (Notification)                                  2013   10                                29388-K/2013           10-12-2013                                                   2                                                   2.          2013   10                       8                                     3               9271127                                                     (Consiquential)              /               2                                                                              3               10-12-2013        3            "                         20-12-2013   "               10-12-2013             10-12-2-13                       "   "                        4 10-12-2013             10-12-2013              '2'   8                                             19-12-2013     "     "     10-12-2013       "                         10-12-2013     "                     5                             Action (in aid of Civl Power) Regulations, 2013          10  9             2011 4        10  9            6                          5                2009                            "      879                                               "         20-01-2014    7   10-12-2013                17-01-2014           8   10-12-2013            8                                  8              10-12-2013                                                8              "   "             24-10-2013  24-08-2013             24-08-2013               24-10-2013 5     2014   10 6

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed HRC Case No.318 of 1993, C.M.A. No.7645/2018 in HRC No.318/1993, CMA No.2370 in CRP Nil/2020 in HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No. 2417/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993 (Regarding Environmental Pollution in Sector I-9/1, Islamabad due to Industrial Estate) In attendance: Mr. Sohail Mehmood, D.A.G. Mr. Niazullah Khan Niazi, A.G. Islamabad Ch. Faisal Fareed, Addl. A.G. Punjab. Mr. Amir Ali Ahmed, Acting Chairman CDA/Commissioner Ch. Riasat Ali Gondal, ASC for CDA Raja Abdul Ghafoor, AOR for CDA Mr. Adil Aziz Qazi, ASC for MCI Miss Shafaq, CO, MCI Sh. Ansar Aziz, Ex- Mayor Farzana Altaf Shah, D.G. EPA Muhammad Ramzan, AD (Legal) EPA Mr. Shah Khawar, ASC for 4 Steel Mills along with Mr. Mehmood A. Sheikh, AOR Ms. Shireen Imran, ASC (in CMA 2416/2020) along with Ch. Akhtar Ali, AOR Syed Qalb-i-Hassan, ASC (in CMA 2417/2020) along with Mr. Mehmood A. Sheikh, AOR Mr. Tanveer Iqbal, ASC (in CMA 2606/2020) Date of hearing: 19.05.2020. ORDER Gulzar Ahmed, CJ.- At the outset, pursuant to the order of this Court dated 05.03.2020, it is stated by the Advocate General, Islamabad Capital Territory, Deputy Attorney General, Acting HRC Case No.318 of 1993, C.M.A. No.7645/2018 in HRC No.318/1993, CMA No.2370 in CRP Nil/2020 in HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No. 2417/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993 2 Chairman Capital Development Authority/Chief Commissioner, ICT that the whole of the Margalla Hills, spreading in Islamabad, K.P. and Punjab, has since long declared as a heritage site and National Park, and no part of it can be allotted to any private person, either for residential purposes or for any sort of commercial activity. We have been informed by the Acting Chairman, CDA that a large number of restaurants have been established in the Margalla Hills, amongst them Monal restaurant is a famous one, and there are rental residential premises by the name of Pine Residencia, Whispering Pine and some other residential premises constructed in the Margalla Hills which are being offered as hotels/guest houses, etc. and they are being advertised openly. It is stated that all these constructions are illegal and against the very spirit of the Margalla Hills being declared as a heritage site and National Park, and all such constructions and activities have to be stopped and demolished, and the Margalla Hills restored as heritage and National Park. 2. We are informed that a large number of trees have been removed and cut-down for stated expansion of the Monal restaurant and the Acting Chairman CDA/Chief Commissioner I.C.T. is fully familiar with such situation and states that he has taken action on this occurrence and sealed the Monal restaurant. He has further assured the Court that the trees that have been cut-down or removed by Monal restaurant shall be restored with sufficiently tall and grown up trees. Action against all those premises, which are operating for commercial or residential purposes in the Margalla Hills be initiated to ensure their removal. We, however, direct that notices be issued to all the alleged owners/occupants of the premises in the Margalla Hills who shall appear before the Court on the next date of hearing. The expansion or HRC Case No.318 of 1993, C.M.A. No.7645/2018 in HRC No.318/1993, CMA No.2370 in CRP Nil/2020 in HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No. 2417/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020 in CMA No.7645/2018 in HRC 318/1993 3 construction work of Monal or any other Restaurant or any other premises in the Margalla Hills is stayed altogether. 3. We note that except K.P. Government no report is filed by Punjab and ICT regarding crushing activity of Margalla Hills. Let such be done well before next date. Adjourned to 01.06.2020. Chief Justice Judge Judge Judge Judge Islamabad, the 19th May, 2020 Not approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.32642-P OF 2018 (In the matter regarding non-registration of Christian Marriages) In attendance: Syed Nayyar Abbas Rizvi, Addl. Attorney General Mr. Razzaq A. Mirza, Addl. A.G. Punjab Mr. Usman Yousaf Mubeen, Chairman, NADRA Brig. (R) Nasar Mir, D.G. Operation, NADRA Mr. Saqib Jamal, Director Law, NADRA Mr. Umer Ali, A.D. Legal, NADRA Mr. Naveed Ahmed Goraya, Sr. Law Officer, HR, Punjab M. Naeem, A.D. Legal, Local Govt. Dept. Punjab His Excellency, Dr. Alexander Jan Malik, Bishop of Lahore Very Reverend Shahid P. Meraj, Dean of Cathedral Lahore Date of hearing: 10.9.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- The instant issue has come before this Court pursuant to an application submitted by the Very Reverend Shahid P. Meraj, Dean of the Cathedral Church of the Resurrection, Lahore. The grievance propounded in the application is that of non-registration of Christian marriages with the Union Councils of the Province of Punjab and the National Database and Registration Authority (NADRA). Clarification and resolution of the matter was sought from the relevant authorities numerous times and a list of Clergy authorised to solemnise marriages was submitted to the Director General of the Local Government Punjab who, despite assuring the applicant that the matter would be resolved, has not taken any practical steps to redress the stated grievance. We find it pertinent to mention at this stage that in the judgment rendered in S.M.C. NO.1 OF 2014 etc. (PLD 2014 SC 699) pursuant to suo motu action taken by the H.R.C. No.32642-P/2018 -: 2 :- Supreme Court regarding the suicide bomb attack of 22.09.2013 on the Church in Peshawar and regarding the threat being given to the Kalash tribe and Ismailis in Chitral, the issue of non-registration of Christian marriages was brought before the Court.1 It was noted therein that “[t]he learned Acting Advocate General, Punjab, submitted that in terms of the Christian Marriage Act, 1872, 150 Pastors and Bishops already stand registered in 20 Districts and any Christian marriage solemnized by a license holder under the afore-mentioned Act from the concerned Church / denomination is duly registered under the Punjab Local Government Act and the Rules framed thereunder.”2 However unfortunately, this perhaps is not the ground reality and the matter remains unresolved till date. 2. His Excellency Bishop of Lahore submitted that as per Sections 28, 29, 30 and 37 of the Christian Marriages Act, 1872 (Act) various persons are authorised to register marriages in the registers maintained by them; once each marriage register is complete, the said individuals send copies of the details of the marriages so registered to the Registrar General of Births, Deaths, and Marriages from time to time, according to Section 34 of the Act. He stated that this process continued for many years without any problems, however, once Union Councils were established under the respective local government laws of the Provinces, the registrations of births, deaths and marriages was now to be done by Union Councils. According to him, in practice, Union Councils register Christian births and deaths, but not Christian marriages. When questioned, the representative of the Union Councils stated that such lapse was due to the fact that they (Union Councils) have not received any direction or authorisation from the local government to do so. Be that as it may, it is the applicant’s case that individuals authorised by the Church should not need to apply and get licenses for solemnisation of marriages as their ordination itself authorises them to solemnise marriages according to the laws of their individual churches. Furthermore, it was 1 Paragraph No.2(ix) of S.M.C. NO.1 OF 2014 etc. (supra). 2 Paragraph No.4 of S.M.C. NO.1 OF 2014 etc. (supra). H.R.C. No.32642-P/2018 -: 3 :- pointed out by the Chairman, National Database and Registration Authority (NADRA) that according to Section 5 of the Act, five types of individuals are authorised to solemnise Christian marriages, whereas the Union Councils of Punjab only recognise three such categories for the purpose of registration of marriages. 3. Before proceeding further, it is important to note the difference between solemnisation and registration of marriages. Solemnisation of a marriage entails the performance of the ceremonial aspects of the marriage whereas registration is the completion of a marriage certificate and lodging or filing of it with the appropriate institution or authority. However, as we shall see below, both processes are closely intertwined in the Act, as in some instances the individual who solemnises the marriage is then responsible for registering it according to the corresponding provisions of the Act. The addition of the Union Councils and NADRA to the bodies concerned with registration of marriages contributes to the already rather unclear and complex method of registration of marriages. Hence, it appears that the non- registration of marriages by Union Councils and NADRA is due to uncertainty regarding the applicable law, therefore examination and clarification of the same is necessary. The primary statute on the subject is the Act which governs solemnisation and registration of marriages between citizens of Pakistan who belong to the Christian faith, the provisions whereof are to be followed to ensure that the marriage is legally valid. In this regard, Section 4 of the Act is relevant which reads as under:- 4. Marriages to be solemnised according to Act. Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. H.R.C. No.32642-P/2018 -: 4 :- The Act provides for the persons who can solemnise marriages (Section 5 of the Act), whether such persons require any license or authorisation etc. in order to solemnise marriages under the Act (Section 6 to 9 of the Act), the solemnisation procedure (Section 5, and the relevant provisions contained in Parts III, V and VI of the Act), and the registration procedure (the relevant provisions of Parts IV, V and VI of the Act). The following table is an overview of the general scheme of the Act produced for ease of reference3:- Who can solemnize marriages in Pakistan Whether license, etc. required for solemnization of marriage Solemnization procedure Registration procedure under the Act Section 5(1). By any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a minister. Part IV 27. Marriages when to be registered.– All marriages hereafter solemnized in Pakistan between persons one or both of whom professes or profess the Christian religion, except marriages solemnized under Part V or Part VI of this Act, be registered in the manner hereinafter prescribed. 28. Registration of marriages solemnized by Clergymen of Church of England.– Every Clergymen of the Church of England shall keep a register of marriages and shall register therein, according to the tabular form set forth in the Third Schedule hereto, annexed, every marriage which he solemnizes under this Act. 29. Quarterly returns to Archdeaconry.– Every Clergyman of the Church of England shall send four times in every year return in duplicate, authenticated by his signature, of the entries in the register of marriages solemnized any place where he has any spiritual charge, to the Registrar of the Archdeaconry to which he is subject, or tithing the limits of which such place is situate. … The said Registrar upon receiving the said returns shall send one copy thereof to the Registrar General of Births, Deaths and Marriages. 30. Registration and returns of marriages solemnized by clergymen of Church of Rome.– Every marriage solemnized by a Clergyman of the Church of Rome shall be Section 5(2). By any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland. Section 5(3). By any Minister of Religion licensed under this Act to solemnize marriage. Section 6. Grant and revocation of licenses to solemnize marriage.– The Provincial Government so far as regards the territories under its administration, and the Central Government so far as regards any Acceding State may, by notification in the official Gazette, grant licenses to Ministers of Religion to solemnize marriages within such territories and State, respectively, and may by a like notification, revoke such licenses. Part III 17. Issue of certificate of notice given and declaration made.– Any Minister of Religion consenting or intending to solemnize any such marriage as aforesaid, shall on being required so to do by or on behalf of the person by whom the notice was given, and upon one of the persons intending marriage making the declaration hereinafter required issue under his hand a certificate of such notice having 3 This table contains only the provisions of the Act relevant for the purposes of this opinion and should not be construed to be exhaustive. The other provisions of the Act not mentioned in the table would nonetheless be applicable. H.R.C. No.32642-P/2018 -: 5 :- been given and of declaration having been made. … 25. Solemnization of marriage.– After the issue of the certificate by Minister, marriage may be solemnized between the persons therein described according to such form or ceremony as the Minister thinks fit to adopt: Provided that the marriage be solemnized in the presence of at least two witnesses besides the Minister. 26. Certificates void if marriage not solemnized within two months. registered by the person and according to the form directed in that behalf by the Roman Catholic Bishop of the Diocese or Vicariate, in which such marriage is solemnized, and such person shall forward quarterly to the Register General of Births, Deaths and Marriages returns of the entries of all marriages registered by him during the three months next preceding. 31. Registration and returns of marriages solemnized by Clergymen of Church of Scotland.– Every Clergymen of the Church of Scotland shall keep a register of marriages, and shall register therein, according to the tabular form set forth in the Third Schedule hereto annexed, every marriage which he solemnizes under this Act, and shall forward quarterly to the Registrar General of Births, Death and Marriages, through the Senior Chaplain of the Church of Scotland, returns, similar to those prescribed in section 29, of all such marriages. 32. Certain marriages to be registered in duplicate.– Every marriage solemnized by any person who has received episcopal ordination, but who is not a Clergyman of the Church of England, or of the Church of Rome, or by any Minister of Religion licensed under this Act to solemnize marriages, shall, immediately after the solemnization thereof be registered in duplicated by the same; (that is to say) in a marriage register-book to be kept by him for that purpose, according to the form contained in the Fourth Schedule hereto annexed and also in a certificate attached to be marriage- register-book as a counterfoil. 33. Entries of such marriages to be signed and attested.– The entry of such marriage in both the certificate and marriage-register- book shall be signed by the person solemnizing the marriage, and also by the persons married and shall be attested by two credible witnesses, other than the person solemnizing the marriage, present at its solemnization. … 34. Certificate to be forwarded to Marriage Registrar, copied and sent to Registrar General.– The person solemnizing the marriage shall forthwith separate the certificate from the marriage- register-book and send it, within one month from the time of the solemnization, to the Marriage Registrar of the district in which the marriage was solemnized, or, if there be more Marriage Registrars than one, to the Senior Marriage Registrar, who shall cause such certificate to be copied into a book to be kept by him for that purpose. H.R.C. No.32642-P/2018 -: 6 :- And shall send all the certificates which he has received during the month, with such number and signature or initials added thereto as are hereinafter required, to the Registrar General of Births, Deaths and Marriages. 35. Copies of certificates to be entered and numbered.– Such copies shall be entered in order from the beginning to the end of the said book and shall bear both the number of the certificate as copied and also a number to be entered by the Marriage Registrar indicating the number of the entry of the said copy in the said book, according to the order in which he receives each certificate. 36. Registrar to add number of entry to certificate and send to Registrar General.– The Marriage Registrar shall also add such last mentioned number of the entry of the in the book to the certificate, with his signature or initials, and shall, at the end of every month send the same to the Registrar General of Births, Deaths and Marriages. 37. Registration of marriages between Native Christians by persons referred to clauses (1), (2) and (3) of section 5.– When any marriage between Native Christians is solemnized by any such person, Clergyman or Minister of Religion as is referred to in clause (1) clause (2) or clause (3) of section 5, the person solemnizing the same shall, instead of proceeding in the manner provided by sections 28 to 36, both inclusive, register the marriage in a separate register-book, and shall keep it safely until it is filled, or, if he leaves the district in which he solemnized the marriage before the said book is filled, shall make over the same to the person succeeding to his duties in the said district. Custody and disposal of register-book. Whoever has the control of the book at the time when it is filled, shall send it to the Marriage Registrar of the district, or, if there be more Marriage Registrars than one, to Senior Marriage Registrar, who shall send it to Registrar General of Births, Deaths and Marriages, to be kept by kept by him with the records of his office. Section 5(4). By, or in the presence of a Marriage Registrar appointed under this Act. 7. Marriage Registrars.– The Provincial Government may appoint one or more Christians, either by name or as holding any office for any district subject to its administration. Senior marriage Part V 41. Certificate of notice given and oath made.– If the party by whom the notice was given requests the Marriage Registrar to issue the certificate Part V 54. Registration of marriage solemnized under Part V.– After the solemnization of any marriage under this Part, the Marriage Registrar present at such solemnization shall forthwith register the marriage in duplicate that is to say, in a marriage-register-book, according to the form of the Schedule hereto annexed, and also in a certificate attached to the marriage-book as a counterfoil. H.R.C. No.32642-P/2018 -: 7 :- Registrars. Where there are more marriage Registrars than one in any district, the Provincial Government shall appoint one of them to be the Senior Marriage Registrar. Magistrate when to be Marriage Registrar. When there is only one Marriage Registrar in a district, and such Registrar is absent from such district, or, ill, or when his office is temporarily vacant, the Magistrate of the district shall act, as, and be, Marriage Registrar thereof during such absence, illness or temporary vacancy. 8. Marriage Registrars in Acceding States.– The Central Government may, by notification in the official Gazette appoint any Christian, either by name or as holding any office for the time being, to be a Marriage Registrar in respect of any district or place within any Acceding State. next hereinafter mentioned, and if one of the parties intending marriage has made oath as hereinafter required, the Marriage Register shall issue under his hand a certificate of such notice having been given and of such oath having been made: … 52. When Marriage not had within two months after notice, new notice required.– Whenever a marriage is not solemnize the marriage nor shall any Marriage Registrar enter the same, until, new notice has been given, and entry made, and certificate thereof given, at the time and the manner aforesaid. The entry of such marriage in both the certificate and the marriage-register- book shall be signed by the person by or before whom the marriage has been solemnized, if there be any such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnized by him, and also by the parties married, and attested by two credible witness other than the Marriage Registrar and person solemnizing the marriage. Every such entry shall be made in order from the beginning to the end of the book, and the number of the certificate shall correspond with that of the entry in the marriage- register-book. 55. Certificates to be sent monthly to Registrar General.– The marriage shall forthwith separate the certificate from the marriage-register-book and send it, at the end of every month, to the Registrar General of Births, Deaths and Marriages. Custody of register-book. The Marriage Registrar shall keep safely the said register- book until it is filled, and shall then send it to the Registrar General of Births, Deaths and Marriages, to be kept by him with the records of his office. 56. Officers to whom Registrars in Acceding States shall send certificate.– The Marriage Registrar in Acceding States shall send the certificates mentioned in section 54 to such officers as the Central Government from time to time by notification in the official Gazette appoints in this behalf. Section 5(5). By any person licensed under this Act to grant certificates of marriage between Native Christians. 9. Licensing of persons to grant certificates of marriage between Native Christians.– The Provincial Government or (so far as regards and Acceding State) the Central Government may grant a license to any Christian, either by name or as holding any office for the time being, authorizing him to grant certificate of marriage between Native Christians. Any such license may be revoked by the authority by which it was granted, and every such grant or Part VI 60. On what conditions marriages of Native Christian may be certificated. 61. Grant of certificate.– When, in respect to any marriage solemnized under this Part, the conditions, prescribed in section 60 have been fulfilled, the person licensed as aforesaid, in whose presence the said declaration has Part VI 62. Keeping of register-book and deposit of extract therefrom with Registrar.– (1) Every person licensed under section 9 shall keep in English, or in the vernacular language in ordinary use in the district or State in which the marriage was solemnized, and in such form as the Provincial Government by which he was licensed may from time to time prescribe, a register-book of all Marriage solemnized under this Part in his presence, and shall deposit in the territories under the administration of the said Provincial Government in such form and at such intervals as the Government may prescribe, true and duly authenticated extracts from his register-book of all entries made therein since the last of those intervals. (2) Where the person keeping the register- book was licensed as regards an acceding State by the Central Government, references in sub-section (1) to the Provincial H.R.C. No.32642-P/2018 -: 8 :- revocation shall be notified in the official Gazette. been made, shall, on the application of either of the parties to such marriage, and on the payment of a fee of four annas, grant a certificate of the marriage. The certificate shall be signed by such licensed person, and shall be received in any suit touching the validity of such marriage as conclusive proof of its having been performed. Government therein mentioned shall be read as references to the Provincial Government to whose Registrar General of Births, Deaths and Marriages certified copies of entries in registers of births and deaths are for the time being required to be sent under section 24, sub-section (2) of the Births, Deaths and Marriages Registration Act, 1886. 4. According to the Act, individuals falling under Section 5(1) and (2) supra do not require a license from the Local Government to solemnise marriage, rather they must follow the rules, rites, ceremonies and customs of their respective churches. Section 5(2) supra refers to any Clergymen of the Church of Scotland in particular, and the term “Church of Scotland” has been defined in Section 3 to mean “the Church of Scotland as by law established”, however Section 5(1) supra refers generally to any person who has received Episcopal ordination, who is to solemnise the marriage in accordance with the rules, rites, ceremonies and customs of the Church of which he is a minister, and “Church” has been defined in Section 3 supra as including “any chapel or other building generally used for public Christian worship”. However, those individuals who fall in the categories defined in Section 5(3), (4) and (5) are to be licensed according to the provisions of the Act itself, i.e. Sections 6, 7, 8 and 9 supra, in order to solemnise marriages. To elaborate, Ministers of Religion can solemnise marriages according to the procedure provided in Part III of the Act (see Sections 17, 25 and 26 of the Act as reproduced in the table) once granted a license by the Provincial Government under Section 6 of the Act; Marriage Registrars can solemnise marriages in accordance with the procedure H.R.C. No.32642-P/2018 -: 9 :- provided in Part V of the Act (see Sections 41 and 52 of the Act as reproduced in the table) once duly appointed by the Provincial and Central Governments under Sections 7 and 8 of the Act respectively; while any Christian, either by name or as holding any office for the time being, granted a license by the Provincial Government (by the Central Government with respect to an Acceding State) under Section 9 of the Act can grant certificates of marriage between Native Christians (defined in Section 3 of the Act) as per the procedure provided in Part VI of the Act (see Sections 60 and 61 of the Act as reproduced in the table). In other words, the individual mentioned in Section 5(3), (4) and (5) of the Act derive their power to solemnise marriages not from ordination, but from the Act itself. 5. With respect to registration of marriages, those solemnised by persons under Section 5(1), (2) and (3) supra are to be registered as per the procedure provided in Part IV of the Act which begins with Section 27 which states that “[a]ll marriages hereafter solemnized in Pakistan between persons one or both of whom professes or profess the Christian religion, except marriages solemnized under Part V or Part VI of this Act, be registered in the manner hereinafter prescribed.” The particular provisions which are relevant are provided in the fourth column of the table above. Those marriages solemnised by or in the presence of a Marriage Registrar [Section 5(4) supra] are to be registered in accordance with the provisions contained in Part V of the Act, particularly Sections 54 and 55 thereof. While those marriages solemnised by persons licensed under Section 9 of the Act [Section 5(5) supra] are to be registered according to the provisions in Part VI of the Act, particularly Section 62 thereof. Without going into the minute details of registration which are contained in the various provisions of the Act as highlighted above, according to all the relevant provisions for registration, the information of all the marriages solemnised under the Act (save for those by Clergymen of the Church of England) are to be transmitted, either directly or through the Clergyman or Marriage Registrar, etc. by the persons authorised under Section 5 supra to solemnise marriages under the Act, to H.R.C. No.32642-P/2018 -: 10 :- the Registrar General of Births, Deaths and Marriages (see the provisions in column No.4 of the table), who according to Section 3 supra is a Registrar General of Births, Deaths and Marriages appointed under the Births, Deaths and Marriages Registration Act, 1886 (Act of 1886). 6. Be that as it may, it would be appropriate to understand the historical context of the Act and the Act of 1886. The Act was promulgated on 18.07.1872 in the Indian Subcontinent to consolidate and amend the law relating to the solemnisation of the marriage of persons professing the Christian religion (Preamble to the Act). Subsequently the Act of 1886 was promulgated in order to provide for, inter alia, more effectual registration of marriages under various statutes including those under the Act, and for the establishment of general registry offices for keeping registers of those marriages. Such Registrar Generals of Births, Deaths and Marriages were to be appointed by the Government. But the Act of 1886 did not provide for the registration of Muslim marriages. After partition, Pakistan retained the Act and the Act of 1886, therefore, Christian marriages continued to be solemnised and registered under the respective frameworks provided by the said Acts. However thereafter, for the Muslim community, the Muslim Family Laws Ordinance, 1961 (Act of 1961) was promulgated which provided for the registration of Muslim marriages in Section 5 thereof which read (as originally promulgated) as under:- “5. Registration of marriages.- (1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance. (2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case H.R.C. No.32642-P/2018 -: 11 :- shall more than one Nikah Registrar be licensed for any one Ward.4 ⋮ (5) The form of nikah nama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikah nama shall be supplied to the parties, and the fees to be charged therefor (sic), shall be such as may be prescribed. (6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.” It is clear from the above provisions that, from the very beginning, the Nikah Registrars so appointed by Union Councils were to register Muslim marriages and that the records were to be preserved by the Union Councils. This is in contradistinction to the position vis-à-vis registration of Christian marriages which, as highlighted above, fell within the domain of Registrar Generals appointed under the Act of 1886. 7. However, the legal position changed after the introduction of local governments in the Provinces and the creation of NADRA. Firstly, all the matters pertaining to the Act have been allocated to the Human Rights & Minorities Affairs Department (HR&MA Department) as per Rule 3 of the Punjab Rules of Business, 2011 (Punjab Rules of Business) read with Entries No.4, 11 and 12 of the Second Schedule which are reproduced below:- “3. Allocation of Business.- (3) The business of the Government shall be distributed amongst several Departments in the manner indicated in the Second Schedule. 4 The words “but in no case shall more than one Nikah Registrar be licensed for any one Ward” in Section 5(2) of the Act of 1961 were subsequently deleted by the Punjab Muslim Family Laws (Amendment) Act, 2015. H.R.C. No.32642-P/2018 -: 12 :- Second Schedule Distribution of Business among Departments Human Rights and Minorities Affairs Department 4. Functions assigned under the Christian Marriage Act, 1872 and rules framed threreunder. 11. Administration of the following laws and the rules framed thereunder: i. The Christian Marriage Act, 1872 (XV of 1872). ii. The Hindu Gains of Learning Act, 1930 (XXX of 1930) 12. Matters incidental and ancillary to the above subjects.” Furthermore, according to Entries No.4(a) and 8 of the Second Schedule of the Punjab Rules of Business, “[m]atters relating to Local Governments/Local Councils” and “[p]olicy matters regarding registration of births, deaths and marriages by local governments” respectively have been allocated to the Local Government and Community Development Department (LG&CD Department). The law governing local governments is the Punjab Local Government Act, 2013 (Act of 2013), Sections 72(1)(m) and 81(2)(x) whereof provide for the relevant function of Union Councils and Municipal Committees respectively regarding registration of marriages which read as under:- 72. Functions of the Union Council.- (1) A Union Council shall: (m) arrange for registration of births, deaths, marriages and divorces and pass on such information about births, deaths and marriages and divorces in the Union Council to such persons and institutions as may be prescribed. 81. Municipal Committees.- (2) A Municipal Committee shall: (x) arrange registration of births, deaths, marriages and divorces and pass on such information about births, deaths, H.R.C. No.32642-P/2018 -: 13 :- marriages and divorces in its territorial jurisdiction to such persons and institutions as may be prescribed. [Emphasis supplied] According to Section 2(jj) of the Act ‘prescribed’ means “prescribed by the rules” and the rule-making power of the Government of Punjab is contained in Section 144 thereof. However, admittedly no rules have been prescribed in this regard. Nonetheless it is pertinent to note Section 148 of the Act which provides as follows:- “148. General powers of local governments.- Notwithstanding any specific provision of this Act, a local government shall perform its functions conferred by or under this Act and exercise such powers and follow such procedures as are enumerated in Eighth Schedule.” The Eighth Schedule provides the general powers of local governments which means “a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an Authority” [Section 2(v) of the Act] and Clause 90 thereof is relevant which states that:- “90. Birth, deaths, etc.- A local government shall register all births, deaths, marriages and divorces within the limits of its local area and information of such births, deaths, marriages and divorces shall be given by such persons or authorities and shall be registered in such manner as the bye-laws may provide.” The Government of Punjab, Local Government & Community Authority Department, have issued the Union Councils Nikah/Marriage Registration (Model) By-laws, 2016 (By-laws), the relevant portion wherefrom is scanned hereinbelow:- H.R.C. No.32642-P/2018 -: 14 :- Finally, NADRA issues computerised marriage certificates and in this regard Section 21(2) of the National Database and Registration Authority Ordinance, 2000 (Ordinance) provides as under:- “21. Information relating to births, deaths, marriages, divorces, etc.- (2) The marriage or divorce of a citizen or any other prescribed persons or class thereof, shall be reported to the District Registrar by such authority or officer as may be prescribed by regulations.” 8. According to Clause 4(i) of the by-laws regarding registration of marriages of non-Muslims, only those persons who have been granted a license by the HR&MA Department are authorised to get non-Muslim marriages registered with the Union Councils. The report submitted to this Court on behalf of the Secretary HR&MA Department outlines the process for granting solemnisation licenses as follows:- II) That the Human Rights & Minorities Affairs Department issues Christian Marriage Licenses under section 9 of the Christian Marriages Act, 1872 to the persons recommended by H.R.C. No.32642-P/2018 -: 15 :- the respective churches and accordingly they solemnize marriages of the Native Christians. The list of all the license holders is circulated by the Local Government & Community Development Department to the respective districts in order to facilitate the registration of marriages at Union Councils” III) “That the Human Rights & Minority Affairs Department, Government of the Punjab intimates Local Government & Community Development Department whenever a new license is issued or an existing (license) is renewed for solemnisation of marriages to the Christian in accordance with the prescribed policy. The Local Government & Community Development Department forwards the same to the concerned District Administration for intimation to the Union Councils. Hence, the marriages of the Christian residents in Punjab are being duly registered with the concerned Union Councils and the NADRA.” Furthermore, it is stated in the letter dated 17.03.2014 [No. SO(M) HR&MA-4- 34/2013(P-I)-249] of the HR&MA Department that the said department “…issues licenses for solemnizing marriages between Christians according to Section 5(iii), 5(iv) and 5(v) of the Christian Marriage Act, 1872…” It appears that the precise issue of non-registration of Christian marriages by the Union Councils and the subsequent non-issuance of computerised marriage certificates by NADRA, as pointed out by the Chairman NADRA, is because the Union Councils refuse to register marriages solemnised by those persons mentioned in Section 5(1) and (2) of the Act as they, and the HR&MA Department, are under the wrong impression that such persons require a license to do so. As observed in paragraph No.4 of this opinion and at the risk of repetition, the Act is clear in that individuals falling under Section 5(1) and (2) supra are not required to apply for a formal license from the HR&MA Department to solemnise marriages because under canon law, ordination itself confers an inherent power to solemnise marriages and this position is reflected in the Act, and it is only those H.R.C. No.32642-P/2018 -: 16 :- individuals mentioned in Section 5(3), (4) and (5) supra who require a license under the Act to solemnize marriages. Both sets of persons, i.e. those under Section 5(1) and (2) supra on one hand and those under Section 5(3), (4) and (5) supra on the other, are eventually authorised to solemnise marriages, the former of whom derive their power to solemnise marriages from ordination and the latter from the Act. The HR&MA Department and/or the local government cannot refuse to recognise certain classes of individuals who solemnise Christian marriages as this is disregarding the law. Additionally, the local government statutes of the Provinces of Sindh, Khyber-Pakhtunkhwa and Balochistan all contain similar provisions which empower the local government to register Christian marriages. It is an admitted fact that in the other Provinces, Union Councils have not raised any objection to registering Christian marriages in this regard and in light of the Article 25 of the Constitution of the Islamic Republic of Pakistan providing that “[a]ll citizens are equal before law and are entitled to equal protection of law”, it is discriminatory that Punjab, where around 80% of the total Christian population of Pakistan resides, should refuse to do so. 9. Moreover, as explained in the report (relevant sections reproduced earlier in this opinion) submitted by the HR&MA Department, Union Councils are informed when new licenses are issued and when existing licenses are renewed, the list of license holders is circulated among Union Councils. Therefore, in light of our findings in the preceding paragraph, the HR&MA Department is directed to introduce a procedure whereby they receive the names of all the persons who fall within the provisions of Section 5(1) and (2) of the Act and are duly authorised to solemnise marriages after which the said Department should prepare lists of such names based on the jurisdiction of the concerned local government; the lists should be forwarded to the concerned local government (including Union Councils) so that H.R.C. No.32642-P/2018 -: 17 :- they are aware that such individuals are duly recognised as persons authorised to solemnise marriages according to the law and capable of registering such marriages with the local government without holding a formal license to that effect. Thereafter, the local government shall, in accordance with law, report/pass on such information of a Christian marriage to NADRA which shall issue the requisite computerised marriage certificate. Therefore:- i. Union Councils are directed to register Christian marriages in accordance with law; ii. NADRA is directed to issue computerised marriage certificates in accordance with law; and iii. The LG&CD Department and the HR&MA Department of the Government of Punjab are directed to promulgate the necessary rules, etc. and make the necessary amendments in the by-laws, notifications, letters, etc. to reflect the legal position outlined in this opinion. 10. In the light of the above, this application is accordingly disposed of. CHIEF JUSTICE Announced in open Court on 16.1.2019 at Islamabad Approved for Reporting M. Azhar Malik JUDGE JUDGE

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.3654 OF 2018 (In the matter regarding appointment of Managing Director, Pakistan Television Corporation) In attendance: Mr. Khalid Jawed Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Addl.A.G.P. (Assisted by Barrister Asad Rahim) Sardar Ahmed Nawaz Sukhera, Secy. M/o Information Mr. Tahir Khushnood, D.G. (IP) M/o Information Mr. Nasir Jamal, ex-D.G. (IP) M/o Information Mrs. Saba Mohsin, ex-Addl. Secy. Information Mr. Yousaf Naseem Khokhar, Secretary Interior Mr. Muhammad Azam, ex-Secretary Interior Mr. Abdul Hameed Anjum, Member FBR Dr. M. Iqbal, Member FBR Mr. Saleem Baig, Chairman PEMRA Dr. Waqar Masood, ex-Secretary Finance Mr. Fawad Hassan Fawad, ex-Secy. to P.M. Mr. Nadeem Hasan Asif, ex-Secy. Establishment Mrs. Ayesha Hamid, ASC (For Ata ul Haq Qasmi) Mr. Nazir Jawad, ASC Mr. Zahoor Barlas, DMD PTV (For PTV) Mr. Munawar Iqbal Duggal, ASC (For Pervaiz Rashid) Mr. Imran-ul-Haq, Special Prosecutor NAB Mr. Shariq A. Zaidi, Sr. Partner Ernest & Young Date of hearing: 12.7.2018 JUDGMENT MIAN SAQIB NISAR, CJ:- The issue in this case was highlighted during the course of hearing of another matter pertaining to Pakistan Television Corporation Limited (PTV) when it came to the Court’s notice that the Managing Director (MD) of PTV had not been appointed since the completion of the tenure of the last MD on 22.02.2016. The report sought from the learned Attorney General for Pakistan (AG) in this regard prima facie revealed that while the office of the MD of PTV remained vacant, that of the Chairman was occupied by Mr. Ata ul Haq Qasmi from H.R.C. No.3654 of 2018 -: 2 :- 23.12.2015 to 18.12.2017 and during his tenure, a sum of Rs.284,163,733/- was paid to him and/or expense incurred by him or on his behalf. During the proceedings it also transpired that there were irregularities/illegalities in Mr. Qasmi’s appointment. Summaries were moved for relaxation of the upper age limit of 65 years for such appointment and for the approval of a handsome salary package of Rs.1,500,000/- in addition to other perks. Be that as it may, this Court directed a renowned audit firm, Ernst and Young Pakistan (the Auditor), to conduct an audit with regards to, inter alia, Mr. Qasmi’s salary, and the expenses incurred by him or on his behalf. The Auditor submitted a report (Audit Report – Volume I & II) to this Court. This case was conducted over many dates of hearing and arguments of the learned counsel for Mr. Qasmi, learned AG, and various Government officials (in person and through their learned counsel) were heard at length. Initially Mr. Fawad Hasan Fawad and Mr. Pervaiz Rashid stated that the learned Additional AG, Mr. Waqar Rana, would argue on their behalf, however subsequently Mr. Fawad opted to explain his position himself, while Mr. Pervaiz Rashid made submissions himself and through counsel. 2. Before proceeding further we will deal with certain preliminary issues. Though not specifically raised during the course of hearing, we consider it appropriate to mention that this Court has jurisdiction in this matter under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It came to the Court’s notice that blatant irregularities/illegalities (details of which are highlighted in this opinion) existed involving Mr. Qasmi’s appointment as a Director and the Chairman of PTV and the fixation of his terms and conditions (including a handsome salary package along with perks/benefits/allowances). It was apparent from the face of the record that there was nepotism and misuse of authority regarding Mr. Qasmi’s appointment as Director/MD PTV. Therefore it was well within the powers of this Court to determine the validity of such appointment and fixation of H.R.C. No.3654 of 2018 -: 3 :- salary etc. The question then arises whether PTV, a public sector company, is a person performing functions in connection with the affairs of the Federation. The test in this regard was laid down by this Court in the case of Salahuddin Vs. Frontier Sugar Mills & Distillery (PLD 1975 SC 244) which was relied upon in the case reported as Abdul Wahab and others Vs. HBL and others (2013 SCMR 1383) in which this Court, while holding that Habib Bank Limited was a private entity, observed that:- “…in order to bring the Bank within the purview and the connotation(s) of a ‘person’ and ‘authority’ appearing in Articles 199, 199(5) and 199(1)(c) of the Constitution and also for the purposes of urging that appropriate order, in the nature of a writ can be issued independently by this Court under Article 184(3) (Constitution), to the Bank, the learned counsel for the petitioners has strenuously relied upon the ‘function test’…In this context, it may be held that for the purposes of resorting to the ‘function test’, two important factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof…” [Emphasis supplied] Considering the facts and circumstances of the instant case, we are of the opinion that PTV, the national broadcaster, fully satisfies the test in that it is substantially under the control of the Federal Government. PTV is a public limited company with the Federal Government holding the entire paid up share capital of Rs.1529.3 million. Thus the Government has a major financial interest in PTV. Moreover, as per the notification dated 23.12.2015 issued by the Ministry of Information, Broadcasting & National Heritage (MOIBNH) (reproduced below in paragraph 4 of the opinion), majority of the Directors (six out of eight), i.e. (i) Mr. Qasmi (Federal Government nominee); (ii) Additional Secretary, MOIBNH; (iii) Additional Secretary (Admn), Ministry of Foreign Affairs; (iv) Additional Secretary (B), Ministry of Finance; (v) Director General, ISPR; and (vi) Managing Director, PTV, are H.R.C. No.3654 of 2018 -: 4 :- representatives of the Federal Government which constitute the Board of Directors. Therefore the Federal Government completely controls the affairs of PTV. In light of the above, PTV satisfies the definition of Public Sector Company provided in Rule 2(1)(g) of the Public Sector Companies (Corporate Governance) Rules, 2013 (Rules of 2013) (reproduced hereinbelow) and thus the control of PTV vests in a substantial manner in the hands of the Federal Government:- 2. Definitions.- (1)(g) “Public Sector Company” means a company, whether public or private, which is directly or indirectly controlled, beneficially owned or not less than fifty percent of the voting securities or voting power of which are held by the Government or any instrumentality or agency of the Government or a statutory body, or in respect of which the Government or any instrumentality or agency of the Government or a statutory body, has otherwise power to elect, nominate or appoint majority of its directors, and includes a public sector association not for profit licensed under section 42 of the Ordinance. In light of the foregoing, PTV is a person performing State functions and therefore the validity of appointment of its Director and Chairman, Mr. Qasmi, can be examined, particularly considering the seemingly arbitrary manner in which he was appointed, despite being overage to hold such an important office. He was given an immensely generous salary package together with other perks and benefits. On account of complete lack of skill and experience of running a company, PTV, once a profitable institution, experienced a sharp decline both financially and in its reputation as a major player in the electronic media market. It was burdened with an exorbitant amount of expenses on account of inefficient and inept management. In the context of the proper role of State agencies in the management of public sector enterprises, it was held in Habibullah Energy Limited and another Vs. WAPDA through Chairman and others (PLD 2014 SC 47) that:- H.R.C. No.3654 of 2018 -: 5 :- “28. An overview of the judgments reproduced or referred to herein above leaves little room for doubt that it is now a well- settled principle of law that all public functionaries must exercise public authority, especially while dealing with the public property, public funds or assets in a fair, just, transparent and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens.” [Emphasis supplied] Hence notwithstanding the fact that Mr. Qasmi had resigned from his position, this Court has ample jurisdiction to consider a matter where it appears that public money has been misused through the corrupt practice of nepotism and favouritism by giving excessive salary/perks/privileges and incurring other undue expenses causing loss to the public exchequer. When the law is being blatantly flouted by the Executive at the expense of a national institution promoting public awareness and understanding of events, culture and heritage, and public money is showered on a chosen few as a favour without regard to qualification or merit, it undeniably becomes a matter of public importance. This Court is well within its powers to take cognizance of the matter under Article 184(3) of the Constitution on account of violation of the fundamental rights of the citizens, including those guaranteed under Article 18 and 25 of the Constitution. Even otherwise, this Court has the power to do complete justice under Article 187 of the Constitution. 3. Learned counsel for Mr. Qasmi raised certain preliminary objections vis-à-vis the Audit Report. As far as the objection to the disclaimers in the Audit Report is concerned, we reject this objection as unfounded because they are standard disclaimers that are routinely and as a matter of professional propriety inserted in every audit report. These do not affect the veracity of the Audit Report. Moreover, the record submitted to the Auditors has been verified by PTV’s officials and we do not believe H.R.C. No.3654 of 2018 -: 6 :- that further verification is required. As regards the objection that the Audit Report states that the Auditors did not involve Mr. Qasmi in the audit process, and therefore he should not be condemned unheard, suffice it to say that Mr. Qasmi was issued a notice to appear in Court in person to explain his position. However, he chose to be represented by counsel. It is worthy to note that learned counsel for Mr. Qasmi herself prayed (in C.M.A. No.98/2018) for the matter to be referred to an auditor. Besides, she was given full opportunity to respond to the record brought before this Court by PTV and the Audit Report. As such, this objection is also overruled. 4. Before delving into the reasons for our opinion, we find it expedient to provide a detailed account of the factual background of the instant matter. On 23.09.2015, Mr. Mohammad Azam, Secretary MOIBNH submitted a policy note seeking special exemption from the Cabinet Division’s instructions of 09.10.2007 regarding the upper age limit of 65 years for the appointment of heads of autonomous bodies under MOIBNH:- As discussed, it is considered view of this Ministry that in case of certain specialized media – literary organizations (Lok Virsa, Pakistan National Council of the Arts, Pakistan Academy of Letters and Pakistan Television Corporation). The Government requires highly professional and experienced candidates from open market to provide professional leadership to the said organizations. 2. The presence of Cabinet Division’s instructions of 9th October, 2007 obligating this Ministry to observe upper age bracket of 65 years limits the choice of the Government for hiring really experienced professionals in media and literature who actually attain specialized excellence in post 65 years age bracket. [Emphasis supplied] A draft summary was accordingly issued for the approval of the Prime Minister (PM), the contents whereof mirror the aforementioned policy note. It also mentioned the following:- H.R.C. No.3654 of 2018 -: 7 :- 4. It is proposed that Prime Minister may kindly relax this upper age limit to the extent of following MOIBNH jurisdictional organizations as a special case:- a. Lok Virsa. b. Pakistan National Council of the Arts. c. Pakistan Academy of Letters. d. Pakistan Television Corporation. 5. Minister for Information, Broadcasting & National Heritage has seen and approved the submission of the Summary. Mr. Javaid Aslam, Secretary to the PM, vide letter dated 29.09.2015 sought a clarification from MOIBNH on inter alia the following:- 6. Ministry of Information, Broadcasting and National Heritage may clarify the following: iii. The specific grounds for seeking exemption from the subject instructions in respect of the organizations mentioned at para 4 of the summary may also be explained including the literary and media related nature of these organizations and the benefits of having veterans as Chairpersons of these organizations. In response thereto, Mr. Mohammad Azam, Secretary MOIBNH vide letter dated 05.10.2015 clarified inter alia as under:- 7. Prime Minister’s Office directions at (Para – 6) of the Summary refer MOIBNH clarification is explained below:- c. MOIBNH four jurisdictional organizations listed at Para – 4 of the Summary, by nomenclature, reflect their professional operations in terms of art, culture, media, literature and issues relating to higher learning in designated professional disciplines. Capping the senior appointments up to the age of 65 is respect for routine GOP bodies – but not in the instant case where people of higher learning and proven understanding / achievements are required to contribute – who normally attain this position in (sic) beyond 65 years age bracket that entitles them to be on the national canvass. H.R.C. No.3654 of 2018 -: 8 :- Subsequently, Mr. Fawad Hasan Fawad, Additional Secretary to the PM issued a letter dated 22.10.2015 which read as follows:- 9. In view of the justification given in para 7 of the summary, the Prime Minister has been pleased to approve the proposal at para 4 of the summary. Thereafter, Ms. Saba Mohsin Raza, Additional Secretary, MOIBNH issued a summary to the PM dated 30.10.2015 for the appointment of the Chairman of PTV. The important parts of the summary read as below:- 2. The composition of the eight-Members Board of Directors for PTVC has been notified vide M/o IB&NH No.1(11)/2001-TV, dated 22 October 2007 (Annex-I). One of the Directors has to be an eminent person from the media to be appointed by the Federal Government and that position is lying vacant. 3. The framework for appointment of Chairman/Director PTVC is governed by following set of laws and regulations:- a) Section – 183 (b) of the Companies Ordinance – 1984 empowers the Federal Government to notify the composition of the Board of Directors of PTVC. The said Section empowers the Federal Government by stating that nothing in Sections – 178, 180 or 181 shall apply to “Directors nominated by the Federal Government or a Provincial Government on the BOD of the Company” (Annex-2). b) Article-95 of PTVC’s Memorandum & Articles of Association (Annex-3) states that the “BOD shall elect a Chairman of the Company from amongst the Directors representing Government of Pakistan to preside over their meeting, and determine the period for which he is to hold office. The office of the Chairman shall be filled up on any vacancy by the Directors in accordance with the directives received by them from the Government of Pakistan”. 4. It is, therefore, proposed that:- H.R.C. No.3654 of 2018 -: 9 :- a. Mr. Atta ul Haq Qasmi who is an eminent literary personality with nationwide recognition in the disciplines of poetry, drama, literature and media (CV at Annex-5) may be appointed as Director of the Company for a period of three years and also act as Chairman of PTVC. b. Mr. Atta ul Haq Qasmi is 72 years old, however, the Prime Minister has already relaxed the upper age limit (65 years) for appointment of Heads of M/o IB&NH four jurisdictional organizations vide an earlier approved Summary (22-10-2015 – Annex-6), which includes PTVC Chairman. 6. Approval of the Prime Minister is solicited to the proposal contained in Para-4 (a & b) and Para-5 above. 7. Minister for Information, Broadcasting and National Heritage has seen and approved the submission of the Summary. [Emphasis supplied] Mr. Nadeem Hassan Asif, Secretary Establishment issued a letter dated 13.11.2015 stating the following in furtherance of the foregoing summary:- 8. …the Prime Minister may approve appointment of Mr. Atta ul Haq Qasmi as Director of PTVC and may also like to convey direction of the Federal Government to the Board of Directors to elect him as Chairman, PTVC. 10. Proposal at para 6, read with paras 8&9, is submitted for orders of the Prime Minister, please. Subsequently, Mr. Fawad Hassan Fawad, Secretary to the PM, issued the following approval dated 23.11.2015:- 11. The Prime Minister has been pleased to approve the proposal at para 6 read with paras 8 and 9 of the summary. Thereafter, a notification dated 23.12.2015 was issued by MOIBNH:- H.R.C. No.3654 of 2018 -: 10 :- With the approval of the Competent Authority, and in partial modification of this Ministry’s earlier Notification No. 1(11)/2001-TV dated 22nd October, 2007, and in exercise of the power conferred under Section – 183 (b) of the Companies Ordinance – 1984, the Government of Pakistan is pleased to re-notify the composition of the Board of Directors of PTVC, with appointment of Federal Government nominee, Mr. Atta- ul-Haq Qasmi as one of the Directors as well as Chairman of the Board of Directors of the Corporation – as follows :- 1. Mr. Atta-ul-Haq Qasmi Member and Chairman (Federal Government nominee) of the PTVC Board of Directors 2. Additional Secretary, Ex-officio Member M/o Information, Broadcasting & National Heritage 3. Vice Chancellor, Allama Ex-officio Member Iqbal Open University 4. Additional Secretary (Admn), Ex-officio Member M/o Foreign Affairs 5. Additional Secretary (B), Ex-officio Member M/o Finance 6. Director General, ISPR Ex-officio Member 7. Managing Director, PTVC Ex-officio Member 8. Director General, PBC Ex-officio Member 2. Mr. Atta-ul-Haq Qasmi as Federal Government nominee shall, unless he resigns earlier, hold office for a period of 3 years. The above administrative re-composition of the Board is to be read in sync with PTVC’s Memorandum and Articles of Association (Article – 95) which are in line with the Provisions of the Companies Ordinance – 1984. 3. The terms and conditions of Mr. Atta-ul-Haq Qasmi’s appointment shall be decided separately by Ministry of Information, Broadcasting & National Heritage. Another summary for the PM dated 08.01.2016 was moved by Ms. Saba Mohsin Raza, Acting Secretary MOIBNH regarding the terms and conditions of Mr. Qasmi’s appointment as the Chairman of PTV:- H.R.C. No.3654 of 2018 -: 11 :- 2. Mr. Qasmi has been appointed in terms of Section – 183 (b) of the Companies Ordinance – 1984, read with, PTVC’s Memorandum and Articles of Association (Article – 95) as one of the Directors of the PTVC’s Board against the position of “one eminent person from the media to be appointed by the Federal Government” in terms of MOIBNH earlier notification (22nd October, 2007: Annex – 4). Mr. Qasmi has been appointed for three years tenure which is protected under Public Sector Companies Corporate Governance Rules – 2013 (Rule – 5 : 1) that states as under :- i. “A Director, once appointed or elected, shall hold office for a period of three years, unless he resigns or is removed in accordance with the provisions of Companies Ordinance – 1984”. 3. It may be noted that the appointment against the said position did not warrant open advertisement in terms of Civil Establishment Code – 2007 (Volume – I: Chapter – 2 : SI. No. 141 : sub para – iii : a & b : Page – 216 - 217) – as the appointment has been made under Section – 183 (b) of the Companies Ordinance – 1984, read with, PTVC’s Memorandum and Articles of Association (Article – 95). 5. The operation of the Ministry of Finance Public Sector Management Grades vide their O.M of (24th December, 2012 : Annex – 5) is not warranted in this case as the appointment has not been made through an open advertisement in terms of Civil Establishment Code – 2007 (Volume – I : Chapter – 2 : SI. No. 141 ; sub para – iii : a & b : Page – 216 - 217). Instead, other set of Law of the Land has been applied. 6. Above in consideration, Mr. Atta ul Haq Qasmi’s terms and conditions of appointment have been worked out (Annex – 6) that would entitle him to receive a consolidated salary package of Rs. 15,00,000/- (net of taxes) per month, which approximately is slightly higher than what Mr. Muhammad Malick MD – PTV is currently being paid (Rs. 13,80,000/- per month : net of taxes). 7. Minister for Information, Broadcasting & National Heritage has seen and approved submission of the Summary. H.R.C. No.3654 of 2018 -: 12 :- 8. Prime Minister is requested to approve the proposal at Para – 6 above. [Emphasis supplied] Mr. Waqar Masood Khan, Finance Secretary issued a letter dated 26.02.2016 which reads as under:- 9. Finance Division endorses the proposal at para-6 of the Summary. Thereafter Mr. Fawad Hasan Fawad, Secretary to the PM issued the following letter dated 28.02.2016:- 10. The Prime Minister has seen and is pleased to approve the proposal contained in para 6, as endorsed by Finance Division vide para 9 of the summary. Finally vide notification dated 29.02.2016, the terms and conditions of appointment of Mr. Qasmi as the Chairman of PTV were issued:- 2. …the competent authority has approved following terms and conditions of the appointment of Mr. Atta-ul-Haq Qasmi, Chairman, Pakistan Television Corporation (PTVC), with effect from 23rd December, 2015, as given below:- 1 2 3 Sl. No. Subject Terms & Conditions 1. Salary & Allowances Rs. 15,00,000/- (net of taxes) 2. Leave As admissible to MP – I public office holders. 3. TA/DA As admissible to MP – I public office holders. 4. Period of Contract For three years in terms of Article – 95 of PTVC’s Memorandum and Articles of Associations to be determined by the PTV BOD on directions of the Government of Pakistan, read with, Rule – 5 of Public Sector Companies Corporate Governance Rules – 2013. H.R.C. No.3654 of 2018 -: 13 :- 5. Medical and Entertainment As admissible to MP – I public office holders. 6. Termination of Contract One month’s notice on either side or payment of one month’s salary in lieu thereof. 7. Conduct and Discipline As per Civil Servants Conduct Rules – 1964. 8. Administrative and Financial functions As detailed in Public Sector Companies Corporate Governance Rules – 2013. 9. Administrative and professional framework As detailed in PTVC’s Articles and Memorandum of Association enabled under Companies Ordinance – 1984. 10. Reporting Channel As detailed in Rules of Business – 1973 (Schedule – II : Entry – 16 : provision – 13 : ii : a). 11. Verification of antecedents on first appointment in public sector In line with Civil Establishment Code – 2007 (Volume – I : Chapter – 2 : SI. No. 17), read with, Civil Establishment Code – 2007 (Volume – II : Chapter – 9 : SI. No. 170 – 172). 3. Pakistan Television Corporation Limited (PTVCL) Management is advised to take further necessary action in this regard. 5. From the foregoing factual background emanate the following questions of law which will be addressed accordingly:- i. Whether Mr. Qasmi’s appointment to the post of Director and/or Chairman of PTV was legal/valid in light of the relevant law and the Articles of Association of PTV (AoA)? ii. Irrespective of the answer to question No.i, whether Mr. Qasmi was legally entitled to the salary package that he received in light of the relevant law and the AoA and whether the expenses incurred by Mr. Qasmi or on his behalf were legal/valid? iii. If the answers to questions No.i and ii are in the negative, who is to be held responsible for such illegal appointment and/or expenditure? H.R.C. No.3654 of 2018 -: 14 :- [Note:- Since the duration of Mr. Qasmi’s term includes periods both prior to and post the promulgation of the Companies Act, 2017 on 30.05.2017, the Companies Ordinance, 1984 will be deemed to be applicable to the former, and the Act to the latter.] i. Whether Mr. Qasmi’s appointment to the post of Director and/or Chairman of PTV was legal/valid in light of the relevant law and the AoA? 6. Learned counsel for Mr. Qasmi referred to Section 183(b) of the Companies Ordinance, 1984 (the Ordinance) read with Articles 95 and 106 of the AoA to argue that PTV was bound by any nomination made by the Federal Government, therefore Mr. Qasmi’s appointment as a Director and the Chairman of PTV was legally valid. She stated that the Federal Government exercised its discretion that it thought fit at the relevant time and this Court has no jurisdiction to interfere with such discretion/decision making power. She relied on Rule 4(4) of the Rules of 2013 to submit that while the Chairman of the Board of Directors (Board) of a Public Sector Company is to be elected by the Board of such company, this does not apply where the Chairman of the Board is appointed by the Government; besides, not being elected as Chairman by the Board is a curable defect as per Section 185 of the Ordinance; nonetheless his appointment was ratified by the Board as is evident from the minutes dated 12.04.2016 of the 211th Board meeting. According to her, if the Court is to judge his qualifications, then it should also examine his performance at the end of the tenure, and that Mr. Qasmi was instrumental in bringing in extra revenue to PTV by his actions. She also pointed out that the age relaxation was not specific to him. As regards Mr. Qasmi’s credentials, learned counsel highlighted a number of honorary awards and positions he occupied previously and his literary contributions. 7. The learned AG referred to Article 95 of the AoA and stated that the Chairman of PTV is to be elected by the Board and there is no role of MOIBNH or the PM. He candidly mentioned that paragraph 4(a) of the summary for appointment dated 23.09.2015 establishes that there was no H.R.C. No.3654 of 2018 -: 15 :- earlier process of advertisement. Even otherwise the learned AG was of the view that Mr. Qasmi was not qualified to hold the post of Chairman. 8. This question about the legality of the appointment of Mr. Qasmi can be subdivided into two parts: (i) Mr. Qasmi’s appointment as a Director of PTV; and (ii) his appointment as the Chairman of PTV. With respect to the first part, the primary provision of law is Section 183(b) of the Ordinance which states that “Nothing in section 178, section 180 or section 181 shall apply to…directors nominated by the Federal Government…on the board of directors of the company.” Sections 178, 180 and 181 of the Ordinance pertain to the procedure for election of directors, the term of office of directors, and removal of directors, respectively and by virtue of Section 183(b) thereof, they do not apply to such nomination by the Federal Government. According to Article 83 of the AoA, “Subject to the provisions of Section 183 of the Ordinance, the Government of Pakistan shall have the right to nominate directors who shall hold office during the pleasure of the Government of Pakistan…” (note:- while learned counsel for Mr. Qasmi referred to Article 106 of the AoA, we do not find it to be relevant to this case as it pertains to election and removal of directors and directives of the Government of Pakistan with respect to any casual vacancy on the Board of Directors). Therefore under the law the Federal Government has the power to nominate a Director to the Board of PTV. 9. An important question that stems from the foregoing is what is the criteria on the basis of which such nomination is to be made? Rule 3(1) of the Rules of 2013 provides that “The Board shall consists (sic) of executive and non-executive directors…with the requisite range of skills, competence, knowledge, experience and approach so that the Board as a group includes core competencies and diversity considered relevant in the context of the Public Sector Company’s operations.” Furthermore, according to Rule 3(7) of the Rules of 2013, “The appointing authorities, including the Government…shall apply the fit and proper criteria given in the Annexure in making nominations of the persons for election as Board members under the provisions of the Ordinance.” The Annexure to the Rules of 2013 provides a H.R.C. No.3654 of 2018 -: 16 :- non-exhaustive list of the criteria for the purpose of determining as to whether a person proposed to be appointed as a director is a fit and proper person. According to such list the person should, amongst other things, be at least a graduate, a reputed businessman or a recognized professional with relevant sectoral experience, have financial integrity, no convictions or civil liabilities, be known to have competence, have good reputation and character, have the traits of efficiency and honesty, and does not suffer from any disqualification to act as a director stipulated in the Ordinance or from a conflict of interest, etc. [Clause (1) of the Annexure]. The Annexure also provides certain conditions for disqualification [Clause (2) thereof]. These criteria prescribed by the Rules of 2013 ensure that highly competent and capable people are appointed to the Boards of Public Sector Companies so that such companies are run in a smooth and efficient manner. In the instant case, while PTV is a media organization and therefore experience in the relevant sector of media would undoubtedly be helpful. At the end of the day PTV is a big company with an annual turnover of Rs.8.778 billion in the year 2014 but a comprehensive loss of Rs.1.467 billion;1 an annual turnover of Rs.9.4 billion in the year 2015 but a comprehensive loss of Rs.0.437 billion;2 and an annual turnover of Rs.9.54 billion but a comprehensive loss of Rs.1.736 billion.3 Business management skills and experience of running a big company are the basic requirements for an MD/Chairman to efficiently run such a huge commercial enterprise. While we refrain from commenting as to whether Mr. Qasmi indeed possessed such skills, the point to be noted is that nowhere from the record produced before us was it evident that the Federal Government considered such criteria while nominating Mr. Qasmi as a Director of PTV. In fact, the summary dated 30.10.2015 moved to the PM for Mr. Qasmi’s appointment as a Director and the Chairman of PTV fails to state his business 1 PTV’s Annual Report 2014. 2 PTV’s Annual Report 2015. 3 PTV’s Annual Report 2016. H.R.C. No.3654 of 2018 -: 17 :- management and media sector skills, whilst answering the AoA requirement that “One of the Directors has to be an eminent person from the media”. This depicts the myopic and stubborn resolve of the Federal Government to accommodate Mr. Qasmi against the said position. 10. Another pertinent question that must be answered is what is the manner in which such nomination is to be made? Paragraph 3 of the summary for the PM dated 08.01.2016 regarding the terms and conditions of Mr. Qasmi’s appointment as the Chairman of PTV states that “the appointment against the said position did not warrant open advertisement in terms of Civil Establishment Code – 2007 (Volume – I: Chapter – 2 : SI. No. 141 : sub para – iii : a & b : Page – 216 - 217) – as the appointment has been made under Section – 183 (b) of the Companies Ordinance – 1984, read with, PTVC’s Memorandum and Articles of Association (Article – 95).” At this juncture it is necessary to examine SI. No. 141 of the Civil Establishment Code (Esta Code) which contains the Policy Guidelines for Contract Appointments for posts in Autonomous/Semi-Autonomous Bodies, Corporations, Public Sector Companies etc. owned and managed by the Federal Government:- In order to regulate contract appointments in Autonomous/Semi-Autonomous Bodies, Corporations, Public Sector Companies etc., owned and managed by the Federal Government, the Chief Executive has been pleased to lay down the following policy guidelines:– (i) In the case of tenure posts, appointment to which is regulated by specific provisions of a law, rule and policy instructions, contract appointments may be made in the manner prescribed in the applicable law, rules and policy guidelines/directions issued by the Federal Government. (ii) For projects which have a limited life… (iii) For posts other than those mentioned at (i) and (ii) above contract appointments should be made only subject to fulfillment and observance of the following conditions: (a) Where the nature of a particular job/vacant position requires contract appointment for a specific period, H.R.C. No.3654 of 2018 -: 18 :- standing instructions should be issued by the administrative Ministry/Division concerned, after consultation with the Chairman of the Board of Directors/Board of Governors, specifying such posts and the parameters governing appointment on contract basis against such posts. (b) Vacancies should be advertised in the leading national and regional newspapers. (c) Selection should be made through regularly constituted Selection Committees/Boards. *[(v) The contract appointment, where justified, may be made for a period of two years initially, on standard terms including termination clause of one month’s notice or one month’s pay in lieu thereof. Extension may be made on two yearly basis]. [Emphasis supplied] As mentioned above, the summary dated 08.01.2016 simply stated that Clause (iii) of SI. No.141 did not apply to the instant case because Mr. Qasmi was appointed under Section 183(b) of the Ordinance read with Article 95 of the AoA. While at first glance it may seem that appointment as a Director of PTV is “regulated by specific provisions of a law, rule and policy instructions” as per Clause (i) of SI. No.141 and thus no advertisement for such post is required, it must be seen whether or not such post is a ‘tenure post’. In the case of Pakistan Vs. Fazal Rahman Khundkar and another [PLD 1959 SC (Pak.) 82] this Court held that:- …the expression “tenure post” as defined by Fundamental Rule 9 (30-A) is “a permanent post which an individual Government servant may not hold for more than a limited period”. The meaning of the expression was considered very recently by this Court in the case of Mr. M. H. Khan (PLD 1959 SC (Pak.) 13)…where it was held by the majority of the Judges who heard the case that by definition, a tenure post is one which cannot be held for more than the prescribed period without an order of extension; it is not to be understood to mean a post which is to be held for the period prescribed, once the appointment is made.” H.R.C. No.3654 of 2018 -: 19 :- While it is prescribed in Rule 5(1) of the Rules of 2013 that a Director, once appointed or elected, is to hold office for a period a three years, Directors nominated by the Federal Government are to hold office ‘during the pleasure of the Government of Pakistan’ (Article 83 of the AoA). This is bolstered by Section 183(b) of the Ordinance which states that Section 180 thereof does not apply whereunder Directors are to hold office for a term of three years. Thus this particular post (Director of PTV appointed by the Federal Government) does not fall within the definition of ‘tenure post’ as explained above and therefore Clause (i) of SI. No.141 does not apply. Rather Clause (iii) thereof is attracted which stipulates certain conditions that must be fulfilled and observed before appointments can made to other contract posts. These conditions are: (i) issuance of standing instructions by the administrative Ministry/Division concerned, after consultation with the Chairman of the Board/Board of Governors, specifying such posts and the parameters governing appointment on contract basis against such posts; (ii) advertisement of vacancies in the leading national and regional newspapers; and (iii) selection through a regularly constituted Selection Committee/Selection Board. No cogent reasons were provided in the summary dated 08.01.2016 to justify the non-applicability of Clause (iii) of SI. No.141 of the Esta Code. Going further, it is pertinent to note SI. No.140 of the Esta Code which provides the guidelines according to which the cases of appointment to various posts in autonomous/semi-autonomous bodies are to be processed. Being a public limited company, PTV is an autonomous public sector organization albeit regulated by company law. For the appointment of a Director of PTV, SI. No.140 iii.(a) is relevant which reads as under:- SI. No. Nature of Case Selection Procedure Approving Authority iii. (a) Appointment to posts in Management Grades other than of a Finance Member/Director and Selection Board headed by the Secretary of the Ministry/Division concerned to consider and recommend Prime Minister/Chief Executive H.R.C. No.3654 of 2018 -: 20 :- those covered by (i)4 and (ii)5 above from a panel of three names for each vacancy. Therefore while SI. No.141 ibid requires, inter alia, selection through a regularly constituted Selection Board, according to SI. No.140 ibid, such Board is to be headed by the Secretary of the Ministry of MOIBNH to consider and recommend from a penal of three names for the vacancy of Director of PTV which was not so done in the instant case. Only one name was put forward, that of Mr. Qasmi. 11. In light of the above, we find that while the Federal Government was empowered under Section 183(b) of the Ordinance read with Article 83 of the AoA to appoint a Director to the Board of PTV, it had to do so by following the procedure prescribed in Clause (iii) of SI. No.141 of the Esta Code, keeping in mind the criteria laid down in Rules 3(1) and (7) and the Annexure (‘fit and proper’ person) to the Rules of 2013. Furthermore, the procedure laid down in SI. No.140 of the Esta Code had to be followed. Such a process additionally ensured transparency, merit and fairness in the appointment of public functionaries as required by the law laid down by this Court. We consider that disregard of the aforementioned procedure by the Federal Government in the instant case was meant to benefit a predetermined candidate, Mr. Qasmi. His appointment as a Director of PTV was made in violation of the prescribed legal criteria and procedure. It is hereby declared to be illegal. 12. We shall now examine the law with respect to the second part of the question regarding Mr. Qasmi’s appointment as the Chairman of PTV. Rule 4(4) of the Rules of 2013 in force at the time of Mr. Qasmi’s appointment provided that, “The Board shall elect its chairman from amongst the independent directors so as to achieve an appropriate balance of power, increasing accountability, and improving the Board’s capacity for exercising independent judgment.” 4 Appointment of Chief Executive/Head of the Organization. 5 Posting of government servants of (a) BS-21 and above; and (b) BS-20 and above. H.R.C. No.3654 of 2018 -: 21 :- It is worth noting that Rule 4(4) of the Rules of 2013 relied upon by the learned counsel for Mr. Qasmi during the course of hearing that, “The chairman of the Board shall be elected by the Board of Directors of the Public Sector Company. However, this provision shall not apply where chairman of the Board is appointed by the Government” only came into force on 21.04.2017 vide S.R.O. No.275(I)/2017 issued by the Securities and Exchange Commission of Pakistan after Mr. Qasmi had retired, which substituted the originally enacted Rule 4(4) of the Rules of 2013. Be that as it may, according to Article 95 of the AoA, “The Board of Directors shall elect a Chairman of the Company from amongst the Directors representing Government of Pakistan to preside over their meeting, and determine the period for which is to hold office. The office of the Chairman shall be filled up on any vacancy by the Directors in accordance with the directives received by them from the Government of Pakistan and subject to the provision of the Ordinance.” We are not persuaded to read Article 95 of the AoA to mean that election ought to have taken place only in the absence of any directives received by the Federal Government as argued by the learned counsel for Mr. Qasmi as that would render the first part of Article 95 supra redundant. Her argument that nothing turns on the fact that the Board did not formally elect the Chairman ignores the point that requirements of the law (including those stipulated in the AoA) must be followed in letter and spirit and no one, including the Government, can be allowed to flout and disregard such requirements. When confronted whether a meeting of the Board was convened in this regard, Mr. Pervaiz Rashid stated that according to his recollection, a Board meeting was held but the minutes were not recorded. Be that as it may, the minutes of the 211th Board meeting held on 06.01.2016 were brought to our attention wherein under item No.1 it was stated that, “Mr.Atta ul Haq Qasmi has taken over the charge of the post of Chairman, PTVC w.e.f. 23.12.2015…it is proposed that…nomination of Mr.Atta ul Haq Qasmi, as Chairman/Director, PTVC Board of Directors/Government of Pakistan’s nominee may be confirmed from the same date.” We do not find this to have been done in H.R.C. No.3654 of 2018 -: 22 :- accordance with law for the reason that this meeting was held after the notification of Mr. Qasmi’s appointment as Chairman was issued on 23.12.2015 and after he had assumed charge as Director and Chairman of PTV vide Charge Assumption Report of even date. Therefore, Mr. Qasmi’s appointment as Chairman of PTV is also declared to be illegal. Before proceeding to the second question, we consider it appropriate to mention that Article 95-A of the AoA is an alternate provision dealing with the situation where the Board of PTV elects a person as Chairman when it (the Board) “is of the opinion that a person be elected as Chairman whose presence would bring, in the opinion of the Board, prestige to the Company then it may elect such person as the Chairman whether he is or is not a Director of the Company.” Although this Article does not apply to the instant matter and it was no one’s case that it does, even if we were to assume for argument’s sake that Mr. Qasmi was appointed as Chairman under Article 95-A supra, such appointment would again be hit by the reasoning above that the Board had never elected Mr. Qasmi as Chairman. Neither any Board meeting was held for the said purpose nor was any Board resolution passed to that effect. 13. The foregoing discussion clearly suggests that the illegal appointment of Mr. Qasmi as a Director and the Chairman of PTV was undertaken in a systematic and methodical manner, beginning from the special exemption from the upper age limit of 65 years for the appointment of heads of autonomous bodies under MOIBNH to the summary for Mr. Qasmi’s appointment. No justification was provided for relaxation of the upper age limit. When confronted, Mr. Pervaiz Rashid, the then Minister for Information, stated that his department assisted him in the matter of the summary for appointment of Mr. Qasmi after which the matter went to the Establishment Division which never sent the summary back to him. He stated this was not the first time that a Chairman was appointed or paid remuneration, and that no law or rules were violated. We find that Mr. Rashid did not have the power or authority to decide and propose (even in H.R.C. No.3654 of 2018 -: 23 :- consultation with his department) on his own, the name of any particular individual for the post in question. No advertisement was made, no criteria was laid down and no qualifications were taken into account. The discretionary power of appointing a Director under Section 183(b) of the Ordinance cannot be reduced to a simple ‘cherry picking’ of Mr. Qasmi by the Federal Government, rather as per Article 9 of the Constitution and various judgments of this Court, a transparent procedure of appointment should have been adopted, in this case in line with SI. No.141 of the Esta Code, which inter alia entails publishing an advertisement to gauge the talent pool available for such post, filtering and then assessing the best candidates for the post in accordance with the criteria laid down in the Rules of 2013. In this case admittedly there was no advertisement for appointment to the said post thus there was no consideration of any pool of potentially capable candidates from which Mr. Qasmi was chosen. In fact, the process started and ended with his name, and was therefore person-specific, rendering the exercise colorable and tainted with nepotism and mala fide. We are in no manner of doubt that every endeavor was made to turn Mr. Qasmi’s appointment into a reality. While the Federal Government has the power to nominate a Director on the Board of PTV and even issue directives to such Board to elect a Chairman, the proper procedure provided in law and the relevant rules, guidelines and criteria as discussed above had to be followed when making such appointments. This Court held in Ghulam Rasool Vs. Government of Pakistan (PLD 2015 SC 6)6 that:- “9. …The Federal Government has been expressly empowered by the Legislature to make high-level appointments in accordance with the criteria specified in the concerned Acts / Ordinances. In case of companies incorporated in the public sector under the Companies Ordinance, 1984, the appointment and removal of Directors is 6 See also Khawaja Muhammad Asif Vs. Federation of Pakistan (2013 SCMR 1205) wherein this Court discussed the parameters to be followed by the Government while making appointments to public bodies. H.R.C. No.3654 of 2018 -: 24 :- comprehensively dealt with under the said Ordinance and the memorandums, rules/regulations framed thereunder. However, it is also made clear that the Court's deference to the Executive Authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner.” Failure of the Federal Government to exercise its discretionary powers in a reasonable manner meant that it had exercised its power arbitrarily and at its own whim and caprice. The Federal Government not only bypassed the law, but took active steps for appeasement upon which this Court expresses its disapproval and dismay. In light of the above, Mr. Qasmi’s appointment as a Director and the Chairman of PTV is declared to be illegal and without any lawful effect. ii. Irrespective of the answer to question No.i, whether Mr. Qasmi was legally entitled to the salary package that he received in light of the relevant law and the AoA and whether the expenses incurred by Mr. Qasmi or on his behalf were legal/valid?? 13. Learned counsel for Mr. Qasmi argued that his salary was the Federal Government’s decision alone and he cannot be attributed any blame in this regard. Therefore the letter dated 29.02.2016 fixing his terms and conditions of appointment is valid and Mr. Qasmi was legally entitled to the salary and monetary benefits including other perks, privileges, and allowances, etc.. However, when confronted with the question why Mr. Qasmi was given a tax free salary of Rs.1,500,000/- when no Chairperson of any other similar entity was drawing such amount, learned counsel had no satisfactory explanation except that some previous Chairmen of PTV also drew generous salaries, but no evidence was provided to substantiate such claim. She also attempted to justify the same by stating that Mr. Qasmi was the de facto MD of PTV which according to her warranted such H.R.C. No.3654 of 2018 -: 25 :- generous salary. In this regard, the learned AG pointed out that the posts of MD and Chairman are distinct. He submitted that according to the letter dated 29.02.2016, Mr. Qasmi was entitled to perks including leave, TA/DA and medical etc. as admissible to MP-I public office holders. However in fact he had unlimited entitlement for entertainment and other heads pursuant to minutes of the 119th Meeting of the Board of PTV held on 17.02.2000 (confirmed at the Board meeting held on 11.03.2000, hereinafter referred to as the “Board Resolution 2000”). According to Article 95-A of the AoA the post of Chairman is honorary in nature thus he is not entitled to any remuneration. As regards the expenses outlined below, the learned AG submitted that they were unnecessary, arbitrary and whimsical. He stated that while the matter could be referred to the National Accountability Bureau (NAB), he was of the view that Mr. Qasmi should not be subjected to a NAB inquiry due to Mr. Qasmi’s advanced age and literary contributions and insisted that the offer of voluntarily returning these expenses incurred by PTV be accepted. 14. Before proceeding further, we find it expedient to discuss the roles of the Chairman and MD and the relevant law in this regard. According to Article 96. i) of the AoA, “There shall be Chief Executive of the Company who shall be appointed in the manner provided in Section 196 and 199 of the Ordinance by the Board from amongst the Directors representing the Government of Pakistan. He may be styled as the Managing Director.” Section 2(6) of the Ordinance defines a Chief Executive as “…an individual who, subject to the control and directions of the directors, is entrusted with the whole, or substantially the whole, of the powers of management of the affairs of the company, and includes a director or any other person occupying the position of a chief executive, by whatever name called, and whether under a contract of service or otherwise;” As per Rule 4(3) of the Rules of 2013, “The chief executive is responsible for the management of the Public Sector Company and for its procedures in financial and other matters, subject to the oversight and directions of the Board, in accordance with the Ordinance. His responsibilities include implementation of strategies and policies approved by the Board, making appropriate arrangements to ensure H.R.C. No.3654 of 2018 -: 26 :- that funds and resources are properly safeguarded and are used economically, efficiently and effectively and in accordance with all statutory obligations.” Rule 4(1) of the Rules of 2013 provides that “The office of the chairman shall be separate, and his responsibilities distinct, from those of the chief executive.” Rule 4(2) thereof describes the role of the Chairman which is to “(a) ensure that the Board is properly working and all matters relevant to the governance of the Public Sector Company are placed on the agenda of Board meetings; (b) conduct the Board meeting including fixing the agenda; and (c) ensure that all the directors are enabled and encouraged to fully participate in the deliberations and decisions of the Board. The chairman has a responsibility to lead the Board and ensure its effective functioning and continuous development, he shall not be involved in day to day operations of the Public Sector Company.” Mr. Qasmi was appointed as a Director and the Chairman of PTV and not the MD. As is clear from the foregoing discussion the roles, duties and responsibilities of the Chairman and MD are distinct and separate and they are not to be conflated. Rule 4(2) of the Rules of 2013 categorically states that the Chairman is not to be involved in the day to day operations of the Public Sector Company which is the function of the MD as per Section 2(6) of the Ordinance and Rule 4(3) of the Rules of 2013. 15. With respect to remuneration, according to Section 191(2) of the Ordinance, “The remuneration to be paid to any director for attending the meetings of the directors…shall not exceed the scale approved by the company or the directors, as the case may be, in accordance with the provisions of the articles.” In this respect the AoA provide in Article 85 that “Unless otherwise determined by the Company in General Meeting each Director (other than a Chief Executive and a full time working Director) shall be paid out of the funds of the Company by way of remuneration for his services, the amount to be determined by the Company or the Directors, for each meeting of the Directors attended by him.” Article 86 of the AoA goes on to clarify that “The remuneration of the Directors, shall from time to time be determined by the Company in its General Meeting, except those who are deputed to work on a whole time basis in which case the remuneration will be determined by the Board.” H.R.C. No.3654 of 2018 -: 27 :- 16. With respect to Directors performing extra services, including the holding of the office of Chairman, Section 191(1) of the Ordinance provides that their remuneration “…shall be determined by the directors or the company in general meeting in accordance with the provisions in the company's articles” (note:- the same statutory provision in verbatim is retained as Section 170 of the Companies Act, 2017). In this regard the AoA state in Article 87 that “Any Director appointed to any executive office including for the purpose of this Article the office of Chairman…or to devote special attention to the business of the Company or who otherwise perform extra services, which in the opinion of the Board are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration by way of salary, fees, allowances or otherwise as shall from time to time be determined by the Directors.” ‘The Directors’ has been defined in Article 2. vi) of the AoA as “the directors for the time being of the Company or as the case may be, the directors assembled as a Board”, and ‘Board’ has been defined in Article 2. iii) thereof as “a meeting of the directors duly called and constituted or as the case may be the directors assembled at a Board.” 17. The foregoing indicates that the remuneration of Directors, other than a Chief Executive and a full time working Director, is to be determined by the Company in its General Meeting, whereas the remuneration of the Directors who are deputed to work on a whole time basis is to be determined by the Board. The remuneration of Directors who perform extra services including holding the office of Chairman is also to be decided by the Board. Therefore the remuneration of Mr. Qasmi, being a Director who also held the additional charge of Chairman, had to be determined by the Directors of PTV in a duly constituted Board meeting which is absent in the instant case. Instead, Mr. Qasmi’s remuneration (including his salary of Rs.1,500,000/- and certain benefits/allowances) was determined by MOIBNH in its summary for the PM dated 08.01.2016 signed by Ms. Saba Mohsin Raza, the then Acting Secretary MOIBNH, which was seen and approved by Mr. Pervaiz Rashid, the then Minister of Information. The said summary was subsequently approved by the Finance Division as is evident H.R.C. No.3654 of 2018 -: 28 :- from paragraph No.9 thereof signed on 26.02.2016 by Mr. Waqar Masood Khan, the then Finance Secretary, and thereafter was seen and approved by the PM through approval dated 28.02.2016 signed by Mr. Fawad Hasan Fawad, the then Secretary to the PM. Finally the terms and conditions of Mr. Qasmi as the Chairman of PTV were issued by MOIBNH on 29.02.2016. There was no determination of any sort by the Board of PTV in this regard. It should be noted that the minutes of the Board Resolution 2000 is available on the record which sanctions some entitlements of the Chairman, however, this does not include salary. The Board Resolution 2000 shall be discussed further below with respect to Mr. Qasmi’s benefits/allowances. 18. While the arguments of Mr. Qasmi’s counsel and the summaries moved for his appointment ring praises of his literary background, no justification has been provided for the special treatment he was afforded nor has it been explained as to why a Chairman was offered a salary package that is more generous than that of an MD whose duties and functions are of a managerial nature while the duties of the former are limited to overseeing the working of the Board (as discussed above). The argument of his learned counsel that Mr. Qasmi was acting as de facto MD and was performing extra services does not save him because as mentioned above, as per Article 87 of the AoA, if any Director is appointed to the office of Chairman or devotes special attention to the business of the Company or otherwise is performing extra services, a determination is to be made by the Board as to whether such special attention or extra services are outside the scope of the ordinary duties of a Director after which the Board may decide to pay the Director such extra remuneration in the form of salary, fees, allowances, etc. There is no Board resolution on record to suggest that the Directors of PTV made any such determination with respect to Mr. Qasmi. Nonetheless, some of the officials involved in the process of Mr. Qasmi’s appointment submitted that the post of Chairman is higher than that of H.R.C. No.3654 of 2018 -: 29 :- MD, and since the then MD was drawing a handsome salary/perks, therefore Mr. Qasmi was offered a monthly salary package of Rs.1,500,000/-. According to the Audit Report, Mr. Qasmi’s total salary amount received during his tenure was Rs. 35,806,452/- and the tax paid by PTV in this regard was Rs.12,439,908/- resulting in a gross salary expense by PTV of Rs.48,246,360/-. Here it would be relevant to refer to Rule 17(2)(f) of the Rules of 2013 which provides that in the Board’s annual report to the shareholders, a statement and the requisite information to the effect that “the appointment of chairman and other members of Board and the terms of their appointment alongwith (sic) the remuneration policy adopted are in the best interests of the Public Sector Company as well as in line with the best practices.” Furthermore according to Rule 17(3) of the Rules of 2013, “The disclosure of an Executive’s remuneration is an important aspect for a Public Sector Company. The annual report of a Public Sector Company shall contain a statement on the remuneration policy and details of the remuneration of members of the Board. Separate figures need to be shown for salary, fees, other benefits and other performance-related elements.” Despite the fact that PTV has suffered colossal losses during the past seven years, Mr. Qasmi was awarded with a generous salary and exorbitant perks and privileges. This raises serious concerns as to whether the remuneration policy of the Chairman is “in line with the best practices.” Admittedly in the year 2008 the salary of Mr. Shahid Masood, the then Chairman of PTV, was Rs.850,000/- however it must be noted that he also had the additional charge of MD, PTV whose role and responsibilities are different and much more than that of a Chairman of PTV as mentioned earlier. Mr. Qasmi’s salary of Rs.1,500,000/- was also far beyond the salary admissible to MP-I public office holders which, as per the Finance Division’s Office Memorandum (OM) dated 24.12.2012 (in force at the time of Mr. Qasmi’s appointment), could be a maximum of Rs.372,000/- (basic pay of Rs.240,000/-, house rent of Rs.105,000, utilities of Rs.12,000 and an increment of Rs.15,000/-). H.R.C. No.3654 of 2018 -: 30 :- 19. Salary aside, Mr. Qasmi was also given certain benefits/allowances, the entitlement whereof is contained in two documents, the terms and conditions letter dated 29.03.2016 read with the Finance Division’s Office Memorandum dated 24.12.2012 and the Board Resolution 2000 which is illustrated in the table below:- Subject Entitlement as per Mr. Qasmi’s terms and conditions letter dated 29.03.2016 Finance Division’s Office Memorandum dated 24.12.2012 (in force at the time of Mr. Qasmi’s appointment) Board Resolution 2000 Leave As admissible to MP-I public office holders. The incumbent shall earn leave on full pay @ 3 days per month for the period of duty. The leave shall be availed during the currency of contract period. Title to leave shall expire on expiry of contract. If given a fresh contract, the period of earned leave available in respect of the previous contract shall not be carried forward. - Travelling allowance/Daily allowance As admissible to MP-I public office holders. As admissible to civil servants of the highest grade (domestic official tour). As admissible to civil servants in Cat-I (official duty abroad). - Medical As admissible to MP-I public office holders. Reimbursement of medical and hospitalization charges for self, spouse, and children for treatment received at Govt. or Govt. Recognized institutions in Pakistan. No limit Entertainment As admissible to MP-I public office holders. - No limit Chauffer driven car - Monetized value of transport facility for MP-I @ Rs.95,910/- One Petroleum, oil and lubricants (POL) - - No limit Air travel - - Club class on official tours Hotel stay - - Paneled hotels on official tours Mobile - - No limit H.R.C. No.3654 of 2018 -: 31 :- telephone Two STD office telephones - - No limit One fax machine with telephone line - - No limit Computer with printer - - One Office stationery - - No limit Newspaper and magazines - - No limit Refrigerator - - One 20. A brief summary of the expenses incurred by or on behalf of Mr. Qasmi as determined by the Auditors is reproduced below:- Description Expense as determined by the Auditor Breakdown Learned counsel for Mr. Qasmi’s arguments Travel (domestic and international) Rs.1,437,501/- TA/DA, self-approved daily allowances of Rs.301,753/- and travel expenses of Rs.215,727/- to Lahore (also his place of residence) on or near weekends, expenses from his stay at Ramada Hotel after he assumed the office of Chairman costing Rs.284,753/- and international travel to Belarus costing Rs.400,510/- to attend a book exhibition. These expenses were not paid to Mr. Qasmi directly but to the travel agents etc. Mr. Qasmi was only a beneficiary thus he is not entitled to return them. Medical expenses Rs.355,278/- Medicines purchased (Rs.56,999/-) and hospital facilities (Rs.2,550/-) availed from non-paneled chemists and hospitals. Incurred as per the notification of the Finance Division. Entertainment expenses Rs.2,359,602/- Includes Islamabad Club membership of Rs.1,543,153/-. The Islamabad Club membership and subscription fee was approved by the then MD. The other entertainment expenses are covered by the Board Resolution 2000. Vehicle running Rs.1,998,913/- Official vehicle Mr. Qasmi was entitled to the H.R.C. No.3654 of 2018 -: 32 :- and maintenance expense (Honda Civic Vti Oriel, SJ-332) – Rs.787,743/-. Official vehicle (Toyota Corolla Altis, JV-515) – Rs.430,578. Personal vehicle (Mercedes E-200, LEA 332) – Rs.780,592/-. chauffer driven car as per the Board Resolution 2000. As far as the second car is concerned, he has refunded the amount to PTV. With regard to the expenses incurred by PTV on account of the maintenance and fuel of the personal vehicle, she admits he had no entitlement thus Mr. Qasmi is willing to return such amount. Telephone/mobile expense Rs.569,366/- Includes expenses incurred at Mr. Qasmi’s Islamabad office (Rs.123,789/-), residence at the guest house (Rs.22,000/-), and mobile phone (Rs.423,577/-). He was entitled to these according to the notification of the Finance Division and the Board Resolution 2000. Refreshment/food expenses (Lahore office) Rs.207,252/- - This food was not for Mr. Qasmi’s consumption alone, but the entire office. Guest house expenses (Shalimar Recording and Broadcasting Corporation Limited “SRBC”) Rs.2,104,000/- Includes room rent (Rs.1,460,000/-), salary of cook (Rs.600,000/-), and purchase of items (Rs.44,000/-). Private matter between Mr. Qasmi and SRBC as the expenses were charged to him directly. She states he would be willing to pay the room rent. However the cook is SRBC’s employee thus Mr. Qasmi is not liable to pay for the same nor the other expenses incurred. Newspapers and periodicals Rs.62,734/-. - Chairman’s office renovation expenses Rs.2,486,228/- Office renovation (Rs.1,082,440/-) and purchase of equipment (Rs.1,403,788/-). He did not authorize nor was a signatory to the renovations etc. It was authorized by the MD. The equipment and goods have been bought by PTV and subsequently retained by PTV, Mr. Qasmi has not kept the things with him for his personal benefit. Chairman’s camp office’s expenses Rs.1,356,795/- This includes: renovation of office – Lahore (Rs.754,276/-), furniture (Rs.225,810/- ), two ACs, 3 LEDs, window blinds (Rs.270,498/-), Smart TV internet (Rs.30,460/-), vehicle Mr. Qasmi only used it when he went to Lahore. These are normal expenses incurred in the normal course by PTV for improving their own property and for the benefit of PTV and the GM in particular. H.R.C. No.3654 of 2018 -: 33 :- hiring expenses (Rs.22,770/-) and telephone expenses (Rs.52,981/-). Program expenses (“Khoye hu’unn ki Justaju”) Rs.59,326,257/- Transmission costs (Rs.51,648,873/-), program host salary (Rs.3,157,161/-), talent fee (Rs.2,456,750/-), program parties, design and props (Rs.960,440/-), travelling (Rs.773,204/-), hiring of technical facilities (Rs.63,000/-), vehicles hiring (Rs.69,526/-), guest entertainment (Rs.33,960/-), and staff food and mobile (Rs.163,343/-). PTV did not charge for any transmission costs, they are not remotely related to Mr. Qasmi. As a host of a programme has got nothing to do with transmission costs nor is he liable for them. The figure of transmission costs is arbitrary and made up by the auditors. The actual costs are the remaining which were incurred on account of the production of the programme, not one penny of it went to Mr. Qasmi even though he was the host, therefore he is not liable to pay for the same. Press advertisement expenses Rs.55,104,720/- - No money was actually incurred by PTV, this was under a barter arrangement. It is a notional expense, and in any event, if Mr. Qasmi is one of the co-hosts of a programme which is produced by PTV, this is not to the direct benefit of Mr. Qasmi and he is not liable for such amount. Program promos Rs.23,768,685/- These are the normal transmission costs. Not remotely related to Mr. Qasmi and he has got nothing to do with such costs or be liable for them. The figure is an arbitrary number made up by the auditors. Ramadan transmission – Chairman’s promos – transmission costs Rs.551,700/- Payment to Mr. Yasir Pirzada Rs.480,000/- Fees paid to writers Rs.31,770/- Hotel expenses Rs.29,855/- Writers’ conference expenses Rs.61,625/- Administrative decisions of Mr. Qasmi - In the absence of an MD for such a long period of time, Mr. Qasmi was de facto MD H.R.C. No.3654 of 2018 -: 34 :- and hence these were justified. 21. As mentioned earlier, remuneration (salary and benefits/allowances) of a Director also performing the functions of a Chairman has to be determined by the Board. Therefore the salary and other benefits/allowances given to Mr. Qasmi vide MOIBNH’s letter dated 29.03.2016 read with the Finance Division’s OM dated 24.12.2012 were inadmissible and illegal as there was no Board resolution to this effect. In this regard, repeated reliance has been placed on the Board Resolution 2000 in Mr. Qasmi’s defense, however, considering the spirit of the Rules of 2013, particularly Rules 17(2)(f) and 17(3) thereof, we find that the unlimited benefits/allowances granted to the office of the Chairman of PTV is not in line with the policy of the ‘best interests of the Public Sector Company.’ Furthermore, Rule 5(7)(o) of the Rules of 2013 specifically provides that “The Board shall also formulate significant policies of the Public Sector Company, which may include…capital expenditure planning and control.” Moreover, Rule 5(5)(a) and (b) provide that:- (5) The Board shall establish a system of sound internal control, which shall be effectively implemented at all levels within the Public Sector Company, to ensure compliance with the fundamental principles of probity and propriety; objectivity, integrity and honesty and relationship with the stakeholders, in the following manner, namely:- (a) the principle of probity and propriety entails that company’s assets and resources are not used for private advantage and due economy is exercised so as to reduce wastage. The principle shall be adhered to, especially with respect to the following, namely:- (i) handling of public funds, assets, resources and confidential information by directors, executives and employees; and (ii) claiming of expenses; H.R.C. No.3654 of 2018 -: 35 :- (b) the principle of objectivity, integrity and honesty requires the following, namely:- (i) the directors and executives of a Public Sector Company do not allow a conflict of interest to undermine their objectivity in any of their activities, both professional and private and that they do not use their position in the Public Sector Company to further their private gains in a social or business relationship outside the Public Sector Company. If a situation arise where an actual or potential conflict of interest exists, there shall be appropriate identification, disclosure and management of such conflict of interest; (ii) An appropriate conflict of interest policy is developed and duly enforced. Such a policy shall clearly lay down circumstances or considerations when a person may be 11 deemed to have actual or potential conflict of interest, and the procedure for disclosing such interest: Explanation: For the purposes of this clause a person shall be deemed to have an interest in a matter if he has any stake, pecuniary or otherwise, in such matter which could reasonably be regarded as giving rise to a conflict between his duty to objectively perform his functions under these rules so that his ability to consider and decide any matter impartially or to give any advice without bias, may reasonably be regarded as impaired; (iii) where a director, executive or other employee has a conflict of interest in a particular matter, such person shall play no part in the relevant discussion, decision or action; (iv) A “register of interests” is maintained to record all relevant personal, financial and business interests, of directors and executives who have any decision making role in the company, and the same shall be made publicly available. Such interests may include, for instance, any significant political activity, including office holding, elected positions, public appearances and candidature for election, undertaken in the last five years; (v) a declaration by the directors and executives that they shall not offer or accept any payment, bribe, favor or H.R.C. No.3654 of 2018 -: 36 :- inducement which might influence, or appear to influence, their decisions and actions; and (vi) the Board shall also develop and implement a policy on “anticorruption” to minimize actual or perceived corruption in the company. 22. Even a cursory perusal of the above reveals that the Board Resolution 2000 allowing unlimited expenditure for certain benefits/allowances of the Chairman of PTV is not in line with the principles of probity and propriety, objectivity, integrity, honesty and due economy in the claim of expenses, as mentioned above. Further, Mr. Qasmi’s actions, as evidenced in the Audit Report, were not in consonance with the aforementioned principles contained in the Rules of 2013, as he failed to lead by example to ensure that these principles were promoted, rather he himself acted contrary to PTV’s interest. While Article 87 of the AoA permits the Board to determine the remuneration for any extra services performed by a Director including holding the office of Chairman, we do not think that the Board can sanction excessive remuneration by way of various benefits/allowances while keeping in mind the spirit of the Rules of 2013. It is incomprehensible as to why such excessive benefits/allowances as mentioned in the Board Resolution 2000 (see the table in paragraph 19 above) such as office entertainment and entertainment of guests outside office etc. is required for the ‘smooth running’ of the company. More importantly when the Rules of 2013 were enacted, the policies and inner workings of all Public Sector Companies including PTV had to be brought in line with the Rules of 2013 as per Rule 24 thereof and any contravention of the said Rules can potentially result in imposition of penalties under Rule 25. Thus, the Board Resolution 2000 should have either been amended or completely discarded unless the approved expenses could be justified in terms of how they were necessary in light of the performance of duties of Mr. Qasmi as the Chairman of PTV. H.R.C. No.3654 of 2018 -: 37 :- 23. As mentioned earlier, the Rules of 2013 set out the specific role of the Chairman and to our mind none of these duties requires excessive entertainment, petrol and telephone expenses or international travel, etc. Being a public document, the Chairman of PTV is expected to have been aware of the Rules of 2013 enacted specifically to regulate Public Sector Companies. He should have played an instrumental role in implementing rather than flouting the said Rules. Therefore in light of the foregoing, we hold that the payment of salary and the benefits/allowances to Mr. Qasmi was unlawful and unauthorized under the Rules of 2013 and the AoA. He was not entitled to such payments and cannot retain the same. 24. It is crucial to note that the post of a Director (and therefore Chairman of the Board) of a company and for that matter a Public Sector Company is fiduciary in nature [note:- for the purposes of the discussion in this paragraph, reference is made both to the Ordinance and the Companies Act, 2017 (the Act) since both of these applied at various times during Mr. Qasmi’s tenure]. As per Section 217 of the Ordinance (Section 212 of the Act) a Director may be declared to be lacking fiduciary behavior if he contravenes the provisions of inter alia Section 214 of the Ordinance (Section 205 of the Act) which states that “Every director of a company who is in any way, whether directly or indirectly, concerned or interested in any contract or arrangement entered into, or to be entered into, by or on behalf of the company shall disclose the nature of his concern or interest at a meeting of the directors.” Regardless of the fact that Mr. Qasmi did not receive any monetary benefit in terms of payments for the programme ‘Khoye Hu’uun ki Justuju’, we find that being a host thereof (while he was a Director and the Chairman of PTV) he was benefiting from the same and had a personal interest in airing of the program. Therefore he was liable to disclose the same to the Board. According to the Audit Report, the said programme did not go through PTV’s standard practice for approval of production of programmes and there is no board resolution approving the same. We are of the view that pushing for the development and promotion of this programme renders Mr. H.R.C. No.3654 of 2018 -: 38 :- Qasmi guilty of self-promotion and personal aggrandizement by utilizing public money. Furthermore, regarding the matters of the hiring of Mr. Qasmi’s son, Mr. Yasir Pirzada, as a scriptwriter for the drama ‘Dhund’ at Rs.80,000/- per episode, using two instead of one official car and getting maintenance and running allowances for a third personal car, using PTV funds to pay the membership and subscription fees of Islamabad Club, incurring exorbitant expenses for renovation of various officers and for entertainment of guests inside and outside the office, and using public funds to attend a book exhibition completely unrelated to his duties as a Director and Chairman of PTV, we find that Mr. Qasmi breached his fiduciary duties. He failed to “act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company,” [Section 204(2) of the Act] to “discharge his duties with due and reasonable care, skill and diligence” and “exercise independent judgment,” [Section 204(3) of the Act] and he put himself “in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company” [Section 204(4) of the Act]. Furthermore, we find him guilty of “achiev[ing] or attempt[ing] to achieve… undue gain or advantage either to himself or to his relatives, partners, or associates.” Therefore in accordance with Section 204(5) of the Act, Mr. Qasmi is “liable to pay an amount equal to that gain to the company.” Being fully aware of the miserable and weak financial situation of PTV, and of his duties as a Director and the Chairman under the Rules of 2013, the Ordinance and the Act, he miserably failed to act in the interest of PTV. He grossly, intentionally and deliberately misused its funds for the purposes of self- projection and self-enrichment. In light of the above, we are inclined to declare, under Section 217 of the Ordinance (Section 212 of the Act), Mr. Qasmi to be lacking fiduciary behavior. Consequently, from the date of this judgment onwards he is declared to be ineligible to be appointed as a Director of any company as per Section 187(g) of the Ordinance [Section 153(g) of the Act]. H.R.C. No.3654 of 2018 -: 39 :- 25. As an ancillary matter, the Audit Report also discusses the administrative actions taken by Mr. Qasmi. Suffice it to say that we are of the view that such actions are beyond the scope of duties of a Chairman as provided in the Rules of 2013. Therefore all such orders passed by Mr. Qasmi during his tenure are declared to be illegal and void ab initio. iii. If the answers to questions No.i and ii are in the negative, who is to be held responsible for such illegal appointment and/or expenditure? 26. Concise statements were filed by Sardar Ahmad Nawaz Sukhera, Secretary Information and Broadcasting Division, Ms. Saba Mohsin Raza, Additional Secretary (R) MOIBNH, Mr. Nasir Jamal, Officer on Special Duty/Ex-Director General (IP) MOIBNH, Mr. Pervaiz Rashid, former Minister for Information, Mr. Fawad Hasan Fawad, former Secretary to the PM, Mr. Nadeem Hassan Asif, former Secretary Establishment Division and Dr. Waqar Masood Khan, former Finance Secretary. Their basic and common plea was that Mr. Qasmi’s appointment and terms and conditions were made in accordance with the relevant law and rules. 27. We have noted that the approvals from the PM’s office as reproduced above were all issued and signed by Mr. Fawad Hasan Fawad. During the hearing on 26.02.2018 when he was asked to produce the file where the then PM had himself approved the summaries, Mr. Fawad stated that as a matter of practice, a file was placed before the PM who verbally issued an order and this has been the past practice in the PM’s office for the last 10 to 15 years. When asked to cite some rule or regulation supporting such practice, Mr. Fawad frankly conceded that there was no such rule in the Rules of Business, 1973 (the Rules of Business) which envisaged that verbal approval of the PM could be taken and conveyed and notified by his Secretary. He also conceded that in this particular case, the PM never made any noting on the file. Subsequently on 03.07.2018, Mr. Fawad came forth to state that Rule 5(11A) of the Rules of Business was now being H.R.C. No.3654 of 2018 -: 40 :- implemented in letter and spirit and written approval of the PM was being sought with his signature. The said rule is reproduced herein below:- 5. Transaction of Business.- (11A) Verbal orders given by a functionary of the Government should as a matter of routine be reduced to writing and submitted to the issuing authority. If time permits, the confirmation shall invariably be taken before initiating action. However, in an exigency where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating action, the functionary to whom the verbal orders are given shall take the action required and at the first available opportunity obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him. According to him, in 99% of the cases it is done immediately after issuance of the approval/order, and in the rest of the cases it is done either next morning or as soon thereafter as possible. He concedes that the past practice was a lapse and requested the Court to condone the same. Coming to the facts of the instant matter, Mr. Fawad stated that the PM’s approval was only to the extent of Director and not for direct appointment as Chairman. Nevertheless he admitted that the proper process was not followed. He further stated that the remuneration of Mr. Qasmi was the business of the Finance Division, which was done by Dr. Waqar Masood Khan, former Finance Secretary with the approval of Mr. Ishaq Dar, the then Finance Minister, and that the perks and privileges was a matter for the Board of PTV to decide. He categorically stated that at no stage was Mr. Qasmi’s appointment as an MD approved by the PM and there was no such proposal before him. 28. Learned counsel for Mr. Pervaiz Rashid, the then Minister of Information submitted that there were two instances where his client had a role in the instant matter: (i) summary dated 30.04.2015 for Mr. Qasmi’s appointment as a Director and the Chairman of PTV; and (ii) summary of Mr. Qasmi’s terms of appointment fixing his salary, both of which (summaries) H.R.C. No.3654 of 2018 -: 41 :- were approved by Mr. Rashid. When confronted, Mr. Rashid stated that his department assisted him in the matter of preparation of the summary for Mr. Qasmi’s appointment. Thereafter, the matter was sent to the Establishment Division which never returned the summary to him in case they had any problem with it. With respect to Mr. Qasmi’s terms and conditions of service, the learned counsel argued that while such summary was routed through the Finance Division, the ultimate approval was given by the PM. With regard to the issue of the unlimited expenses, learned counsel argued that it was for the Board of Directors of PTV to explain as it fell within their domain. He made reference to Article 37 of the Memorandum of Association (MOA). As regards the issue of salary, he stated that the previous four Chairmen of PTV also drew salaries therefore it was a past practice which was followed. He further stated that he sought guidance from the Finance Division with respect to Mr. Qasmi’s terms and conditions, and the said Division did not advise against offer the said terms and conditions to Mr. Qasmi. 29. According to the concise statement filed by Dr. Waqar Masood Khan, the former Finance Secretary, the summary dated 08.01.2016 for Mr. Qasmi’s terms and conditions was examined by the Regulation Wing of the Finance Division. It (Wing) moved a note dated 13.01.2016 which did not support the proposal (salary package of Rs.1.5 million and other facilities as per MP-I). It suggested that the referring Ministry be asked to revise the package in conformity with the salary of MP-Scales/Management Grade. Alternatively, they also suggested that the proposal may be endorsed. Thereafter the concerned Additional Secretary, while submitting the case to the Finance Secretary, recommended endorsement of MOIBNH’s proposal based on past precedents. The Finance Secretary on 18.01.2016 asked for further examination of the case in light of the role and responsibilities of the Chairman of PTV. The Regulation Wing then concluded in a note dated 27.01.2016 that the proposed salary package was not warranted and a H.R.C. No.3654 of 2018 -: 42 :- salary package of MP-1 be recommended. A draft endorsement along the recommended lines was prepared and submitted to the Finance Secretary on 29.01.2016. He sent the note to the Finance Minister, Mr. Ishaq Dar on 30.01.2016. A noting dated 08.02.2016 on the draft endorsement stated that “FM has handed over a photocopy to Honorable PM on 8-2-2016. The PM Office would get back to us.” According to the Finance Secretary it was later conveyed that MOIBNH’s proposal should be supported by the Finance Division. Accordingly the Regulation Wing prepared a revised note dated 25.02.2016 along with a revised draft endorsement that supported MOIBNH’s proposal. On 25.02.2016 the Finance Secretary sent the endorsement for the perusal of the Finance Minister, Mr. Ishaq Dar who then returned the file on 26.02.2016 noting that the Finance Minister had seen it. Thereafter the endorsement was signed and sent to the PM the same day. 30. The discussion throughout this opinion raises serious questions about the ethical and professional responsibility of the officials involved in the appointment of Mr. Qasmi and fixation of his terms and conditions of service, etc. when they should have been fully conversant with the relevant provisions of the Ordinance (and the Act), the Rules of 2013, the AoA and the Esta Code. The alarming negligence of the government officials which they tried to justify by stating that they were merely following orders from superiors/political heads, shows their utter lack of ability to withstand pressure and influence from higher officers or political bosses. Furthermore, it is evident that each official was trying to shift responsibility from himself onto the other Ministry(ies)/Division(s). This exercise of shirking responsibility and ignoring the rules has resulted in colossal loss of millions of rupees to the public exchequer and PTV. At this stage, it is pertinent to mention that public officials, particularly heads of Ministries who are elected representatives of the people of Pakistan, owe their first and foremost allegiance and loyalty to Pakistan, the Constitution and the law. Thus, they are obligated to act in accordance therewith, without being H.R.C. No.3654 of 2018 -: 43 :- influenced by any extraneous considerations. Such officials are not allowed to take decisions and push for relaxations and summaries arbitrarily which bypass or circumvent the law and the rules and at their own whims and caprices in order to please certain individuals. Government officials are duty bound to discharge their functions independently and are not to be influenced by dictatorial misuse of powers and/or dictated exercise of discretion.7 In our view the instant matter is a clear cut case of dictated exercise of direction. At the cost of repetition, “it is now a well-settled principle of law that all public functionaries must exercise public authority, especially while dealing with the public property, public funds or assets in a fair, just, transparent and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens.”8 Therefore, we find the following officials responsible for the illegal appointment of Mr. Qasmi and the illegal fixation of his terms and conditions. 31. Mr. Pervaiz Rashid, as the Minister for Information, was responsible for the following: (i) the summary dated 23.09.2015 for exemption from the upper-age limit as it was proposed in paragraph 4 that the upper age limit be relaxed for the heads of inter alia PTV. Upon a clarification sought by Mr. Javaid Aslam, Secretary to the PM, on 29.09.2015 with respect to the said summary, it was stated in paragraph 7(c) of the clarification letter dated 05.10.2015 issued by MOIBNH that the posts of the heads of autonomous bodies of inter alia PTV require people of higher learning and achievements which can only be achieved after the age of 65. This to our understanding is not at all a satisfactory or plausible justification; (ii) the summary dated 30.10.2015 for the appointment of Mr. Qasmi as the Chairman of PTV in which it was stated in paragraph No.4(a) that “Mr. Atta ul Haq Qasmi who is an eminent literary personality with nationwide 7 See further the judgments of this Court reported as Province of Punjab Vs. Azhar Abbas (2002 SCMR 1), Samiullah Khan Marwat Vs. Government of Pakistan (2003 SCMR 1140), Syed Nazar Abbas Jafri Vs. Secretary to the Government of the Punjab and another (2006 SCMR 606), Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759), Syed Mahmood Akhtar Naqvi and others Vs. Federation of Pakistan and others (PLD 2013 SC 195). 8 Habibullah Energy Limited (supra). H.R.C. No.3654 of 2018 -: 44 :- recognition in the disciplines of poetry, drama, literature and media (CV at Annex-5) may be appointed as Director of the Company for a period of three years and also act as Chairman of PTVC.”; (iii) the summary dated 08.01.2016 for the terms and conditions of Mr. Qasmi in which it was incorrectly stated in paragraph No.3 that appointment to the post of Chairman did not warrant advertisement in terms of SI. No.141 of the Esta Code as appointment had been made under Section 183(b) of the Ordinance read with the AoA (Article 95) and MoA; it was also proposed in paragraph No.6 that Mr. Qasmi’s salary has been worked out to be “Rs. 15,00,000/- (net of taxes) per month, which approximately is slightly higher than what Mr. Muhammad Malick MD – PTV is currently being paid (Rs. 13,80,000/- per month : net of taxes).” The arguments put forward by Mr. Rashid and his learned counsel were evasive whereby the brunt was being passed onto the former PM, and the Finance and Establishment Divisions. We do not believe that the MOIBNH had no role to play and that it was only acting as a conduit through which Mr. Qasmi’s appointment as well as terms and conditions of service were merely routed. We find that Mr. Rashid, as the Minister for Information, under which the business of PTV falls, was the most relevant person to make a decision regarding the candidate for the proposed post and the salary package (including benefits/allowances). It was his Ministry that thought it appropriate to seek relaxation of the upper-age limit for appointment to autonomous bodies. All three summaries were issued by MOIBNH. He had seen and approved both the summaries for appointment and fixation of terms and conditions of Mr. Qasmi. Being the head of MOIBNH, Mr. Rashid was responsible for the all of the above. He cannot be absolved of responsibility for his acts and omissions which were deliberate, intentional and consciously done and committed the responsibility and liability for which clearly falls on Mr. Rashid. 32. The role of Mr. Ishaq Dar, the Finance Minister, in the assessment and calculation of the salary package of Mr. Qasmi as outlined H.R.C. No.3654 of 2018 -: 45 :- above in paragraph No.29 is motivated. Due to his involvement in the instant matter, it was deemed appropriate to provide him an opportunity to justify his position. To that end notices were issued to him vide order dated 3.7.2018 after which he was given various opportunities to appear before this Court vide orders dated 9.7.2018 and 12.07.2018. However, he failed to do so despite repeated notices, which were not only affixed at his residence but also published in the print and electronic media. We have reason to believe that he had knowledge of the notices sent and suo motu proceedings pending before this Court. He nevertheless chose to stay away and did not even appoint a counsel to represent him. We are therefore justified in presuming that he has nothing to say in his defence. We accordingly hold him along with the others responsible for the illegal fixation of the terms and conditions of service of Mr. Qasmi as the Chairman of PTV. 33. As mentioned above, Mr. Fawad Hasan Fawad, Secretary to the PM, conceded that the past practice of seeking verbal approval of the PM was a lapse. He also admitted that the proper process for the appointment of Mr. Qasmi was not followed. Being a senior civil servant and the Secretary to the PM, it is reasonably expected of him to know the relevant law including the Esta Code, particularly that regarding the appointment to posts in autonomous bodies etc. for which the PM is the appointing authority. He should have raised an issue with or sought further clarification of the summary dated 30.10.2015 recommending only one person, i.e. Mr. Qasmi, as opposed to a panel of three names for the consideration of and appointment by the PM, and returned the same (summary) to the Establishment Division. Therefore we find that Mr. Fawad failed in his duty, as a civil servant, to act responsibly and with due diligence as he did not question the summary(ies) placed before the PM and instead went ahead and sought approval as a matter of routine. H.R.C. No.3654 of 2018 -: 46 :- 34. The illegal and exorbitant salary paid to and expenses incurred by or on behalf of Mr. Qasmi burdening PTV cannot be left unaccounted for. In the case reported as Mehmood Akhtar Naqvi Vs. Federation of Pakistan (PLD 2012 SC 1054) this Court directed for the recovery of the salary along with perks and other emoluments paid to the members of Parliament who were declared to be disqualified:- “(e) The members of Parliament/Provincial Assemblies noted hereinabove, being disqualified persons are directed to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which shall be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies accordingly.” A similar direction was issued in the case of Sher Alam Khan Vs. Abdul Munim and others (PLD 2018 SC 449), as under:- “34. Consequently, it is held that Respondent No.1 was not qualified to be and disqualified from being a Member of the Provincial Assembly of Khyber Pakhtunkhwa at all material times, hence, was liable to be de-notified as such by the ECP. Furthermore, he was obliged to return all the benefits i.e. salary and other allowances received by him as a Member of the Provincial Assembly and also criminal proceedings as provided under the law are also directed to be taken against him…” 35. According to our calculations illustrated below, a total amount of Rs.197,867,491/- is liable to be recovered being the loss caused to PTV:- Gross salary expense by PTV (+) Rs.48,246,360/- Total expenses incurred other than salary (sum of column two of the table in paragraph No.20) (+) Rs.152,292,301/- Expenses Mr. Qasmi willing to Vehicle running and maintenance expense [second official vehicle (Toyota Corolla Rs.430,578/- Rs.780,592/- H.R.C. No.3654 of 2018 -: 47 :- return or already returned (–) Altis, JV-515) and personal vehicle (Mercedes E-200, LEA 332)] SRBC room rent expenses Rs.1,460,000/- Total Rs.197,867,491/- In light of the foregoing discussion and taking into account the lapses and illegal actions committed by Mr. Qasmi as a Director and the Chairman of PTV and by the officials identified above, we hereby direct that the aforementioned amount be recovered from the named persons in the ratio stated below:- Name Reason for liability Ratio Mr. Ata ul Haq Qasmi Beneficiary of illegal acts 50% Mr. Pervaiz Rashid, Minister for Information Ignored the law and disregarded their duty to confer benefit on Mr. Qasmi 20% Mr. Ishaq Dar, Finance Minister 20% Mr. Fawad Hasan Fawad, Secretary to the PM Failure to act with due diligence in processing the summary for appointment of the Director of PTV from a person-specific recommendation as opposed to a panel of three names as required by the Esta Code 10% These amounts are their liabilities and they must reimburse the same to PTV. We give them an opportunity to do so voluntarily. However if they fail to do so within a period of two months, PTV is directed to recover the said amounts from them in the stated ratio as per the procedure in practice for the recovery of dues. 36. As far as the issue regarding delay in the appointment of the MD of PTV is concerned, from which the matter of Mr. Qasmi’s appointment as Director and Chairman of PTV and the huge expenses incurred by or on his behalf emanated, we direct the Federal Government to look into the issue of the appointment of a full-time MD of PTV (if the position is still vacant) after fulfilling all legal, procedural and codal formalities, strictly in accordance with law. A report in this regard shall be submitted within two weeks of the issuance of this order. H.R.C. No.3654 of 2018 -: 48 :- 37. To recapitulate:- i. Mr. Qasmi’s appointment as a Director and the Chairman of PTV is declared to be illegal and without any lawful effect; ii. The payment of salary and the benefits/allowances to Mr. Qasmi was unlawful and unauthorized. He was not entitled to such payments and cannot retain the same; iii. On account of lack of fiduciary behavior, Mr. Qasmi is declared to be ineligible to be appointed as a Director of any company from the date of this judgment onwards; iv. The administrative actions taken by Mr. Qasmi are beyond the scope of duties of a Chairman, therefore all such orders passed by him during his tenure are declared to be illegal and void ab initio; v. Taking into account the lapses and illegal actions committed by Mr. Qasmi as a Director and the Chairman of PTV, Mr. Pervaiz Rashid, Minister for Information, Mr. Ishaq Dar, Finance Minister and Mr. Fawad Hasan Fawad, Secretary to the PM, we hereby direct that the amount of Rs.197,867,491/- be recovered from them in the ratio stated in paragraph No.35 of this opinion; and vi. The Federal Government is directed to appoint a full-time MD of PTV (if the position is still vacant) after fulfilling all legal, procedural and codal formalities, strictly in accordance with law. This matter is disposed of in the aforementioned terms. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 8.11.2018 at Islamabad Approved for Reporting M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED H.R.C. NO. 3677-E OF 2014 (Non-availability of machine readable passports in Pakistan Embassy in China) In Attendance: Mr. Shah Khawar, Addl. Attorney General Mr. Muhammad Safdar, PD(MRP), Immigration & Passport Ch. Salman, Manager, HR(I&P) Barrister Mudassar Shah Naqvi, Legal Advisor (I&P) Date of Hearing: 17.02.2014 ORDER Mr. Muhammad Safdar, Project Director (Machine Readable Passports), Immigration & Passport Department submits that the office is in receipt of the applications of 7500 overseas Pakistanis who are held up in China because of non-availability of Machine Readable Passports in Pakistan Embassy in China. He added that the machine was installed in February, 2013, however, it is not operational on account of non-appointment of the technical officer which is a grade-17 post. Adds on Court query that a reference was sent to Ministry of Interior in July, 2013; that 4/5 reminders were issued but the Ministry has not issued the requisite appointment order because the said Ministry has sent the reference to the Prime Minister Secretariat and on account of the general ban imposed, no further action could be taken. 2. We are surprised and rather dismayed over the insensitive attitude of the passport department. However, before we pass any order, we are persuaded to direct Secretary Interior to appear in Court on 19.02.2014 and explain the factual position. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 17th of February, 2014 Khurram

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN Human Rights Case No.39216-G of 2018 IN THE MATTER OF SLACKNESS IN THE PROGRESS OF PENDING ENQUIRIES RELATING TO FAKE BANK ACCOUNTS, ETC. In Attendance: Mr. Anwar Mansoor Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Additional AGP. Mr. Shehryar Qazi, Addl. A.G. Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Khan, ASC (For Bahria Town) Kh. Ahmed Tariq Raheem, Sr. ASC Mr. Azhar Siddique, ASC (For Zain Malik) Mr. Farooq H. Naek, Sr. ASC (For Asif Ali Zardari and Faryal Talpur) Mr. Shahid Hamid, Sr. ASC Ms. Ayesha Hamid, ASC Syed Rafaqat Hussain Shah, AOR (For Anwar Majeed and Abdul Ghani Majeed) Mr. Munir Ahmed Bhatti, ASC (For Kh. Nimar Majeed, Kh. Mustafa Zulqarnain Majeed and Ali Kamal Majeed) Kh. Naveed Ahmed, ASC for President Sindh Bank Mr. Salman Aslam Butt, Sr. ASC for UBL Mr. Ibrar Saeed, Legal Advisor (For SECP) Mr. Haseeb Jamali, ASC Mr. M. Qasim Mirjat, AOR (For Nasir Abdullah Lootha) Mr. Abid S. Zuberi, ASC Mr. Tariq Aziz, AOR (For Summit Bank) Mr. Shoukat Hayat, ASC Mr. M. Qasim Mirjat, AOR Human Rights Case No.39216-G of 2018 2 (For Hussain Lawai) Mr. Ahmed Nawaz Chaudhary, AOR (For Sher Muhammad Mugheri) Mr. Shahab Sarki, ASC for Shahzad Jatoi (For A One Group) For FIA Mr. Bashir Ahmed Memon, DG FIA Mr. Najaf Quli Mirza, Addl. DG FIA Mr. Monir A. Sheikh, Director FIA, Karachi Mr. Qaiser Masood, Addl. Director, Law FIA Mr. Mohammad Ali Abro, Asst. Director / I.O FIA Karachi. Mr. Tariq Malik, Director Law FIA Mr. I.D Mangi, AIGP (Legal) Sindh Karachi For NAB Mr. Imran-ul-Haq, Sp. Prosecutor For FBR Mr. Jahanzeb Khan, Chairman FBR Mr. Habibullah, Member I.R Operation FBR For State Bank Mr. Tariq Mehmood Bajwa, Governor Mr. Sanaullah Gondal, Director Syed Ansar Hussain, AD Raja Abdul Ghafoor, AOR Date of Hearing: 05.09.2018 ORDER This matter arises out of inquiries initiated by Federal Investigation Agency (“FIA”) regarding fake/Benami accounts connected with various individuals and entities including A-One International, Iqbal Metals, Lucky International and Omair Associates. Another inquiry was also initiated on receipt of suspicious transaction reports (“STRs”) from Financial Monitoring Units (“FMU”) of State Bank of Pakistan (“SBP”). An investigation team headed by Dr. Najaf Quli Mirza, Additional Director General, FIA, was constituted to investigate the matter. Having received information that there was slackness and slow progress in the matter and probe and investigation was being obstructed and hampered, this Court took suo motu notice of the same in exercise of its Human Rights Case No.39216-G of 2018 3 powers under Article 184(3) of Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). In one of the matters, an FIR was also registered regarding which an interim challan has already been submitted in the Special Court (Banking), Karachi. In this regard, some accused persons holding senior positions in Summit Bank were arrested and are presently in Jail. The investigation found 29 suspicious/fake Bank accounts showing transactions in excess of Rupees 35 Billion undertaken through various Banks. The ostensible holders of such accounts denied opening or operating the accounts. There are valid reasons to believe that accounts were opened by misusing National Identity Cards (“NICs”) of different unsuspecting persons without their knowledge. This appears to have been done in order to undertake illegal rotation and layering of huge sums of money through the said accounts presumably for money laundering. Interrogation of the arrested suspects and concerned persons led to discovery of further information about the accounts, companies and individuals who had links with deposit of the funds in question. These included Omni Group, its associate Companies and Sugar Mills, Bahria Town, Zardari Group Private Limited, Arif Habib, Nasir Abdullah Loota, H&H Exchange Company, Parthenon Private Limited, Dream Trading & Company, and Ocean Enterprises amongst others, etc. Some of the accused persons were arrested. They are facing investigation. Some of the accused persons got protective bails. A few are absconding. Human Rights Case No.39216-G of 2018 4 2. We have been informed by Director General, FIA that as investigation progresses more accounts and information is being discovered by the investigators. This points towards a series of suspicious transactions involving Billions of Rupees spanning various jurisdictions by skillfully structured methods in order to camouflage and avoid detection by the Regulators and Law Enforcement Agencies. He, therefore, maintains that despite bona fide efforts on the part of FIA, progress is slow on account of huge quantity of electronic data that requires unravelling and interpretation. For this exercise FIA is facing lack of specialized investigators. In order to conduct effective, in-depth and incisive investigations to discover the truth, cut through multiple layers of transactions, fake accounts, movement of funds, and establish the real identity of persons who are actual but hidden beneficiaries, a broad based, multidimensional and technically skilled team of experts is required which at present is not available with FIA. He also submits that on account of alleged involvement of high profile and powerful political and business figures with the tainted transactions, who have powerful connections within the government, investigation is being seriously hampered and at times willfully obstructed at every stage. Additionally, the investigators feel threatened by the pressure generated due to involvement of high profile persons in the case. Their fear is not without foundation considering the general environment and the law and order situation. He, therefore, prays that this Court may appoint a Joint Investigation Team (JIT) consisting of an Additional Director General of Federal Investigation Agency (FIA); Experts from Federal Board of Revenue (FBR), State Bank of Pakistan (SBP), National Accountability Bureau Human Rights Case No.39216-G of 2018 5 (NAB) and Securities & Exchange Commission of Pakistan (SECP) as well as representatives of Inter-Services Intelligence and Military Intelligence. 3. The learned counsel appearing on behalf of Omni Group, M/s Abdul Ghani Majeed, Asif Ali Zardari, Mrs. Fryal Talpur, Zain Malik/Behria Town and others have opposed the formation of aforesaid JIT. They argue that this is not a case of the investigating agency being unwilling to proceeding in the matter. In fact the FIA has already submitted an incomplete challan before the concerned Banking Court. It is, therefore, the right of the accused persons that final challan should be submitted and trial should commence. It is maintained that since incriminating material or evidence against the accused persons is lacking or is deficient, the matter of submission of final challan is being delayed which is violative of the fundamental rights of due process and fair trial guaranteed to the accused persons by the Constitution. It has also been argued by the learned counsel that FIA has sufficient powers under the Federal Investigation Agency Act, 1974 as well as Anti Money Laundering Act, 2010 to constitute JITs (if required). Therefore, there is no need for this Court to appoint a JIT. 4. As far as jurisdiction of this Court is concerned, reference has been made to Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265). It has also been argued that M/s Nimar Majeed, Mustafa Majeed and Ali Kamal Majeed are not involved in the matter, however, their names have been placed on the Exit Control List (ECL) which is not justified. Human Rights Case No.39216-G of 2018 6 5. Mr. Aitzaz Ahsan, learned Sr.ASC, has inter alia contended that this Court is generally slow to appoint JITs in cases where an FIR has been lodged or the matter has been sent for trial to a Court of law. He has further argued that name of Mr. Najaf Quli Mirza, ADG, FIA may not be included in the JIT owing to the fact that one of the accused persons has lodged an FIR against him and the impartiality of the said person has been brought under question. It is argued that JIT can be constituted only where the Head of the concerned investigation agency expressly unwilling to act. 6. We have heard the Director General, FIA as well as learned counsel appearing for some of the accused persons. From the record produced so far, prima facie it appears that fake accounts have been opened in various Banks in the names of persons whose NICs have been misused without their consent or knowledge. Many such persons have appeared before us and have categorically stated that they have no knowledge of the accounts in question. Some of them have also complained of systematic harassment and prayed for protection. There is no denial of the fact that huge sums of money running into billions have been deposited in the said accounts by or on behalf of the persons who are under investigation or entities controlled by them. After being deposited in the said accounts, such funds have either been routed to other accounts which are traceable with some due diligence or withdrawn without any ostensible trail available. Evidence of large sum of foreign exchange being routed out of Pakistan through hawala transfers by one of the arrested suspects has added an additional dimension to the investigation. Further, we find that specialized knowledge of Human Rights Case No.39216-G of 2018 7 financial transactions and expertise in identifying and tracing movement of funds through banking channels and otherwise is required, in order to conduct a proper probe and investigation in the matter. Expertise in working of Companies, banking transactions, electronic transactions and cyber activities relating to money transfers is needed. Knowledge of reporting requirements and monitoring regime put in place by the State Bank of Pakistan, modes of discovering and tracing suspicious transactions and modes utilized for unlawful circulation and movement of money within the country and abroad is required. Such specialized expertise is not presently available within the FIA. Further, in view of the fact that this Court has taken Suo Motu notice of this matter and considering the request made by the Director General, FIA and the difficulties expressed by him, we are convinced that it is in the interest of justice and to ensure that national resources and national wealth which belong to people of Pakistan is not looted, plundered or misappropriated, a high powered and highly skilled JIT is required to be set up. 7. Learned counsel for some of the accused persons while making their submissions have frankly conceded that this Court has ample powers and jurisdiction in terms of Article 184(3) of the Constitution to appoint and nominate such JITs. The concession by the learned counsel for the suspects that a JIT can be constituted by the investigating agency under the Anti Money Laundering Act, 2010 renders their objection to such action by the Court to be academic. In fact an order passed by the Court in this behalf is a valid exercise of jurisdiction in aid of a lawful object. We are of the Human Rights Case No.39216-G of 2018 8 view that in appropriate cases, technical inability to undertake a complicated modern day investigation furnishes a reasonable basis and justification to constitute a JIT. We are in no manner of doubt that in the present case formation of a JIT is imperative and necessary. 8. Accordingly, we constitute the following JIT for the purpose of conducting a thorough, in depth and incisive investigation and probe into the matter of fake bank accounts subject matter of these proceedings to get to the truth, uncover the persons involved and collect all material evidence for the purpose of ensuring that in case an offence is made out, the persons involved therein are properly prosecuted:- 1. Mr. Ahsan Sadiq, Additional Director General (Economic Crime Wing), FIA Headquarters, Islamabad; 2. Mr. Imran Latif Minhas, Commissioner-IR (Corporate Zone), Regional Tax Office, Islamabad; 3. Mr. Majid Hussain, Joint Director BID-I, State Bank of Pakistan, Islamabad; 4. Mr. Noman Aslam, Director, National Accountability Bureau, Islamabad; 5. Mr. Muhammad Afzal, Director, Specialized Companies Division, Securities & Exchange Commission of Pakistan, Islamabad; and 6. Brigadier Shahid Parvez of Inter-Services Intelligence. 9. We also direct as follows:- i) The JIT shall set up its Secretariat at a place convenient to it; ii) The JIT shall have all powers relating to inquiries and investigations including those available in the Code of Criminal Procedure, 1908; National Accountability Ordinance, Human Rights Case No.39216-G of 2018 9 1999; Federal Investigation Agency Act, 1974 and the Anti Corruption Laws, etc; iii) All executive authorities or agencies in the country shall render assistance and provide support to the JIT in its working, if required; iv) The JIT shall submit periodic reports before this Court qua the progress made in the investigation on fortnightly basis under sealed cover for our examination; v) The Additional Director General, FIA, who shall head the JIT may co-opt any other expert who may in his opinion be necessary to complete the investigation in an effective and timely manner; and vi) First Report of the JIT shall be filed within a period of 15 days from today. 10. In order to ensure that the investigation is conducted in a professional, transparent and effective manner, neither the JIT nor FIA nor any of the Members of the JIT shall issue press releases or provide information relating to the investigation to the media. 11. Further, owing to the apprehensions about the safety of the investigators expressed by DG, FIA, in the first instance, we direct Pakistan Rangers to provide adequate and effective security to the investigators and to ensure that they perform their functions without any fear to their life or liberty or that of their families. Such protection shall also upon request be provided to the witnesses. 12. The request of the Director General, FIA that investigation may be transferred to and conducted in Islamabad is for the time being declined. However, in case, any material, ground or information comes before this Court Human Rights Case No.39216-G of 2018 10 showing interference in the investigation or an attempt to hamper, delay or obstruct investigation or creating an environment of fear and pressure for the investigators, the said request will be re-examined at that stage for passing appropriate orders. 13. Let this matter be listed for hearing on 24.09.2018. Chief Justice Judge Judge ISLAMABAD, THE 5th of September, 2018 Not Approved For Reporting ZR/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GHULAM RABBANI MR. JUSTICE KHALIL-UR-REHMAN RAMDAY HUMAN RIGHTS CASE NO. 4668 OF 2006 HUMAN RIGHTS CASE NO. 1111 OF 2007 HUMAN RIGHTS CASE NO. 15283-G OF 2010 [Action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad] Applicant: Barrister Saadia Abbasi with Mr. Amanullah Kanrani, ASC For the CDA: Mian Allah Nawaz, Sr. ASC Mr. Afnan Karim Kundi, ASC Mr. Imtiaz Inayat Illahi, Chairman, CDA with Mr. Mazhar Hussain, Member (Environment) Mr. Abdul Jabbar Milano, Member Planning/ Engineering Syed Mustafain Kazmi, Member Administration Mr. Mansoor Ali Khan, Director DMA For Siza Foods: Mr. Anwar Kamal, Sr. ASC With Amin Muhammad Lakhani For NPC: Mr. M. Bilal, Sr. ASC Mr. Shah Sharabeel in person Dates of hearing: 06, 07, 10 & 13.05.2010 .-.-. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In January 2005, the Capital Development Authority (CDA) leased out a plot of 6000 square yards in F-9 Park (Fatima Jinnah Park) to M/S HRC 4668-2006 etc. 2 Siza Foods (Pvt.) Ltd., hereinafter referred to as “M/S Siza Foods”, a franchise holder in Pakistan of McDonald’s Corporation, Delaware, USA, for setting up a fast foods restaurant (McDonald’s Pakistan) on the western side of F-9 Park (Fatima Jinnah Park). The members of the civil society expressed grave concerns in a segment of the press about the legality/desirability of the project in a public park. Barrister Saadia Abbasi, Member, Senate of Pakistan also, vide application dated 14.02.2007 highlighted the issue and alleged that permission to set up a fast food restaurant in the public park was, in fact, a special favour/benefit bestowed upon a particular individual in sheer violation of CDA Rules and Regulations, which was also violative of several fundamental rights guaranteed to the citizens of the country under the Constitution. The matters were registered as Human Rights Cases. 2. During hearing, it was divulged that apart from the McDonald’s Restaurant, some other buildings, namely, Aiwan-e- Quaid and Bowling Centre had already been constructed in F-9 Park and were operative, whereas Citizens Club was being constructed. In pursuance of the Court orders, the Chairman CDA filed comments/replies on all the above projects. 3. On the issue of McDonald’s, it was stated, inter alia, that as per Master Plan developed by the Japan International Cooperation Agency (JICA), various areas for different activities, viz., amusement park, sport facilities and cuisine areas were earmarked for shops, food outlets, etc. In order to develop HRC 4668-2006 etc. 3 multinational food chain in the Park, expression of interest from the interested parties through public advertisement was invited on 08.07.2004. Two firms, namely M/S Siza Food and M/S Sheikh Trading International, USA came forward. The expression of interest was evaluated by a committee headed by Director General (Environment), CDA, on whose recommendation, the case was placed before the CDA Board for leasing out an area of 6000 sq. yards to M/S Siza Foods @ Rs.275,000/- per month or 5% of the gross income from sales, whichever was higher for a period of 33 years. Offer letter was issued on 23.09.2004, the MoU was signed on 25.09.2004 while the lease agreement entered on 14.01.2005. Later on, a revised lease deed was entered into between the parties wherein lease amount was enhanced to Rs.316,250/- per month (15% higher than the earlier one). It was further agreed that the lessee would also develop five acres of the Park in two phases with its maintenance until the expiry of the lease period. 4. In the rejoinder filed in HRC No. 1111/207, the applicant alleged violation on the part of CDA authorities of Articles 9, 25, 26 and 38 of the Constitution in the light of the law laid down in the case of Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394) wherein it was held, inter alia, that commercial activities in public parks were violative of Article 26 of the Constitution, therefore, the lease agreement granting rights to a private company to operate a mini-golf course in a public park in Sector F-7, Islamabad was set aside. HRC 4668-2006 etc. 4 5. On the question of allotment of plot to Nazriya Pakistan Council (NPC), the CDA submitted, inter alia, that vide letter dated 04.06.2001, Director General, Libraries, Ministry of Education informed CDA that Minister for Education had directed to request CDA for allotment of plot earmarked for Library to NPC for construction of Aiwan-e-Quaid, which would also house Islamabad Public Library. The CDA, in turn, informed them that as the provisions of Islamabad Land Disposal Regulations, 1993 did not allow allotment of such plots to private organizations, it might consider to allot the site to the Ministry of Education. As such, MoU was signed between Ministry of Education and NPC for establishment of Aiwan-e-Quaid on the said plot. In pursuance of Prime Minister Secretariat letter dated 30.05.2005, with the approval of the Chairman, CDA, allotment letter dated 02.08.2005 was issued to NPC. 6. On the issue of Citizens Club, it was submitted that the provision for a club house was there since long, which was reflected in the Master Plans of 1992 and 1995 (prepared by JICA). In June 2007, the then Chairman CDA, Mr. Kamran Lashari during his visit to the F-9 Park instructed Mr. Nayyar Ali Dada, the principal architect for development of the Park to prepare the concept design of Citizens’ Club to be established in the Park. The construction of Citizens Club was earlier proposed in Sector H-11/2 but later on shifted to F-12 and then re-shifted to Fatima Jinnah Park, Sector F-9 due to non-acquisition of land in Sector F-12. The CDA Board, in its meetings held on HRC 4668-2006 etc. 5 24.09.2007 and 01.10.2007 decided that M/S Nayyar Ali Dada & Associates were already working as consultants for the development of the Park as project consultants, therefore, there was no need of separate approval of the case. The engineering estimates prepared by the consultants were sanctioned for Rs.1.383 billion by Member (Planning), CDA on 29.10.2007. Pursuant to the invitation of tenders published in the newspaper, the lowest bid quoted by M/S Expertise (Pvt.) Ltd., was accepted by the Chairman. The club facilities would include auditorium, conference rooms, fitness centre, gymnasium & aerobic area, tennis courts, squash courts, billiard room, games room, swimming pools, banquet halls, restaurants, bakery, library, car parking and residential rooms for the members. The proposed membership structure of the club was 62.5% (private citizens), 15% (government officers & parliamentarians), 7.5% (CDA officers) and 15% (diplomats/corporate). Cost of the project excluding furnishing was worked at Rs.1254.149 million. An amount of Rs.575.146 million had been expended so far. Physical progress of the work was 69.16%. 7. On the question of bowling centre, it was stated that as per Master Plan prepared by JICA, a variety of amusement and entertainment facilities were to be provided in south-western part of the Park. On 11.06.1994, the CDA published notice for pre-qualification in the newspapers to lease out a plot measuring 2 acres of land for construction and operation of a bowling centre in F-9 Park to which seven parties responded. The highest bid of HRC 4668-2006 etc. 6 Rs.752,000/- per annum was offered by M/S S&S Enterprizes. The CDA Board, in its meeting dated 27.11.1994, approved award of licence for a period of 20 years to M/S S&S Enterprizes. It was, inter alia, provided that it would be a single storeyed building having basement with a maximum covered area not exceeding 1/3rd of the total land, which was reduced to 1.5 acres. In 1997-98, the CDA issued various notices to the licensee for illegal construction/extension of mezzanine floor, stair tower, construction of swimming pool, changing room and toilets at the basement level, 10 shops instead of 3 approved, extension of basement, solid wall instead of see-through fence and ice cream parlor. There was litigation between the licensee and the CDA. Ultimately, the CDA Board in its meeting dated 07.06.2007 regularized the unauthorized construction on payment of certain penalties/charges. 8. Mian Allah Nawaz, Sr. ASC, learned counsel representing CDA in the matter of M/S Siza Foods candidly conceded that no order for change in the Master Plan was available on record and that the CDA, vide publication dated 09.07.2004 did not invite any national food chain, which violated Article 18 of the Constitution. However, without controverting or disputing the facts leading to grant of lease for the construction of McDonald's restaurant, he insisted that as now huge amount had been spent, therefore, following the principle of equity, the violation of above constitutional provision and the law, if any, be HRC 4668-2006 etc. 7 condoned by issuing direction in a manner that the restaurant might also continue functioning in the interest of the CDA. 9. Mr. Anwar Kamal also candidly accepted violation of Article 18 of the Constitution. However, his claim was that M/S Siza Foods, a franchise holder of McDonald’s, hardly could be held responsible for the same as in response to a publication appeared in the newspaper in February 2004, they filed an application and as no further progress was made, therefore, when second publication appeared, M/S Siza Foods again submitted expression of interest wherein they initially demanded 4000 square yards and subsequently by negotiation the area was got increased to 6000 square yards at a monthly of Rs.275,000/- per month or 5% of gross sale, whichever was higher, which was later increased to Rs.316,250/- per month or 5% of gross sale, as aforesaid, which was being paid regularly. In addition to it, M/S Siza Foods had agreed to develop an area of 5 acres of land in the Park without charges from CDA, which indicated good faith on their part. However, any direction/suggestion, if given by the Court, including reducing the area leased out shall be accepted by M/S Siza Foods, but it would not be in the interest of the CDA and M/S Siza Foods to demolish the restaurant on the application filed by a person who otherwise had no legal right or interest in the continuation or otherwise of the restaurant, therefore, taking into consideration this aspect of the case, appropriate orders may be passed. HRC 4668-2006 etc. 8 10. When his attention was drawn towards two letters written to the Prime Minister and the President, particularly to the latter, criticizing judgment of the Supreme Court in the case of Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394) in a sarcastic manner, he stated that as the CDA authorities were somehow reluctant to finalize bid of M/S Siza Foods, therefore, high ups were requested to intervene. However, he voluntarily stated that the author of the letter (Amin Muhammad Lakhani) had respect for the Courts and was ready to voluntarily explain his position, simultaneously tendering unconditional apology. Such explanation as well as apology, however, was filed later on. 11. It is to be noted that initially F-9 Park was a residential sector as per admissions and documents available on record. However, subsequently, in 1968, it was converted into a Park comprising 800 acres of land and generally it was known as Capital Park as well as Fatima Jinnah Park. There could not be two opinions in respect of importance of Master Plan. Despite our repeated insistence, original Master Plan was not produced except the one which was got prepared from JICA for establishing a Park. Sufficient time was given to CDA as the Court wanted to apprise itself about the facilities, provisions, activities in the Park. However, the photocopy of the Plan whatsoever was produced, which indicated number of activities like Children Park, Ladies Club, provision of restaurants at different places, which were to be constructed/provided inside the Park. And on the southern HRC 4668-2006 etc. 9 side, an area was earmarked as cuisine pavilions with dense vegetation. As per plain meanings of the expression ‘dense vegetation’, there was no provision for setting up a large restaurant to be run by an international food chain. But, it did mean that such a restaurant could not be constructed of course after an amendment in the Master Plan made by the CDA Board, replacing cuisine pavilions having dense vegetation with a restaurant. According to section 14 of the CDA Ordinance, 1960, the CDA Board is empowered to prepare schemes with the approval of the Federal Government. As stated earlier, the change was quite possible, but subject to section 19 of the CDA Ordinance, 1960. No such document was placed on record, inasmuch as the directions of the Court were not being carried out, and prima facie it was ascertained that construction of the restaurant suffered from lack of transparency, therefore, notice was issued to Mr. Kamran Lashari, former Chairman CDA who seemed to be the architect of this project. 12. In response to the notice he appeared and submitted reply and also addressed the Court in person. His main emphasis was that McDonald's restaurant was constructed in the Park for the purpose of providing facilities, charm and temptation to the general public in good faith, otherwise he had no bad intentions. He explained that in the foreign countries as well, restaurants along with other facilities were provided in the Parks. As far as his explanation in exercising jurisdiction in good faith was concerned, it could not be accepted for want of transparency in HRC 4668-2006 etc. 10 the construction of McDonald's and violation of the constitutional provision, which shall be discussed hereinbelow. At the cost of repetition, it may be mentioned that he could not satisfy as to why McDonald's restaurant was not allowed to be constructed strictly in accordance with the provisions of CDA Ordinance, discussed hereinbefore. It is also to be noted that in the Plan prepared by JICA, different spaces providing for construction of restaurant in the Park were available, but in the place of more than one cuisine pavilion areas, construction of one restaurant was not available. The incumbent Chairman, Imtiaz Inayat Illahi also could not help Mr. Kamran Lashari, the former Chairman in justifying violation of CDA Ordinance, 1960 as well as constitutional provision. It is to be noted that non-adherence to legislative provisions other than the Constitution is permissible, provided it does not entail penal consequences as there are two types of statutes/legislation, i.e. mandatory and directory. As far as mandatory provision of law is concerned, same is required to be enforced strictly without interpreting/construing it in any manner liberally. Such a principle of interpretation is discussed and applied in the case of Niaz Muhammad v. Mian Fazal Raqib (PLD 1974 SC 134) in the following words:- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, HRC 4668-2006 etc. 11 the acts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision". In this respect it will be advantageous to refer to a celebrated passage from the Interpretation of Statutes by Maxwell (Tenth Edition – 1953): - "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed. but it does not affect the validity of the act done in disregard of them. It has often been held, for instance when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time." The nature of a mandatory provision is described in the “Words and Phrases”, Permanent Edition, Vol. 26, p. 463 in the following words: - “Generally, where statutory provision concerning powers and duties of public officer affect the public HRC 4668-2006 etc. 12 interest or are intended to protect a private citizen against loss or injuries to his property, provisions are “mandatory” rather than “director”. “A “mandatory provision” of a statute is one the failure to follow which renders the proceeding to which it relates illegal and void.” The other principle of jurisprudence in this very context is that the things are required to be done strictly according to law, or it should not be done at all. Reference in this behalf may be made to the case of Mir Dost Muhammad v. Govt. of Balochistan (PLD 1980 Quetta 1), relevant Para therefrom is reproduced below: - “It is well settled principle of law that in a case where statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such statute impliedly prohibits doing of thing in any other manner; particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative one as doing of the act or a thing under that statute is a condition precedent to conferring upon the jurisdiction on a Court or a Tribunal, as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their non- compliance would certainly invalidate all the proceedings, orders made or passed by the same authority or any other authority either superior or inferior thereto in respect of the same. Our views get support from cases: - (i) E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536; HRC 4668-2006 etc. 13 (ii) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division Lahore and 2 others P L D 1971 S C 61; (iii) Muhammad Yousaf Khan Khattak v. S. M. Ayub and 2 others P L D 1972 Pesh. 151; and (iv) In the Statutory Laws, 6th Edn., Craies has said that :- "When a Statute confers jurisdiction upon a Tribunal of a limited authority and statutory origin, the conditions and qualifications annexed to the ground must be strictly complied with." The same principle has been reiterated by High Courts as well as this court in various judgments. Reference may be made to Mazhar Illahi v. State (PLD 2008 Pesh. 162), Commissioner of Income Tax/Wealth Tax v. M/s Idara-i-Kissan (2006 PTD 2569), Iftikhar Ahmed alias Ali v. State (2006 YLR 2826), Dr. Ishtiaq Hussain v. Special Judge Anti-Corruption (2004 YLR 716) and Muhammad Iqbal v. SHO, PS New Anarkali, Lahore (2000 PCRLJ 1924), Ghulam Hassan v. Jamshaid Ali (2001 SCMR 1001). 13. Non-production of Master Plan of the Park leads us to draw inference that construction of a pakka restaurant perhaps was not provided therein. Be that as it may, the CDA Board may have taken a policy decision to convert cuisine pavilions with dense vegetation, but no such decision has been brought on file. Contrary to it, the CDA officials admitted that no such decision was taken by the Board. Therefore, whole exercise has been done illegally by Mr. Kamran Lashari, former Chairman, CDA. No doubt, the Authority is competent to make alterations in the Master Plan, but as discussed in Fazal Din v. HRC 4668-2006 etc. 14 Lahore Improvement Trust (PLD 1969 SC 223), the alteration or modification of a sanctioned scheme is permissible in the manner prescribed by the relevant statute. 14. Now turning towards violation of constitutional provision, there is no need to highlight this aspect of the case in view of the admission made by learned counsel for the CDA as well as M/S Siza Foods and to substantiate their plea, it would be appropriate to refer to the publication appeared in the newspaper on 09.07.2004 under the caption, “SPACE AVAILABLE FOR INTERNATIONAL FOOD CHAIN”. It recited, inter alia, that the CDA intended to provide an opportunity for setting up/opening a branch of a “MULTI-NATIONAL FOOD CHAIN” (fast food) or coffee/ice-cream chain, with all features including children play area etc., in F-9 Park and the interested parties were requested to express their interest and submit their applications by 25.09.2004 for pre-qualification with detailed technical proposal, area required, terms and conditions, etc. Thus, as the citizens/local chains were deprived to participate in the competition, therefore, action taken by the Chairman is in violation of Article 18 of the Constitution. It is to be noted that by inviting expression of interest from international food chains alone, not only Article 18 has been violated, but at the same time the Chairman had allowed international food chains to have monopoly, which, under clause (c) to the Proviso to Article 18 of the Constitution was available to no one else except the government. In this behalf, reference may be made to the case HRC 4668-2006 etc. 15 of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193). In the precedent case, the Court examined the question whether section 69-A of the West Pakistan Motor Vehicles Ordinance, 1965 was contrary to the fundamental rights of the appellants enshrined in Article 18 of the Constitution who were restrained/ousted completely from the trade/business of transport, which they were carrying on against valid route permits issued by competent authority under the provisions of the Ordinance for the last many years and in which they had made huge investments by purchasing of vehicles i.e. wagons, suzukies, etc. Another grievance was that the right of movement of the general public could not be limited by compelling them to undertake journey in the transport owned by the private respondents because they had obtained franchise rights and were charging exorbitant fare compared to other transporters who used to ply buses on the same route, and if competition was allowed, they would charge less fare from them, as such citizens, having limited resources of income were not bound to pay fare to respondents transporters at high rates. It was held that though the right of trade/business or profession under Article 18 of the Constitution was not an absolute right, but so long a trade or business was lawful, a citizen, who was eligible to carry out the same, could not be deprived from undertaking the same. In another case titled Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394), this Court observed as under: - HRC 4668-2006 etc. 16 “13. From perusal of publications, appeared initially on 1st and 2nd February 2004 in "Daily Frontier Post" and "Daily Jang" respectively as well as the publication appeared on 14th August 2004 in "Daily Jang" and "Daily Dawn", it is abundantly clear that no area was earmarked for the purpose of establishing/developing Mini Golf Course at the site of Jubilee Park in Sector F-7. It seems that this device was adopted to keep the interested parties out of competition, except the respondent No.2, who statedly had the experience of running identical project at Lahore. Thus, we are of the opinion that disclosure of the area, on which the Mini Golf Course was to be developed, was necessary in the publication and in this way the interested parties would have given much higher bids than the one, on which, C.D.A. had leased out land to respondent No.2 i.e. Rs.2.55 million per annum. We were told that admittedly the plot of five acres, leased out to respondent No.2, is situated in most expensive location of Sector F-7 and is situated adjacent to the main road, therefore, it is a prime land being situated in the heart of the Capital. Following observations made in the course of the above judgment, being relevant in the context of the present case, are also reproduced below: - “18. It is to be observed that under section 49 of the Ordinance, 1960 C.D.A. retains powers for the purpose of leasing, selling, exchanging the land etc. vested in it. For the purpose of achieving the object of this section, from time to time, Rules and Regulations arc framed, as it is evident from the contents of Notification dated 18th December 1993 (No. CDAS- 30(2)(NOTI)-Coord 93). Reference of some of the HRC 4668-2006 etc. 17 Regulations, framed thereunder, has already been made herein above. [The Islamabad Land Disposal Regulation 1993]. It is equally important to note that learned counsel for petitioner when called upon to satisfy as to whether in terms of Ordinance 1960, the master plan is available with the C.D.A., he produced the same but stated that according to its contents Sector-wise division of the Capital has not been made. He also explained that in Sector F-7, one public park under discussion was created by means of preparing PC-1, therefore, it may be presumed that the plan submitted along with PC-1 must be having separate identification of the Jubilee Park, where the Mini Golf Course is being established. In this behalf he has referred to a copy of the site plan attached with the reply of the C.D.A. to demonstrate that the Jubilee Park is situated in the area of Markaz F-7. He was called upon to produce the original file/documents, including PC-1 as we wanted to ascertain the status of the plot in question for the purpose of examining the proposition that in terms of section 49 of the Ordinance, 1960, the lease has rightly been executed in favour of respondent No.2 by C.D.A. or not? But despite of our demand, said file was not produced and ultimately Chairman C.D.A. gave a statement in writing expressing disability of the authority to produce the file. The contents, whereof are reproduced herein below for reference: "The file of PC-1 of Sector F-7 is presently not available and being traced out. It will be produced before the learned Court as it is found out. (Sd.) Chairman C.D.A.'' HRC 4668-2006 etc. 18 None-production of above file persuades us to draw adverse inference against the C.D.A., necessarily with all consequences. “23. Thus, in view of above discussion, it is held that the mala fides of respondent No.1 in concluding the transaction with respondent No.2 are abundantly apparent on record. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Kharim Shorash Kashmiri (PLD 1969 SC 14) has held that mala fide is to be proved on record. This view has been reiterated by this Court in the case of Ahmad Hassan v. Government of Punjab (2005 SCMR 186). Therefore, applying the test laid down in these judgments on the facts of the present case, we are inclined to hold that in view of the admitted facts on record, mala fides on the part of respondent No.1 in granting lease to respondent No.2 are apparent, thus, the lease agreement dated 4th June, 2005 is not transparent. “25. Learned counsel stated that the right of entertainment can only be made available subject to law as it is defined in section 2(d) of the West Pakistan Entertainment Act, 1958. There is no cavil with his this argument but subject to the condition that if the arrangements of providing such entertainment to the citizens is made in transparent manner by an authority in exercise of lawful jurisdiction which lacks in instant case as discussed above.” The above observations are fully attracted in the present case. 15. It is beyond our comprehension that as to why provisions of Article 18 of the Constitution were not applicable. HRC 4668-2006 etc. 19 There could be two reasons: firstly, exclusive powers in this behalf had been assumed by the then Chairman himself, or secondly, on the intervention of high ups this exercise was carried out to accommodate M/S Siza Foods. As far as investors of outside country are concerned, they should be encouraged to make investment, but subject to the law of the land, particularly constitutional provisions. It is a fact that there are good number of investors who belong to outside the country and are doing trade/business in the country subject to following the law on the subject and not otherwise. However, since violation of legal provisions noted hereinabove also entails consequences because the Park is only to be used for the purpose for which it has been established and not for running a business/trade. In this behalf, judicial notice can be taken of the fact that such facilities in parks are used by general masses belonging to all walks of life including citizens and children belonging to the families who are living below poverty line. The persons like McDonald’s are bound to earn profit as per its international standards, which is beyond the reach of an ordinary person comparing to a local restaurant providing food to the visitors of the Park at a cheaper rate. Importance of such public parks has been adequately examined by this Court in the case of Iqbal Haider (supra) in the following paragraphs, which read as under: - “16. There is yet another important provision of law, which prohibits C.D.A. to amend the scheme i.e. sections 19 and 21. Admittedly, in instant case, in terms of these sections, neither the permission was HRC 4668-2006 etc. 20 sought to convert the Public Park into the Mini Golf Park nor before doing so objections were invited from the general public in terms of I section 21 of the Ordinance, 1960. This Court way back in 1969 in the case of Mian Fazal Din v. Lahore Development Trust, Lahore (PLD 1969 SC 223) has held that "the plots in a Housing Scheme for public use cannot be converted for other use". Relevant Para from this judgment has already been reproduced in the order dated 26th December 2005. Admittedly a Public Park, if is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the Park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or utilize a right available to him, cannot be taken away by converting such facility into commercial one, for the purpose of extending benefit to a third person, because in instant case considerably a big plot of land, measuring five acres, has been handed over to respondent No.2 at a throwaway lease money, causing huge loss to the public exchequer, therefore, tax payers have a right to inquire from C.D.A. as to how a right of life and liberty can be denied to them. As in instant case, above facts are admitted, therefore, no formal evidence is required to prove these facts. Reference in this behalf can be made to Government of Punjab v. Crescent Textile (PLD 2004 SC 108).” “24. Learned counsel for respondent No.2 however, persuaded to convince us that as status of the Public Park has not been changed, therefore, provisions of Regulation No.12(3) of the Regulation would not be attracted. To substantiate his plea, he made reference HRC 4668-2006 etc. 21 from the books written by Architects with regard to explain the idea of planning and development of the Islamabad. One of the Paras from the said book compiled by C.D.A., Government of Pakistan i.e. Communities and Housing, composed by Doxiadis Associates, Consulting Engineers is reproduced herein below for convenience:- "305. The second and third categories of open spaces, that is the public playgrounds, playing- fields, parks and public gardens, have to be reckoned together as this stage, since it is as yet too early to define exactly how much will go for playing-fields and how much for green spaces. These spaces are usually planned together in broader areas, and only after detailed planning is a decision taken in each case as to exactly how much will go for playgrounds and how much for gardens and parks. It has to be borne in mind that all these are general averages, since the need for parks, gardens and playgrounds differs enormously from area to area, and from one social, professional or income group to another. For example, high income groups, which have their private gardens, do not need public gardens and parks as such as the low income groups, which are deprived of the benefit of having their own private garden. On the contrary, higher income groups may need playing-fields requiring more space, like tennis, playgrounds, etc. which the lower income groups may not need to the same extent." A perusal of above Para is sufficient to hold that the jubilee Park of Public Park is meant for the use of general public, majority of which i.e. is more than HRC 4668-2006 etc. 22 90% is living in the vicinity. Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts. As per the socio-financial status of the citizens of Pakistan, majority of public is not in a position to afford luxury of joining Mini Golf Course along with children, subject to F payment of tickets etc. “25. Learned counsel stated that the right of entertainment can only be made available subject to law as it is defined in section 2(d) of the West Pakistan Entertainment Act, 1958. There is no cavil with his this argument but subject to the condition that if the arrangements of providing such entertainment to the citizens is made in transparent manner by an authority in exercise of lawful jurisdiction which lacks in instant case as discussed above.” Thus, in absence of any decision by the CDA Board, the use of the restaurant by the masses is tantamount to defeating the object/purpose for which the public park has been established in view of the discussion in the judgment, relevant Para therefrom are discussed hereinabove. 16. In addition to above, next important question relates to transparency in granting lease to M/S Siza Foods. As it has been pointed out that there was no decision by the CDA Board either, and exercise of accommodating M/S Siza Foods on the basis of chit issued under the signature of Mr. Kamran Lashari, former Chairman, CDA, scanned image whereof is given below: - HRC 4668-2006 etc. 23 17. After having seen the state of affairs on the basis of which proceedings started, nothing is left to be discussed as the above conduct of the then Chairman speaks for itself and needs no further deliberation. Therefore, by no stretch of imagination, it can be held that the transaction was a transparent one. It may be noted that reportedly one of the parties who filed expression of interest, namely, M/S Sheikh Trading International, when inquired about the original application submitted by it, same was not produced or shown except placing on record its photo copy. Publication appeared in the newspaper indicates that 16 days were given to international food chains to submit expression of HRC 4668-2006 etc. 24 interest. How it is possible for the chains working outside the country and any investor interested to run the business, following certain provision of law including its registration under the Companies Ordinance as well as meeting the criteria laid down by the Board of Investment. 18. This Court, time and again, has insisted upon public functionaries to adhere to the principle of transparency in the performance of their duties. In the case of Messrs Airport Support Services v. The Airport Manager (1998 SCMR 2268), this Court dealt with the question whether a concluded contract could be struck down on the grounds of mala fides, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness, etc. Relevant portion from the judgment is reproduced below: - "Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, proper, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from, or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviation, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail HRC 4668-2006 etc. 25 evidentiary facts of a disputed nature, redress may be provided." In the case of Shams and Brothers v. Government of Pakistan (2007 CLD 125), a Division Bench of the High Court of Sindh, Karachi, while dealing with the issue of causing heavy financial loss to the exchequer in awarding a contract, held as under: - “23. From the above discussion, we have come to an irresistible conclusion that the whole process of inviting of tender/sealed offers by the respondent No.2 on the first occasion as well as on the second occasion was game of fraud and cheating full of ulterior motive and mala fide, aimed to oblige some particular party (respondent No.4) and for causing heavy financial loss to public exchequer. Thus, we have no option but to allow and dispose of this petition in the terms that the acceptance of the bid of respondent No.4 in the sum of Rs.6,05,000; subsequent awarding of contract in his favour and the whole process of bidding conducted by respondents Nos.1 and 2 for this purpose is illegal, without lawful authority and of no legal effect. The respondents Nos. 1 and 2 are, therefore, directed to invite fresh bids/offers for granting of lease of Pakistan Sports Board Coaching Centre plot at Sir Shah Suleman Road, Karachi for the purpose of marriage lawn, by incorporation of only such conditions, which are available in the first advertisement or relevant and necessary to safeguard the interest of respondents Nos.1 and 2 properly.” In Sheri-CBE v. Lahore Development Authority (2006 SCMR 1202), this Court while dealing with the issue of lease of amenity HRC 4668-2006 etc. 26 plot to a private company for construction of big complex including cinema and shopping mall, noted the following questions/issues: - “30. The question is, could the concerned authorities be permitted to play around with Gulberg Scheme on the pretext of non-availability of the scheme? Since it is the respondents who wished to put a piece of land which had been preserved and used as an open space for over half a century, to a different use, the onus lay on the said authorities to establish that such a use was permitted by law. The question could thus also be whether a mere plea of non- availability of the said basic document could ever be considered a sufficient discharge of the said burden and a further question would be as to why adverse inferences should not be drawn against the respondents in the said matter on account of their said conduct? “31. Referring to the provisions of section 5 of the Disposal of land by Development Authorities (Regulation) Act No.XII of 1998, it was argued that there was a complete and absolute prohibition on converting a Public Utility area or a Public Amenity plot to any other use and that the contravention of the said prohibition was an offence in terms of section 6 thereof which was punishable with imprisonment up to one year or with fine which could extend up to Rs.1,000 per day from the date of such a conversion till the default continued, or with both. It was added that since the respondents could not offer any proof and were, according to their own admission, not possessed of any evidence that the plot in question was not a public utility area or a public amenity park, HRC 4668-2006 etc. 27 therefore, all concerned were guilty of the commission of the said offence and were liable to be prosecuted and punished for the same. “33. Emphasis was next laid by the learned Advocate Supreme Court for the petitioners on the transfer of the said piece of land to the said company for the said purpose. It was submitted that by virtue of the provisions of section 47 of the L.D.A.. Act of 1975, all functions and powers relating to all such schemes including Gulberg, together with all properties and assets etc. pertaining to the same, had got vested in the Lahore Development Authority whereafter, as per section 6(3)(iv) of the said Act, the said assets and properties could be sold, leased out, exchanged or otherwise disposed of only by the said Authority and even a licence or concession in respect thereof could not be granted by any one except the Lahore Development Authority which according to the provisions of section 4 of the said Act consisted of the members named therein with Zila Nazim of Lahore as its Chairman. “34. It was argued that even on the said score, the entire action was illegal because it was never the case of the respondents that the land in question had ever been sold or leased out or even a licence or concession in respect thereof had been granted to the said company. by the L.D.A. The case of the respondents before the High Court, in this connection was, that it was the Chief Minister of Punjab, who on a summary submitted to him for the purpose, had leased out the said land to the said company for a period of 25 years. HRC 4668-2006 etc. 28 “35. Was this then a legal and a valid transfer/entrustment of the said property vesting in the L.D.A. to the said company? “36. It was next complained that the building in question which was intended to be a huge complex was being constructed at the site without the sanctioning of its plans by the competent authority. The plea of the respondents was that construction of Government buildings did not require sanctioning of their building plans. The question is whether there was any law exempting Government building from the operation of the said legal requirement and question would also be whether a building constructed by the said company which was an independent legal entity having been incorporated as such under the Companies Ordinance of 1984, could be said to be a Government building? “37. It was submitted that the complex in question which involved construction of a huge building with an initial estimated cost of Rs.1500 million; which involved use of roads in a residential locality by a large number of additional persons and vehicles visiting the said plaza and which also involved a change of land use, fell within the purview of a `Project' as defined by section 2(xxxv) of the Pakistan Environmental Protection Act No.XXXIV of 1997 and in view of the provisions of section 12 of the said Act of 1997, the very commencement of its construction without filing an initial environmental examination with the Federal Agency and without its approval regarding the environmental impact assessment, was grossly illegal and was even a culpable offence under the said Act. This-issue also requires examination. HRC 4668-2006 etc. 29 “38. It was next argued that the respondent Government had entered into a contract with a foreign company by the name of IMAX for the supply of equipment for the cinema in question and that this contract worth about Twenty-five crores in Pakistani currency had been entered into with the said foreign supplier/company in violation of the law, the rules and the policy on the subject and also in violation of all norms of transparency and good governance as no advertisement or notice had ever been issued in the national or international press inviting tenders, bids and offers with respect to the same and the deal had been finalized in secrecy and in a clandestine manner. “40. Serious reservations had been expressed by the petitioners even about the reasonableness and the lack of bona fides regarding the conception of the project in question. As has been noticed above, the land on which the said project was being constructed was worth around 2500 million rupees. It is on record that the initial estimate of the project in question was 1500 million Rupees which would of course be subject to escalation and inflation. It was submitted that more than 4000 million Rupees of public money were thus being dumped to produce a Cinema Hall and a shopping complex on the pretext of showing educational movies to the children which movies the children could watch and were watching on Discovery Channel and such-like other educational channels of the T.V. every day; that there was hardly a household in the city which did not have a television and further that there was also no dirt of shopping plazas in the city or even in Gulberg. It was added that a cinema of the kind was available in a neighbouring country and HRC 4668-2006 etc. 30 the per person ticket to watch a movie in the said cinema was around Rs.4,000 (four thousand Pakistani Rupees). It was contended that in a country like ours where thousands were giving away their precious lives yearning for a bed in a hospital or a single dose of live-saving drugs and where millions were getting afflicted with deadly diseases on account of non- availability of clean drinking water, it did not behove the Government to be involved in building luxurious three dimensional movies theatres and expensive shopping malls for the rich and the famous and that also by j investing millions from the hard-earned money of the public. We were asked whether such a use of public money could never be condoned as a reasonable exercise of executive power? We need to answer it. “41. Grave apprehensions and reservations had also been expressed by the petitioners about the manner in which the said company had been created; the allegedly surreptitious manner in which a contract had been settled by the Government with a foreign company; the manner in which an invaluable piece of land which even otherwise was a public amenity area had been transferred to it and the manner in which hundreds of millions of rupees of the public were transferred to the said company which was then directed to own the above-mentioned foreign contract entered by the government and to produce a cinema hall and a shopping complex on the site in question. It was submitted that the said company, according to its Memorandum and Articles of Association, was a company formed by Twelve persons, each one of them contributing "(A sum not exceeding Rs.1000 Rupees one thousand only) with a "Paid up capital of Rs.1100 HRC 4668-2006 etc. 31 (Rupees eleven hundred only)" whereafter the "Equity of the Company" was to be provided by the Government in the form of fifty laks shares of Rs.100 each amounting to Rs. One Hundred and fifty million only. It was added that only because ten of the said twelve sponsors happened to be public servants posted with the Government of Punjab could not ever mean that the said was a company sponsored, floated, formed or owned by the Government. It was further submitted that nothing precluded these Twelve, in law, from amending or altering the Memorandum or the Articles of Association, that these ten public servant sponsors were even otherwise guilty of misconduct having involved themselves in a trade/business as they had failed to show any permission, in law, allowing them to indulge in such an activity; that even if the Government of Punjab thought that it had accomplished all other tasks and discharged all its other all important obligations and had now nothing better to do than running cinemas, theaters and shops then it could have directly gone into the said business instead of entrusting millions of public money to a company which was an entity in itself independent of all Governmental checks including the control of the authorities established by the Constitution to audit public accounts. “42. Mr. S.M. Zafar, the learned Senior Advocate Supreme Court attempted to put these apprehensions at peace by submitting that the said company was a State/Government-owned company; that its Memorandum and Article of Association prohibited its Sponsors/Directors to change the same; that it was a global trend all over the world to achieve governmental objectives by setting up companies HRC 4668-2006 etc. 32 which was a more efficient and effective mode of securing the said objects as these companies, not being Government departments, were free of bureaucratic red-tapism and controls; that the company in question was to sovereign and was subject to governmental controls and that the public money entrusted to it was safe. “44. The learned Advocate Supreme Court for the petitioners, at this juncture, reminded us of an earlier ruler of this Province who, despite being not an elected representatives of the people, had resisted all temptations of converting available vacant spaces in the city into residential and commercial complexes and had blessed the people of Lahore with powerful public lungs in the form of Race-Course (now Jilani) Park, Gulshan-e-Iqbal Park, Model Town Park, lqbal Park (old Minto Park), Jallo Park, Lahore Park, a park adjacent to Pearl-Continental Hotel on the Mall and so on and that thousands of hands rose everyday praying for his noble soul. He also made repeated references to a recent judgment of this Court relating to public amenity area in Islamabad and added that such examples could be a valuable guide and a good food for thought for all concerned.” 19. There is another important aspect of the case that after executing the lease in pursuance whereof an area of 6000 square yards has been given for 33 years to M/S Siza Foods in respect of most valuable property, which was actually earmarked for Blue Area, but its subsequent change from residential sector into Park has not been brought into our notice. In future, it would HRC 4668-2006 etc. 33 be constructed along the site of F-9 Park where the McDonald’s has been constructed. 20. No one appearing on behalf of CDA has assisted us about the formula followed in calculating the rent. It is most interesting part of this case that in the publication dated 09.07.2004, following conditions were mentioned: - CDA intends to provide an opportunity for setting up/opening a branch of a “MULTI-NATIONAL FOOD CHAIN” (fast food) or coffee/ice-cream chain, with all features including children play area etc., in F-9 Park, Islamabad. Interested parties are, therefore, requested to express their interest and submit their applications by 25.09.2004 for pre-qualification with detailed technical proposal, area required, terms and conditions …..” A perusal thereof indicates that the CDA had not disclosed the location in which the area would be available for the said purpose. Thus, incomplete advertisement was given so that no one should have a clear idea about the future business prospects. It is also not understandable as to why CDA agreed to lease out 4000 + 2000 = 6000 square yards of a valuable piece of land for 33 years at a rent of Rs. 316,250/- or 5% of gross sales. Undoubtedly, CDA is an authority, which is supposed to discharge its functions in the interest of public and if, in any manner, establishment of restaurant was permissible, they should have tried to fetch maximum price of the land. As far as developing 5 acres of land is concerned, this was also not without an object and purpose, as it has been observed hereinabove to confer HRC 4668-2006 etc. 34 exclusive rights on M/s Siza Foods. The CDA had signed MoU with M/S Siza Foods, perusal whereof indicates that a third party, namely, M/S Lakson group was also involved. Para 11 of the MoU provided that construction and development of the Park may be undertaken by M/S Lakson Group or any of its group company and such Group/group company shall be entitled to advertise and display its logo in the Park. The size/design of logo shall be mutually agreed between CDA and Lakson Group/its group company. It is not on record about the interest of M/S Siza Foods with Lakson Group, but one can imagine that full facility is being extended to install signage, etc. Such permission exclusively cannot be granted by CDA in the garb of MoU between CDA and M/S Siza Foods. There is no indication that after installing such signage, benefit will be extended to the CDA or M/S Siza Foods. Therefore, it is not correct to say that the Park was being developed free of cost. In addition to it, MoU also indicates that the CDA, even before the execution of the lease deed, permitted and authorized M/S Siza Foods to undertake work to an agreeable level and design. Thus, there was no transparency, rather it was a shabby deal in violation of the Constitution and the law. 21. A perusal of the letters which were sent by Amin Muhammad Lakhani to the then Prime Minister and the President, prima facie, showed use of influence. An officer of the status of Chairman CDA (Mr. Kamran Lashari) has succumbed to the pressure, and had not only violated the service discipline and the HRC 4668-2006 etc. 35 provisions of the Constitution and the law, but prima facie has also exposed himself to legal action because government functionaries are not bound to carry out/implement any order which is not in accordance with law. 22. It is pertinent to mention here that this was not the first time that such irregularities were committed. Similar instances have come before the Court on more than one occasion in different cases. In the case of Iqbal Haider (supra) this Court had dealt with a similar situation as under: - “33. It is most important to note that functionaries, exercising statutory powers like C.D.A., are bound to discharge their functions strictly in accordance with law, otherwise the action contrary to law would not be sustainable and such authority shall expose itself for m disciplinary action. This Court in the case of Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), reference of which has already been [made] herein above, has discouraged denial of valuable rights of the residents in respect of the plot, meant for specific purpose. This principle has also been reiterated in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883), wherein it has been held that without obtaining no objection from the general public, such plots cannot be used for any other purpose. As it has been noted herein above that in instant case, objections were not invited from the general public by the competent authority before converting the Jubilee Park into a commercial oriented amusement Park, with the collaboration of multinational companies, delegating powers to respondent No.2 to enter into joint venture or franchise for giving licences to local or international HRC 4668-2006 etc. 36 parties, food chains, etc. In our opinion, such delegation to private person to watch his financial interests of the high degree [is] tantamount to depriving the authority as well as the public from their valuable rights, for whose benefits such authority has been created, and apparently such action has got no legal sanctity, therefore, action against such responsible officer/official of the authority is called for in view of the judgment of this Court Pervaiz Oliver v. St. Gabriel School (PLD 1999 SC 26), wherein it has been held that "no public property, big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest penalty under the law". As a consequence of this observation, finally following directions were made to the authority:-- "While, in this background, upholding the order of the High Court, we dismiss the above listed three petitions with costs, the one filed by the Assistant Administrator also on the ground of limitation, we would also direct the Chairman of the Evacuee Trust Board to personally hold an enquiry about the conduct of the above said several functionaries involved by departmentally proceeding with the matter and taking appropriate action(s). This would also include the examination of the question as to by whom and under what circumstances sanction was accorded firstly, for defending the petition in the High Court and secondly, for preferring the leave petition in this Court. The Chairman of the Board would be required to submit the final enquiry report(s) with details of action taken, within four moths before the High Court of Balochistan, copies being endorsed to this Court. It will then be for the High Court to pass such orders in the matter as it deems fit, including due activation, if required, of the Federal Ombudsman and the Chief Ehtesab Commissioner. A copy of this order would be forwarded to the Chairman of the Board, the Chief Ehtesab Commissioner the Federal Ombudsman and the Secretary, Law and Justice Division, of the concerned Ministry, for action and for record." HRC 4668-2006 etc. 37 23. This Court, on a number of occasions, has emphasized upon the government functionaries to perform their duties strictly in accordance with law. In the case of Government of Balochistan v. Muhammad Ali (2007 SCMR 1574), this Court held as under: - “7. Undisputedly, the respondents have lodged the claim in respect of the land measuring 4300 acres approximately recorded in favour of the Provincial Government in the year 1964-65 which being in nature of the public property was supposed to have been used, utilized and dealt with by the Provincial Government or its Departments to whom it was transferred in the year 1979 in the sole public interest being the custodian of the public property and likewise the public functionaries are supposed and required to act accordingly under the law and to defend any legal proceedings concerning the public property before any Court or forum effectively; preserve, protect, and defend the title, rights and interest of public property in accordance with the law which did not vest or belong to any of the public functionaries. It was the bounden duty of all the concerted to have acted and proceeded promptly and effectively to take appropriate steps and to pursue the available remedies against any proceedings, order or decree of a Court within the prescribed period of limitation. The serious lapses on the part of all the concerned in withholding the matter and not having filed the appeal before the learned Majlis-e-Shoora within the prescribed period of limitation and after dismissal of the revision petition by the learned High Court, even approached to this Court after a considerable delay of HRC 4668-2006 etc. 38 320 days in filing C.P.LA. speaks about the inaction, inefficiency or deliberate omission by all the concerned though being under legal obligation to have taken the prompt action in availing the legal remedies but not so done as above noted; cannot be ignored, yet; no action in such behalf appears to have been taken by the competent authority against the delinquents. Due to the serious lapses and failure to discharge the legal duties promptly and within the prescribed period of limitation by all the concerned in the matter in view of the decree of the trial Court; of course no actual loss, damage or deprivation of rights has occurred to the public functionaries concerned in the matter, rather; the Government and the Forest Department stands completely deprived of the public property solely meant to be used, utilized and dealt with in the public interest being a public property of which the Government and the Department through its functionaries are the custodian but decree of the trial Court was not assailed before Majlis-e-Shoora within the prescribed period of limitation and for such reason alone, appeal was dismissed, upheld by the learned High Court as well; consequently the Government stood divested of huge public property for being its custodian and thereby interests of the public stood completely jeopardized merely because of the grave omissions and inaction on the part of the concerned public functionaries ……..” In Capital Development Authority v. Shaheen Farooq (2007 SCMR 1328), this Court held as under: - “7. We have gone through the impugned order, relevant record and also attended to rival contentions so raised before us. There is no cavil with HRC 4668-2006 etc. 39 the proposition that the order of cancellation of allotments had not been passed by the Chairman, as despite repeated asking, learned counsel for the petitioner was unable to point out any document showing that the cancellation orders were passed by the Chairman except referring to certain documents whereby a reference has been made to the verbal orders of the Chairman. Verbal order has no sanctity in law and such orders are alien to the process of the law and the Courts. All orders I passed and acts performed, particularly, by the State/public functionaries and adversely affecting anyone must be in writing, as section 24-A(1) of the General Clauses Act, 1897 envisages that .the powers shall be exercised reasonably, fairly and justly and subsection (2) further makes it necessary that the authority passing orders shall, so far as necessary or appropriate, give reasons for making the orders and unless the order is in writing, the reasons and fairness etc. thereof cannot be ascertained/ adjudged.” In the case of Mehr Ali v. Noor Muhammad (2007 SCMR 1965), this Court held as under: - “It is a settled law that public functionaries are duty bound to decide the controversy between the parties after judicial application of mind as envisaged by section 24-A of General Clauses Act and Article 4 of the Constitution as law laid down by this Court in Aslam Warraich's case PLD 1991 SC 2330, Mollah Ejahar Ali's case PLD 1970 SC 173 and Gouranga Mohan Sikdar's case PLD 1970 SC 158. It is the command of the Constitution by virtue of Articles 4 and 5(2) that the public functionaries have to decide the controversy between the parties in accordance HRC 4668-2006 etc. 40 with law and not in derogation of law as law laid down by this Court in Utility Stores' case PLD 1987 SC 447. The contention of the learned counsel for the petitioner that the highest forum in the hierarchy of Revenue Officers is the Member, Board of Revenue, therefore, High Court had erred in law to interfere in the findings with regard to appointment of Lambardar has no force in view of aforesaid discussion that Member, Board of Revenue is duty bound to decide the cases in accordance with law and shall not disturb the findings of fact recorded by the Tribunals below unless and until the same are suffered from illegality or irregularity or in violation of any law laid down by the superior Courts.” In Iqbal Hussain v. Province of Sindh (2008 SCMR 105), it was held as under: - “3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is HRC 4668-2006 etc. 41 neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in Abdul Haq Indhar V. Province of Sindh 2000 SCMR 907 and (ii) Taj Muhammad v. Town Committee 1994 CLC 2214.” In the case of Government of Pakistan v. Farheen Rashid [2009 PLC (C.S.) 966], this Court held as under: - “It is the inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the Constitution. It is the duty and obligation of the public functionaries to act within the four corners of the mandate of the Constitution and law. Even the Chief Executive of the country is not above the Constitution and is bound to obey the command of the Constitution as envisaged under Article 5(2) of the Constitution and law laid down by the Court in various pronouncements.” In the case of Secretary Ministry of Health v. Rehana Hameed (2010 SCMR 511) this Court made the following observations: - “After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to redress the grievances of the citizens/their sub-ordinates with reasons as law laid down by this Court in Messrs Airport Services case 1998 SCMR 2268. We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fairplay and social justice. Therefore public functionaries are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.” HRC 4668-2006 etc. 42 24. This Court has also emphasized that the departmental functionaries are only obliged to carry out lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should have put on record their dissenting note. Reference in this behalf can be made to the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development (PLD 1995 SC 530). Relevant Para therefrom is reproduced herein below: - "………We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments, of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice the legal infirmities in such orders/directions may sometimes amount to an act of 'indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior HRC 4668-2006 etc. 43 which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action." This view was further reiterated by this Court in the case of Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004 SCMR 1077). Relevant portion therefrom is reproduced below: - “We have noted with pain that departmental authorities responsible to run its affairs do submit to whims and wishes of their superiors and never feel hesitation in implementing even an illegal order, knowing well that it has no legal sanction and if such order is implemented it is bound to give rise to a number of complications in the future. This Court time and again has emphasized that the departmental functionaries are only obliged to carry out lawful orders of their superiors and if they are being pressurized to implement an illegal order they should have put on record their dissenting note and if such practice is followed chances of issuing/passing illegal orders shall be minimized.” 25. Coming to the issue of NPC, we have examined, with the assistance of the learned counsel for the NPC as also the learned counsel for the CDA, the relevant record regarding allotment of plot to the NPC for construction of Aiwan-e-Quaid on the pattern of Aiwan-e-Iqbal, Lahore. To begin with, it may be noted that Islamabad Land Disposal Regulation 1993, which laid HRC 4668-2006 etc. 44 down different procedures for allotment of land of community buildings and facilities in the public and private sectors. Under regulation 12(2), community buildings and facilities shall be allotted to government organizations at amenity rates whereas under regulation 15(2), plots for other private institutions, including plots for hospitals, maternity homes, clinics, art- galleries, gymnasium, amusements parks, etc., shall be sold/leased by auction. Clearly, NPC was a private entity, hence not entitled to be allotted a plot on amenity rate as provided under regulation 12(2). The procedure governing allotment of plots to private institutions envisaged by regulation 15(2), viz., sale/lease by auction was not followed in the matter of allotment of plot to NPC. In this view of the matter, the learned counsel for the CDA did not support the transaction and stated that the CDA was ready to take over the plot/building. 26. At this stage, we would like to advert to the MoU dated 30.10.2001, signed between Ministry of Education and the NPC. Evidently, the NPC had been approaching the CDA and other governmental functionaries for allotment of plot reserved for Islamabad Public Library in F-9 Park for establishment of Aiwan-e-Quaid. However, keeping in view the afore-noted provisions of the Regulation of 1993, no plot on amenity rate could be allotted to a private organization, therefore, the aforesaid MoU was reached, which provided as under: - (1) Cost of plot as demanded by C.D.A. will be arranged by the Council after President of the Islamic Republic HRC 4668-2006 etc. 45 of Pakistan lays down the foundation stone of the project. (2) Cost of building structure, equipment, fixtures, etc., being integral part of the project, will be borne by the council. (3) Design of the buildings on the plot will be prepared by the Capital Development Authority in consultation with Director General Libraries and Nazriya Pakistan Council according to their requirements. (4) This will be a project of Department of Libraries, Ministry of Education. (5) The PC-1 will be prepared by the Department of Libraries of the Ministry of Education and will be subject to approval by the Planning Commission and will be completed within 24 months of its commencement. (6) Any alteration or addition in the project building will be the right of Department of Libraries. (7) Maintenance cost of the project buildings will be borne by the Department of Libraries of the Ministry of Education. (8) Revenues on account of renting out auditorium & other parts of the building will be revenues of the Department of Libraries. Rules for use of the facilities will be approved by the Secretary to the Government of Pakistan, Ministry of Education. (9) An Executive Committee comprising Representative of Nazria Pakistan Council (Mr. Ashraf Nadeem), Joint Educational Adviser (HE&LB) of Ministry of Education and Director General, Department of Libraries will administer the affairs of the project till its completion. Thereafter, the Director General, Department of Libraries will be responsible for its operations. (10) To ensure smooth and prompt implementation of the project, Aiwan-e-Quaid Authority on the pattern of HRC 4668-2006 etc. 46 Aiwan-e-Iqbal Authority, Lahore, has been set up by the Education Minister with the following composition:- a. Minister for Education Chairman b. Minister for Interior Member c. Joint Secretary (ICT-CDA) Member d. Chairman, CDA Member e. Mr. Mahmood Ali (NPC) Member f. Joint Secretary (Admn) Member Ministry of Education g. Gen. (Retd.) Imran Ullah Khan Member Executive Committee of NPC h. Director General Libraries Member i. President, NPC (Mr. Zahid Malik) Secretary General” It transpired during the hearing that the cost of land was paid from the government exchequer on a directive of the Prime Minister and the funds for construction of the project were also granted by the government, though as per MoU, the cost of plot as also cost of building structure, equipment, fixtures, etc, being integral part of the project was to be borne by the NPC. Further, according to the MoU, it was a project of Department of Libraries, Ministry of Education and was to be run by the Aiwan-e-Quaid Authority set up on the pattern of Aiwan-e-Iqbal Authority, Lahore by the Education Minister with the composition mentioned in the MoU. However, it appears that no such Authority was set up and instead the project was given in the hands of NPC. It was nothing but grabbing of State land, that too, unfortunately in the name of the father of the nation, Quaid-e-Azam Muhammad Ali Jinnah. HRC 4668-2006 etc. 47 27. On the last date of hearing, the learned counsel filed application on behalf of NPC, containing decisions of the Executive Committee of the Council, which are reproduced below: - (1) That keeping in view the observations of the Honourable Court and realizing that while the Council acted in good faith, yet there is a legal aspect of the case which may adversely affect the status of the lease deed granted by the CDA the same can, therefore, be treated as cancelled thus reverting the plot to the CDA. NPC is not interested in ownership of the property but in the concept and in the process of running the Library. (2) A request be made to the Honourable Court that Nazriya Pakistan Council may be allowed to continue and operate Aiwan-e-Quaid. (3) Finally that NPC would like the CDA to nominate its representative to the Executive Committee of the Council.” We have given anxious consideration to the submission of the NPC in the light of the provisions of MoU. In our view, the Aiwan- e-Quaid ought to be managed and controlled on the pattern of Aiwan-e-Iqbal Authority, Lahore, as envisaged by the aforesaid MoU dated 30.10.2001, signed between the Ministry of Education and the NPC. We, therefore, direct that the project shall be taken over by the above mentioned Aiwan-e-Quaid Authority. Necessary legal cover will be provided to it by the concerned quarters. HRC 4668-2006 etc. 48 28. Now we take up the establishment of Citizens Club in F-9 Park. Admittedly, according to the Master plan of F-9 Park, no residential building for lodging/boarding of the members of the Citizens Club could be constructed without approval of the competent authority and without taking into consideration the requirements of the public park. The revised Master Plan of 1995, which envisaged establishment of a club, itself was not a legal document in absence of approval by the Federal Government in terms of section 19 of the CDA Ordinance, 1960; therefore, no superstructure could be built upon it and no scheme prepared in pursuance thereof. It is pertinent to mention here that as per minutes of the decisions of the CDA Board taken in the meetings held on 24.09.2007 and 01.10.2007, the construction of Citizens’ Club was earlier proposed in Sector H-11, but later on shifted to Sector F-12 and then re-shifted to Sector F-9 (Fatima Jinnah Park) due to non-acquisition of land in Sector F-12. The scheme for a full-fledged Citizens’ Club with 18 holes golf course and amphitheatre, ladies club and for children sports area was examined and approved in a meeting presided over by the Chairman CDA, and attended by officers of the CDA Environment Directorate. Here too, the scheme was approved neither by the CDA Board nor by the Federal Government in accordance with the provisions of the CDA Ordinance, 1960, referred to hereinabove. Further, assuming for the sake of argument, though not accepting, there was a provision for establishing a club in the Park, an elitist club with a commercial perspective was hardly HRC 4668-2006 etc. 49 justified considering the primary aims and objectives of the public park. In the case of Iqabal Haider (supra), this Court considered the issue of establishment of a mini golf course in the Jubilee Park situated in Sector F-7, Islamabad, relevant paragraphs have already been reproduced in Para 15 above. In this view of the matter, the establishment of Citizens’ Club aimed at providing facilities to the elitist class alone was not for the general masses for whom F-9 Park was primarily meant. As such, the same was not permissible. 29. In the case of Bangalore Medical Trust v. B.S. Muddappa (AIR 1991 SC 1902) the Supreme Court of India considered the issue of construction of a hospital in the space reserved for Public Park. According to the facts of the case, an improvement scheme was adopted under the City of Bangalore Improvement Act, 1945 and, in terms of the Bangalore Development Authority Act, 1976, was deemed to have been prepared and duly sanctioned by the Government. Under the scheme, a site was reserved as an open space for Public Park. Pursuant to the orders of the State Government, and by a Resolution, the Bangalore Development Authority (BDA) allotted the said open space in favour of a private medical trust, for the purpose of constructing a hospital. This allotment and diversion of the user of the site was challenged before the High Court by the respondents, as residents of the locality and as general public, contending that it was contrary to the provisions of the Act and the scheme sanctioned thereunder, and the legislative HRC 4668-2006 etc. 50 intent to protect and preserve the environment by reserving open space for ventilation, recreation and playgrounds and parks for the general public. A Single Judge of the High Court dismissed the Writ Petition holding that a hospital being a civic amenity, the allotment of the site by the BDA in favour of the appellant for the purpose of constructing a hospital was valid and in accordance with law, and, rejected the claim of the petitioners that the BDA had no power to alter the scheme, and in any event, a site reserved for a civic amenity could not have been allotted for construction of a hospital, on the ground that the scheme could be altered under Section 19(4) of the Act, and it was done with approval of State Govt. On appeal, a Division Bench of the High Court held that though the BDA had the authority to deal with the plot in question, the area having been reserved in the sanctioned scheme for a Public Park, its diversion from that object and allotment in favour of a private body was not permissible under the Act, even if the object of the allotment was the construction of a hospital, since a hospital could not be considered to be an amenity, and that in allotting the site to the Trust, a largesse was conferred on it in utter violation of law and rules, and set aside the allotment of the site in question with liberty to the BDA to make a fresh allotment of any alternative site in favour of the Trust. While dismissing the appeal, the Supreme Court held as under:- “A private Nursing Home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. The HRC 4668-2006 etc. 51 exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute. “Financial gain by a local authority at the cost of public welfare has never been considered as legitimate purpose even if the objective is laudable. Sadly the law was thrown to winds for a private purpose. The extract of the Chief Minister's order quoted in the letter of Chairman of the BDA leaves no doubt that the end result having been decided by the highest executive in the State, the lower in order of hierarchy only followed with 'ifs' and 'buts' ending finally with resolution of BDA which was more or less a formality. In less than ninety days, the machinery in BDA and Government moved so swiftly that the initiation of the proposal, by the appellant, a rich trust with foreign deposits, query on it by the Chief Minister of the State, guidance of way out by the Chairman, direction on it by the Chief Minister, orders of Govt., resolution by the BDA and allotment were all completed and the site for public park stood converted into site for private nursing home without any intimation direct or indirect to those who were being deprived of it. “Speedy or quick action in public institutions calls for appreciation but our democratic system shuns exercise of individualised discretion in public matters requiring participatory decision by rules and regulations. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra vires and bad in law. “An illegality cannot be cured only because it was undertaken by the Government, or because it is done HRC 4668-2006 etc. 52 at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power. “The executive or the administrative authority must not be oblivious that in a democratic set up the people or community being sovereign, the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action, it is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society are involved.” 30. Learned counsel for the CDA placed on record copy of PC-I for construction of Citizens’ Club. According to estimate worked out for its completion, an amount of Rs.1.28 billion has been allocated. This huge amount belongs to no one else except the taxpayers/citizens. Such amount, therefore, could have been spent appropriately for their welfare instead of providing luxurious type of Citizens’ Club only for its members. There is no dispute that facility of membership can only be availed by the persons who have resources, and not by the general public who have no financial means to avail such facilities; therefore, besides violation of the CDA laws, a huge segment of the society belonging to downtrodden class have been deprived. Incumbent Chairman CDA informed that physical work progress was 69% and an amount of Rs.575 million had been spent so far. He was of the opinion that construction of Citizens’ Club shall be providing additional facility not only to members, but also to HRC 4668-2006 etc. 53 those who would visit Islamabad, including diplomats; therefore, from this point of view, the Club was being constructed. We are not opposing establishment/construction of such like clubs in the Capital, but definitely on a suitable place and by not curtailing rights of the general public. History as it has been traced hereinbefore suggests that the Club was proposed in different sectors, such as H-11 and F-12, but the construction work could not commence for want of acquisition of land in those sectors. This explanation does not seem to be impressive. CDA can undertake such projects not in the park, but in any other area, ensuring at the same time that the money of taxpayers shall not be used for such purposes. However, as now a huge amount has already been spent; therefore, CDA with the approval of the Federal Government, instead of abandoning the project, may utilize the building and other facilities for any public welfare project, like women university, medical/engineering college, science, technology or IT institution, etc. 31. On the issue of Megazone (formerly named as Hot Shots), Mr. Afnan Karim Kundi submitted that the Master Plan of F-9 Park envisaged setting up of a bowling alley/centre. In pursuance of advertisement published in the press in the year 1994 to which in all seven firms responded. M/S S&S Enterprizes, a Pvt. Ltd. Co., one of the seven parties to the bid, having offered the highest bid of Rs.752,000/- was selected. The CDA Board, in its meeting held on 27.11.1994 approved grant of licence to M/S S&S Enterprizes. The management of the centre HRC 4668-2006 etc. 54 had changed hands. As no notice was issued to them, they were not before the Court. 32. Mr. Qamar Afzal, ASC appeared on behalf of M/S S&S Enterprizes Pvt. Ltd., occupants of the bowling alley/centre, first operated in the name of ‘Hot Shots’, and now named as ‘Megazone’. He submitted that presently the concern was being managed and operated by Brig. (R) Iftikhar Ahmed (Chief Executive) along with Mr. Shi Hua Ping a Chinese national (Director). He submitted that there was litigation between his clients and the CDA on account of unauthorized construction of basement, mezzanine floor, etc., and non-conforming use of the premises, e.g. swimming pool, shops, etc., and ultimately, certain portions of the constructed area were demolished while the rest was compounded by the CDA on payment of fine/rent. He was asked to explain under what provisions of law the CDA had so compounded the unauthorized construction. He referred to different Regulations of the CDA, e.g., the CDA Ordinance, 1960, Islamabad Building Regulations, 1963, Islamabad Residential Sectors Zoning (Building Control) Regulation, 1993, etc., but failed to show how the aforesaid Ordinance/Regulations were applicable to the building in question, which was not of residential nature. He then submitted that the answer to the proposition was found in the record of the CDA (pp. 108-110 of the CDA P/B Part IV), which we have perused with his assistance. The issue was considered by the CDA Board in its meeting dated 20.11.2002 and made the following decisions: - HRC 4668-2006 etc. 55 (1) Compoundable violations of excess area of basement and ground floor may be regularized by imposing compounding charges of Rs.10,000/- (lump sum) & fine @ Rs.1500/- per sq ft or to demolish the area constructed over and above the approved plan and beyond the terms and conditions of bid. (2) The non-compoundable violations of additional facilities i.e. construction of mezzanine floor, stair tower, swimming pool, toilets, etc., provided in the basement against its lawful use may be demolished after giving the licensee proper/mandatory notice. The CDA vide letter dated 10.07.2003 worked out amount of fine, etc. and directed M/S S&S Enterprizes to deposit compounding charges in the sum of Rs.73,87,000/- failing which the Authority would remove the same. In the same letter, the CDA gave the detail of non-compoundable violations area, e.g. mezzanine floor, stair tower, swimming pool, etc., but did not propose to take any consequential penal action. The Deputy Commissioner, CDA, in pursuance of the report by the CDA, vide order dated 15.01.2004 directed the CDA to take action against M/S S&S Enterprizes, i.e. to stop the non-conforming use of the premises. Pursuant to an application submitted by M/S S&S Enterprizes, the CDA Board in its meeting dated 12.05.2004 decided to regularize the basement and swimming pool without charges, and to regularize extended portion of ground floor, mezzanine floor on payment of charges/fine @ Rs.1500/- sq. ft. along with charges for non-conforming use/activities and asked the licensee to pay Rs.1,99,72,742/-. The CDA Board, then in its HRC 4668-2006 etc. 56 meeting dated 19.10.2004 decided that existing halls, which were used for marriage parties, would be utilized for sports and recreational activities and asked the Cost Accountant and Planning Wing to examine the rates while keeping in mind the rules and regulations to work out excess rates, compound and other charges. The Deputy Director BCS-II, having re-measured the area, calculated/worked out a sum of Rs. 66,39,507/- to be paid by M/S S&S Enterprizes in terms of the Islamabad Residential Sectors Zoning (Building Control) Regulation, 1993, which was approved by the Member (Planning) and the Chairman CDA. It was pointed out during the 2005 Audit that the compoundable charges came to Rs.2,24,70,000/- against the demanded amount of Rs.66,39,507/-, which caused a loss of Rs.1,99,72,000/- to the Authority. The above amount having been paid by the licensee, the CDA Board, in its meeting dated 07.06.2007 regularized the compoundable violations. 33. The above narration in no way provides an answer to the question under what law the CDA had regularized the compoundable as well as non-compoundable constructions. The learned counsel agreed that the premises in question were not governed by any of the aforesaid laws/regulations. Mr. Afnan Karim Kundi, too, was unable to refer to any legal instrument in support of the decisions/actions of the CDA authorities. In absence of any legal instrument empowering the CDA to take the kind of actions that it did, the entire transaction from the beginning to the end was illegal and unsustainable in law. HRC 4668-2006 etc. 57 34. The CDA Board, in its meeting dated 27.11.1994 decided, inter alia, that the bidder himself would construct the bowling centre on international standards and that the land would be licensed out for 20 years, renewable on mutual consent of both parties for another term of 20 years on new/re- negotiated terms. Thus, there was no provision for transfer of the licence. Surprisingly, in the licence deed dated 07.05.1995 issued by the CDA in favour of M/S S&S Enterprizes, a clause was added providing for transfer of the bowling centre to a Pakistan based company registered under the Companies Ordinance, 1984 after completion of construction, issuance of completion certificate and execution of the lease deed in favour of the licensee. Later, though the construction was completed with certain alterations and additional constructed area in violation of the approved building plan, but no completion certificate was obtained nor any lease deed was executed. Later on, the company created a collaboration with a Chinese Company, namely, M/S North Industrial Corporation of Peoples Republic of China (NORINCO), which got itself incorporated in Islamabad as M/S Islamabad NORIN Co. (Pvt.) Ltd., with Chinese Directors and Brig. (R) Iftikhar Ahmed as Chief Executive. M/S S&S Enterprizes entered into construction agreement dated 09.08.1995 with M/S Islamabad NORIN Co. After construction of the centre, the project in the name and style of M/S Hot Shots Bowling Centre became operational. Later on, M/S S&S Enterprizes surrendered all its rights in favour of M/S International NORIN Co., and the HRC 4668-2006 etc. 58 possession was formally handed over to Brig. (R) Iftikhar Ahmed who was presently running the centre, later called as Megazone. All the above actions were done in violation of the decision of the CDA Board on the issue, as also the relevant rules and regulations of the CDA. 35. The revised Master Plan prepared in 1995 was not approved by the competent authority. On that view of the matter, spaces reserved for cuisine area, bowling alley, etc., in the un-approved Master Plan did not have the proper legal sanction at their backing and the CDA authorities thus rendered bereft of the power to go ahead with the preparation of schemes in relation thereto, as envisaged by section 13 of the CDA Ordinance, 1960. As such, the issuance of licence to M/S S&S Enterprizes was illegal and unsustainable. Having held so, the reference to the terms of the licence governing non-conforming use of the premises by the licensee, or in case of breach of anyone or more of the conditions of licence, the licence was liable to be withdrawn/cancelled and the structure, if any, would be confiscated without any payment, was of no consequence. Even otherwise, regulation 12(3) of the Islamabad Land Disposal Regulation, 1993 obligates the CDA to itself develop and maintain public parks, playing fields and graveyards, which the CDA violated by awarding lease/licence in favour of M/S S&S Enterprizes and M/S Siza Foods. This aspect was highlighted by HRC 4668-2006 etc. 59 this Court in the case of Iqbal Haider (supra) in the following words: - “15. What we have understood from above documents is that in the Capital territory, a master plan was prepared at the time of its inception and subsequently under different schemes, different sectors were set up. In this behalf, reference to the preamble and sections 11 and 12 of the Ordinance, 1960 may be made. In the scheme of a sector, some of the areas have been earmarked as a Public Park to attract general public. According to Article 12(3) of the Regulation, the public parks, playing fields and graveyards are to be developed and maintained by the CDA. Thus the conclusion is that during the classification of the plots, under Article 3 of the Regulation, if a piece of land has been earmarked for purpose of Public Park, same cannot be leased out and CDA itself is bound to develop the same.” 36. Thus, for the foregoing reasons, it is declared and held as under: – (1) Establishment/construction of McDonald’s restaurant in Fatima Jinnah Park, Sector F-9, Islamabad was contrary to Article 18 of the Constitution read with CDA Ordinance, 1960. Consequently, CDA is directed to cancel the lease of M/S Siza Foods forthwith, put up the matter before the CDA Board for converting cuisine pavilion area with dense vegetation into restaurant area, and then re-auction a site for setting up a food outlet therein, and seek approval from the Federal Government to the Master Plan as also the schemes prepared thereunder, in accordance with the provisions of the CDA Ordinance, 1960 and the other relevant rules and regulations. If the CDA Board or the HRC 4668-2006 etc. 60 Federal Government declined to grant conversion of the cuisine pavilions into a site for construction of food restaurant, the existing superstructure raised by the McDonald’s shall be demolished by defunct lease holder at its cost within three months. Fresh applications shall be invited from the local as well as international food chains by inviting expression of interest, indicating the area, facilities, etc., and whosoever succeeds shall be entitled to set up a food outlet accordingly. However, if M/S Siza Foods participated and succeeded in the auction, it shall continue with the business subject to fresh terms and conditions, without introducing in the business any third party, like Lakson Group/group company, etc. However, if any other food chain succeeded, then the parties with the intervention of the CDA shall negotiate the cost of the existing structure of McDonald’s restaurant; (2) The CDA shall forthwith cancel the allotment of land to NPC, take over the premises along with facilities and place the matter before the Federal Government in the light of the MoU signed between the Ministry of Education and the NPC so as to run affairs of Aiwan-e- Quaid smoothly and achieve the objects for which it was established. However, it would be for the Federal Government to allow representation to NPC in the management committee, but complete administration of the premises shall rest with the Government; (3) As far as Megazone is concerned, its transfer in the name of Brig. (R) Iftikhar Ahmed and others was made contrary to the terms of the licence; therefore, the occupants subject to the rights of the original licence holder shall be given opportunity to get the same transferred in their name in accordance with law/guidelines issued by the Securities and Exchange HRC 4668-2006 etc. 61 Commission of Pakistan within a period of three months, failing which the licence shall be cancelled, the land shall be taken over by the CDA and the occupants shall be directed to restore it to the position as it was prevailing before issuing the licence in favour of M/S S&S Enterprizes; (4) As far as Citizens Club is concerned, its construction shall be completed as a huge amount of public money has been spent over it unauthorizedly and the building with other facilities shall be used for a project of public welfare; (5) A perusal of the documents made available to the Court abundantly makes it clear that Mr. Kamran Lashari, the former Chairman CDA, in violation of the constitutional provisions, CDA Ordinance, 1960 as well as other rules and regulations on the subject granted lease for 33 years of government land at a very nominal lease money to M/S Siza Foods in a non- transparent manner, undoubtedly, with the connivance of the other officials of the CDA; therefore, they all deserve to be dealt with strictly for misconduct, departmentally as well as by instituting both civil and criminal action against them, so that it may serve as a deterrent for like-minded persons, who discharge their duties/functions without adhering to the relevant provisions of the Constitution and the law. Such an action has become necessary with a view to avoiding in future violation of any provision of the Constitution and the law. In the case of Iqbal Haider (supra), it was observed that action against the responsible officer/official of the CDA was called for in view of the judgment of this Court in Pervaiz Oliver (supra), but it seems that no action against anyone was taken so far. The CDA through Establishment Division, Government of Pakistan is directed to take HRC 4668-2006 etc. 62 action against Mr. Kamran Lashari, former Chairman CDA for violation of the Constitution, the CDA Ordinance, 1960, rules and regulations, reference whereof has already been given in the case of Iqbal Haider (supra); (6) The Chairman CDA shall ensure implementation of directions in the above Paragraph through concerned functionaries of the Federal Government within a period of three months from the date of this judgment. He is also directed to ensure transparency in other projects of the CDA and at the same time office files of Master Plan and preparation of schemes shall be maintained properly instead of showing helplessness to produce the record before the Court; (7) Unconditional apology tendered by Amin Muhammad Lakhani, proprietor of M/S Siza Foods is accepted because he himself volunteered for the same. However, he is warned to be careful in future and avoid scandalizing the courts. (8) As these petitions have been considered involving public interest/general masses/citizens, thus no order as to costs. The listed HR cases are disposed of in the above terms. CHIEF JUSTICE JUDGE JUDGE Islamabad Announced in Court on __________. C.J. APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE DOST MUHAMMAD KHAN HRC NO.4729-P/2011 in SMC.No.03/2009 (Application by Muhammad Shafi) Applicant: Malik Muhammad Shafi in person On Court Notice: Mr. Razzaq A. Mirza, Addl. A.G. Pb. Mr. Ejaz Ahmed, DFO, Rawapindi Mr. Tasleen Ali, AC Saddar, Rawalpindi Mr. Iftikhar Ahmed Qureshi, CF, Rwp For Bahrai Town: Mr. Aitazaz Ahsan, Sr. ASC Raja Abdul Ghafoor, AOR On Courts Call: Mr. Israr Abbasi, CPO, Rawalpindi Date of hearing: 14.7.2015 ORDER Jawwad S. Khawaja, J. This case was taken up when the applicant Malik Muhammad Shafi brought to our notice the fact that on 28.10.2005 Raja Khalid Hussain, Chief Conservator of Forests had written a letter to the Deputy Inspector General of Police, Rawalpindi seeking registration of criminal case for beating up and unlawfully detaining govt. employees and in respect of encroachment on forest land, etc. Since the contents of the letter are important for the present purposes, the same is reproduced below in extenso:- “PHONE NO.9271931 OFFICE OF THE CHIEF CONSERVATOR OF FORESTS, NORTHERN ZONE, RAWALPINDI To The Deputy Inspector General, Police, Rawalpindi No. /RK dated 2005 Subject: ENCROACHMENT ON FOREST LAND BY DESTROYING TREES AND DETAINING FOREST OFFICERS— REGISTRATION OF CRIMINAL CASE. It is stated that on 11.10.2005 the functionaries of Bahria Town started up- rooting of forest crop and encroaching forest land of a part of Rakh Lohi Bher Forest situated in Rawalpindi District by employing excavators and dumpers. The forest staff reached the site and stopped its work. The functionaries of Bahria Town HRC 4229-P/11 2 resumed its work in forest land on 24.10.2005. The forest party again stopped them and fenced the affected area with wooden poles. On 25.10.2005, Captain Shahid, Site Incharge, Bahria Town accompanying a number of persons of Bahria Town forcibly up-rooted the fence and re-encroached forest land besides beating M/S Jamshaid Khan, Block Officer, Muhammad Razwan and Ghazanffar Ali Forest Guards. Afterwards on 26.10.2005 at about 10 pm having come to know that Bahria Town Functionaries have again started destroying forest crop and encroaching forest land of Lohi Bher Forest situated in Rawalpindi District by employing heavy machinery, the Divisional Forest Officer Rawalpindi South reached the affected site in the accompany of Conservator of Forests, Coordination Circle, Rawalpindi, Divisional Forest Officer, Timber Extraction Division Rawalpindi, Divisional Forest Officer, Rawalpindi North Forest Division, Deputy Director, Wildlife Rawalpindi, Sub Divisional Forest Officer, Rawalpindi and other forest and Wildlife field staff. On reaching the site work of Bahria Town Functionaries being under-taken with the help of Habib Rafique & Company Limited was stopped at about 11:30 pm. The offenders however, succeeded in taking away 4 excavators along with dumpers whereas the 5th excavator was apprehended. The functionaries of Bahria Town and Habib Rafique & Company Limited made repeated attempts to make a quarrel with the forest staff and take away excavator but they could not succeed for about 2 hours. The offenders then arranged about 100 person equipped with arms and sticks and attacked the forest party. The offenders thus succeeded in kidnapping M/S Bashir Ahmad, Conservator of Forest, Coordination Circle Rawalpindi and Sardar Fida Hussain, Divisional Forest Officer, Timber Extraction Division Rawalpindi whereas the other forest officers and Wildlife staff escaped. The forest officers so kidnapped were seriously beaten and beaten to shot to death. After about 2 hours the officers detained illegally6 were released at far flung place. Under the circumstances explained above it is requested that SHO Civil Lines Police Station may please be directed to register FIR against the offenders (functionaries of Bahria Town and Habib Rafique & Company Limited for destroying forest crop and encroaching forest land measuring 3 Kanals, kidnapping, beating and threatening of forest officers and interfering of forest officers and staff in discharging their Government duties. An immediate action is requested in the regard. Enclosed:- Written request for Registration of FIR (RAJA KHALID HUSSAIN) CHIEF CONSERVATOR OF FORESTS NORTHERN ZONE RAWALPINDI 394-99/RK 28.10.2005” HRC 4229-P/11 3 2. We are therefore, concerned to learn as to whether a case has been registered on the basis of the said letter and if so, whether the same has been discharged or challaned after investigation. We asked the learned Additional Advocate General to ascertain this fact. He has confirmed that no FIR had been registered even to date. This has also been confirmed by Mr. Iftikhar Ahmed Qureshi, Conservator of Forests, who is present in Court. 3. Mr. Aitazaz Ahsan, learned Sr. ASC has stated that there is a whole history behind this case. We, however, asked him to show us if in the above circumstances there is any law, which says that police may refuse to register a case in such eventuality even where a cognizable offence has been committed as per contents of the complaint. He did not give an answer but stated that there is no encroachment on forest land. In response, Mr. Razzaq A. Mirza, learned Additional A.G states that there is definite encroachment of 684 acres according to official inquiries and record. This, however, is wholly irrelevant in the light of the above reproduced letter. In any event, it is for the police to investigate and if indeed the client of Mr. Aitazaz Ahsan has any facts available with him, he may bring those to the notice of the police. Likewise if the Conservator of the Forests has any information, he may also bring it to the notice of the police. We are not to embark on any investigation of these factual matters. 4. Learned Sr. ASC then stated that an application had been moved by Syed Ali Zafar, ASC and by Malik Riaz Hussain through a private letter, addressed to the Hon’ble Chief Justice, stating that one of us (Jawwad S. Khawaj, J.) should recuse from hearing this case. Mr. Aitzaz also acknowledged that the application and private letter referred to above were being dealt with in CMA 3854/14 and CMA-4341 of 2014. That is a matter which has been delinked from this case. However, for ease of reference we may mention that vide orders dated 2.4.2015 and 31.3.2015, we had asked Syed Ali Zafar ASC to give his explanation in respect of the matters mentioned in our said orders. His reply being found unsatisfactory, an order was passed on 9.4.2015 that “since there is no valid explanation forthcoming from Mr. Ali Zafar, ASC in respect of the issues which have been highlighted above and in our order of 31.3.2015, we are inclined to the view that Mr. Ali Zafar has been guilty of misconduct and conduct unbecoming of an Advocate. The dignity and high standing of the legal profession and of Judges and Courts has to be defended for the sake of the independence of the Judiciary and Bar and for the effective administration of justice. This has to be done, if necessary, especially in the face of HRC 4229-P/11 4 misconduct or conduct which is unbecoming of an Advocate. Such conduct must be curbed if the honour and dignity of the Bar and Bench are to be preserved. We, therefore, issue notice to Mr. Ali Zafar to show cause why action envisaged under Order IV Rule 30 of the Supreme Court Rules (including suspension/removal from practice) be not taken against him”. 5. That matter, however, is not listed before us today and we, therefore, donot intend to decide the same particularly when Syed Ali Zafar who is respondent in the show case notice, is not present. 6. Mr. Israr Abbasi, CPO, Rawalpindi appeared on Court call. He shall submit a report, as to whether any FIR was registered, pursuant to the above reproduced letter of the Conservator of the Forests and if so, what is the outcome of such FIR. Secondly, he shall also state that if no FIR was registered, the reasons for not registering the same. Let this be done within this week. 7. Re-list on 23.07.2015. Judge Judge Islamabad, the 14th July, 2015 Nisar /-‘ APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED H.R.C. NO. 4925-G OF 2014 (Suo moto taken on the Daily News dated 25.2.2014 regarding diagnostic injections cause cancer) In Attendance: Mr. Sajid Ilyas Bhatti, DAG Dr. Javaid Akhtar, D.G. PINSTECH Mr. Sohail Akram, Sr. Law Officer Date of Hearing: 03.04.2014 ORDER TASSADUQ HUSSAIN JILLANI, CJ.- Suo moto notice was taken on a news item published in Daily News dated 25.2.2014 to the effect that the Pakistan Institute of Nuclear Science and Technology (PINSTECH) has been supplying cancer diagnostic injections allegedly contaminated with undesirable radionuclides that could cause cancer instead of diagnosing it and despite a direction for an enquiry, no action had been taken. Pursuant to the notice issued, the Director General PINSTECH constituted a committee to investigate into the allegations leveled and submit a report. It would be pertinent to refer to the summary of the findings of the said inquiry, which is as under:- “i. The committee studied in depth the quality procedures / SOP, visited relevant production facilities and testing Labs, interviewed relevant scientists / technicians as well as went through the record of inspection / acceptance / rejection. ii. The following quality acceptance tiers are functioning at PINSTECH. a. The Quality Control Group under Incharge Production. b. Health Physics Laboratories and Quality Assurance Group under DG PINSTECH:- H.R.C. NO. 4925-G OF 2014 2 The Inquiry Committee thoroughly checked the QC and QA record of all the molybdenum-99 batches produced at PINSTECH and found it in order as per SOP. iii. Pakistan Nuclear Regulatory Authority (PNRA), being an independent regularity authority and licensor, also conducts random testing which was verified by the Committee. iv. The production facility was installed / commissioned by renowned German scientists and highly qualified Pakistani scientists. The Mo-99 is thus produced according to the international quality standards. v. The feed-backs from various end-user hospitals have been received and confirmed that product is rechecked and qualified by the user. The disqualified product (if any) is not used. vi. The committee has satisfied itself that standard operating procedures for qualification and certifications were not violated. No evidence could be found of any pressure whatsoever from the high ups on the analysts or technicians to alter the quality control results.” 2. In view of the report submitted, it seems the news item was not based on a correct appreciation of the relevant facts. In any case, it has served a purpose i.e. on intervention of the Court, the PINSTECH got the allegations inquired into and the findings referred to above lend credibility to the exercise undertaken by the PINSTECH. In the afore-referred circumstances, the proceedings have fructified and are being disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 3rd of April, 2014 Not Approved For Reporting Khurram

In the Supreme Court of Pakistan (Original Jurisdiction) Present: Mr. Justice Iftikahr Muhammad Chaudhry, CJ Mr. Justice Javed Iqbal Mr. Justice Raja Fayyaz Ahmed Mr. Justice Anwar Zheer Jamali Mr. Justice Ghulam Rabbni Mr. Justice Khalil-ur-Rehman Ramday SMC No.24 of 2010 (Regarding Corruption in Hajj Arrangements in 2010) Human Rights Cases No.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P & 58118-K of 2010 (Applications by Abdul Rasheed & others) On Court Notice: For Member of Committee of Parliamentarians : Nemo. For former Minister S&T : Mr. Afnan Karim Kundi, ASC with Senator Muhammad Azam Khan Sawati. For former Minister Religious Affairs : Sardar Khurram Latif Khan Khosa, ASC. Mr. Mehmood A. Sheikh, AOR. For M/o Religious Affairs : Mr. Shaukat Hayat Durrani, Secretary For former Secretary Religious Affairs : Mr. G.N. Gohar, AOR For Establishment Division : Mr. M. Ijaz Ghani, Dy. Secy. Mr. Muhammad Arshad, Dy. Secy. For NAB : Mr. Muhammad Akbar Tarar, Addl. PGA Mr. Fauzi Zafar, ADPGA. For FIA : Syed Jawed Ali Bukhari, Incharge Investigation. Mr. M. Azam Khan, Director (Law). Mr. Khizar Hayat, S.I Police with Rao Shakeel, former DG Hajj (in custody). In C.M.A No.218/2011 : Mr. M. Ikram Chaudhry, ASc. For Tour Operators : Nemo. Date of hearing : 20.1.2011. Suo Moto Case No.24 of 2010 2 Order Iftikhar Muhammad Chaudhry, CJ – Mr. Shaukat Hayat Durrani, Secretary, Religious Affairs has stated that complete arrangements have been made for disbursing the amount of SR 700 to each pilgrim and he has been ensured by the concerned Banks that task assigned to them shall be completed in a transparent manner and the aforesaid amount equal to Pakistani rupees, shall be ensured to be handed over to the pilgrims as early as can be possible. He has added that he himself is supervising the distribution of the money to them and has assured the Court that there shall be no complaint of mishandling etc. We appreciate the gesture shown by the Secretary as he has taken personal interest in obeying order the Court. However, he may procure a comprehensive report from the Banks, which shall be submitted after a period of one month to the Registrar for our perusal. 2. Learned Attorney General placed on record following notification dated 15.1.2011, issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division:- “No.12/309/80-E-3 (Police) Government of Pakistan Cabinet Secretariat Establishment Division Islamabad, the 15th January, 2010 Notification Syed Jawed Ali Shah Bukhari, a BS-21 officer of the Police Service of Paksitan, presently posted as Officer on Special Duty (OSD), Establishment Division is transferred and his services are placed at the disposal of Federal Investigation Agency (FIA), under Ministry of Interior, with immediate effect and until further orders.” It is evident from the perusal of above notification that the services of Syed Jawed Ali Shah Bukhari (BS-21) have been placed at the Suo Moto Case No.24 of 2010 3 disposal of Federal Investigation Agency (FIA) under Ministry of Interior with immediate effect and until further orders. The above notification is followed by order dated 17.1.2011, issued by the Government of Pakistan, Ministry of Interior:- “No.7/138/2010-FIA Government of Pakistan Ministry of Interior ***** Islamabad, the 17th January, 2011 To, The Director General, FIA, Islamabad Pursuant to Establishment Division’s notification No.12/309/80-E-3 (Police), dated 15th January 2011, the services of Syed Jawed Ali Shah Bokhari, a BS-21 officer of the Police Service of Pakistan, have been placed at the disposal of FIA. 2. He is hereby appointed as Incharge Investigation of Suo Moto Case No.24 of 2010 (Hajj scam) being heard in the Honourable Supreme Court of Pakistan. In performance of his duties, the officer will report exclusively to the Supreme Court of Pakistan through Attorney General of Pakistan. He is authorized to select an officer of his choice from any agency/department to conduct and complete the investigation. 3. He is directed to start work immediately and report progress/seek further instructions from Supreme Court of Pakistan in the next hearing fixed on 20th January 2011.”. Again, perusal of above order indicates that Syed Jawed Ali Shah Bukhari has been appointed as Incharge of investigation of Suo Moto Case No.24 of 2010 (Hajj Scam). It is to be noted that on account of unsatisfactory performance by the incumbent Director General (FIA), who has been appointed on contract basis, he was asked to exercise the option either to disassociate himself with the investigation of the case or the Court will pass an order in this regard. Meanwhile he himself submitted an application and requested the Government to allow him to disassociate himself whereafter the above orders have been issued, but the above-noted notification and the order, both are not in accord with section 3(2) Suo Moto Case No.24 of 2010 4 read with sections 4 & 5(2) of the Federal Investigation Agency Act 1974. For sake of convenience, these sections are reproduced herein below:- “3(2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of other officers as the Federal Government may, from time to time, appoint to be members of the Agency. 4. Superintendence and administration of the Agency.---(1) The superintendence of the Agency shall vest in the Federal Government. (2) The administration of the Agency shall vest in the Director-General who hall exercise in respect of the Agency such of the powers of an Inspector General of Police under the Police Act, 1861 (V of 1861), as may be prescribed by rules. 5(2) Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer in charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a police station discharging his functions as such within the limits of his station.” 3. Needless to observe that in view of the importance of the case, which is based not only on the complaints of general public, who had gone to perform Hajj, but also on the recommendations of the representative of the public/ Parliamentarians, instant proceedings have been initiated. During the course of hearing, the then Minister for Religious Affairs has been removed alongwith another Minister, who had come forward and appeared before the Court to substantiate the allegations of corruption in the Ministry of Religious Affairs. Therefore, we were expecting that the Government of Pakistan would itself take all necessary steps to ensure transparent investigation in the case, to bring the accused persons to book, but we are constrained to observe that different devices are being adopted to hush up or Suo Moto Case No.24 of 2010 5 hamper the investigation of the case. In this behalf the notification referred to hereinabove clearly indicates that the Government has not realized so far the intention and object of conducting the investigation in a transparent manner, particularly so because on the basis of above notification and order no one, including the person appointed, would be in a position to legally exercise the jurisdiction in accord with the relevant provisions of law reproduced above, unless he is not made a member of the Agency (FIA). We feel no doubt in expressing that the above notification has either been issued intentionally or by a person who has no knowledge about the law, at all. 4. Syed Jawed Ali Shah Bukhari, who is present, has stated that he himself expressed reservations vis-à-vis the above- noted notification and order because without having been made a Member of the Agency it would not be possible for him to deliver. It is interesting to note that Syed Jawed Ali Shah Bukhari is a BS-21 Regular Officer of the Police. Previously he had been working as PPO/IGP, Balochistan and now he has only been made Incharge of the investigation and his performance will be supervised in terms of section 4 of the Act 1974 by a person, who after attaining the age of superannuation has been appointed on contract basis. It is indeed very strange that in the disciplinary forces, particularly, like police and FIA where people have to work in well defined discipline, the persons supervising the forces have been permitted and are holding the charge on contract basis. It may not be out of context to note that in terms of the definition of section 2 (1) (b) (ii) of the Civil Servants Act 1973, a person who is employed on contract does not even fall within the definition of a civil servant, so his Suo Moto Case No.24 of 2010 6 authority to command and maintain discipline can well be imagined from the fact that if a person himself is not a Civil Servant, he is considered only bound by the terms and conditions of his contract and not by the statutory law, because if any condition laid down in the contract is violative to statutory law, he would only be subject to action under the said contract. 5. We have asked the learned Attorney General that it is in the interest of the Government to promote the junior officers, who are waiting for promotion and rather they should be encouraged instead of employing persons on contract basis unless their services are indispensable, particularly, with regard to disciplined forces like Police, FIA etc. 6. This Court is fully conscious of its duty, which has to be discharged under the Constitution and when it is attempted to hush up the corruption cases, such as one under consideration, the Court can pass appropriate order as it has already directed, and it could also not be oblivious of its function to ensure that in the departments like the police and FIA, people, who deserve to be promoted on the basis of efficiency or performance etc. are appointed and not on contract basis. Therefore, we direct the Secretary, Establishment Division to furnish the list of all Police Officers, including the Director General, FIA who have been appointed on contract basis and also furnish the reasons for the necessity and the interest of the Government for allowing them to continue with such posts like IG and DG, which are of high importance and the persons occupying these posts are supposed to be responsible to ensure the rule of law in the country. The list shall Suo Moto Case No.24 of 2010 7 be furnished by the Secretary, Establishment Division by 21.1.2011. On receipt of such list, the office shall issue notices to all such officers to appear and explain as to under what authority they have been appointed on contract basis, and as to why notifications for their appointments should not be cancelled. Meanwhile, learned Attorney General shall take up the matter with the Government and point out that as the incumbent Director General, FIA has disassociated himself from the investigation, the person who has been appointed as Incharge of the Investigation shall be made a Member of the Agency and he shall continue with the investigation of the case in accordance with the law, without being influenced from any quarter or high up whosoever found involved in the matter. 7. Case is adjourned for 27.1.2011. Islamabad, the 20th January, 2011. Riaz Chief Justice Judge Judge Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN HUMAN RIGHTS CASE NO.69229-P OF 2018 (Regarding functioning of Patwaris, Kanungos and Tehsildars in urban area of Lahore) In attendance: Mr. Ahmed Awais, A.G. Punjab Rana Shamshad Khan, Addl. A.G. Punjab Mr. Sibtain Mahmood, AAG Sindh Mr. Ayaz Swati, Addl. A.G. Balochistan Malik Akhtar Hussain, Addl. A.G. KP Syed Ahsan Mustafa, Director BOR Punjab Mr. Saadullah, Supdt, BOR, KPK Mr. Habibullah, Law Officer for DC, Lahore Mian Zafar Iqbal Kalanauri, ASC Mr. Amanullah Kanrani, ASC/President, SCBA (amicus curiae) Date of hearing: 03.01.2019 JUDGMENT MIAN SAQIB NISAR, CJ.- The instant matter arises from a suo motu notice taken pursuant to various complaints that despite the fact that Lahore is an urban area and thus not subject to land revenue, revenue authorities are functioning therein and entering mutations, etc. A report was called from the Senior Member, Board of Revenue (MBR), Punjab requiring him to explain, inter alia, under what authority of law are Patwar Circles, Kanungos and Tehsildars established and how transactions in the alleged revenue Record are being maintained or changed. Pursuant thereto, a report was submitted stating the following:- i. Within the District of Lahore there are 363 estates/mauzas in Tehsils Raiwind, City, Cantonment, Shalimar and Model Town; ii. Out of these estates, 246 are under settlement, three are under consolidation of holdings operation and the remaining 114 are urban; iii. The land records of 218 estates in Lahore District have been computerized and the Board of Revenue, Punjab has already H.R.C. No.69229-P/2018 -: 2 :- issued notifications under Section 41-A(2) of the Punjab Land Revenue Act, 1967 (the Act of 1967); iv. Sections 41-A and 41-B of the Act of 1967 deal with preparation of computerized records; v. Section 42 thereof deals with the procedure of manual mutation by the revenue field officers; vi. Section 42-A thereof deals with computerized mutation at the Arazi Record Centres at Tehsil level; vii. The Arazi Record Centers at the Tehsil level established under the Punjab Land Records Authority Act, 2017 deal with computerized land revenue record; and viii. Since the land record of 218 estates in Lahore District has been computerized while the remaining 145 are yet to be computerized, therefore, Patwaris, Kanungos and Tehsildars are dealing with mutations and maintaining the revenue record in the light of the instruction issued by the Board of Revenue under the purview of the Act of 1967 and the Punjab Land Record Manual (Second Edition 1958). Notices were also issued to the other provinces for their input. The Senior MBR, KPK in his report has submitted that the Act of 1967 is applicable in the Province of KPK since 1974. The urban areas have already been earmarked in the Shajra Aks as ‘Laal Lakeer’ and hence the sub-Registrar of each District under Section 17 of the Registration Act, 1908 (Act of 1908) is dealing with properties of urban areas and maintaining its record. However, the only record being maintained by the Patwari, Kanungos, Tehsildars, by way of Aks Shajra and Massavi is to the extent of roads and drainage system owned by the government or local authorities, whereas, the revenue record being maintained by the Patwaris, Kanungos, Tehsildars is regarding the rural area(s). The Revenue and Estate Department prepare the land record at the time of settlement through the settlement staff whereafter it is handed over to the concerned District Revenue Agency on completion. H.R.C. No.69229-P/2018 -: 3 :- Whereas in urban areas the post of Sub-Registrar has been created at the district level to register documents under the Act of 1908 including property documents by registering sale deeds. As far as the local area authorities are concerned, the land is transferred to the concerned local area authority through a mutation whereafter subsequent transactions are carried out by other concerned authorities. Revenue Officials like Patwaris, Girdawars, etc. have no role in transactions falling within the domain of such areas. In the report submitted by the Board of Revenue, Balochistan, it is stated that under Section 6 of the Act of 1967 the Government of Balochistan is empowered to create Patwar Circles in the urban area, which have been created vide notifications issued from time to time. It is further submitted that Section 3(2) thereof authorizes the Board of Revenue to issue general or special orders to the Collector, to determine for the purposes of the said Act, “what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting right of the land-owners”; however, the record of the Board of Revenue, Balochistan is silent to the extent of issuance of general or special orders in this behalf. Besides, the Transfer of Property Act, 1882 (Act of 1882) is not applicable in the Province of Balochistan, whereas, the record of rights is established in urban and rural areas under Section 116 of the Act of 1967. 2. Before proceeding further it would be appropriate to consider the relevant provisions of the Punjab Land Revenue Act, 1887 (Act of 1887), the Act of 1967 and the Punjab Local Government Act, 2013. which read as under:- The Punjab Land Revenue Act, 1887 3. Definitions.- (1) “estate” means any area— (a) for which a separate record-of-rights has been made; or (b) which has been separately assessed to land revenue, or would have been so assessed if the land-revenue had not been released, compounded for or redeemed; or H.R.C. No.69229-P/2018 -: 4 :- (c) which the Local Government may, by general rule or special order, declare to be an estate; 4. Exclusion of certain land from operation of Act.- (1) Except so far as may be necessary for the record, recovery and administration of village cesses, nothing in this Act applies to land which is occupied as the site of a town or village and is not assessed to land revenue. (2) A Revenue Officer may define, for the purpose of this Act, the limits of any such land.” 31. Record of rights and documents included therein.- (1) Save as otherwise provided by this Chapter, there shall he record of rights for each estate. (2) The record of rights for an estate shall include the following documents, namely:- (a) statements showing, so far as may be practicable,- (i) the persons who are land owners, tenants or assignees of land revenue in the estate , or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;- … (d) such other documents as the Financial Commissioner may with the previous sanction of the Provincial Governments, prescribe. The Punjab Land Revenue Act, 1967 3. Exclusion of certain land from operation of this Act.— (1) Except so far as may be necessary for the record, recovery and administration of village cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. (2) It shall be lawful for the Collector acting under the general or special orders of the Board of Revenue, to determine for the purposes of this Act, what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting rights of the land-owners.” 4. Definitions.– (9) “estate” means any area– (i) for which a separate record-of-rights has been made; or (ii) which has been separately assessed to land-revenue; or (iii) which the Board of Revenue may, by general rule or special order, declare to be an estate; H.R.C. No.69229-P/2018 -: 5 :- 39. Records-of-rights and documents included therein.– (1) Save as otherwise provided by this Chapter there shall be a record of rights for each estate. (2) The record-of-rights for an estate shall include the following documents, namely:- (a) statements showing, so far as may be practicable: (i) the persons who are land-owners, , or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; … (d) such other documents as the Board of Revenue may, with the previous approval of Government, prescribe. 56. Assessment of land revenue.— (1) A11 land, to whatever purpose applied and wherever situated, is liable to the payment of land revenue to Government, except— (a) such land as has been wholly exempted from that liability by special contract with Government, or by the provisions of any law for the time being in force; (b) such land as is included in village site; (c) such land as is included in Cantonment limits; (d) land on which property tax under the Punjab Urban Immovable Property Tax Act, 1958 (W.P. Act V of 1958), is payable; 116. Revenue survey may be introduced by Board of Revenue in any part of Province.— (1) It shall be lawful for the Board of Revenue, whenever it may deem expedient, to direct by notification, the survey of any land in any part of the Province with a view to the settlement of land revenue, the preparation of record-of-rights and preservation thereof, or for any other similar purpose, and such survey shall be called a revenue survey. (2) A revenue survey may extend to the lands of any village, town, or city generally, or to such land only as may be specified in the notification. (3) Subject to the orders of the Board of Revenue, it shall be lawful for the officers conducting any such survey to except any land to which it may not seem expedient that such survey should extend. The Punjab Local Government Act, 2013 2. Definitions.– In this Act– (hhh) “urban area” means an area within the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a H.R.C. No.69229-P/2018 -: 6 :- Municipal Committee and includes any other area which the Government may, by notification, declare to be an urban area for purposes of this Act; 6. Local areas.- (2) For purposes of this Act, the Government shall, by notification, demarcate and declare a local area consisting of: (a) Lahore District as the Metropolitan Corporation; (b) rural area in a District, other than Lahore District, as District Council; 3. As per Section 4 of the Act of 1887, the land which is occupied as the site of a town or village and is not assessed to land revenue is expressly excluded from the ambit of the said Act, except where doing so may be necessary for the purposes of record, recovery and administration of village cesses. The said Act was repealed through the Act of 1967, however, a similar exclusion was provided in Section 3 thereof, wherein the land which is occupied as the site of a town or village and is not assessed to land revenue has been exempted from the operation of the said Act except where its application was necessary for the purposes of record, recovery and administration of village cesses. 4. Besides, Section 31 of the Act of 1887 dealt with the record of rights and documents included therein, providing inter alia that there shall be a record of rights for each estate which shall, so far as may be practicable, include statements showing the persons who are land owners, tenants or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; statements reflecting the nature of the interests of such persons and conditions attached to such interests; rent, land revenue, rates, cesses or other payments due from and to each of these persons and/or to the Government; a map of the estate; and such other documents as the Financial Commissioner may prescribe with the previous sanction of the Provincial Governments. The said Section was re-enacted with slight modification as Section 39 in the Act of 1967 which more or less contained H.R.C. No.69229-P/2018 -: 7 :- the same requirements for entry into the record-of-rights however the previous sanction to be acquired from the Government in order for the Finance Minister to prescribe any additional documents was now to be acquired from the Provincial Government instead. Specific exclusion from payment of land revenue is given in Section 56(2) of the Act of 1967 which provides that land included in village sites, land that has been wholly exempted from that liability on account of a special contract with the Government, or by the provisions of any law for the time being in force, land which is included in Cantonment limits and land on which property tax under the Punjab Urban Immovable Property Tax Act, 1958, is payable are all exempted from the payment of land revenue under the Act of 1967. Additionally, Section 116 thereof provides that a revenue survey may be conducted of any land in any part of the Province with a view to the settlement of land revenue by the Board of Revenue whenever it may deem such survey expedient. This revenue survey may extend to the lands of any village, town, or city generally, or to such land only as may be specified in the notification issued in this regard, however the Board may through its orders exempt any land from such survey. 5. The key term used in the aforementioned provisions is “land”, which has neither been defined in the Act of 1887 nor the Act of 1967, therefore, the same is liable to be construed from other relevant statutes and/or in light of its ordinary dictionary meaning. As per Section 4(1) of the Punjab Tenancy Act, 1887, “land” means “land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes the sites of buildings and other structures on such land”. The term “land” has also been defined in the Land Reforms Regulation, 1972, to mean land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structures on such H.R.C. No.69229-P/2018 -: 8 :- land. The term “land” has been defined in Section 2(3) of the Punjab Alienation of Land Act, 1900 to mean, “land, which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture, and includes (a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land revenue payable by an inferior land-owner to a superior land-owner; (d) a right to receive rent; (e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; and (g) all trees standing on such land”. As per the judgment of Ghulam Rasul Vs. Ikram Ullah (PLD 1965 Lahore 429), relying on Vir Bhan and another Vs. Sham Singh etc. (AIR 1944 Lahore 455) it was held that the term “land” in Section 141 of the Punjab Land Revenue Act (XVII of 1887) has a special and restricted meaning and does not comprise site assessed to land revenue on which buildings with structures of a permanent character have been constructed. 6. Adverting to the dictionary meanings of “land”, according to Black’s Law Dictionary (Ninth Edition), it means “an immoveable and indestructible three-dimensional area consisting of a portion of the earth’s surface, the surface above and below the surface, and everything growing on or permanently affixed to it. An estate or interest in the real property”. In Chambers 21st Century Dictionary it is defined as “the solid part of the Earth’s surface as opposed to the areas covered by water” and “ground that is used for agriculture”. As mentioned in Wharton’s Law Lexicon (Fourteenth Edition) “the word land used in its generic terms comprehends every species of ground, soil, or earth or whatsoever as meadows, pastures, woods, moors, waters, marshes, furze and heath. It includes also houses, mills, castles and other buildings for the conveyance of the land the structure upon it also passes.”. From the above dictionary as well as statutory definitions, it is established that the term land includes within its meaning buildings and structures etc., and thus includes land falling within the ambit of Punjab Urban Immoveable Property Tax Act, 1958. Therefore, the exemption to such land to payment of land revenue under Section 56(2) of the Act of 1967 H.R.C. No.69229-P/2018 -: 9 :- applies to all such urban property falling within the ambit of the said Act. 7. Section 4 of the Act of 1887 has been explained by Om Prakash Aggarwala in the third edition of his commentary thereof as under:- “It is usual to measure the village site in one number, together with the small plots attached in which cattle are penned, manure a stored, and straw is stacked, and other waste attached to the village site. The entry in the column of ownership and occupancy is simply abadi deh. In the shajras this number is inked in red so that in common parlance abadi deh is known as the area within the lal lakir. Land included within Municipal limits: - It must not be assumed that merely because a definite area of land which is not assessed with land revenue happens to have been included, for jurisdictional purposes within the limits of a Municipal Committee, ipso facto becomes the site of a town, and the act of including it within Municipal limits makes it the site of a town or village within the meaning of section 4 of the Land Revenue Act, so as to oust the jurisdiction of the revenue officer over such land. Every case must be decided on its merits [Jiwa v. Karam Baksh 1925 L.L.T.3=1925 P.C.L.I (Rev.)] Thus, it is clear that any land that is occupied as the site of a town or village and is not assessed to land revenue is exempt from the operation of the provisions of the Act of 1967. However, as is evident from the above commentary (regarding Section 4 of the 1887 Act in India which is pari materia to Section 3 of Act of 1967), every case must be decided on its merits and the mere inclusion of a certain area within a town/village for jurisdictional purposes does not trigger the exemption from land revenue under the law. For instance, the construction of a house on one single field does not convert land otherwise subject to land revenue, into the site of a town or village. Similarly, where the area is under fluctuating assessment and if during the currency of a settlement of a particular part of the land is used for purposes other than agriculture, it is not excluded under Section 3(1) of the Act of 1967. H.R.C. No.69229-P/2018 -: 10 :- 8. Further to the foregoing discussion, the definition of the word “estate” under Section 3(1) of the Act of 1887 must be noted which includes (1) any area for which a separate record-of-rights has been made; (2) or which has been separately assessed to land revenue; or (3) would have been so assessed if the land-revenue had not been released, compounded for or redeemed; or (4) which the Provincial Government may, by general rule or special order, declare to be an estate. The same definition of “estate” has been given in Section 4(9) of the Act of 1967. Reference in this regard may be made to paragraph No.123 of Douie’s Settlement Manual (Fourth Edition issued in 1930), wherein the terms mauzas or villages and mahals or estates have been explained as under:- 123. Mauza or villages and mahals or estates.— Before describing the village community it will be convenient to explain exactly what is meant by the two terms mauza, which is usually translated “village,” and mahal, of which the English equivalent is “estate.” A mauza is defined by Mr. Thomason as “a parcel or pastels of land having a separate name in the revenue records and known limits,” and a mahal as “any parcel or parcels of land which may be separately assessed with the public revenue, the whole property of the persons settled within the mahal being held hypothecated to Government for the sum assessed upon it.” There are two elements in this definition, the separate assessment and, where more than one person own the same estate, their joint responsibility for the payment of its revenue. “Village” is not defined in the Land Revenue Act, but the meaning of “estate” is explained to be “any area— (a) for which a separate record of rights has been made, or (b) which has been separately assessed to land revenue, or would have been so assessed, if the land revenue had not been released, compounded for, or redeemed, or a leased, compounded for, or redeemed, or (c) which the Local Government may, by general rule or special order, declare to be an estate.” The joint responsibility of all the landowners of an estate for its revenue is provided for in section 61 of the Act. In practice it is rarely enforced. A rule made under clause (c) of the section H.R.C. No.69229-P/2018 -: 11 :- quoted above declares “all demarcated areas of uncultivated and forest land owned by Government” to be estates. A village, as a rule, consists of a single block of land. But occasionally the whole of its land does not lie in a ring fence, and some outlying fields are found mixed up with the lands of another village. Thus, there remains no ambiguity in the determination that an “estate” means any area for which either a separate record-of-rights (jamabandi) has been prepared or which has been treated separately for an assessment or which has been declared to be an estate by the Provincial Government. An “estate” or “mahal” is somewhat different from a village or mauza. Although, according to the judgment reported as Jamil and 5 others Vs. Sheerin and 3 others (2011 YLR 1083) passed by the learned Peshawar High Court, the connotation of word “estate” employed in Section 4(9) of the Act of 1967, does not mean that it consists of village or mauza or gaon or pind; generally an estate or mahal is identical to a village or mauza but an estate may include more than one villages, and a village may be divided into two estates. Furthermore, as per the judgment reported as Muhammad Khan Vs. Ghulam Rasool and another (1999 YLR 2688), the Supreme Court of AJ&K held that the term “estate” is a legal expression which forms the unit for revenue assessment, an estate or mahal is different from a village or mauza, however, generally an estate is a mahal which is assessed to revenue. 9. Under the provisions of Section 3(1) and (2) read with Section 116 of the Act of 1967, the maintenance of record of rights in cities and towns is also the function of the Board of Revenue for which it issues directives from time to time under various provisions of the said Act. In this regard, it is pertinent to note the judgment of the learned High Court reported as Pervez Ahmad Khan Burki and 3 others Vs. Assistant Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31) wherein the following was held:- H.R.C. No.69229-P/2018 -: 12 :- “4. Having heard the learned counsel for the parties and perused the record, I am of the view that the contentions raised on behalf of the petitioners are unexceptionable. Undoubtedly respondents Nos.2 and 3 are functionaries appointed under the Punjab Land Revenue Act, 1967 to carry out the purposes of the aforesaid Act. The preamble to the Act recites that it was being framed to consolidate and amend the law relating to the making and maintenance of records-of-rights, the assessment and collection of land revenue, the appointment and functions of revenue officers and other matters connected therewith. According to section 3 of the Act, except for certain fiscal purposes, nothing in the Act applies to land which is occupied as a building site or such land on which permanent structures have been raised; it loses all characteristics of. A agriculture land and the dispute as regards the partition of such land has to be resolved through the Civil Court and not by Revenue Court. No detailed discussion on the subject is necessary in view of the judgment of this Court in Ghulam Rasool v. Ikram Ullah etc. PLD 1965 (W.P.) Lahore 429 whereafter exhaustive discussion on the subject it was held that a Revenue Officer does not have any jurisdiction to entertain an application for the partition of the properties which have ceased to be land notwithstanding the fact they continue to be assessed to land revenue. The land involved’ in the present case is on much better footing inasmuch as the land does not pay any land revenue. The same view was taken in Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596. So far as the judgment relied upon by the learned counsel for the respondents is concerned, it is clearly distinguishable inasmuch as it related to demarcation of open plots of land.” In the judgment reported as Dr. Jalal Khan Vs. Qazi Naseer Ahmed, District Deputy Officer, (Revenue), Kharian, District Gujrat and 6 others (2005 MLD 814) the Lahore High Court held as follows:- 5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before proceeding with the determination of the controversy, it has to be kept in mind that property subject of dispute is located within limits of Town Committee, Kharian, and is not only urban in nature but has also been converted into building site. For H.R.C. No.69229-P/2018 -: 13 :- examination whether such property could be demarcated by respondent No.2 (Tehsildar/Revenue Officer) under the provisions of Land Revenue Act, 1967, we will have to see provisions of section 3 thereof, which excludes certain land from operation of the Act. This provision of law clearly excludes the land which is kept as a site of Town or village and is not assessed to land revenue. The property subject of dispute being part of site of the Town provisions of the Act (ibid) were not applicable to it and thus resort to its provisions for demarcation thereof was not permissible. Petitioner himself moved for demarcation of a part of site of the Town under section 117 of the said Act, which equips a revenue officer to define the limits of any estate or of any holding, field or other portion of an estate but cannot be extended for this purpose, to the land not falling in any Estate. Had the land subject of dispute been part of any estate, the revenue officer could have proceeded to demarcate it under section 117(1) of the Act, but he could not undertake any such activity about the land falling outside the limits of the estate of any village. Demarcation in terms of section 177 of the Land Revenue Act, 1967 has to be done under rule 67-A of the West Pakistan Land Revenue Rules, 1968, which as well, refers to defining the limits of an estate, a holding, a field or any portion thereof. In view of this clear provision, there is no ambiguity that a Revenue Officer designated under the Land Revenue Act, 1967 could not demarcate any urban property falling within the limits of Town Committee especially that, which has gained the character of building site. 7. Properties of parties were, undeniably urban even at the time of allotment by Deputy Settlement and Rehabilitation Commissioner, for this reason as well, Revenue Officer was not competent to undertake the exercise of demarcation. Under law, the Revenue Officer could only demarcate boundaries of any estate or any part thereof, under the provisions already discussed. Predecessor of the respondents, who was plaintiff, was required to prove his title to property in possession of the petitioners through some lawful/cogent evidence, in absence of which his suit could not have been decreed. Even otherwise, since there was the only dispute of demarcation which could have resolved the controversy for all times to come, the trial Court should have invoked its own jurisdiction in this behalf, in spite of report Exh.P.1, but both the Courts below, being oblivious of their jurisdiction under Order XXVI, rule 9, C.P.C. proceeded to decide the lis without adverting to H.R.C. No.69229-P/2018 -: 14 :- legality or otherwise of the said report. In the case of Khizar Hayat and another Vs. Pakistan Railway through Chairman, Pakistan Railway, Lahore and 2 others (2006 CLC 1028) the Lahore High Court opined that:- 5. …It is not disputed between the parties that suit properties are no more agricultural land and are building sites, located within the municipal limits of Khushab. Such properties could not have been demarcated by the officials working in revenue hierarchy under West Pakistan Land Revenue Act, 1967, as its section 3, excluded land kept as site of a town or village from its operation. Language of the provision of law, under discussion, accepts no ambiguity that demarcation of land kept/used as a building site could not have been done under the provisions of Act of 1967, which was A subject to their process only for certain restricted physical purposes like recovery of land revenue etc. In forming this view, I have to my credit a chain of judgments including the cases of Ghulam Rasul v. Ikram Ullah and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732; Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31. The Lahore High Court held, in the judgment reported as Muhammad Muneer and 7 others Vs. Member Board of Revenue, Punjab, Lahore and 12 others (2009 MLD 930), that:- “8. …The land which is excluded from operation of Land Revenue Act, is described in section 3 of Act, 1967… 9. The above provision reflects that Act, 1967 will not apply to the land, which is kept as site of town or village and is not assesseed to land revenue. Revenue authorities proceeded with partition of joint land, as there was no objection to the title of owner. The objection of the petitioners, that Killa Nos. 13/3 and 16 in square No.15, are residential and fall under boundary wall of Abadi, were turned down on the ground that change in the classification of land took place through Khasra H.R.C. No.69229-P/2018 -: 15 :- Girdawari during the period of Rabi 2005, when the partition proceedings were pending. No interference in such finding is justified as the Revenue Officer has proceeded in the matter, as per entries in the revenue record, as they existed at the time of filing of the application for partition. Any subsequent change is immaterial. The land, as per Revenue Record, was assessed to land revenue, therefore, the respondent had rightly proceeded in the matter of partition.” In the case of Makhdum Raju Shah Vs. Member Board of Revenue, Punjab and 17 others (2011 YLR 1724) the Lahore High Court held as follows:- 7. It is an admitted fact between the parties that property is ‘Abadi Deh’ and is not an agriculture one. The only question require resolution is whether Tehsildar was competent to entertain the application of partition of land situated in ‘Abadi Deh’ or not? Under section 3 of West Pakistan Land Revenue Act, 1967, the Revenue Court has no power or jurisdiction to pass a partition order of land which is not agricultural land and is ‘Abadi Deh’. For better appreciation of proposition of law section 3 is reproduced as under:-- “(3) Exclusion of certain land from operation of this Act.- 8. The perusal of this provision of law shows that important word is land. The word “land” has not been defined in the West Pakistan Land Revenue Act. This term, therefore, has to be construed according to the ordinary dictionary meaning. Under the Punjab Tenancy Act, 1877 “land” has been defined in the following terms:- “Land which is not occupied as the site of any building in a town or village and is occupied or has let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes the sites of buildings and other structures on such lands”. 9. The term “land” under Land Reforms Regulations, 1972 means which is not occupied as the site of a town, village, factory or industrial establishment and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structure on such land. H.R.C. No.69229-P/2018 -: 16 :- 10. Section 2(3) of the Punjab Alienation Act defines the term “land” as under:-- “The expression land means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture and includes the sites of buildings and other structures on such land; a share in the profits of an estate or holding; any dues or any fixed percentage of the land revenue payable by an inferior land-owner to a superior land owner; a right to receive rent; any right to water enjoyed by the owner or occupier of land as such; any right of occupancy; all trees standing on such land.” 11. From the perusal of above said provision of law the definition of agricultural land is its agricultural or pasture character. 12. As this is not dispute between the parties that land in dispute is not situated in ‘Abadi Deh’ and the parties are using the said land for residential purposes, the jurisdiction of Tehsildar with reference to its partition in terms of section 3 of West Pakistan Land Revenue Act, 1967 was barred this shows that original order dated 26-3-1996 passed by the Tehsildar was without jurisdiction. It is a settled principle of law that an order passed by a Court not competent to pass is a void order and against void order the bar of limitation is not applicable. The Peshawar High Court has held in the case of Muhammad Ayaz and others Vs. Malik Zareef Khan and others (PLD 2016 Peshawar 8) that:- 11. Let us first see the forum of revenue hierarchy provided under the Act of 1967. In this regard, the jurisdiction and procedure for partition of undivided immovable property is vested in the Revenue hierarchy under the enabling provisions of sections 135 to 150 of the Act of 1967. What is important to note is that section 3 of the Act of 1967 determines the area coming within the purview and jurisdiction of the Revenue hierarchy. The said provision reads: “Section 3. Exclusion of certain land from operation of this Act… The aforementioned provision clearly provides that as far as H.R.C. No.69229-P/2018 -: 17 :- non-applicability of Act of 1967 is concerned, it would extend to the area, which is neither within the Site of Village nor paying land revenue. It is also important to note that with time the appropriate Officer would alter the Site of Village and include the areas, which has with time become Abadi in the Mauza and accordingly the said area would be included and recorded within the red line of the Site of Village in the revenue record. 12. While in cases of undivided immovable property, which falls outside the express domain of the Revenue hierarchy as provided under section 3 of the Act of 1967, the jurisdiction for partition thereof would vest in the ordinary Civil Court, of competent jurisdiction and the partition proceedings would proceed under the provision of the Partition Act, 1893. In 1942, under Section 31(2)(d) ibid, the Financial Commissioner, Punjab prescribed a document called khasra imarati for certain areas in the estates of Lahore Urban Assessment Circle. Besides, Rule 67-A of the Land Revenue Rules, 1968 referred to demarcation of agricultural land only and not to property other than agricultural land. As determined hereinabove, Section 3 of the Act of 1967 expressly excluded land not assessed to land revenue from operation of the said Act. 10. At this stage, it is to be noted that certain provisions of the Act of 1882, such as, Section 54 (sale), Section 59 (mortgage), Section 107 (lease), Section 118 (exchange) and Section 123 (gift) were applicable to urban areas of Punjab since 1974 (and even earlier). Besides, the transfer of land in urban areas could only be made through registered deeds under the Act of 1908. The registered deeds pertaining to land form the basis of mutations under Section 42 of the Act of 1967 by the revenue field staff and under Section 42-A thereof at the Arazi Record Centre functioning under the Punjab Land Records Authority. 11. Another important statute which is relevant for the issue in hand is the West Pakistan Urban Immoveable Property Tax Rules, 1958 (Rules of 1958), whereunder the assessing authority of the Excise & Taxation H.R.C. No.69229-P/2018 -: 18 :- Department is required to prepare a property register in Form P.T.l for the rating area and enter therein the necessary particulars, separately for each unit of property. The assessing authority is also required to ascertain the name of the owner and the occupier, if any, of the property and note the same in Register P.T.2. 12. As per Section 56 of the Act of 1967 certain lands are exempt from the payment of land revenue. This Section provides, inter alia, that all land, to whatever purpose applied and wherever situated, is liable to the payment of land revenue to the Government, except such land as is included in a village site, Cantonment limits, or on which property tax under the Punjab Urban Immovable Property Tax Act, 1958 is payable. However, land revenue was abolished through the Punjab Land Revenue (Abolition) Act, 1998, Section 2 whereof provides that notwithstanding anything to the contrary contained in the Act of 1967 or any other law (for the time being in force), no land revenue, as defined in the Act of 1967, shall be charged. 13. The instructions of the Board of Revenue, Punjab contained in Paragraphs 7.40, 7.45, 7.46 and 7.57-A of the Punjab, Land Records Manual (Second Edition 1958) are also relevant. Paragraph 7.40 ibid deals with Register Haqdaran Zamin, notes (1) and (2) whereof read as under:- (1) In case of estate which is partly within Cantonment limits, Municipal Committee or Town committee, Register Haqdaran Zamin should be prepared in parts, namely (a) for rural lands, and (b) for urban lands. (2) For Colony Town/Chaks see form namely, “Register Haqdaran Zamin Abadi” (Patwari/Tepedar Standard Form No. XXXIV-B). This form will be used where the land in a Colony Town/Chak has been built upon.” Paragraphs 7.45 and 7.46 ibid deal with Jamabandi Abadi for Colony Towns and Chaks. Paragraph 7.57-A ibid concerns maintenance of the H.R.C. No.69229-P/2018 -: 19 :- record of rights/periodical records for ‘rating area’ to which the Urban Immoveable Property Tax Act, 1958 applies. 14. In this regard, it is to be noted that in supersession of the earlier Office Memo dated 31.07.1965, the Government of Pakistan through the Revenue Department, issued the following Memorandum bearing No. 3417-68/1203(S) dated 8.7.1968:- “To All Commissioners in West Pakistan. (except Karachi. Hayderabad & Khairpur Div ision), All the Deputy Commissioner in the West Pakistan. (except Karachi, Hayderabad & Khairpur Division) Memorandum No. 3417-6811203-(S). Dated the 8th July. 1968 Subject: Exemption from the payment of land revenue and abandonment of revenue records in the respect of lands located within “rating areas” of the Urban Immoveable Property Tax Act. Reference: In supersession of this office memo No.321- 65/1958-(S), dated 31st July, 1965, on the above subject. Memorandum: Under Section 56(1)(d) of the West Pakistan Land Revenue, Act, 1967 Land on which Property Tax under the West Pakistan Urban Immovable Property Tax Act, 1958 (West Pakistan Act-V-1958), is payable, is exempt from the assessment of Land revenue. This Act came into operation in the Province with effect from 1st January, 1968. In view of the above provision, in the Act, the instructions issued in the memorandum under reference stand superseded. You are, therefore, requested kindly to direct the field staff not to assess, land revenue with effect from Rabi 1968 in respect of properties which are subject to assessment of Property Tax. 2. The shortfall in revenue due to the above orders should please be reported for the information of Finance Department. 3. So far as the preparation of record of rights in the Rating Area is concerned it has been decided that the instructions contained in paragraph 2 of Board of Revenue’s memorandum No. 3210-65/1859-(S), dated 31st July 1965, H.R.C. No.69229-P/2018 -: 20 :- should be followed with a light modification as under. Only the existing staff should however, be employed for this work and no additional staff be entertained. i) The practices of maintaining revenue records in Rating Areas may continue as before. All transactions which have been completed after 8th July, 1968, should be incorporated in the revenue records. If a piece of land has since been sold or otherwise transferred any number of times the mutations of all the transactions should be recorded, datewise. ii) Areas which have been built up may be treated as `Abadi Deh’ for the purposes of revenue records and further maintenance of record in respect thereof should be discontinued. It may be made clear that only those Khasra/Survey numbers should be treated as Abadi Deh, which have entirely been covered by construction. It would not be advisable to treat a portion of a field number as Abadi Deh and discontinue further maintenance of records in respect thereof. iii) If a field/survey number is covered by buildings, it would not be necessary to change entries in Jamabandi (Revenue records) forthwith, but new entries may be made at the time of preparation of the next quadrennial Jamabandi (revenue Records). At the time of revising the quadrennial Jamabandi (Revenue records) the Tehsildar/Naib Tehsildar concerned should personally inspect the existing Abadi Deh and compile a report about the field/ survey numbers which were covered by buildings during the last four years. He should then submit a proposal to include that area in the Abadi Deh, for orders of the Collector. After obtaining the orders of the Collector the Tehsildar/Naib Tehsildar should make entries in the new Jamabandi (Revenue Records) by sanctioning a mutation accordingly. If any difficulty is experienced in the implementation of the above instruction, a reference may be made to the Board of Revenue for clarification. Sd/- Deputy Secretary to Government, West Pakistan Revenue Department” In the above Memorandum, being conscious of the fact that under Section 56(1)(d) of the Act of 1967, the land on which property tax is payable under H.R.C. No.69229-P/2018 -: 21 :- the West Pakistan Urban Immovable Property Tax Act, 1958 is exempt from the assessment of land revenue, the Government has clarified the precise legal position to the extent of the exemption from the payment of land revenue and abandonment of revenue records in respect of lands located within “rating areas” of the Urban Immoveable Property Tax Act, 1958. In the said Memorandum, specific directions were issued that the areas which have been built up should be treated as ‘abadi deh’ for the purposes of revenue records and further maintenance of record in respect thereof should be discontinued. However, it was made clear that only those khasra/Survey numbers should be treated as abadi deh, which have entirely been covered by construction; whereas, a portion of a field number would not to be treated as abadi deh and further maintenance of records would not be discontinued in respect thereof. Besides, it was further directed that if a field/survey number is covered by buildings, it would not be necessary to change entries in jamabandi (revenue records) forthwith, but new entries would be made at the time of preparation of the next quadrennial jamabandi (revenue records). At the time of revising the quadrennial jamabandi (revenue records) the Tehsildar/Naib Tehsildar concerned would personally inspect the existing abadi deh and compile a report about the field/ survey numbers which were covered by buildings during the last four years. He should then submit a proposal to include that area in the abadi deh, for orders of the Collector. After obtaining the orders of the Collector the Tehsildar/Naib Tehsildar should make entries in the new jamabandi (revenue records) by sanctioning a mutation accordingly. 18. It is to be noted that the terms “urban area” and the “local area” have been defined in Section 2(hhh) and Section 6(2) of the Punjab Local Government Act, 2013. The “urban area” means an area within the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a Municipal Committee and includes any other area which the Government may, by notification, declare to be an urban area for purposes of this Act H.R.C. No.69229-P/2018 -: 22 :- and the “local area” means the area notified, demarcated and declared by the Government for purposes of this Act as a local area, consisting of Lahore District as the Metropolitan Corporation; and rural area in a District, other than Lahore District, as District Council. 19. From the above, it is clear that land not subject to land revenue, which has been enclosed within Municipal limits, does not ipso facto become the site of a town. Meaning thereby that from mere inclusion of a certain area for purposes of jurisdiction within the limits of a Municipal Committee it could not be presumed that it has become the site of a town or village within the meaning of Section 3 of the Act of 1967. However, the ‘land’ falling within the site of a town or village, if it is not assessed to land revenue, then it stands excluded from operation of the Act of 1967 in terms of Section 3 thereof according to the ratio the Lahore High Court judgment of Dr. Jalal Khan Vs. Qazi Naseer Ahmed, District Deputy Officer (Revenue) (2005 MLD 814). The revenue officer does not have any jurisdiction to entertain an application for partition of the property which has ceased to be land, notwithstanding the fact it continues to be assessed to land revenue as per Ghulam Rasul Vs. Ikram Ullah judgment (supra) and Syed Aslam Shah Vs. Mst. Sakina (1988 MLD 1596). According to the ratio of Pervez Ahmad Khan Burki and others Vs. Assistant Commissioner and others (PLD 1999 Lah 31) the revenue authorities have no jurisdiction to carry out demarcation of property which formed part of a bungalow. 20. In light of the above discussions as well as the ratio decidendi there is no doubt in our minds that the land/estate located within “rating areas” of the Punjab Urban Immoveable Property Tax Act, 1958, is exempted from the payment of land revenue and the revenue authorities, i.e. Patwaries, Kanungos, Tehsildars etc., are not authorized to enter mutations of alienation of property etc., in their record. We, therefore, hold that under the law, any urban area in Lahore or otherwise within Punjab H.R.C. No.69229-P/2018 -: 23 :- which falls within the ambit the Punjab Urban Immoveable Property Tax Act, 1958, are not subject to land revenue and hereby issue directions to the revenue authorities to refrain from any and all functions (to the extent that these are within the ambit of the Punjab Urban Immoveable Property Tax Act, 1958) in the said areas particularly with regards to entering mutations, etc. Since the revenue authorities of the Province of KPK are already compliant with these directions, the above findings and directions shall also apply to the Provinces of Sindh and Balochistan as well as that of the Federal Capital. Compliance reports of the above directions (from all the Provinces and the Federal Capital) be placed before this Court after a period of one month for our perusal in Chambers. 21. These are the reasons of our short order of even date, which reads as under:- “For the reasons to be recorded later, it is held that all the urban areas to which the Land Revenue Act, 1967 does not apply shall be governed by the Transfer of Property Act, 1882 (Transfer of Property Act) and the Registration Act, 1908 for the purposes of transfer of property or devolution of any rights in property. No oral mutations for the purposes of the transfer of property shall be valid in law in such urban areas (which have become part of settled areas including municipalities, towns, etc.). The patwaar khanas or revenue records can only be maintained for record keeping and not for the transfer of property under any of the modes recognized by the Transfer of Property Act or any other law prevalent at the time. Disposed of accordingly.” CHIEF JUSTICE Islamabad, the 3rd of January, 2019 Not Approved For Reporting JUDGE JUDGE Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN [Original Jurisdiction] PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE KHILJI ARIF HUSSAIN HUMAN RIGHTS CASE NO.7734-G/2009 & 1003-G/2010 [Alleged Corruption in Rental Power Plants] HUMAN RIGHTS CASE NO. 56712/2010 [Fraud in payment of Rental Power Plants detected by NEPRA] Applicants in person: Makhdoom Syed Faisal Saleh Hayat, Federal Minister for Housing and Works Khawaja Muhammad Asif, MNA assisted by M/s Mustafa Ramday and Syed Ali Shah Gilani, Advocates Amicus Curiae: Mr. M. Anwar Kamal, Sr. ASC On Court Notice: For NEPRA: Syed Najmul Hassan Kazmi, Sr. ASC Mr. M. S. Khattak, AOR Syed Safeer Hussain, Registrar Syed Insaf Ahmad, DG For PEPCO/GENCOs/ Kh. Ahmed Tariq Rahim, Sr. ASC WAPDA & M/o W & P: Mr. Abbas Mirza, ASC Mr. Moazzam Ali Rizvi, ASC Syed Zafar Abbas Naqvi, AOR Mr. Arshad Ali Ch. AOR assisted by Mr. Ijaz A. Babar, Finance Director, PEPCO Barrister Asghar Khan, SML, PPIB Mr. Hamid Ali Khan, Addl. Secy. M/o W&P Mr. Masood Akhtar, GM NPCC Mr. Mansoor Ali Khan, CE, WPPO Rana Muhammad Amjad, GM, WPPO Rana Asif Saeed, Chief Legal Advisor Mr. Salman Iqbal, Executive Directed (Legal) Mr. Abdul Jabbar Memon, CRRO, WAPDA, KHI Mr. Anisuddin Alvi, DD, CRRO Mr. Razi Abbas, former CFO Mr. Abdul Jabbar Shaikh, DM, LPGCL HRC 7734-G/09 [RPPs case] 2 Mr. Faizullah Dahri, FD, LPGCL Mr. Muhammad Anwar Brohi, CEO, LPGCL Mr. Sultan Muhammad Zafar, CEO, GENCO-III For Raja Pervez Ashraf Mr. Wasim Sajjad, Sr. ASC Former Minister W&P: Mr. M. S. Khattak, AOR assisted by Mr. Idrees Ashraf, Advocates For Karkey : Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Azid Nafees, ASC assisted by Syed Ahmad Hassan Shah, Ms. Natalia Kamal and Sajeel Shehryar, Advocates For Gulf & Sialkot Syed Ali Zafar, ASC Power: Raja Zafar Khaliq, ASC Raja Abdul Ghafoor, AOR For Techno Sahuwal Raja M. Anwar-ul-Haq, ASC & Techno E Services: For Walters Power: Mr. Shahid Hamid, Sr. ASC Mr. M. S. Khattak, AOR For Pakistan Power: Dr. Parvez Hassan, Sr. ASC Mr. M. S. Khattak, AOR For Reshma Power Mr. Abdul Hafeez Pirzada, Sr. ASC & Kamoki Energy: Mr. Sikandar Bashir Mohmand, ASC Mr. Mehmood A. Sheikh, AOR assisted by M/s Hameed Ahmed and Mustafa Aftab Sherpao, Advocates. For Young Gen Power: Sh. Zamir Hussain, Sr. ASC For M/o Finance: Mr. Muhammad Iqbal Awan, Addl. Secy For FBR Mr. Salman Siddique, Chairman FBR Dates of hearing: 26-28 & 31 October, 1-4, 14-17 & 21-24 November and 12-14 December, 2011 … J U D G M E N T IFTIKHAR MUHAMMAD CHAUDHRY, CJ – The Constitution of the Islamic Republic of Pakistan mandates that State shall exercise its powers and authority through chosen representatives of the people. A democratic order in place, through the representatives of people, being the members of Parliament, obligates the elected HRC 7734-G/09 [RPPs case] 3 representatives to fulfill their commitments bestowed upon them under the Constitution, and in their representative capacity, they are bound to perform their functions honestly, to the best of their ability, faithfully, in accordance with the Constitution and the law as well as the Rules of the Assembly, and always in the interest of sovereignty, integrity, solidarity, well being and prosperity of Pakistan. Such a binding force of the Constitution commands them to ensure well being and prosperity of Pakistan, so whenever they feel threat to the well being of the people of Pakistan for any reason, they are bound to preserve the same. 2. Makhdoom Syed Faisal Saleh Hayat, one of the Parliamentarians of PML(Q) and its parliamentary leader in the National Assembly, now holding the office of Federal Minister for Housing & Works, through a press statement published in Daily “Nation” dated 8.9.2009, urged this Court to take action in respect of Rental Power Projects (RPPs) which, according to him, was just another name of corruption. He said that he had raised the issue of corruption in the award of RPPs before every forum, including the National Assembly of Pakistan, but his voice was not attended to, therefore, he had approached the Supreme Court for initiating suo motu proceedings against all those who were involved in this massive scam of US$ 5 billion, which was being skimmed from the pockets of innocent people of this country. Makhdoom Syed Faisal Hayat was asked to furnish evidence in support of allegations for further examination of the matter. He submitted a detailed application dated 26.9.2009, wherein reiterating the allegations of corruption, he relied upon certain documents of the PEPCO, GENCOs, WAPDA and Ministry of Water & Power to prove his assertions. Thereafter, para-wise HRC 7734-G/09 [RPPs case] 4 comments were called from WAPDA, which were submitted by M.D. PEPCO, denying the allegations/charges of corruption. However, it was emphasized that due to acute shortage of electric power in the country, short term measures in the shape of RPPs for three to five years were adopted pursuant to Rental Power Policy approved by Economic Coordination Committee (ECC) of the Cabinet, Government of Pakistan from time to time, inter alia, vide case No.ECC 135/9/2006 dated 16.8.2006. Similarly, the other stakeholders denied the allegations of corruption. 3. When the petition was pending for hearing, another eminent Member of the National Assembly, namely, Khawaja Muhammad Asif belonging to PML(N), vide CMA No.3100/2010, joined the proceedings w.e.f. 21.10.2010. LAW RELATING TO GENERATION AND TRANSMISSION OF ELECTRICITY 4. In 1994, the Private Power and Infrastructure Board (PPIB) was created as “One Window Facilitator”, inter alia, with a view to promote private sector participation in the power sector of Pakistan and to facilitate investors in establishing private power projects and related infrastructure, execute implementation agreements with project sponsors and issue sovereign guarantees on behalf of Government of Pakistan. On 16.12.1997, to provide for the regulation of generation, transmission and distribution of electric power and matters connected therewith and incidental thereto, the Regulation of Generation, Transmission and Distribution of Power Act, 1997 (hereinafter referred to as the “the Act, 1997”) was promulgated. Subsections (vi), (xi) and (xxvi) of section 2 of the Act, 1997, respectively, define “Distribution”, “Generation” and “Transmission” Companies. In 1998, Pakistan Electric Power Company (PEPCO) was HRC 7734-G/09 [RPPs case] 5 incorporated under the Companies Ordinance, 1984 with a view to improve the efficiency of the power sector, to meet customers’ electric energy requirements on a sustainable and environmental friendly basis, to stop load shedding, to construct new grid stations, to reduce line losses, to minimize tripping and theft control, to revamp generation units and to improve customer services, and develop an integrated automated power planning system for generation, transmission and distribution to ensure system stability, fault isolation and upgrade relying, metering and tripping system at the level of National Transmission and Distribution Company (NTDC) as well as Distribution Companies (DISCOs). 5. It may be stated that in Pakistan, electricity is produced from hydel, oil, gas, coal and nuclear sources. Hydel and thermal power generation was previously under the control of WAPDA. To augment the generation capacity to meet demand and eliminate inefficiencies due to WAPDA’s growth, demand suppression and high tariff policy and proliferated theft, WAPDA's Power Wing was restructured/segregated into twelve (12) distinct autonomous entities under the Companies Ordinance 1984, viz., three generation, one transmission and eight distribution corporate entities. Thus, electricity generation from thermal sources is under the control of Generation Companies (GENCOs) carved out of WAPDA, which are exclusively owned by the Government of Pakistan. These companies have long term projects called IPPs, spreading over a period of 25 to 30 years. The electric power generated by GENCOs is delivered to NTDC, which in turn, delivers the same to DISCOs. The DISCOs then sell it to the consumers under the contracts of electric powers on specified terms. HRC 7734-G/09 [RPPs case] 6 6. It is to be noted that the most significant aspect of the generation, transmission and distribution of the electricity is the determination of tariff, which is done by a Regulatory Authority in accordance with the provisions of the Act, 1997 and the Rules made thereunder, as well as the Policy Guidelines issued by the Government of Pakistan under section 31 of the Act, 1997 from time to time. Importantly, the Policy should not be inconsistent with the Act, 1997. Therefore, WAPDA, in principle, has no power to interfere with the affairs of RPPs. 7. Under section 3 of the Act, 1997, National Electric Power Regulatory Authority (NEPRA) consisting of a Chairman and four members, one from each province, to be appointed by the Federal Government, was established. Section 7 of the Act, 1997 prescribes powers and functions of the Authority as under: - “Powers and functions of the Authority: (1) The Authority shall be exclusively responsible for regulating the provision of electric power services. (2) In particular and without prejudice to the generality of the foregoing power, only the Authority, but subject to the provision of sub-section (4), shall, (a) grant licences for generation, transmission and distribution of electric power; (b) prescribe procedures and standards for investment programmes by generation, transmission and distribution companies; (c) prescribe and enforce performance standards for generation, transmission and distribution companies; (d) establish a uniform system of accounts by generation, transmission and distribution companies; (e) prescribe fees including fees for grant of licences and renewal thereof; (f) prescribe fines for contravention of the provisions of this Act; and (g) perform any other function which is incidental or consequential to any of the aforesaid functions. (3) Notwithstanding the provisions of sub-section (2) and without prejudice to the generality of the power conferred by sub-Section (1) the Authority shall, (a) determine tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution HRC 7734-G/09 [RPPs case] 7 companies and recommend to the Federal Government for notification; (b) review organizational affairs of generation, transmission and distribution companies to avoid any adverse effect on the operation of electric power services and for continuous and efficient supply of such services; (c) encourage uniform industry standards and code of conduct for generation, transmission and distribution companies; (d) tender advice to public sector projects; (e) submit report to the Federal Government in respect of activities of generation, transmission and distribution companies; and (f) perform any other function which is incidental or consequential to any of the aforesaid functions. (4) Notwithstanding anything contained in this Act, the Government of a Province may construct power houses and grid stations and lay transmission lines for use within the Province and determine the tariff for distribution of electricity within the Province. (5) Before approving the tariff for the supply of electric power by generation companies using hydro-electric plants, the Authority shall consider the recommendations of the Government of the Province in which such generation facility is located. (6) In performing its functions under this Act, the Authority shall, as far as practicable, protect the interests of consumers and companies providing electric power services in accordance with guidelines, not inconsistent with the provisions of this Act, laid down by the Federal Government. In terms of sections 15, 16 and 20 of the Act, 1997, licenses for “Generation”, “Transmission” and “National Grid” are also to be granted by the NEPRA. Under section 7 of the Act, 1997, NEPRA has been empowered, inter alia, to establish uniform system of accounts in respect of generation, transmission and distribution companies and to determine tariff through competitive process in terms of the Guidelines for Determination of Tariff for IPPs issued by the Ministry of Water and Power in the month of November, 2005. INSTALLED CAPACITY TO GENERATE ELECTRICITY BEFORE INTRODUCING RPP 8. Makhdoom Syed Faisal Saleh Hayat pointed out that as per brochure on “Solicitation For Fast Track IPP and Rental Power Projects HRC 7734-G/09 [RPPs case] 8 through International Competitive Bidding” issued in pursuance of the decision taken in the Special Cabinet meeting in case No.59/08/2008 dated 14.05.2008, presently the total installed electricity generation capability in the country was shown about 19478 MW, whereas as per PEPCO supply and demand position for the year 2009 it is 12074 MW and 17102 MW respectively in the months of March and September 2009 out of total generation against the peak demand of 14686 and 18110 MW as it has been shown in the chart presented by him along with his petition. The stand taken by the petitioner has been controverted by Khawaja Ahmad Tariq Rahim, learned counsel for the respondents as according to him the projected demand of electricity for the period 2010-2013 ranges between 19352 MW to 24126 MW. To substantiate his plea, he has also relied upon the ADB report. 9. It is important to note that the learned counsel for the respondents has not disputed the contents of chart showing electricity generation position as prepared in the year 2009. Similarly, the figures quoted from ADB report about the higher demand on the growth production would be 8% in 2009 to 7.5% in the year 2013. The figures from the ADB report are as follows: - 2010 21838 2011 23476 2012 25185 2013 26978 As far as above noted figures are concerned, there is no need to comment on the same because the contents of up to date generation position have been prepared by PEPCO for the year of 2008-2009 and onward whereas the projection of the increased demand by the ADB, which is also not disputed relates to the year 2010 and onward. What is important is that after having launched RPPs when there were objections from all and sundry about the corruption in the matter, HRC 7734-G/09 [RPPs case] 9 which were being adhered to, the Government of Pakistan in the month of September, 2009 decided for the Rental Power Review by means of the process of 3rd Party Audit and the assignment was entrusted to ADB. It goes to establish that in the Special Cabinet meeting held on 14.05.2008, a decision based on the presentation of different Secretaries was taken. Summary of the meeting available on this file does not show that the then Secretary, Water & Power, who was primarily responsible under the Rules of Business, 1973 had put up the case after doing proper homework. Thus, initially there was a need of thorough probe into the RPPs by soliciting opinion of the experts on the subject and also having taken into consideration the benefit of the past experience relating to the year 2006 when the Rental Power Projects were initiated by the then Government at the locations known as Bhikki and Sharaqpur. Primarily, both these projects could not prove a success. 10. The Government/Executive being the custodian of the national resources on behalf of the nation is bound to preserve and protect the same by strictly adhering to the relevant laws, conventions, experiences and have no authority to compromise with the resources, which fall within the definition of property in terms of constitutional provisions, belonging to general masses falling within the ambit of Article 24 of the Constitution. 11. Makhdoom Syed Faisal Saleh Hayat, with the assistance of the charts which he had appended with his petition, persuaded us to believe that without “Rental Power Plants” to generate additional electricity, the existing generation capacity was sufficient to cater for the current requirements, but without properly exploiting its existing resources with a mala fide intention, process of RPPs were HRC 7734-G/09 [RPPs case] 10 commenced. He referred to the energy policy issued in the year 2002 and stated that in the years 2004 to 2007, Letters of Intent (LOIs) have been issued in respect of 34 out of 48 different projects for generating electricity i.e. Hydel-13, Oil-5, Gas/Dual Fuel-10 and Coal-6 approximate capacity of each type of project being 2962, 1100, 1864, 3550 (total 9476 MW); and again in the years 2005 to 2007, LOIs were issued for Oil-7, Gas/Dual Fuel-7 with expected capacity to produce 1231, 1359 (total 2590 MW). In this way, capacity was to be increased by 12066 MW (9476+2590). 12. Learned counsel for the respondents, however, insisted that on account of projected increase in the demand, the existing capacity was not considered sufficient, therefore, to meet urgent demand Rental Power Projects were considered to be the solution to reduce day-to-day load-shedding. The argument so made by him might be very convincing, but due to non-denial of the quoted facts and figures relating to different projects and capability of generating more electricity, it cannot be denied that PEPCO has sufficient capability to increase its generation of electricity to meet the requirements. Admittedly, the figures shown on the PEPCO website, reference of which has been made during hearing of the case, were against the stand taken by learned counsel for the respondents. Perhaps the Authority finding no answer to the query raised by the Court from time to time about the generating capability of electricity stopped up-loading the figures of generation of electricity from different sources i.e. Hydel, GENCOs, IPPs, etc. and for such reason on 06.10.2010 following order was passed by making the direction to the IT In-charge of the PEPCO: - “Petitioner Makhdoom Syed Faisal Saleh Hayat, during arguments has pointed out that in the petition/letter sent HRC 7734-G/09 [RPPs case] 11 to this Court he has quoted important figures downloaded from official website of PEPCO in the year 2009 but later on such figures have been removed from the website of PEPCO. This statement so made by him seems to be true as per our own I.T. system which has been confirmed in Court by a responsible officer. Prima facie we are of the opinion that the PEPCO for the reasons known to its authority has removed these figures but retrieving of the same is important for the just decision of the case, therefore, we direct to the I.T. In-charge of the PEPCO to appear in person in Court and place on record authentic documents in respect of the entries mentioned in the application copy of which is available with the learned counsel for PEPCO and if readily is not available then he should retrieve the same from the master server.” Subsequent thereto the case remained pending but the figures were not retrieved from the main server as per the report, which we have obtained from the IT Department of this Court. The report of Data Processing Manager is reproduced hereinbelow:- “It is submitted that information regarding Power Generation & Generation contribution i.e. Hydel, PEPCO, Thermal, IPPS & Rental is 19.05.2011 no such information is available. There is no detail regarding the generation of electricity by PEPCO so far.” At the same time, in view of the non-availability of the information regarding generation of electricity by PEPCO on its website (www.pepco.gov.pk), on 16.3.2012 the Registrar was directed to procure the following information: - (i) Total generation capacity (Hydel, IPP, RPP, etc.); (ii) Total electricity generated for the last one year (Hydel, IPP, RRP, etc.), if shortage, assigned reasons; (iii) Detail of IPPs, which are generating and not generating electricity and the reasons for the same; (iv) Monthly/weekly average of production of each RPP; (v) Net demand of electricity for each month during the last one year; and (vi) As to why PEPCO website is not being updated? In response to above query, following details about the total installed generation capacity and dependable capacity have been received:- HRC 7734-G/09 [RPPs case] 12 1 2 DEPENDABLE CAPACITY (MW) MONTH Total Generation Capacity /Installed Capacity (MW) HYDEL IPP'S GENCO'S RENTAL TOTAL SCP Requirement # (i) (i) Mar-11 20686 3850 8305 3580 323 16058 Apr-11 21021 4068 8295 3580 594 16537 May-11 21030 5519 8297 3580 594 17990 Jun-11 21030 5142 8300 3580 594 17616 Jul-11 21030 5649 8300 3580 594 18123 Aug-11 21030 6437 8300 3580 594 18911 Sep-11 21030 6673 8300 3580 594 19147 Oct-11 21030 6437 8300 3580 594 18911 Nov-11 21030 4240 8300 3580 594 16714 Dec-11 21030 4926 8300 3580 594 17400 Jan-12 21030 4255 8300 3580 594 16729 Feb-12 21030 5030 8300 3580 594 17504 Similarly, the detail of total electricity generated, viz., the net demand and shortfall/load management was provided as under:- 3 4 5 Total Electricity Generated (MW) SCP Requirement # (ii) Net Demand of Electricity / Peak System Demand (MW) Shortfall/ Load Management (MW) MONTH HYDEL IPP' S GENCO' S Monthly Av. Producti on of RPPs TOTA L HRC 7734-G/09 [RPPs case] 13 SCP Requirement # (i) (iv) (v) Mar-11 3454 4741 1789 61 10045 14981 4936 Apr-11 4216 5923 1377 88 11604 15796 4192 May-11 5228 6931 1462 103 13724 17302 3578 Jun-11 5145 6790 2000 112 14047 18511 4464 Jul-11 5224 5636 1793 143 12796 18860 6063 Aug-11 5657 6632 1859 67 14215 18677 4462 Sep-11 5995 5197 1256 119 12567 18544 5977 Oct-11 4359 4109 1268 153 9889 17554 7665 Nov-11 3993 6647 1547 215 12402 14156 1754 Dec-11 3784 3760 1701 135 9380 14475 5095 Jan-12 2472 5498 1708 134 9812 13685 3873 Feb-12 4923 4830 1587 83 11423 14691 3268 Detail of power generated by IPPs under 1994 Power Policy during the period from March 2010 to February 2012 is given below:- SCP's Requirement # (iii), Detail of IPPs, which are generating not generating electricity and the reasons for the same (Part-1) Power Generated by IPPs under 1994 Power Policy For the Period Mar, 2011 to Feb, 12 Sr. No. Plant Name Fuel Type Installed Capacity (MW) Depen dable Capaci ty (MW) Mar- 11 Apr- 11 May- 11 Jun- 11 Jul- 11 Aug- 11 Sep- 11 Oct- 11 Nov- 11 Dec- 11 Jan- 12 Feb- 12 Average Total 1 KAPCO RFO- Gas- HSD 1,638 1,342 746 636 751 847 631 746 438 808 696 580 555 534 664 2 HUBCO RFO 1,292 1,200 884 1,083 1,032 1,064 879 1,107 679 789 728 811 1,159 841 921 3 KEL RFO 131 124 108 96 93 105 87 105 98 91 60 58 58 65 85 4 Lalpir Power (Pvt.) Limited RFO 362 350 112 260 152 247 248 211 202 284 56 140 189 163 189 5 Pak Gen Power Limited RFO 365 349 248 60 212 246 286 278 246 204 193 178 100 - 188 6 SEPCOL RFO 117 110.47 46 24 40 39 40 42 50 42 29 32 28 20 36 7 Habibullah Coastal Gas 140 129.15 64 96 105 76 55 51 106 84 71 69 19 38 69 HRC 7734-G/09 [RPPs case] 14 8 FKPCL Gas 157 151.20 135 126 142 142 144 144 98 106 152 155 154 144 137 9 Rousch Gas 450 395 312 316 370 358 372 378 372 394 311 380 414 378 363 10 Saba RFO 134 125.55 14 27 15 20 21 21 25 21 0 28 3 7 17 11 Japan Power RFO 135 107.00 34 42 47 41 31 59 42 48 45 25 36 31 40 12 Uch Power Gas 586 551.25 535 524 516 490 499 505 507 525 292 492 562 410 488 13 Altern Energy Gas 31 26.54 26 25 28 26 27 26 26 29 29 0 - 0 20 14 Liberty Power Gas 235 211.84 8 - 114 188 185 185 166 165 187 185 175 186 101 153 Sub. Total 5,773 5,172 3,263 3,429 3,691 3,885 3,506 3,841 3,052 3,610 2,848 3,122 3,463 2,732 3,370 15 CHASNUPP- I Nuclear 325 300 300 282 289 273 288 20 - 238 263 302 301 299 238 16 CHASNUPP- II Nuclear 340 300 - 134 216 233 270 227 289 275 294 206 284 303 227 17 Tavanir, Iran - 39 30 32 32 30 32 30 31 31 31 29 28 29 30 Total 6,438 5,811 3,594 3,876 4,227 4,421 4,096 4,118 3,372 4,155 3,435 3,659 4,077 3,363 3,866 The reasons assigned for power shortages are as under:- Requirements as per Serial Nos (ii) and (iii) of the of the Directions of Hon’able Supreme Court of Pakistan (ii) Total electricity generated for the last one year (Hydel, IPP, RPP, etc.) if shortage, assigned reasons. (iii) Detail of IPPs, which are generating and not generating electricity and the reasons for the same Operational Constraints of the Power Generation & Distribution System 1. Diversion of gas, reduced power generation and increased cost of generation whereas no tariff increase allowed from FY 2003 to FY 2007, despite steep increase in generation cost due to surge in oil prices. 1. Overdue rehabilitation of distribution network and Public Sector Generation Companies (most of the plants have been outlived) due to time and financial constraints causing increase in distribution and generation losses. 2. Increased non payment of bills (collection issues, including extra ordinary stay by the courts) and Kunda Culture 3. Mismatch between cost of supply and tariff triggered birth of circular debt and adversely affected fuel supplies to IPPs and GENCOs plants. 4. IRSA releases water from dams exclusively as per cultivation requirement and not for power requirement. HRC 7734-G/09 [RPPs case] 15 Other Reasons: 5. Public Sector was not allowed to add new capacity in thermal since long time resulting in no capacity additions during 2003-2008 6. Quantum jump in power demand (7% to 14%) due to:  Consumption led growth strategy of 2002-2008 – influx of millions of household appliances.  Continuous increase in rural electrification since 2002 onwards  Increased demand for agri-tubewell loads – over 80,000 new connections. 7. Extra high Load growth in urban areas (20%) 8. Air-conditioning load exceeds 5000 MW and is being added each year. Following reasons were given by the PEPCO/PITC for not updating the website: - 1. PITC has been updating the information on website on the basis of information provided by concerned departments. 2. Last information regarding news & media was provided to PITC on September 2010 and uploaded accordingly. 3. The information regarding power situation has been provided by PEPCO media cell to PITC on 19/05/2011 which was instantly updated. Since then PITC has not received any information. 4. Information regarding power produced by IPPs & Rental power is being provided by WPPo & CPPA and updated till June 2011 (Cumulative July 10-June 11). 5. PITC will make all efforts to get the updated information from concerned departments and upload on regular basis. Besides the figures noted hereinabove, PEPCO provided following information of power generation capability for Hydel plants, GENCOs IPPs, to the ADB: - PEPCO SUPPLY & DEMAND POSITION: 2008-2012 UPDATED IN MARCH 2009 2008-09 2009-10 Description Mar Apr May Jun Jul Aug Sep Oct Nov Dec A. (i) (ii) (iii) Committed Generation Capability Hydel GENCOs IPPs 3295 4314 6181 3863 4512 6197 4793 4660 6204 5035 4689 6615 5657 4788 6618 6026 4788 7205 5979 4792 7570 5036 4796 7763 5545 4861 7750 4183 4916 8402 Total (A) 13790 14572 15657 16339 17063 18019 18341 17595 18156 17501 B. C. Forced Outages Maintenance Reserves 889 827 913 589 931 303 960 154 972 18 1007 105 1029 210 1041 1178 1048 3364 1094 2431 D. Firm 12074 13070 14423 15225 16073 16907 17102 15376 13744 13976 HRC 7734-G/09 [RPPs case] 16 Generation Capability (A- B-C) E. Peak Demand 14686 15899 17004 17824 17898 17936 18110 16453 14777 14931 F. Surplus/Deficit Generation (+/-) -2612 -2829 -2581 -2599 -1825 -1029 -1008 -1077 -1033 -955 The above chart with the updated information about the supply and demand position from 2008 to 2012 reproduced hereinabove and latest information supplied during the hearing of the case suggest a noticeable difference supplied by the PEPCO on different occasions. Thus, no other inference can be drawn except that correct facts are being concealed by the respondent PEPCO without any justifiable reason. However, it strengthens the viewpoint of petitioner Makhdoom Syed Faisal Saleh Hayat that RPPs have been introduced without any feasibility study and it has left a big question mark on the transparency of the project. 13. It is to be noted that updated data so far received from time to time, as is evident from the perusal of above documents, makes it abundantly clear that no authentic and acceptable information is available, therefore, the argument so raised by Makhdoom Syed Faisal Saleh Hayat gets strengthened that without undertaking any feasibility study, RPPs were launched in a haste. A perusal of ADB report establishes that ever since the present Government came into power in the month of March, 2008, country is facing shortfall of electricity because of increase in number of consumers of electricity day by day as the population is increasing, but instead of pursuing long term projects like strengthening the already existing sources of electricity generation including hydel, thermal through GENCOs and IPPs through PEPCO, to meet the shortfall, the idea of RPPs was resorted to. The statistics provided by PEPCO vide letter dated 16.3.2012, reproduced hereinabove, also disclose the HRC 7734-G/09 [RPPs case] 17 reasons on account of which IPPs are not generating/functioning to their full capacity for the reasons noted hereinabove. Therefore, the Government instead of launching Rental Power Projects, could have conveniently strengthened the IPPs, which are already working and the IPPs and hydel projects, which were likely to commence generation of electricity in the year 2009-2010 as per following details: - Project Name Capacity in MW Completion Date Attock Gen Power Project 165 7th April, 2009 Zorlu Wind Power Project 50 19th April, 09 Orient Power Project 225 May, 09 (delayed) Atlas Power Project 225 June, 09 (Delayed) Muridke (Sapphire)Power Project 225 July, 09 (Delayed) Fauji Mari Power Project 202 August,09 (Delayed) Nishat Power Project 200 Nov, 09 Engro Power Project 227 Dec, 09 Total 1519 A cursory glance at the above comparative table shows that with the interest and encouragement of PEPCO in the month of December, 2009, 1519 MW was likely to be available. Statedly, a good number of hydel plants are likely to generate electricity. It is not known as to whether any attention is paid by the PEPCO for the completion of the same or not. Another important aspect, which can be gathered from the data/statistics provided subject to authenticity of the same, at present following RPPs are functioning:- Monthly Average Production of Each RPP SCP Requirement # (iv) KARKEY 231.8 MW COD GULF 62 MW COD NAUDERO- I 51 MW COD Reshma 201 MW COD Techno E- Power 150 MW COD Total Production (MW) MONTH MW MW MW MW MW Mar-11 0 61 0 0 0 61 Apr-11 31 57 1 0 0 88 May-11 41 61 1 0 0 103 HRC 7734-G/09 [RPPs case] 18 Jun-11 43 61 8 0 0 112 Jul-11 54 60 30 0 0 143 Aug-11 65 2 0 0 0 67 Sep-11 43 56 20 0.43 0 119 Oct-11 75 54 0 24 0 153 Nov-11 81 58 12 63 0 215 Dec-11 54 62 19 0 0 135 Jan-12 61 54 19 0 0 134 Feb-12 32 51 0 0 0 83 POLICY FOR RPPs 14. We have inquired from the learned counsel of PEPCO, GENCOs and WAPDA as well as worthy former Minister for Water & Power, Raja Parvez Ashraf as to whether any policy was formulated while adopting the phenomenon of rental power plants to generate electric power, they pointed out that the concept and the rationale behind the scheme of introducing Rental Power Plants in the country was floated by the previous Government as a quick way to address impending power shortages. References have been made by them to the Cabinet decision bearing No.ECC-135/9/2006 dated 16.08.2006. They also pointed out that the justification put forward by the then Government in installing the plants was that “the rental plants are expensive, however, given the urgency to have additional power capacity before next summer as per WAPDA’s demand projections and the long gestation period for new plants, renting of plant(s) appears to be the only short term solution if shortfalls are to be met”. And the summary of ECC dated 12.08.2006 was submitted to the Cabinet for approval, which reads as under:- “6. Following policy guidelines are proposed for approval:- (i) Allow renting of power plant/plants by WAPDA/NPGCL as an emergency measure, subject to HRC 7734-G/09 [RPPs case] 19 acceptance of tariff by NEPRA, and that WAPDA should only rent as much power as is absolutely necessary and which would be utilised with high load factor for economic utilisation of capacity; (ii) Approve proposal at para 5 for provision of gas to rented plant/plants; and (iii) Nearest possible location to the load centres of Gujranwala, Faisalabad or Lahore to install the plant. However, if it is necessary to locate the plant at Multan then it should be ensured that there are no transmission bottlenecks. … … … … … … … … … … … … … … … … … … … … … … … … … … … … 8. Proposal at para 6 above be approved. Suggestion of Planning Division should also be taken into account by WAPDA/NPGCL.” They were also of the opinion that under Rule 16(F) any case pertaining to the generation of electricity and laying of inter-provincial transmission lines was to be placed before the Cabinet and no sooner it was approved, it would become the policy of the Government on a particular subject, therefore, any decision taken in that behalf would be deemed to be the policy. Learned counsel for WAPDA, PEPCO, GENCOs, etc., has already referred to certain decisions of ECC and the Cabinet, which have been reproduced hereinabove, however, the ECC in its meeting dated 10.09.2008 directed that in case any of the approved projects failed to achieve crucial milestones towards timely project implementation as per agreements, then the projects would be immediately cancelled with penalties and that the deficit power generation capacity be expeditiously arranged through addition of IPPs/RPPs, both solicited and unsolicited on fast track basis. Guidelines by the ECC incorporated in this decision are reproduced herein below:- a. Proposals for rental power plants would be based on dual fuel (Gas and RFO)/single fuel RFO and would be implemented in shortest possible time. b. Rental Power Plants would be arranged for a period of 3+1 years. c. Efforts would be made that the tariff of rental power plants is lower than the tariff allowed to IPPs based on similar technology for their first ten years. HRC 7734-G/09 [RPPs case] 20 d. Mandatory storage of oil for rental power plants would be for ten days. e. PEPCO would revaluate the sites for the rental power plants on the basis of space for oil storage, transportation of oil to the site, environmental aspects and power evacuation etc. f. PEPCO would prepare a mid term revised forecast for demand and supply of power and PPIB would provide necessary input/data to PEPCO in respect of prospective IPPs. g. Secretaries of Finance and Water & Power along with Managing Director, PPRA would review the mechanism of procurement to ensure that future delay is avoided and Public Procurement Rules, 2004 are observed in letter and spirit. Above guidelines by the ECC along with other decisions of the ECC referred to hereinabove, if for the sake of arguments are considered to be the policy of the Government, then emphasis should be that such guidelines (policy) have to be implemented in letter & spirit. Exception to above guidelines is also possible to the extent of unsolicited RPPs, which cast duty upon the Secretaries of Finance and Water & Power along with Managing Director of PEPRA to review mechanism of procurement to ensure that future delay is avoided and Public Procurement Rules, 2004 are observed in letter & spirit. POWERS OF JUDICIAL REVIEW TO INTERFERE IN THE GOVERNMENT POLICIES 15. It is to be clarified that the Government of the day under Article 29 read with Article 2A of the Constitution is bound to formulate policies for the promotion of social and economic well being of the people, which includes provision of facilities to the citizens for work and adequate livelihood with a reasonable rest and leisure, etc. Energy/electricity is essentially one of the significant facilities required by the citizens for manifold purposes, namely, uplifting of their social and economic status. Non-supply of electricity to the citizen regularly, is tantamount to depriving them of one of the essentials of the life including the security of economic activities, which are relatable to HRC 7734-G/09 [RPPs case] 21 their fundamental rights protected under Articles 9 and 14 of the Constitution. In the cases of Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109), Liaqat Hussain v. The Federation of Pakistan (Constitution Petition No.50/2011), In Re: Human Rights Case regarding fast food chain in F-9 Park (PLD 2010 SC 759), In Re: SMC No.13/2009 (Case regarding Multi-Professional Housing Schemes) (PLD 2011 SC 619) and Shehla Zia v. WAPDA (PLD 1994 SC 693), Article 9 has been interpreted and its scope has been enlarged to each and every aspect of human life. Therefore, whenever a policy is framed with reference to uplifting the socio-economic conditions of the citizens, object should be to ensure enforcement of their fundamental rights. 16. The Courts are not required to examine the policy as it has been rightly urged by Raja Parvez Ashraf, former Minister of Water & Power during whose tenure, in the meeting held on 27.03.2008, decision was taken in the Cabinet for solicitation of Fast Track Power Generation Projects to overcome the gap of 2200 MW between the production and demand of electricity in the system till April, 2009. Reliance on the case of BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has rightly been placed by him. A 9-Member Bench of this Court had also decided in the case of Watan Party v. Federation of Pakistan (PLD 2006 SC 697) regarding power of Court to examine the polices of Government. Relevant Paras therefrom are reproduced hereinbelow: - “57. The next question is in respect of the judicial review of the policies of the Government. It is well settled that normally in exercise of the powers of judicial review this Court will not scrutinize the policy decisions or to substitute its own opinion in such matters as held in Messrs Elahi Cotton Mills ibid. Likewise in the case of Balco Employees ibid, the Supreme Court of India observed as follows:-- HRC 7734-G/09 [RPPs case] 22 "Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, the Courts would decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority." This view is in line with this Court's view as given in Elahi Cotton ibid. Similar view was taken by the Indian Supreme Court in Delhi Science Forum v. Union of India (AIR 1996 SC 1356). 58. The parameters of judicial review were graphically commented upon in Associated Provincial Picture Houses Ltd. ibid which has been relied upon by counsel for both sides where in the concluding paragraph the Court came to the conclusion in the words of Lord Somervell as under: - "I do not wish to repeat what I have said, but it might be useful to summarize once again the principle; which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it. " This view was further reiterated and the principle laid down therein was followed in Nottinghamshire County Council v. Secretary of State for the Environment [(1986) 1 All ER 199] wherein the Court observed as follows: "The law has developed beyond the limits understood to apply to judicial review as practiced by HRC 7734-G/09 [RPPs case] 23 the courts in 1947. The ground on which the courts will review the exercise of an administrative discretion by a public officer is abuse of power. Power can be abused in a number of ways: by mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common law power) on the scope of the power; by procedural irregularity; by unreasonableness in the Wednesbury sense; or by bad faith or an improper motive in its exercise. A valuable, and already ‘classical’; but certainly not exhaustive analysis of the grounds on which courts will embark on the judicial review of an administrative power exercised by a public officer is now to be found in Lord Diplock's speech in Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374." There is no cavil to the proposition being espoused by learned Attorney General with reference to Peter Can's "An Introduction to Administrative Law" 2nd Edition that the Court while exercising power of judicial review may not express opinions on polycentric issues requiring technical expertise and specialized knowledge. In the instant case, however, we are seized not with a polycentric issue as such but with the legality, reasonableness and transparency of the process of privatization of the project under consideration i.e. PSMC. These are well established basis for exercise of judicial review. Thus it is held that, in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review.” In the light of the above dictum, there could be no cavil with the proposition that as far as transparency in the implementation of the policy, if available, the process of awarding contract is concerned, it squarely falls within the jurisdiction of this Court available to it under the Constitution and the power of judicial review. Reference may be made to the cases of Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394), Pakistan Steels (PLD 2010 SC 759), HRC No. 4688/06 (PLD 2001 SC 619), Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489]; Tata Cellular v. Union of India [(1994) 6 SCC 651] = (AIR 1996 SC 11); Raunaq HRC 7734-G/09 [RPPs case] 24 International Ltd. v. I.V.R. Construction Ltd. (AIR 2004 SC 4299) = [(1999) 1 SCC 492]; Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617]; Reliance Energy Ltd. v. Maharashtra State Road Development Corp. Ltd. [(2007) 8 SCC 1] and judgment dated 24.08.2009 of the Andhra Pradesh High Court in Nokia Siemens Networks Pvt. Ltd. v. Union of India. TRANSPARENCY OF CONTRACTS 17. It is important to note that all the executive authorities are bound to enter into contracts for supplies at the least expense to the public exchequer. Most significant consideration for every department of the Government must be the best economical mode of meeting the public needs. Agreements for pecuniary considerations are against public policy, as such, are void. Reference in this behalf may be made to the case of Tool Company v. Norris [69 U.S. (2 Wall.) 45 (1864)], wherein the Supreme Court of United States, as back as in 1864, has held that all contracts for supplies should be made with those, and with those only, who will execute them most faithfully, and at the least expense to the government. Considerations as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, the action of every department of the government. No other consideration can lawfully enter into the transaction, so far as the government is concerned. Such is the rule of public policy, and whatever tends to introduce any other elements into the transaction is against public policy. That agreements, like the one under consideration, have this tendency is manifest. They tend to introduce personal solicitation and personal influence as elements in the procurement of contracts, and thus directly lead to inefficiency in the public service and to unnecessary expenditures of the public funds. HRC 7734-G/09 [RPPs case] 25 … … … it is sufficient to observe generally that all agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation, by refusing them recognition in any of the courts of the country. Every action taken by the Government must be in public interest and its action would be liable to be invalidated on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid. Reference in this behalf may be made to the case of R.D. Shetty v. International Airport Authority of India (AIR 1979 SC 1628). Further, in the case of Nagar Nigam, Meerut v. Al Faheem Meat Exports (Pvt.) Ltd. [(2007) 1 Supreme 704] it has been held as under:- “The law is well-settled that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money Deposit, etc. The award of Government contracts through public- auction/public tender is to ensure transparency in the public procurement, to maximize economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned. This is required by Article 14 of the Constitution. … … In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence.” HRC 7734-G/09 [RPPs case] 26 In the case of Ramana Dayaram Shetty vs The International Airport Authority of India (AIR 1979 SC 1628), the Court has held as under:- “… … dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, … … its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.” In the case of Ram & Shyam Co. v. State of Haryana (AIR 1985 SC 1147), the Indian Supreme Court has held as under:- “… … disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds. … … where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy.” In the case of Haji T.M. Hasan vs. Kerala Financial Corpn. (AIR 1988 SC 157), the Court observed that: - “It is needless to state that the Government or public authorities should make all attempts to obtain the best available price while disposing of public properties. They should not generally enter into private arrangements for the purpose.” As it has been noted hereinabove that no feasibility study was undertaken by the previous Government during whose period unsolicited RPPs were awarded to Alstom at Bhikki and General Electric Power at Sharaqpur, inasmuch as, no material/documents have been produced on record to show that both the Governments introduced the HRC 7734-G/09 [RPPs case] 27 phenomenon of RPPs after due diligence. From reply submitted on behalf of GENCOs as well as the former Minister for Water & Power, impression is gathered that they have outrightly accepted the proposal of RPPs without examining its merits and de-merits. In this behalf the first special meeting of the Cabinet was held on 14.5.2008 wherein the decision was taken for Fast Track Implementation of Power Generation Projects to meet the demand and supply gap. As per the decision contained in Package-B, Rental Power Plants of 200 to 300 MW were approved. On the basis of said decision, advertisements were made wherein bids were invited for setting RPPs, details whereof have been mentioned hereinabove. Had there been due diligence before approving above package, it would have seen the implication of the billions of rupees by increasing down payment from 7% to 14%. As per above advertisement, GENCO who had licence to generate electricity and then to supply it to NTDC was not party in inviting bids. 18. Internationally, the following factors have been considered key features in procurement of public contracts: - (1) Upholding competition among firms; (2) Promoting best value for money; (3) Encouraging more firms to bid on work; (4) Maintaining openness and transparency in the bidding process; (5) Executing contracts quickly; (6) Ensuring quality of goods and services; and (7) Meeting other obligations required for federal procurement. 19. In this regard, it is to be noted that in section 5 of the Public Procurement Regulatory Authority Ordinance, 2002, the functions and the powers of the Authority have been defined, according to which the Authority may take such measures and exercise such powers as may be necessary for improving governance, management, transparency, accountability and quality of public HRC 7734-G/09 [RPPs case] 28 procurement of goods, services and works in the public sector. The words ‘transparency’ and ‘accountability’ are of high importance and cast a duty upon the Authority who had invited the bids to ensure openness of the transaction without withholding any information. The competition to establish transparency between the interested parties is in fact the theme of the PEPRA Ordinance as well as the Rules framed thereunder (Public Procurement Rules, 2004). The bidders have to compete with each other by filing their respective bids, therefore, while making procurement of an item like electricity through RPPs the Authority is required to fix a reserved price while quoting lump sum Rental Charges, Rental Rate and Reference Fuel Cost Components. In absence of such reserved prices, there would not be transparent competition and accountability of the bidders and procurers. In the case of McManus v. Fortescue [(1907) 2 KB 1], it has been held by Court of Appeal that in a sale by auction, subject to reserve price, every offer/bid and its acceptance is conditional; the public is informed by the fact, that the sale is subject to a reserve price; the auctioneer has agreed to sell for the amount which the bidder is prepared to give only in case that amount is equal to or higher than the reserve price; the reserve price puts a limit on the authority of the auctioneer and he cannot accept a price below the upset/reserve price. In the instant case, neither the reserved price has been mentioned in the publication, in pursuance whereof the bids were invited, nor such reserve price has been disclosed in RFP. Inasmuch as, in advertisement made by PPIB, except mentioning Rental Power Projects of 200 MW cumulative capacity near Karachi, neither the sites were indicated nor the type of fuel or technology of plant was mentioned for this purpose. As far as unsolicited RPPS are concerned, there was no bidding process, HRC 7734-G/09 [RPPs case] 29 therefore, following chart has been prepared regarding solicited RPPs:- A. ICB conducted by PPIB Name of RPP Site specification Fuel type/ Technology Make & type of machinery Reserved price Karkey Not provided Not specified Not specified Not provided Gulf Rental Power Not provided Not specified Not specified Not provided Independent Power (Pvt.) Ltd. Not provided Not specified Not specified Not provided Sialkot Rental Power Not provided Not specified Not specified Not provided Reshma Power Not provided Not specified Not specified Not provided Premier Energy (Pvt.) Ltd. Not provided Not specified Not specified Not provided Ruba Energy Not provided Not specified Not specified Not provided Consortium of Tapal Not provided Not specified Not specified Not provided Walters Power International Not provided Not specified Not specified Not provided B. ICB conducted by PEPCO Name of RPP Site specification Fuel type/ Technology Make & type of machine ry Reserved price Techo E. Power, Sammundri Road, Faisalabad Yes, but changed later on Yes No Not provided Techno Energy (Pvt.) Ltd. Sahuwal, Sialkot Yes Yes No Not provided Guddu Yes Yes No Not provided Young Gen Yes Yes No Not provided The detail of RPPs regarding payment of advance, COD and present status is given below: - Name of RPP Advance payment COD Advance returned or not Present status of RPP HRC 7734-G/09 [RPPs case] 30 ICB CONDUCTED BY PPIB Karkey Yes Not achieved within time No Functioning Gulf Rental Power Yes Not achieved within time No Functioning Independent Power (Pvt.) Ltd. No Not achieved within time ---- No Machinery at site Sialkot Rental Power No Not achieved within time ---- Not functioning Reshma Power Yes Not achieved within time Yes Functioning Premier Energy (Pvt.) Ltd. No Not achieved within time ---- Not functioning RUBA Energy No Not achieved within time ---- Not functioning Consortium of Tapal No Not achieved within time ---- Not functioning Walters Power International No Not achieved within time ---- Not functioning ICB CONDUCTED BY PEPCO Techo E. Power, Sammundri Road, Faisalabad yes Not achieved within time/ Partial COD No Not functioning Techno Energy (Pvt.) Ltd. Sahuwal, Sialkot yes Not achieved within time yes Not functioning/ No Machinery at site Guddu yes Not achieved within time yes Not functioning Young Gen yes Not achieved within time yes Not functioning UNSOLICITED Techo E. Power, Sammundri Road, Faisalabad (Extension) No Not achieved within time ---- Not functioning/ No Machinery at site HRC 7734-G/09 [RPPs case] 31 Karkey (Extension) No Not achieved within time ---- Not functioning/ No Machinery at site Naudero-I yes Not achieved within time No Functioning Naudero-II yes Not achieved within time yes Not functioning Abbas Steel Group No Not achieved within time ---- Not functioning/ No Machinery at site Thus, it is held that quoting the reserve price, allocating the sites, down payments, etc., were the crucial factors to ensure competitive bidding. Since, these were not mentioned in the advertisements, the bidding process were rendered questionable. Resultantly, all the transactions lacked transparency. UNSOLICITED RENTAL POWER PROJECTS 20. As per information provided by NEPRA, initially NTDC/CPPA approached NEPRA for obtaining license to purchase power from RPPs. NEPRA allowed this power purchase arrangement to NTDC/CPPA vide letter No. NEPRA/R/PAR-11/CPPA-2006/6213-15 dated 27.07.2006. Subsequently, NEPRA vide letter No.NEPRA/R/PAR-11/CPPA- 2006/6920-22 dated 09.10.2006 decided to withdraw the power acquisition permission granted to CPPA for procurement of power from RPPs and advised NPGCL as under: - (i) NPGCL to file an application for modification in their license under NEPRA’s Application Modification Procedure Regulations 1999. (ii) NPGCL to execute their PPA with CPPA in respect of the current power generation and also include the provision of additional power from rented power plant. (iii) NPGCL to file their tariff petition in respect of additional generation. HRC 7734-G/09 [RPPs case] 32 Based on above advice of NEPRA, NPGCL approached NEPRA for modification in generation license and signed RSCs, including assignment, if any, with the RPPs. 21. It has been admitted on behalf of PEPCO and GENCOs that phenomenon of rental power projects to overcome the shortage of electric power was introduced by the Government for the first time in the year 2006, considering it to be a short term measure. Two unsolicited rental contracts were executed with M/S Alstom for 136 MW at Bhikki and M/S General Electric Power for 150 MW at Saharanpur respectively. The contract of Bhikki was awarded to Alstom, and later on said company assigned it to M/S Pakistan Power Resources (PPR) in pursuance of agreement dated 17.01.2007. Details of the Bhikki project are as under: - “BHIKKI POWER PROJECT Place: Bhikki, District Sheikhupura Capacity: 136MW (gas based) Rental term: 36 months Contract amount: USD 103,015,476 Mobilization Advance: USD 7,211,083 Agreement date: 18 September, 2006 Rental revenue received: USD 68,024,477 Rental revenue loss: USD 34,990990 Date of Assignment 17 January, 2007 Effective Date 23 February 2007 COD Scheduled 23 June 2007 Achieved Unit III 19 December, 2007 Unit II 22 January 2008 [Unit I 02 April 2008] Expiry of Agreement: 22 June 2010” 22. It is stated that the Bhikki and Sharaqpur RPPs were approved by the ECC on 16.08.2006, which perhaps is not correct statement of fact because ECC examined the matter vide case No.ECC- 135/9/2006 dated 16.08.2006 in respect of 150 MW power plant at Piranghaib, Multan on rental basis and decided as under: - Case No.ECC-135/9/2006 Dated: 16.08.2006 150 MW POWER PLANT AT PIRANGHAIB MULTAN ON RENTAL HRC 7734-G/09 [RPPs case] 33 BASIS DECISION The Economic Coordination Committee (ECC) of the Cabinet considered the summary dated 12th August 2006, submitted by the Ministry of Water and Power on “150 MW Power Plant at Piranghaib Multan on Rental Basis” and approved the proposals at para 6 and 8 of the Summary. The above decision was considered and approved by the Cabinet on 26.08.2006 and was conveyed by the Ministry of Water & Power, Government of Pakistan to Chairman WAPDA, Lahore vide letter No.PL-9(3)/2006. 23. It may be noted that NPGCL sought permission from NEPRA to enter into rental arrangements for three years commencing from 100 days of the signing of contract between the parties for enhancing installed generating capacity by 150 MW at Sharaqpur and 136 MW at Bhikki and further specified the rates of sale of electricity. The NEPRA recorded its decision dated 15.12.2006 in Case No.NEPRA/TRF-63/NPGCL-2006/7951-53, which is reproduced hereinbelow in extenso: - “Subject: Decision of the Authority w.r.t. Tariff Petition filed by Northern Power Generation Company Ltd. (NPGCL) for Determination of Tariff for Power Plants on Rental Basis from GE Energy/Alstom Power (Case No.NEPRA/TRF- 63/NPGCL-2006)- Intimation of Decision of Tariff pursuant to Section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997) Dear Sir, Please find enclosed the decision of the Authority (4 pages) in Case No.NEPRA/TRF-63/NPGCL-2006. 2. The determination is being intimated to the Federal Government for the purpose of notification of Generation, Transmission and Distribution of Electric Power Act (XL of 1997) and Rule 16(11) of the National Electric Power Regulatory Authority Tariff (Standards and Procedure) Rules, 1998. 3. Please note that only Order of the Authority at para 9 of the determination relating to the Reference Tariff and allowed adjustments & indexation needs to be notified in the official gazette. The Order is reproduced for the purpose of clarity and is attached herewith. HRC 7734-G/09 [RPPs case] 34 DA/AS above. Sd/- 15.12.2006 (Mahjoob Ahmad Mirza)” Keeping in mind the fact that in respect of Rental Power Projects, subsequent to issuance of guidelines, the NEPRA was practically made ineffective to determine the electric charges as it was directed to follow Paragraphs 1.9 and 1.10 of the Guidelines issued by the Federal Government in the year 2005 in respect of IPPs. As far as question of determination of tariff is concerned, it was noted in a summary put up to the ECC on 07.02.2008 that efforts be made that the tariff of the RPPs is in line with the tariff determined in respect of the IPPs based on similar technology for their first 10 years, but it appears that the tariff of the RPPs was much higher than that of the IPPs. The aforesaid Paragraphs are reproduced hereinbelow: - “1.9 Tariff through competitive process The bidding process may be structured on either of the following two options; a) bidding for a tariff b) Offering an up-front benchmark tariff and bidders to quote a discount on the benchmark price. 1.10 It is proposed that once a tariff has been arrived at through competitive biddings based on either of the processes mentioned at Para 1.9 above, the bidding process be structured and administered by PPIB (Ministry of Water and Power) in consultation with the power purchaser (WAPDA/NTDC), Ministry of Finance and NEPRA. The bidding documents (including various formula, formats, etc.) along with evaluation criteria, be also finalized by PPIB in consultation with the same agencies. The lowest evaluated levelized tariff would be recommended to the GOP for acceptance.” 24. Despite restriction on determining the tariff by NEPRA, as it has been noted hereinabove, fuel cost charge of Rs.2.7194 per kWh delivered at Inter connection Bas bar in respect of Sharaqpur as well as Bhikki was determined. As per above calculation, the Government HRC 7734-G/09 [RPPs case] 35 had already paid approximately US $ 2.161 million (Rs.18.63 billion) to these two RPPs as capacity and fuel charges. Thus, NPGCL (GENCO- III) suffered huge losses in the years 2007, 2008 and 2009, with regard to the RPPs in Block-I and Block-II, details whereof are given hereinbelow: - Annex-3 NORTHERN POWER GENERATION COMPANY LIMITED (GENCO-III) Financial Impact on Account of CCP Tariff Determined Vs CPP Tariff Demanded CALCULATION OF CAPACITY CHARGE 2007 2008 2009 Dependable Capacity (MW) 261.46 261.46 261.46 Capacity Purchase Price Escalable Component: Fixed O&M Cost: ____Mln. Rs.____ Rent for Rented Block-I 2,272.40 2,272.40 2,272.40 Rent for Rented Block-II 2,060.31 2,060.31 2,060.31 Guaranteed Heat Rate Bonus 261.54 261.54 261.54 Gas Pipelines Installations 83.12 - - General Establishment Cost 3.50 3.68 3.86 Administrative Cost 100.00 100.00 100.00 M&I/Overhauls - - - MEPRA Fees 8.50 2.30 2.30 Insurance - - - Depreciation (for ROA) - - - Duties etc. 442.00 - - Total Fixed O&M Cost 5,231.3670 4,700.2240 4,700.4078 CPP-FOM charge (Rs./kW/Month) 1,667.3318 1,498.0469 1,498.1055 CPP Determined By NEPRA (Rs./kW/Month) 1,283.4851 1,283.4851 1,283.4851 CPP Tariff Difference (Rs./kW/Month) 383.8467 214.5618 214.6204 Projected Loss per Month due to less CPP Tariff Determined (Mln Rs) 100.3621 56.1002 56.1155 Projected Loss per Year due to less CPP Tariff Determined (Mln Rs) 1,204.3452 673.2022 673.3860 25. It is also to be noted that as the natural gas was to be used for both these RPPs as the fuel and availability factors of both the plants were 92% and both the projects i.e. GE-Sharaqpur 150 MW and Alstom-Bhikki 136 MW, NPGCL generated (MKWH) 1515 and 816 respectively on account of plant factor average 39% and 26% HRC 7734-G/09 [RPPs case] 36 comparing to availability factor 92%. Similarly, above facts and figures show financial impact on account of CPP tariff determined by NEPRA (Rs./kW/Month) and CPP-FOM charge (Rs./kW/Month). The availability factor efficiency is fully evident from the chart reproduced hereinabove. In a nutshell, due to tariff determination by the NEPRA according to the available formula, considerable losses occurred to NPGCL. Therefore, while going for further RPPs, the concerned authorities ought to have taken into consideration that since these two projects had already caused losses to the public exchequer, therefore, it was not advisable to opt for generating electric power through RPPs. 26. Raja Parvez Ashraf has placed on record a copy of summary of ECC dated 17.08.2009 wherein it is stated that the Ministry of Water & Power received a few unsolicited proposals offering a reasonable tariff, which were compatible with the average RPPs’ tariffs received through ICBs and compliant with the ECC guidelines. The efficiency and available standards for these power plants and the financial models also matched the ICB projects. The detail of the unsolicited proposals, attached with the said summary, is given hereinbelow: - Sr. No. Description of project Fuel Capacity (MW) Rental Charges demanded by Sponsor Cents/kwh Proposed Rental Charges Cents/kwh Remarks 1 Naudero-I Gas 50 4.46 4.46 2 Naudero-II Gas 51 4.46 4.00  Phase I financing arranged and project already inaugurated by the President.  Hard Area.  Medium size plant.  Overall Tariff lesser as compared to RFO plants in the ICB mode. 3 Sammundri Road RFO 150 3.90 3.75  Phase I being completed on HRC 7734-G/09 [RPPs case] 37 Extension 30.9.2009.  Proximately to load centre and economy of size. 4 Karkey upgradation RFO 222 5.98 5.60  Higher Project cost being power ship/ barge mounted and different technology.  Very relevant for Karachi The Minister authorized the Secretary (Mr. Shahid Rafi) to submit the summary, which sought approval of the ECC as under: - (i) Payment of 14% mobilization to IPP and GoP sovereign guarantee as proposed at para-4 ante (not relevant as far as the case in hand is concerned). (ii) Installation of 473 MW of unsolicited projects as proposed at Para-5 ante. In respect of Naudero-II, noted hereinabove, a petition for tariff determination was filed by the CPGCL before NEPRA on 20.04.2010. The NEPRA considered that the petitioner was guilty of non-compliance of its directions, inasmuch as plant machinery was shifted from Guddu to Naudero without prior approval of the Authority; the generation tariff of RPP at Guddu was determined on lower side, while higher tariff was claimed on the same machinery to be installed at Naudero; advance payment had already been made against Guddu, which was not returned; and again advance payment of 14% was made on 06.04.2010 against proposed new Naudero-II for the same machinery. Therefore, the petition was declined by NEPRA. 27. Naudero-II was sponsored by Walters Power International, whereas Guddu Rental Power Project was sponsored by Pakistan Power Resources, which had not so far been signed off. During the hearing of the case, it was noticed that the total rental value in respect of Guddu plant was determined at US$ 72.48 million against which 14% down payment equal to US$ 10.15 million, 7% on 17.03.2008 and 7% on HRC 7734-G/09 [RPPs case] 38 12.03.2009 had been made. But, when the plant was shifted from Guddu to Naudero, again for the second time 14% advance payment was made on 06.04.2010 to M/S Walters Power International. Prima facie, it is a criminal act of extracting money from GENCOs on one pretext or the other, otherwise knowing well that Pakistan Power Resources had already obtained 14% advance payment, therefore, in all fairness, the GENCOs’ authorities ought to have pointed out in clear terms that as the said plant was not being installed at Guddu, therefore, the advance payment of 14% ought to be returned. Be that as it may, this Court, taking notice of this aspect of the matter, vide order dated 08.12.2010 directed as under: - “In response to order of this Court dated 07.12.2010 final statements have been made on behalf of Pakistan Resources (P.P.R.) and Walters Power International. The documents being the negotiable instruments have been filed for effecting the recovery of the outstanding amount mentioned in the statements. Learned counsel states that amount mentioned in the above statement has been arranged and shall be returned to Central Power General Company Ltd. During course of the day. It is to be noted that according to learned counsel, the original amounts have been paid by both the companies along with markup upto date i.e. 08.12.2010. 2. Mr. Abdul Malik Memon, C.E.O. of the GENCO is present and he is required to conduct an inquiry/probe and submit a report on the next date of hearing fixing responsibility upon the officers/officials or the persons on whose instructions GENCO agreed to make the payment to both the companies without keeping facts and circumstances of the case in front of them.” However, the requisite report after fixing responsibility upon the concerned persons was not submitted. 28. As far as unsolicited RPP of Techno E. Power, Sammundri Road, Faisalabad is concerned, the same was allowed to continue in view of the recommendations made in ADB’s report. As the machinery HRC 7734-G/09 [RPPs case] 39 of Karkay-II (extension) was not brought at site and when NEPRA proposed to take action because of non-achieving of COD, it was informed that basically this project of 222 MW was to be installed at Korangi, Karachi. Since the sponsor did not respond, therefore, neither LOA was issued nor any RSC was signed. It may also be noted that there was yet another unsolicited RPP known as Abbas Steel Group and as there was no machinery at site and as no response was given by the sponsor to the GENCO, therefore, LOA was not issued. The advance payment in respect of Naudero-II sponsored by Walters Power International had been recovered whereas no advance payment had been made to Karkey-II as well as Abbas Steel Group. 29. As far as Naudero-I is concerned, it is sponsored by Walter Power International for a 5-year rental term, the location of the project is in Sindh, its capacity is 51 MW, rental value has been determined at US$ 80.42 million and 14% advance payment equal to US$ 11.26 million was made on 16.11.2009. This project could not achieve COD, therefore, GENCO (CPGCL) encashed the performance guarantee of US$ 255,000. 30. Khawaja Muhammad Asif vehemently contended that the unsolicited RPPs were awarded without adhering to the PPRA Rules. The In-charge Minister of WAPDA and the Secretary, who had agreed to accept the offer of the sponsors to allow them to generate electricity without following rules in the year 2006 and subsequent thereto had acted without jurisdiction and illegally and caused loss to the public exchequer. Since the object for which the RPPs were allowed to be installed was not achieved, therefore, not only the concerned authorities who re-negotiated terms with them, but at the same time the functionaries including the Ministers and others, who had allowed HRC 7734-G/09 [RPPs case] 40 advance payments ought to be dealt with in accordance with the law and the amounts be recovered from them with mark-up. 31. Raja Parvez Ashraf, former Minister and his counsel Mr. Wasim Sajjad, learned Sr. ASC admitted that during his tenure, Naudero-I was installed pursuant to an unsolicited proposal in view of the decision of ECC. He, however, explained that although procedure of ICB was not followed, but complete evaluation of the project and its technical and financial parameters on cost-plus basis were examined, inasmuch as the NEPRA had determined tariff under section 7 of the Act, 1997. Khawaja Ahmad Tariq Rahim, learned counsel supported the contention raised by Mr. Wasim Sajjad, learned Sr. ASC on behalf of former Minister. 32. Mr. Shahid Hamid contended that the Authority had decided in the first week of September, 2010 to sign off Guddu Power Project. In the meantime, machinery had been imported, therefore, on the request of WPI and PPR, this machinery was shifted to Naudero for installation at WPI’s Naudero-II with permission of CPGCL. The sponsor had offered to determine some reasonable rental rate, but such request was turned down unlawfully. The WPI in good faith made offer to install the machinery at Naudero-II within a period of six months without receiving any payment till the COD was achieved. When the review petition filed by GENCOs (CPGCL) was declined by NEPRA vide order dated 10.03.2011 on the ground that the machinery was more than 10 years old, WPI offered to install absolutely new machinery at Naudero-II Project and also proposed revised amended contract with CPGCL with no advance till COD was achieved and installation of new machinery, to be purchased by WPI from GEP in Austria. As far as acceptance of unsolicited proposal for Naudero-I is concerned, he HRC 7734-G/09 [RPPs case] 41 contended that in view of the facts and circumstances, PEPRA Rule 42(c) permits direct contracting without adhering to follow the rules of ICB, etc. 33. Dr. Parvez Hassan, learned ASC appeared for Pakistan Power Resources and argued that all the unsolicited proposals for RPPs like Bhikki, Sharaqpur and Naudero-I are covered under Rule 42(3), particularly, in view of the fact that NEPRA was authorized to determine the rental value strictly in accordance with section 7, and for such reason, no prejudice was likely to be caused to the general public. Thus, legally it would be presumed that all unsolicited proposals were transparent and in accordance with the Rules. Guddu Power Project was awarded on the basis of ICB to the PPR. There were certain defaults on the part of the CPGCL under the rental services contract, thus liability for achieving COD entirely lies on CPGCL/NEPRA. As gas to be used for the project was not available, therefore, it was decided that the project should be signed off. Although the advance payment has been returned, but to settle other disputes, a mediator has been appointed. He categorically denied the allegations of corruption and undue influence in obtaining the unsolicited RPPs. He stated that the allegations made in this behalf by Mr. Faisal Saleh Hayat and Khawaja Asif are false, frivolous, scandalous, vexatious and mala fide. 34. We have considered the arguments put forward by the learned counsel for the parties. As it has been pointed out time and again, with a view to achieving the goal of transparency in awarding contract or in making procurement, open competition is prerequisite under the PPRA Rules. The justification put forward by Mr. Wasim Sajjad, Sr. ASC in his arguments noted hereinabove is that as the HRC 7734-G/09 [RPPs case] 42 decisions have been taken by the ECC for awarding contract without following the PPRA Rules, therefore, no mala fide or element of corruption can be attributed to the parties to the contracts or to the official functionaries. Suffice it to say, that since the ECC enjoys Constitutional status, one of its functions is to review from time to time the energy requirements, its effects and production and investment. Essentially, ECC is bound to act in accordance with the law of the land and the Rules. Thus, in presence of PEPRA Rules, it was incumbent upon the Minister and the Secretary, Water and Power as well as other functionaries not to have put up such a case before the ECC in violation of the PEPRA rules. In the summary dated 17.3.2009, it has not been mentioned that without following PEPRA rules, unsolicited projects cannot be allowed. However, Mr. Shahid Hamid stated that such procurement is covered under Rule 42(c) of the PPRA Rules, which is reproduced hereinbelow: “42. Alternative methods of procurements.- A procuring agency may utilize the following alternative methods of procurement of goods, services and works, namely:- ………………………………………………… (c) direct contracting.- A procuring agency shall only engage in direct contracting if the following conditions exist, namely:- (i) the procurement concerns the acquisition of spare parts or supplementary services from original manufacturer or supplier: Provided that the same are not available from alternative sources; (ii) only one manufacturer or supplier exists for the required procurement: Provided that the procuring agencies shall specify the appropriate fora, which may authorize procurement of proprietary object after due diligence; and (iii) where a change of supplier would oblige the procuring agency to acquire material having different technical specifications or characteristics and would HRC 7734-G/09 [RPPs case] 43 result in incompatibility or disproportionate technical difficulties in operation and maintenance: Provided that the contract or contracts do not exceed three years in duration; (iv) repeat orders not exceeding fifteen per cent of the original procurement; (v) in case of an emergency: Provided that the procuring agencies shall specify appropriate fora vested with necessary authority to declare an emergency; (vi) when the price of goods, services or works is fixed by the government or any other authority, agency or body duly authorized by the Government, on its behalf, and (vii) for purchase of motor vehicle from local original manufacturers or their authorized agents at manufacturer’s price.” 35. A perusal of the above rule suggests that the provision for direct procurement without following procedure of fair competition was not applicable in the case of unsolicited proposal for RPPs. As far as the claim of learned counsel justifying the shifting of machinery from Guddu to Naudero is concerned, no document/material has been placed on record to indicate that permission for the same was granted. Similarly, with regard to other unsolicited proposals for RPPs, no material has been brought on record to canvass that there was no mala fide. Therefore, having been left with no option except to believe the arguments raised by Makhdoom Syed Faisal Saleh Hayat and Khawaja Muhammad Asif that on account of such unsolicited proposals, PEPCO and the concerned GENCOs had indulged in corruption. ROLE OF NEPRA 36. The object and purpose of introducing NEPRA was to regulate the provision of electric power services and to determine tariff, rates, charges and other terms and conditions for supply of HRC 7734-G/09 [RPPs case] 44 electric power services by the generation, transmission and distribution as per section 7 of the Act, 1997, which has been reproduced in the preceding paragraphs. However, neither the process was undertaken with due diligence nor the policy already in vogue since 2006 onwards introduced by the previous Government for running power plants to cater the requirements of shortage of electricity was followed. 37. It may be observed here that the NEPRA did not play its due role in the process of RPPs, firstly for the reason, that bids were invited on the basis of reference tariff of the fuel; secondly, the NEPRA was directed to follow the guidelines already issued in respect of IPPs (guidelines 1.9 and 1.10), which have already been reproduced hereinabove, but in our opinion NEPRA being an independent regulatory body had to perform its functions according to law. As per prescribed procedure, NEPRA could not be oblivious of its duty of determining tariff in accordance with the mandatory provisions of the Act, 1997. It may be noted that as per section 7(3)(a) of the Act, 1997, NEPRA is exclusively responsible for determining tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution companies and recommend to the Federal Government for notification. One of the most important aspects of the case is that under section 7(6) of the Act, 1997, the NEPRA is mandated to protect the interests of consumers and companies providing electric power services in accordance with the guidelines, not inconsistent with the provisions of the Act, laid down by the Federal Government. Therefore, the NEPRA cannot close its eyes and determine tariff contrary to the provisions of the Act, 1997. Not only that, under section 31 of the Act, 1997 and HRC 7734-G/09 [RPPs case] 45 Rule 17(2) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, the NEPRA is required to lay down procedures and standards for the purpose of determination of tariff. One of the objects thereof is that the Authority should allow preference for competition rather than regulation and adopt policy for tariff determination in terms of rule 17(2) & (6) of the NEPRA Rules. The NEPRA has not adopted the aforesaid procedures and standards in the matter of RPPs. In the circumstances, it can only be inferred that the NEPRA has been inoperative and inactive as far as RPPS are concerned. When we inquired from the learned counsel as to why the NEPRA has not asserted its decision in discharge of function assigned to it, he had no satisfactory answer other than stating that in some of the cases including the unsolicited projects, the NEPRA has followed the said procedures and standards in determining tariff. We are not satisfied with the arguments so advanced by him because the data noted hereinabove indicates that in the case of Naudero-I, which was an unsolicited project, apparently rates of electricity were determined on the higher side. However, it might not be possible for the NEPRA to discharge its functions because of the instructions and interference by the Ministry of Water & Power, which had been issuing instructions from time to time, but in any case, instead of following mandatory provisions of the Act, 1997, the NEPRA ought not to have compromised its position. 38. Mr. Kamal Anwar, ASC assisted the Court as Amicus Curiae. He submitted that advance payment was made to 9 RPPs, namely, Karkey, Gulf Rental Power, Reshma Power, Techo Sammundri Road Faisalabad, Techno Sahuwal Sialkot, Guddu, Young Gen, Naudero-I and Naudero-II, details whereof have been given HRC 7734-G/09 [RPPs case] 46 hereinabove. None of them could achieve COD within time, on account of which their contracts were signed off. Statedly, the bank guarantees furnished on behalf of all the bidders have also been encashed. Out of said RPPs, the advance payment was returned by Reshma, Techo Sammundri Road Faisalabad, Techno Sahuwal Sialkot, Guddu, Young Gen and Naudero-II. However, Karkey (231.8 MW), Gulf (62 MW), Naudero-I (51 MW) and Reshma (201 MW), which are still functioning, had achieved delayed COD. Mr. Muhammad Akram Sheikh, learned counsel for Karkey contended that Karkay is the only foreign company of brotherly country Turkey, which had invested in this country, but when we inquired from him as to why favour was shown to the bidder by making 7% advance payment prior to the decision of the Cabinet, he had no answer. Similarly, learned counsel appearing for Karkey could not answer regarding the non-achieving of COD in time. He stated that on account of force majeure, barge-mounted ship could not reach Karachi within time. Without prejudice to the case so put up by the learned counsel, we may point out that we do have respect for the brotherly country, but as far as commercial activities between any bidder and the Government owned companies are concerned, the matter is to be examined strictly in the light of the relevant provisions of the Constitution and the law. No plausible evidence has been brought on record to substantiate the plea. In addition to it, the case of Karkay also suffers from the irregularities and illegalities, which have been noted in respect of all other cases. We, therefore, hold that the contract was awarded to Karkey in a non-transparent manner. 39. In all, 19 Rental Power Projects, namely, Pakistan Power Resources, Guddu; Pakistan Power Resources, Piranghaib, Multan; HRC 7734-G/09 [RPPs case] 47 Techno, Sammundri Road, Faisalabad; Techno Project, Sahuwal, Sialkot; Young Gen, Faisalabad; Gulf Rental Power, Gujranwala; Independent Power Limited; Kamoki Energy Limited; Karkey Karadeniz, Karachi (Karakey-I); Premier Energy; Reshma Power Generation, Manga-Raiwind Road; Ruba Power Generation, Manga- Raiwind Road; Sialkot Rental Power, Eminabad; Walter Power International, Karachi; Abbas Steel; Karkey Karadeniz, Karachi (Karkey II); Techno-E-Power (Pvt.) Limited, Sammundri Road, Faisalabad-II; Walter Power International, Naudero-I; and Walters Power International, Naudero-II were proposed. REPORT OF AUDITOR GENERAL 40. The Auditor General of Pakistan, in the Audit Report on the Accounts of Water and Power Development Authority for the Audit Year 2009-2010 observed a number of illegalities and irregularities, including pointing out that ECC in its decision bearing No.121/15/2009 approved the following four unsolicited projects: - Sr.No. Description of Project Fuel Capacity Rental charges demanded by sponsor Cents/kwh Proposed rental charges cents/kWh 1 Naudero-I Gas 50 M.W 4.46 4.46 2 Naudero-II Gas 51 M.W 4.46 4.00 3 Sammundri Road Extension RFO 150 M.W 3.90 3.75 4 Karkey Up- gradation RFO 222 M.W 5.98 5.80 These projects were required to obtain approval of their proposed tariff from NEPRA within minimum period prescribed. THIRD PARTY EVALUATION BY ADB 41. Admittedly, report was submitted by ADB wherein the process of awarding contracts to supply the electric power to the sellers, partially was not found transparent. Therefore, the Government of Pakistan, through Ministry of Water and Power HRC 7734-G/09 [RPPs case] 48 accepted this report, which means accepting the omissions and commissions, irregularities, illegalities, and negligence both civil and criminal, committed during the process of award of RPPs at different points of time. Thus, in view of objection of ADB, to whom the Government itself appointed for the purpose of third party evaluation, 8 RPPs (1257 MW) were ordered to be vigorously pursued and 6 RPPs were ordered to be reviewed in the light of the legal provisions before proceeding further, whereas 5 RPPs not yet approved/signed were ordered to be discontinued vide order dated 27.01.2010. The said 19 projects were reduced to 9 projects as per decision of the ECC/Cabinet in the light of the ADB report, detail of which, as per the report of Asian Development Bank (ADB) is as follows: - Rental Power Project Status No. RPP Name Net Capacity (MW) Fuel Type Rental Period (Months) Rental Tariff at 60% Plant Factor (Cents/ kWh) Estimated COD Down Payment Disbursed Contracts status PEPCO ICB Projects 1 Pakistan Power Resources, Guddu 110 Low BTU gas 36 8.44 10-Feb 14% Effective 2 Techno Rental Power Project-I, Sammundri, Faisalabad 150 RFO 36 18.64 10-Jun 14% Effective 3 Techno Rental Power Project-II, Sahuwal, Sialkot 150 RFO 48 18.7 10-Jun 7% Effective 4 Young Gen Power, Faisalabad 200 RFO 36 15.59 10-Jun 14% Effective PPIB ICB Projects 5 Gulf Rental Power, Gujranwala 62 RFO 60 17.82 10-Feb 14% Effective 6 Karkey Karadeniz, Karachi (Karakey 1) 232 RFO 60 22.36 10-Apr 14.16% Effective 7 Reshma Power Generation, Manga-Raiwind Road 201 RFO 60 20.26 10-Mar 14% Effective Unsolicited Projects 8 Walter Power International, 51 Gas 60 9.5 10-Jun 14% Effective HRC 7734-G/09 [RPPs case] 49 Naudero-I 9 Walters Power International, Naudero-II 50 Gas 60 10-Jun NIL Under Process The petitioners have vehemently contended that the process of award of RPPs contracts was fraught with grave illegalities and irregularities whereas the learned counsel appearing for the Government/ WAPDA/GENCOs have submitted that the GENCOs had been implementing the policies of Government to overcome the load- shedding in the country on fast track basis as per approval of ECC as well as the Federal Cabinet. In this regard, a detailed analysis of some of the RPPs is undertaken hereinafter. SOLICITED RPPs DISCUSSION OF EFFECTIVE RPPs (1) GUDDU 42. With regard to 110 MW Guddu Rental Power Plant, advertisement dated 07.07.2007 was floated. The eligibility criteria provided in the advertisement were having similar experience for minimum of 3 locations and net worth of not less than US$ 30 M (for last 3 years). M/s Pakistan Power Resources (PPR) and M/s Progas Pakistan Ltd. (PPL) offered tenders/bids. Both the bidders failed to meet US$ 30 million net worth criterion. As such, the PEPCO, vide letter dated 03.11.2007, rejected the same and ordered for re- advertisement. The fresh advertisement was published on 11.11.2007, wherein following deviations from first advertisement were made: - (1) Capacity of 100 MW was changed to 100-125 MW with minimum efficiency of 33%. (2) Period 2 years was changed to 2, 3 or more. (3) Eligibility condition of having similar experience for minimum of 3 locations was removed. (4) Condition of depositing Security of Rs. 10 M or $ 0.17 M, was deleted. HRC 7734-G/09 [RPPs case] 50 (5) Condition of Penalties for non-availability, delay in installation & commissioning or variation in heat rate, was deleted. (6) Condition of providing Operational Guarantee worth 10% of Base Load Operation Cost for 2 years by the bidder was deleted. (7) Process of price evaluation was changed. (8) Bidder’s responsibility to the extent of Operation and Maintenance of equipment and Trouble free base load supply of electricity was eliminated. (9) Bidder’s responsibility to the extent of Transportation of equipment to and from the site was eliminated. (10) Guarantee for providing 92% of gas fuel was provided. Subsequently, by a corrigendum/advertisement, the condition of security deposit of Rs.10 million or US$ 0.17 million was inserted in the advertisement dated 11.11.2007, and by yet another corrigendum/advertisement dated 30.11.2007, the bid opening date was changed from 01.12.2007 to 10.12.2007. Pursuant to the above advertisements, 12 parties made requests for supply of sample agreement, however, following three parties tendered their bids: - (a) M/s Progas Pakistan Ltd., (b) M/s Pakistan Power Resources, and (c) M/s Pak Oman Investment Company Karachi. The Evaluation Committee, through its report dated 01.01.2008, gave the following recommendations: -  On the basis of evaluation criteria, the bid offered by M/s Progas Pakistan Ltd. as Option-I (125 MV) is lowest in tariff, on the basis of Lump sum Contract Price, Rental Charges and Fuel Cost Component.  Only M/s Pak Oman Investment Company qualifies the minimum US$ 30 million Net Worth, while others do not.  M/s Progas has offered 125 MW at reduced load operation, with other option of 135 MW at full load offering an incentive in Rental Rates.  Rental Service Contract may be awarded to M/s Progas Pakistan Ltd. for installation of 135 MW net capacity on three rental years against their guaranteed availability at 92% on gas fuel at proposed site of TPS Guddu at 132 KV level.  In this connection, it is proposed to relax minimum criteria of US$ 30 million Net Worth. HRC 7734-G/09 [RPPs case] 51 The bid offered by M/s Pakistan Power Resources was accepted on 03.02.2008 as under: -  Based on rental charges & guaranteed heat rates offered by the bidders, the overall cost (US Cents 7.640 per kWh) offered by M/s Pakistan Power Resources is lower as compared to the offer (US Cents 7.974 per kWh) of the next higher bidder.  The rental value offered by M/s Pakistan Power Resources, at (US 2.717 per kWh) was 13%, which was lower than that of the rental (US Cents 3.133 per kWh) for units of GE at Sheikhupura and PPR at Bhikki, already in operation.  A penalty clause be included in the contract agreement to penalize PPR for failing to achieve the specified/required COD.  It was unanimously agreed that offer by M/s Pakistan Power Resources was the best offer and was accordingly approved. LOA may be issued and the matter submitted to PEPCO, BOD for ratification. Vide letter dated 06.08.2008, the offer of M/s PPR for setting up of 150 MW Rental Power Station was accepted and Advance Payment Guarantees were provided to the seller. Vide letter dated 11.03.2008 permission was accorded to M/s Pakistan Power Resources, LLC to enlarge/expand and continue operation of its Branch Office at Lahore. On 23.02.2008, rental agreement was executed between Pakistan Power Resources, LLC and Central Power Generation Company Ltd. (CPGCL). On 11.12.2008, an amendment was made to the Rental Agreement to the following effect: -  Changes were made in the mode of payment through LC.  The CPGCL have no right to cancel the contract within initial 8 months.  In case of termination of the agreement by CPGCL, the buyer shall be entitled to outstanding rent of 36 months.  Maximum drawdown on SBLC during any one calendar month will not exceed a sum of US$ 1,872,466. On 05.03.2009, second amendment was made to the Rental Agreement to the whereby following effect: - HRC 7734-G/09 [RPPs case] 52  Requirement of confirmation of SBLC by a Financial Institution in UK or USA in terms of clause 4.5(d) was waived.  The seller waived the right to call the SBLC on account of defaults of the Buyer, which had occurred prior to issuance of SBLC.  Amount of SBLC as mentioned in section 4.5 was reduced from 93% (US$ 67,408,766) to 86% (US$ 62,334,988) of the contract price.  Down payment was increased from 7% to 14 %.  Some amendments were made in the capacity/operation of Units. (2) PIRANGHAIB, MULTAN & SAHUWAL, SIALKOT 43. For setting up a 250-300 MW RPP at Piranghaib, Multan on base load operation for 2 years, advertisement was published on 11.10.2007. The eligibility criteria provided in the advertisement were having similar experience for minimum of 3 locations; and Net worth of not less than US$ 30 M (for last 3 years). By corrigendum dated 24.10.2007, the eligibility criterion requiring experience of providing similar Rental Power facilities for minimum of three locations was deleted. Later on, another corrigendum dated 29.10.2007 was issued whereby bid submission/tender opening date was extended to 07.11.2007. The tenders were opened on 22.11.2007 wherein three parties, namely, M/s Techno Engineering (Pvt.) Ltd., M/s Progas Pakistan Ltd. and M/s Pakistan Power Resources submitted proposals. The Rental Power Projects had to run on RFO and gas fuels. It was the responsibility of buyer to provide gas when available, whereas, seller was bound to arrange for RFO fuels. Specifications provided by Techno Engineering Services Ltd. (Sahuwal, Sialkot) were S50MC-C7 MN B&W; and by M/s Pakistan Power Resources (Piranghaib, Multan) were 192 MW (net) at mean site conditions based on GE Gas Turbines Generating Sets operable on RFO and gas fuels, of appropriate Make & Size and configuration acceptable to the Buyer. The proposals were HRC 7734-G/09 [RPPs case] 53 evaluated by an Evaluation Committee, which by means of its report dated 11.12.2007 recommended for award of contract to M/s Techno Engineering Services (Pvt.) Ltd. as Option-I. A Scrutiny Committee constituted to scrutinize the bids, vide its report dated 04.01.2008 found that all the three bidders for the plant were financially non- responsive because they had failed to meet US$ 30 million net worth criterion. On re-invitation, fresh proposals were received from M/s Techno Engineering Services and M/s Pakistan Power Resources. On 17.03.2008, the Board of Directors of PEPCO decided to split up the project as under: -  150 MW RPP at Sahuwal, Sialkot  192 MW RPP at Piranghaib, Multan Accordingly, on 24.03.2008, the Letters of Award were issued to M/s Techno Engineering Services Islamabad and to M/s Pakistan Power Resources respectively. RSCs were signed between the sellers and the buyer. Subsequently, RPP at Piranghaib was signed off on 14.09.2010. Extracts from such document have been reproduced in CMA 3992/11, which are as follows: - “4. Signing Off of Project (1) As per the minutes of the meeting held on 14 September 2010 in the Ministry of Water and Power, the decision was taken at 5(vi) that Rental Power Multan is allowed to be signed off “on mutually acceptable condition between CPGCL and the sponsors”. (2) In its over-all settlement, PPR seeks the return of its Advance Payment Guarantee, Performance Guarantee and payment of US$1,001,771 in reimbursement of (a) its cost of US$ 451,746 on Project engineering, (b) US$ 5,328 on Performance Guarantee Charges, (c) US$ 77,143 on Advance Payment Guarantee, (d) interest of US$ 267,494 on Performance Guarantee Charges and (e) US$ 200,000 paid to Bank Islami as advisory and management fee.” HRC 7734-G/09 [RPPs case] 54 44. In addition to that, the contract was signed between M/s Techno Engineering Services (bidder) and Northern Power Generation Company (NPGCL) being a licence holder for the generation of electricity, although it had never invited bids for the supply of electric power. Whereas, a contract being a bilateral document has to be reduced into writing by means of an agreement enforceable by law between the person who had made the proposal and the one who had accepted the same, or those who had made an offer to do a particular thing and accepted the same. Reference in this behalf may be made to section 2(g) of the Contract Act, 1872, which provides that an agreement enforceable by law is a contract. It seems that originally Rental Power Project of Piranghaib was unsolicited, but subsequently certain steps were taken purportedly to give an impression that it was a solicited project based on ICB. The expression ‘unsolicited’ has been used because while entering into contract with these companies, the procedure laid down in the Public Procurement Rules, 2004 (PPR) was not followed. Thus, requirements of International Competitive Bidding (ICB) were not completed. Following further irregularities have been committed in the award of the contract: - (1) The advertisement was contrary to Rule 12 of the Public Procurement Rules, 2004, inter alia, for following reasons:- (i) No advertisement was made on the Authority’s website in the manner and format specified by regulation by Authority from time to time; (ii) No advertisement was made on the website of PEPCO. (2) The original 250-300 MW RPP at Piranghaib, Multan was split up for two different sites, one at Piranghaib, Multan and the other at Sahuwal, Sialkot, which were awarded to two different companies without any advertisement and bid. HRC 7734-G/09 [RPPs case] 55 (3) As per section 4.5(a) of the Rental Services Contracts (Sahuwal, Sialkot), executed between NPGCL and Techno Engineering Services Ltd, the seller was eligible to obtain in advance a down payment amounting to 7% of lump sum contract price, however, a major change was brought about vide amendment dated 11.06.2009 by increasing the down payment to 14%. Similarly, the additional 7% advance was also paid to M/s Pakistan Power Resources (Piranghaib, Multan). (4) As per section 4.5(a) ibid, the seller was eligible to obtain in advance the Down Payment amounting to 7 % of lump sum contract price for the term of rental services contract on submission of bank guarantee valid until 30 days after the target commercial operation date. The provision of bank guarantee of just 30 days for the whole rental term is inadequate for in case of default by the seller the buyer could get only that amount of total 7 % of which the seller has furnished bank guarantee. Beyond the period of 30 days from the target operation date, the buyer could not recover any amount as there was no bank guarantee for the same. (5) As per clause (c) of section 4.5 ibid, the buyer was bound to deliver to the seller an irrevocable letter of credit in the amount equal to 36 monthly rental services fee payments, however, vide amendment No. 2 dated 24.11.2009, the SBLC was replaced with Government of Pakistan Guarantee with a view to giving maximum benefit to the seller. (6) As per LOA and the contract, the Seller were paid 7% Advance before COD. In case of Techno E. Services Ltd. Sahuwal, 7% advance amounting to US$11,550,000 and in case of M/s Pakistan Power Resources (Piranghaib, Multan), US$14,584,990 were paid. Bank guarantees were obtained before making the payment. It was not covered by the terms of the advertisement. Likewise, the provision of standby letter of credit in favour of the seller was also not in accordance with the advertisement. HRC 7734-G/09 [RPPs case] 56 (7) According to the Act, 1997, the bidders i.e. Techno E. Power and Pakistan Power Resources were bound to obtain generating licences, but it was decided that the buyers would obtain said licences. It is to be kept in mind that as far as the capacity charges are concerned, the same were to be determined on the basis of bids, and if there was no competition, then likelihood of quoting highest capacity charges could not be overruled without knowing that what was the efficiency of the machinery although vide letter dated 13.04.2009 NEPRA had stated that its life should not be more than 10 years. 45. Apart from the signing off of Piranghaib RPP’s contract, the fact remains that both these projects were handled by the concerned authorities negligently, on account of which a huge loss had been caused to the public exchequer. Detailed discussion regarding unsolicited RPPs shall be undertaken subsequently, but primarily, examination of these RPPs reveals how casually PEPCO and NPGCL had dealt with the matter without considering their powers and jurisdiction, which ultimately cast a burden on the citizens, individually and collectively. (3) NISAHATABAD/SAMMUNDRI ROAD, FAISALABAD 46. For setting up RPP of above 50 MW at Nishatabad, Faisalabad, initially for two years, extendible for further one year, advertisement dated 11.10.2007 was issued by Northern Power Generation Company Ltd. (NPGCL), laying down the eligibility criteria of having experience of providing similar Rental Power Facilities for minimum of 3 locations and net worth of not less than US$ 30 million (for last 3 years). Guaranteed availability of 88% on RFO fuel (aggregate during the term) was required in the advertisement and the date of commissioning was mentioned as 15.05.2008. HRC 7734-G/09 [RPPs case] 57 47. Vide corrigendum/advertisement dated 24.10.2007, the eligibility criteria requiring “experience of providing similar rental power facilities for minimum of 3 locations” was deleted from the advertisement dated 11.10.2007. Vide corrigendum/advertisement dated 29.10.2007, the date for submission/opening of bids was extended to 07.11.2007. Vide order dated 03.11.2007 and corrigendum/advertisement dated 04.11.2007, the date for submission/opening was extended to 21.11.2007. In response to said advertisements, 20 parties made requests for supply of sample agreement, which was supplied. However, the following three parties submitted their Bids:- (a) M/s Techno Engineering (Pvt.) Ltd., Islamabad, (b) M/s Progas Pakistan Ltd., Karachi, and (c) M/s Pakistan Power Resources, Lahore. The Evaluation Committee gave its report on 01.01.2008 wherein following recommendations were made: -  On the basis of evaluation criteria, the bid offered by M/s Techno Engineering Services (Pvt.) Ltd. as Option-I (MAN B&W) equipment is lowest in Total Tariff, on RFO fuel, on the basis of Lump sum Contract Price, Rental Charges and Fuel Cost Component.  Value of Total Tariff and Rental Charges remain same for 3 and 4 years, therefore, 3 years Rental term is recommended, which may be extended to 4th year as per PEPCO power requirement.  The above Tariff components are worked out on the basis of guaranteed availability, while the plant factor on RFO operation is expected around 60% in a year.  All the bidders are not qualifying the minimum US$ 30 million Net Worth.  The bidder may be asked to achieve Commercial Operation Date by 15.05.2008, otherwise the Rental Period would be reduced.  Proposal of bidder for shifting of site from Nishatabad, Faisalabad to Eminabad, Gujranwala may be considered because there will be saving of 1.93% of Lump Sum Contract Price, while power is also required in Gujranwala region.  Award of Rental Services Contract is recommended at the above Quoted Lump Sum Contract Price, for installation/operation of 150 MW net capacity, on 3 HRC 7734-G/09 [RPPs case] 58 rental years basis, at proposed site of Eminabad, Gujranwala at 132 kV voltage level. Letter of Award (LOA) was issued to M/s Techno E. Services (Pvt.) Ltd. on 22.01.2008 and amended LOA was issued on 22.01.2008. Advance payment guarantees were provided to the seller, which were extended for further periods through separate amendments. Approval for amendment in sample rent agreement and authorization to sign contract was obtained on 14.02.2008. Till 14.02.2008, the main site area was mentioned as Nishatabad, Faisalabad, but for the first time on 14.02.2008, while seeking approval for amendment in sample rent agreement and authorization to sign contract, it was mentioned as Sammundri Road, Faisalabad. After discussing the ADB Audit Report, the project was approved by the Cabinet. (4) KARKEY KARADENIZ ELEKTRIK 48. To set up RPPs of 200 MW cumulative capacity near Karachi, advertisement dated 17.05.2008 was issued by PPIB following the ICB procedure. Two bidders, namely, Karkey Karadeniz Elektrik Uretim A.S. and Walters Power International fulfilled the requirements of the RFP. Tariff determination was done on 21.10.2008, RSC was signed on 05.12.2008 and advance payment of US$ 79.05 million was made on 12.05.2009. The original COD was fixed as 14.08.2009, which was first revised to 08.12.2009 and then to 07.04.2010. However, since the RSC did not come into effect, no obligations or rights accrued to either party thereunder. Amended & restated RSC was signed on 23.04.2010 for a rental term of 5 years. 49. In the invitation for bids published by the PPIB, the bidders were required to quote rental charges and fuel cost component on delivery of energy at reference fuel prices. In some of the advertisements, exact location/sites were mentioned. For reference, HRC 7734-G/09 [RPPs case] 59 the relevant portion of the advertisement dated 20.05.2015 in pursuance whereof contract was awarded to Karkey Karadeniz is reproduced hereinbelow: - “Venture into Secure, Profitable & Promising Power Sector of Pakistan INVITATION FOR BIDS 1200 MW Fast Track Private Power Projects “Package B: Rental Power Project(s) of 200 MW cumulative capacity near Karachi. Capacity: Rental power project(s) including barge-mounted plants of 200 MW cumulative power generation capacity can be offered by the bidder(s). One or more project proposals/bids will be considered, until the limit of 200 MW is attained. Fuel/Type: The bidders may offer projects of any multiple fuel (Residual Fuel Oil/Gas/Liquified Natural Gas/Liquified Petroleum Gas), technology and type. Site: Near Karachi Project commissioning: Project(s) are required to be operational within six (06) months from issuance of Letter of Award (LOA). Term of Project(s): The term of the project(s) would be 3-5 years. Project Agreement: The project agreement/contract for these projects would be in accordance with those earlier executed by PEPCO for Rental Projects. Evaluation Criteria: For evaluation of bids and award under this package, similar approach as that for Package-A would be followed, until cumulative capacity of 200 MW is reached. Bidding Process Roadmap:  The interested party/parties will be registered with PPIB after paying US$ 100 (or Pak Rs. 7000) for each Package and purchase Request for Proposal (RFP) after making a non- refundable payment of US$ 2,000 (Pak Rs.140,000) for each Project. The registration process and sale of RFP will be completed from 20th May to 19th June 2008.  The interested party/parties will submit complete bid in accordance with the RFP along with a refundable Bid Bond @ US$ 1,000 per megawatt (MW) of proposed Gross (ISO) Capacity of the Project and non-refundable bid evaluation fee of US$ 20,000.  Payments to be made through Demand Draft/Pay Order drawn in favour of PPIB, payable at a bank branch in Islamabad Pakistan or through wire transfer.  PPIB reserves the right to reject any or all bids without assigning any reason thereof.” HRC 7734-G/09 [RPPs case] 60 The bidders gave their respective bids for rental charges and fuel cost component on Proformas XII/XIII. In this behalf, contents of Proformas No. XII & XIII, submitted by M/s Karkey are reproduced hereinbelow: - “ANNEX – B Attachment 12 to the Bid Letter Proforma XII Bidder’s Offered Reference Tariff Table Rental Power Project Reference Tariff Table for Ranking Purpose Year Fuel (¢ per kWh) x 1.2 Rental Rate (¢ per kWh) Total (¢ per kWh) 1. 10,2323 x 1.2 6,3500 18,6288 2. 10,2323 x 1.2 6,3500 18,6288 3. 10,2323 x 1.2 6,3500 18,6288 4. 10,2323 x 1.2 6,3500 18,6288 5. 10,2323 x 1.2 6,3500 18,6288 Note: 1. The calculation of Fuel Cost Component and Rental Rate will be made according to the Proforma XIII 2. For conversion of Fuel Cost Component from Pak Rs. To US Cents, the conversion rate of 1 US$ = 62 Pak Rs. Shall be used.” “Attachment 13 to the Bid Letter Proforma XIII Pricing - Lump Sum Rental Charges, Rental Rate and Reference Fuel Cost Component a) Pricing – Lump Sum Rental Charges for 60 Months Rental Term. HRC 7734-G/09 [RPPs case] 61 Description Duration (Months) Lump Sum Rental Charges (US$) Rental Services of the Equipment including but not limited to SELLERS’S responsibilities mentioned in the Rental Services Contract: Transport to/from Company Site Mobilization and de- mobilization Installation and commissioning Operation and maintenance. 60 Months (as per applicable Rental Term) $ 599.575.966,20 (US Dollars Five Hundred Ninety- nine Million Five Hundred Seventy Five Thousand Nine Hundred Sixty-six and twenty cents only) b) Rental Rate The Rental Rate 6,3500 US Cents/kWh based on the Lump Sum Rental Charges given in the Table above is calculated using the following formula: Rental Rate (Cents/kWh) = Lump Sum Rental Charges in US Dollars x 100 Net Capacity in MW x 1000 x Rental Term in years x number of hours in year x Guaranteed Availability Where: Net Capacity of Rental Plant: 231.8 MW (net) at Mean Site Conditions Guaranteed Available of Equipment: 93% No. of Hours in a year: 8760” 50. The above rental charges for supply of energy per kWh were quoted on the basis of reference value. It is pertinent to mention that a buyer should always be interested to get installed a power plant, which can produce more electricity. Obviously, the charges were quoted purely on presumptive basis, as at the time of submitting bid documents, no plan was available. Thus, there was no competition between bidders as the competition would be possible, if the buyer had fixed the reserved price and had also specified the make, model and life of the plant. In view of such situation, NEPRA vide letter dated 13.04.2009, which is reproduced hereinabove, notified that old plants having life of more than 10 years or plants which had completed 60000 operating hours would not be acceptable. HRC 7734-G/09 [RPPs case] 62 (5) GULF, EMINABAD, GUJARANWALA and INDEPENDENT POWER (Pvt.) Ltd., GOJRA, FAISALABAD 51. To set up a 100 MW IPP or above 50 MW RPP at any site in Pakistan, advertisement dated 26.09.2008 was issued by PPIB. There were no specific conditions regarding the capacity, type of fuel, technology of plant, site, etc. In response to the said advertisement, the following parties submitted bids: - (a) ALSTOM Power Rentals for 200 MW project near 220 kV Ludewala - Sargodha Grid Station. (a) Gulf Rental Power for 80.5 MW project adjacent to 132 kV Eminabad - Gujranwala Grid Station. (b) Independent Power Pvt. Ltd. for 220.97 MW project near 132 kV Gojra - Faisalabad Grid Station. The PPIB in its meeting held on 20.12.2008 approved processing of Letter of Award (LOA) to Gulf. The NEPRA approved the tariff of Gulf on 13.04.2009. LOA was issued to M/s Gulf Rental Power on 27.04.2008. Advance Payment Guarantees were provided to the seller as such Advance payment was made on 19.09.2009. Original commercial operation date (COD) was 31.12.2009 which was revised to 29.04.2010 and the Project was commissioned on the said date. 52. The Ministry of Water & Power vide letter dated 24.01.2009 forwarded the summary on fast track rental power projects through ICB with respect to Gulf. NEPRA vide letter dated 18.02.2009 communicated its response. Relevant Para is given hereunder: - “(iii) However, it has been observed that due to poor response from IPPs, PPIB is accepting more rental power plants, which have considerably lower efficiencies. NEPRA therefore recommends as follows: (a) The induction of rental power projects on furnace oil with very lower thermal efficiency should be discouraged. The present induction should be allowed for a limited time and further additions in the system be made through life-cycle investment analysis of the projects. This is extremely critical in HRC 7734-G/09 [RPPs case] 63 view of the fuel cost component which forms a major component of overall tariff. (b) While developing RFP for any future induction of IPPs under ICB, the regulator should be kept on board. (c) During evaluation of bids, NEPRA’s earlier tariff determinations should be considered as a reference.” 53. The PPIB vide letter dated 24.01.2009 declared the above- referred RPPs as qualified bidder, which was arrived at through ICB and was advised to approach NEPRA for approval of the approved tariff. Ministry of Water & Power vide letter dated 20.02.2009 advised NEPRA to approve the approved tariff. The Authority considered that: (i) Acute power shortage in the country and recognizes the importance of fast track projects and supports the endeavor of the Ministry of Water & Power for induction of additional power. (ii) Poor response from IPPs regarding bidding process due to which PPIB had to accept more rental power plants with lower efficiencies. (iii) Rental Tariff was accepted by GOP and denying approval in the instant case would result in further delay the additional power and would give wrong signal to the private investors. While granting approval of these rental projects on 13.04.2009 NEPRA gave its observation in the said decision that though tariff arrived at through competitive bidding is not subject to further review by NEPRA, but the Authority still needs to consider the provisions of section 31(2)(a),(c)&(d) of the NEPRA Act, which require NEPRA to protect consumers against monopolistic prices; to encourage efficiency in licensees operations and quality of service and to encourage economic efficiency in the electric power industry. Hence at the time of granting the tariff in question, the NEPRA vide letter dated 13.04.2009 recommended that in future:- (i) The induction of rental power projects on furnace oil with very low thermal efficiency should be discouraged. This becomes even more critical in view of the fuel cost component, which forms a major component of overall tariff. HRC 7734-G/09 [RPPs case] 64 (ii) Before initiating ICB, the RFP should be got approved by NEPRA. (iii) During evaluation of bids NEPRA’s earlier tariff determinations be considered as reference. (iv) The rental power plants more than 10 years old or more than 60,000 operating hours may not be accepted. As per GENCO, the RSC with IPL was not signed and in the light of the Cabinet decision dated 27.01.2010, the project was discontinued. 54. From a perusal of the above facts, it is evident that following grave irregularities were committed in the award of the contract: - (1) No specific conditions were provided in the advertisement regarding the capacity, type of fuel, technology of plant, site, etc. The bidders were to finalize sites in coordination with PEPCO. The project was to be commissioned within 6- 8 months from issuance of Letter of Award (LOA). (2) Eligibility criteria, as provided in the advertisements by PRPCO, such as, having similar experience for minimum of 3 locations and Net worth of not less than US$ 30 M (for last 3 years), was not provided. (3) The seller was eligible to obtain in advance a down payment amounting to 7% of lump sum contract price, however, a major change was brought about and additional 7% advance was paid to Gulf Rental Power. (4) As per section 4.5(a) ibid, the seller was eligible to obtain in advance the Down Payment amounting to 7 % of lump sum contract price for the term of rental services contract on submission of bank guarantee valid until 30 days after the target commercial operation date. The provision of bank guarantee of just 30 days for the whole rental term is inadequate for in case of default by the seller the buyer could get only that amount of total 7 % of which the seller has furnished bank guarantee. Beyond the period of 30 days from the target operation date, the buyer could not recover any amount as there was no bank guarantee for the same. HRC 7734-G/09 [RPPs case] 65 (5) As per clause (c) of section 4.5 ibid, the buyer was bound to deliver to the seller an irrevocable letter of credit in the amount equal to 36 monthly rental services fee payments, however, vide amendment No. 2 dated 24.11.2009, the SBLC was replaced with Government of Pakistan Guarantee with a view to giving maximum benefit to the seller. (6) Tariff determination was done on 13.04.2009 and payment of 7% advance in the sum of US$ 11.9 million was made on 19.02.2009 before COD. (7) The original Commercial Operation Date was 31.12.2009 but the COD cannot be achieved as such the same was revised to 29.04.2009 when COD was achieved. (8) The Project was to run on RFO and the NEPRA advised that the induction of rental power projects on furnace oil with very low thermal efficiency should be discouraged. (9) Rental tariff was approved by NEPRA on the ground that tariff had already been accepted and denying approval would result in further delay the additional power and would give wrong signal to the private investors. (6) RESHMA, RAIWIND ROAD, LAHORE 55. To set up above 50 MW RPP capacity at any site to be finalized in coordination with PEPCO, advertisement dated 23.12.2008 was issued by PPIB following the ICB procedure. Ten bidders participated in the bidding out of whom eight bidders were recommended by the Evaluation Committee. The Committee also observed that there was room for tariff reduction, hence quoted tariffs may be negotiated with the bidders. The bid of Reshma Power was approved on 14.04.2009. Tariff determination was done on 29.05.2009. RSC was signed on 06.09.2009. Advance payment of US$ 55.27 million was made on 03.10.2009. The COD was fixed as 31.12.2009, which was not achieved, therefore, the advance payment was returned. However, after the project achieved partial COD, HRC 7734-G/09 [RPPs case] 66 permission was sought from the NEPRA, but the same was declined as the proposal was against the agreed contractual terms. LIFE OF RPPs 56. Unfortunately, NEPRA specifications in respect of the life of the power plants were not adhered to strictly. For example, the machinery to be installed at Naudero, which was sought to be removed from Guddu after it had been signed off was admittedly more than 10 years old, as such NEPRA had declined to grant necessary permission. Similarly, in respect of Karkay power plant, Mr. Muhammad Akram Sheikh, Sr. ASC asserted that 60% of the plant machinery was brand new whereas the remaining 40% was only 3 years old. In addition to it, during arguments it was pointed out that the said machinery was more than 25 years old. Thus, contention raised by Makhdoom Syed Faisal Saleh Hayat that no technical qualification/pre-condition was in place to ascertain the quality, efficacy and optimum performance of the imported plants as per international standards is correct. UNIT COST PER KWh 57. It is to be seen that RPPs are mostly based on RFO (Residual Fuel Oil), HSFO and Gas. As far as RFO is concerned, its prices are increasing day-by-day and the bidders were allowed to get reference fuel price for RFO equal to Rs.26,000/- per metric ton ex- Karachi without inland transportation cost and sales tax. The bidders would workout inland transportation costs and base its fuel cost component in the bid on delivered fuel price on site (Pak Rs.26,000/- inland transportation cost) as well as fuel adjustment as per contract and perhaps due to this reason, power plants based on RFO produced electricity at a higher cost. To demonstrate this aspect of the case, we may point out that during hearing of the case, respondents were called HRC 7734-G/09 [RPPs case] 67 upon to submit details of RPPs operating at the relevant time to ascertain unit cost per kWh. Accordingly, a chart was placed on record for our perusal showing per unit cost, being charged from the Government by Gulf, Karkay, Reshma and Walters Power (Naudero-I). The details of each of the power plants are as under: - Gulf Rental Power Karkey Karadeniz 1 2 i Contracted Capacity-MW 62 231.8 ii Contracted Availability-MW 92% 93% iii Commercial Operation Date- COD 26.04.2010 13.4.2011 iv Guaranteed Net Electric Output- kWh, per Month of 30 Days 40,176,000 155,213,280 v Daily guaranteed Net Elect Output 1339,200 5,173,776 vi Total Rent for 5 Years-USD 85,000,000 564,640,043 vii Monthly Rent- USD 1,415,667 9,410,667 vii Daily Rent-USD (30.42 Days in Month 46,570 309,358 ix Cents-Per kWh 3.4778 Rs- 3.03 5.98 Rs- 5.20 x RFO Price-Rs Per Kg (dated 11.10.11 applicable to nearest IPP and Genco) including transportation cost of each 68.00 61.66 xi xi RFO Consumption-per Kwh-grams 234.99 244.00 Rs Rs Rs Rs Rs Rs Days Date kWh Rent- kWh Fuel- kWh Unit Cost- kWh kWh Rent- kWh Fuel- kWh Unit Cost- kWh 1 26.10.11 1,245,466 3.253 15.98 19.23 2,762,600 9.74 15.05 24.79 2 25.10.11 1,246,261 2.251 15.98 19.23 3,035,900 8.87 15.05 23.91 3 24.10.11 1,248,457 3.245 15.98 19.22 3625,000 7.42 15.05 22.47 4 23.10.11 1,105,938 3.664 15.98 19.64 3,682,500 7.31 15.05 22.35 5 22.10.11 1,096,070 3.696 15.98 19.68 3,398,800 7.92 15.05 22.96 6 21.10.11 1,197,786 3.383 15.98 19.36 2,102,400 12.80 15.05 27.85 7 20.10.11 1,229,730 3.295 15.98 19.27 1,698,600 15.84 15.05 30.89 8 19.10.11 1,1150,542 3.521 15.98 19.50 1,62,000 16.54 15.05 31.59 9 18.10.11 1,245,197 3.254 15.98 19.23 932,300 28.87 15.05 43.91 10 17.10.11 1,219,752 3.322 15.98 19.30 897,200 30.00 15.05 45.04 11 16.10.11 1,230,098 3.294 15.98 19.27 850,100 31.66 15.05 46.71 12 15.10.11 1,126,913 3.595 15.98 19.57 785,500 34.26 15.05 49.31 13 14.10.11 1,222,272 3.315 15.98 19.29 822,600 32.72 15.05 47.76 14 13.10.11 1,262,320 3.210 15.98 19.19 864,600 31.13 15.05 46.17 15 12.10.11 1,201,690 3.372 15.98 19.35 911,500 29.53 15.05 44.57 16 11.10.11 1,198,484 3.381 15.98 19.36 876,500 30.71 15.05 45.75 17 10.10.11 1,101,726 3.678 15.98 19.66 849,100 31.70 15.05 46.74 18 09.10.11 1,218,411 3.325 15.98 19.30 832,900 32.31 15.05 47.36 19 08.10.11 1,291,849 3.136 15.98 19.18 846,000 31.81 15.05 46.86 20 07.10.11 1,476,273 2.744 15.98 18.72 885,900 30.38 15.05 45.43 21 06.10.11 1,479,693 2.738 15.98 18.72 2,454,000 10.97 15.05 26.01 22 05.10.11 1,476,375 2.744 15.98 18.72 919,100 29.28 15.05 44.33 23 04.10.11 1,471,224 2.754 15.98 18.73 1,722,400 15.63 15.05 30.67 24 03.10.11 1,393,148 2.908 15.98 18.89 1,207,700 22.29 15.05 37.33 25 02.10.11 1,372,433 2.952 15.98 18.93 1,109,700 24.25 15.05 29.30 26 01.10.11 1,387,320 2.920 15.98 18.90 787,700 34.17 15.05 49.21 HRC 7734-G/09 [RPPs case] 68 27 30.09.11 1,410,694 2.872 15.98 18.85 714,300 37.68 15.05 52.72 28 29.09.11 1,174,616 3.449 15.98 19.43 839,600 32.06 15.05 47.10 29 28.09.11 1,265,478 3.202 15.98 19.18 723,500 37.20 15.05 52.24 30 27.09.11 1,241,496 3.263 15.98 19.24 769,500 34.98 15.05 50.02 37,987,712 43,534,500 Average- MW Produced 52.76 60.45 Average-MW Required 52.76 215.57 31 26.09.11 1,410,222 2.873 15.98 18.85 793,700 33.91 15.05 48.95 32 25.09.11 1,473,520 2.750 15.98 18.73 991,300 27.15 15.05 42.20 33 24.09.11 1,452,493 2.789 15.98 18.77 970,900 27.72 15.05 42.77 34 23.09.11 1,466,412 2.763 15.98 18.74 1,219,000 22.08 15.05 37.12 35 22.09.11 1,220,807 3.3188 15.98 19.30 918,600 29.30 15.05 44.34 36 21.09.11 1,278,875 3.168 15.98 19.15 907,900 29.64 15.05 44.69 37 20.09.11 1,270,950 3.188 15.98 19.17 1,244,100 21.63 15.05 36.68 38 19.09.11 1,263,907 3.206 15.98 19.18 1,153,200 23.34 15.05 38.38 39 18.09.11 1,332,039 3.042 15.98 19.02 1,328,200 20.26 15.05 35.31 40 17.09.11 1,266,455 3.199 15.98 19.18 1,354,700 19.87 15.05 34.91 41 16.09.11 1,131,801 3.580 15.98 19.56 ,1,290,600 20.85 15.05 35.90 42 15.09.11 1,210,123 3.348 15.98 19.33 1,031,300 26.10 15.05 41.14 43 14.09.11 1,293,702 3.132 15.98 19.11 1,020,600 26.37 15.05 41.42 44 13.09.11 1,285,529 3.152 15.98 19.13 1,232,400 21.84 15.05 36.88 45 12.09.11 1,455,252 2.784 15.98 18.76 1,236,500 21.77 15.05 36.81 46 11.09.11 1,502,209 2.697 15.98 18.68 1,561,000 17.24 15.05 32.29 47 10.09.11 1,468,461 2.759 15.98 18.74 1,282,300 20.99 15.05 36.03 48 09.09.11 1,467,458 2.761 15.98 18.74 1,300,000 20.70 15.05 35.75 49 08.09.11 1,412,664 2.868 15.98 18.85 1,183,400 22.74 15.05 37.79 50 07.09.11 1,440,554 2.813 15.98 18.79 1,065,900 25.25 15.05 40.30 51 06.09.11 1,462,116 2.771 15.98 18.75 921,200 29.22 15.05 44.26 52 05.09.11 1,418,116 2.857 15.98 18.84 856,400 31.43 15.05 46.47 53 04.09.11 1,421,350 2.851 15.98 18.83 813,000 33.10 15.05 48.15 54 03.09.11 1,146,095 3.535 15.98 19.51 843,200 31.92 15.05 46.96 55 02.09.11 1,318,673 3.072 15.98 19.05 861,200 31.29 15.05 46.33 56 01.09.11 1,313,364 3.085 15.98 19.06 813,900 33.07 15.05 48.11 57 31.08.11 1,400,965 2.892 15.98 18.87 844,100 31.89 15.05 46.93 58 30.08.11 1,418,241 2.857 15.98 18.84 1329,800 20.24 15.05 35.28 59 29.08.11 1,375,102 2.946 15.98 18.93 1,684,800 15.97 15.05 31.02 60 26.09.11 1,457,481 2.780 15.98 18.76 2,113,000 12.74 15.05 27.78 40,834,936 34,165,200 Average- MW Produced 56.71 47.45 Average-MW Required 55.80 215.57 Assumption 1- Exchange Rate 1USD=87 2- Average Days in a Month for the calculation of Rent in Cents 30.42 Days Reshma Power Water Power Naudero-I 3 4 i. Contracted Capacity-MW 201.3 51 ii. Contracted Availability-MW 90% 92% iii. Commercial Operation Date-COD 14.7.2011 iv. Guaranteed Net Electric Output-kWh, Per Month of 30 Days 130442400 33782400 v. Daily Guaranteed Net Elect Output 4348080 1126080 vi. Total Rent for 5 Years-USD 394778489 80420000 NEPRA approved vii. Monthly Rent- USD 6579641 1340333 viii. Daily Rent-USD (30.42 Days in Month) 216293 44061 ix. Cents-Per kWh 4.975 Rs-4.32 3.91 Rs-3.40 Vs RSA ~ 4.46/Rs-3.88 x. RFO Price-Rs Per Kg (Dated 11.10.11 65.86 447 Gas-SPS Faisalabad HRC 7734-G/09 [RPPs case] 69 applicable to nearest IPP and Genco) including transportation cost of each xi. RFO Consumption-per kWh-grams 238.53 9949 BTU/kWh-Heat Rate Rs. Rs. Rs. Rs. Rs. Rs. Days Date kWh Rent- kWh Fuel- kWh Unit Cost- kWh kWh Rent- kWh Fuel- kWh Unit Cost- kWh 1 26.10.11 1319664 0 15.71 15.71 383330 0 4.45 3833305 2 25.10.11 501712 0 15.71 15.71 383330 0 4.45 3833305 3 24.10.11 184657 0 15.71 15.71 383330 0 4.45 3833305 4 23.10.11 478675 0 15.71 15.71 383330 0 4.45 3833305 5 22.10.11 483842 0 15.71 15.71 383330 0 4.45 3833305 6 21.10.11 414615 0 15.71 15.71 383330 0 4.45 3833305 7 20.10.11 524012 0 15.71 15.71 383330 0 4.45 3833305 8 19.10.11 608000 0 15.71 15.71 383330 0 4.45 3833305 9 18.10.11 693000 0 15.71 15.71 383330 0 4.45 3833305 10 17.10.11 618280 0 15.71 15.71 383330 0 4.45 3833305 11 16.10.11 631310 0 15.71 15.71 383330 0 4.45 3833305 12 15.10.11 852830 0 15.71 15.71 383330 0 4.45 3833305 13 14.10.11 722340 0 15.71 15.71 383330 0 4.45 3833305 14 13.10.11 677043 0 15.71 15.71 383330 0 4.45 3833305 15 12.10.11 780632 0 15.71 15.71 383330 0 4.45 3833305 16 11.10.11 1032500 0 15.71 15.71 383330 0 4.45 3833305 17 10.10.11 912000 0 15.71 15.71 383330 0 4.45 3833305 18 09.10.11 519000 0 15.71 15.71 383330 0 4.45 3833305 19 08.10.11 71000 0 15.71 15.71 383330 0 4.45 3833305 20 07.10.11 0 15.71 15.71 383330 0 4.45 3833305 21 06.10.11 64190 0 15.71 15.71 383330 0 4.45 3833305 22 05.10.11 25415 0 15.71 15.71 383330 0 4.45 3833305 23 04.10.11 0 15.71 15.71 383330 0 4.45 3833305 24 03.10.11 0 15.71 15.71 383330 0 4.45 3833305 25 02.10.11 0 15.71 15.71 383330 0 4.45 3833305 26 01.10.11 0 15.71 15.71 357585 10.72 4.45 15.17 27 30.09.11 88000 0 15.71 15.71 500451 7.66 4.45 12.11 28 29.09.11 0 15.71 15.71 427360 8.97 4.45 13.42 29 28.09.11 34812 0 15.71 15.71 475348 8.06 4.45 12.51 30 27.09.11 0 15.71 15.71 501588 7.64 4.45 12.09 122375 29 22623 32 Average MW- Produced 17.00 3.14 Average MW- Required 181.17 47 Rs. Rs. Rs. Rs. Rs. Rs. Days Date kWh Rent- kWh Fuel- kWh Unit Cost- kWh kWh Rent- kWh Fuel- kWh Unit Cost- kWh 31 26.09.11 0 15.71 15.71 502584 7.63 4.45 12.07 32 25.09.11 0 15.71 15.71 329600 11.63 4.45 16.08 HRC 7734-G/09 [RPPs case] 70 33 24.09.11 0 15.71 15.71 505900 7.58 4.45 12.02 34 23.09.11 0 15.71 15.71 505940 7.58 4.45 12.02 35 22.09.11 0 15.71 15.71 499614 7.67 4.45 12.12 36 21.09.11 0 15.71 15.71 505968 7.58 4.45 12.02 37 20.09.11 0 15.71 15.71 505604 7.58 4.45 12.03 38 19.09.11 0 15.71 15.71 500992 7.65 4.45 12.10 39 18.09.11 152000 0 15.71 15.71 500116 7.57 4.45 12.02 40 17.09.11 0 15.71 15.71 259308 14.78 4.45 12.23 41 16.09.11 0 15.71 15.71 506320 7.57 4.45 12.02 42 15.09.11 34000 0 15.71 15.71 382276 10.03 4.45 14.47 43 14.09.11 0 15.71 15.71 443744 8.64 4.45 13.09 44 13.09.11 0 15.71 15.71 506260 7.57 4.45 12.02 45 12.09.11 0 15.71 15.71 482388 7.95 4.45 12.39 46 11.09.11 0 15.71 15.71 484192 7.92 4.45 12.36 47 10.09.11 0 15.71 15.71 502372 7.63 4.45 12.08 48 09.09.11 0 15.71 15.71 323168 11.86 4.45 16.31 49 08.09.11 0 15.71 15.71 506080 7.57 4.45 12.02 50 07.09.11 0 15.71 15.71 506204 7.57 4.45 12.02 51 06.09.11 0 15.71 15.71 506094 7.57 4.45 12.02 52 05.09.11 0 15.71 15.71 412550 9.29 4.45 13.74 53 04.09.11 0 15.71 15.71 498544 7.69 4.45 12.14 54 03.09.11 0 15.71 15.71 505920 7.58 4.45 12.02 55 02.09.11 0 15.71 15.71 505920 7.58 4.45 12.02 56 01.09.11 0 15.71 15.71 505752 7.58 4.45 12.03 57 31.08.11 0 15.71 15.71 499174 7.68 4.45 12.13 58 30.08.11 0 15.71 15.71 331256 11.57 4.45 16.02 59 29.08.11 0 15.71 15.71 383330 0 4.45 3833305 60 28.08.11 0 15.71 15.71 383330 0 4.45 3833305 186000 13029 840 Average MW- Produced 0.25 18 Average MW- Required 181.17 47 12423529 Saving Rs.53.669 M A perusal of the above chart shows that unit cost per kWh of electricity procured from RPPs is exorbitantly on the high side and the electricity so generated by above RPPs is then to be transmitted to NTDC, which is responsible for its further supply to the consumers after adding charges of overhead transmission and dispatch. 58. The learned counsel appearing for Reshma stated that after signing off the project, matter is under consideration of the Cabinet to allow the sponsors to operationalize the project because they have made a huge investment and the plant is producing electricity without charging even fuel cost so far. However, it may be observed that since we have examined the case of RPPs on the basis of broad principle, therefore, in our considered opinion, the case of Reshma also suffers from the same illegalities and irregularities on the HRC 7734-G/09 [RPPs case] 71 basis of which it is not possible to conclude that the contract was awarded in a transparent manner. 59. As far as production of Karkay and Reshma is concerned, it is evident from the table prepared by PEPCO, which is reproduced hereinabove, that both plants are presently producing 48.33 & 14.57 MW against the agreement of producing 231 & 201 MW of electricity respectively. 60. It is to be noted that despite the fact that rental tariff is to be determined by NEPRA, but it failed to discharge its functions in terms of section 7 of the Act, 1997, inasmuch as there were clear directions that tariff should be fixed at par with that of the IPPs, but the tariffs of both the categories i.e. solicited and unsolicited were fixed on the higher side. RECOVERY FROM SAHUWAL, SIALKOT/SUMMUNDRI ROAD, FAISLABAD 61. Not only in the unsolicited RPPs, but also in some of the other cases the sponsors of the RPPs had received the down payment but in spite of that they had failed to achieve COD. In this behalf, reference may be made to various cases, particularly, the case of Techno-E Power Sahuwal, Sialkot, facts whereof have already been mentioned hereinabove. Precisely, at this stage, it is to be noted that without inviting fresh bids/following ICB procedure, 150 MW RPP at Sahuwal, Sialkot, which was carved out of 250-300 MW RPP at Piranghaib was dolled out to Techno E Power for four years at a rental value of US$ 165 million and advance payment of US$ 11.55 million. It was reported that no machinery was available on the site. Therefore, vide letter No. CEO/MZG/Rental/13481-84 dated 24.12.2010 NPGCL informed NEPRA that the RSC was not effective, therefore, the GENCO should have recovered 7% advance payment already made along with HRC 7734-G/09 [RPPs case] 72 further penalties prescribed in RSC. Similarly, in respect of another RPP awarded by PEPCO following the ICB procedure to Techno-E Power, Sammundri Road, Faisalabad for a period of three years, rental value whereof was determined at US$ 135 million, 14% advance payment of US$ 18.9 million was made 7% on 26.02.2008 and 7% on 01.04.2009, tariff was determined on 30.10.2009 and the COD was 135 days from LOA, which was revised to partial COD 30.06.2009 and full COD 30.07.2009, and only partial COD for 60 MW was reportedly achieved on 11.06.2010, but the NEPRA declined to recognize said COD. It is further to be noted that in respect of M/s Techno E Power Sahuwal, Sialkot, which had failed to import machinery, following order was passed: - “Therefore, Techno Sahuwal, whose case is also identical with these three RPPs, is directed to deposit advance amount with markup by tomorrow otherwise case shall be registered with the F.I.A. because after receiving the money for about more than two years no progress has been shown and such practice cannot be allowed to continue in the national interest. For this purpose case is adjourned to 14th January, 2011 when the proprietor/Chief Executive Officer of the said project is directed to remain in attendance. Manager Askari Bank Blue Area Islamabad, with whom guaranties are lying be also directed to attend this Court along with record of load/advance granted to Techno Sahuwal on the said date.” 62. On 14.01.2011, Raja Anwar-ul-Haq, learned ASC appeared and filed a statement that by 17.01.2011 advance money received by Techno E. Power, Sahuwal would be returned with mark-up. On the next date of hearing, learned counsel submitted that the payment was to be made through a Pay Order, which was in the clearance process, as such, case was adjourned to 18.01.2011, on which date, Raja Anwar-ul-Haq handed over two Pay Orders (No.171838 for HRC 7734-G/09 [RPPs case] 73 Rs.781,357,500/- and No.1701839 for Rs.300,892,500/-) to Ghulam Mustafa Tunio, Chief Executive, GENCO. 63. Raja Anwar-ul-Haq subsequently filed two miscellaneous applications, i.e. CMAs No. 5002/2011 and CMA No. 4781/2011 with the same prayer which reads as under: - “Under the circumstances it is most respectfully prayed that this August Court may graciously be pleased to pass appropriate orders based on facts mentioned in the body/grounds of instant petition and Site Status of the plant/machinery submitted by NPGCL and may pass direction to NPGCL/WAPDA to refund the Advance money with markup received 7% Additional amount as per facts beside payment of remained 7% Additional amount as per RSC/Amendment and also to comply with notice of default and to fulfill all terms and conditions of the contract in order to enable that petitioner company to generate and smooth functioning of the plant to produce and supply electricity in Public interest. Further prayed to Declare that the submitting of false statement contrary to the facts regarding import of machinery and plant in the name of NPGCL and storage at WAPDA warehouse at site, is a case of abuse of official powers and exercise of authority arbitrarily and with ulterior motives and the concerned responsible of NEPRA succeeded in obtaining favorable order from this August Court on 13.01.2011 which caused heavy injury and loses to the Petitioner Company and resulted in heavy Miscarriage of justice and have been prima-facie guilty of abusing of the process of this Court and are liable to be prosecuted.” 64. We have examined the pleas in both the applications and subject to the illegalities and irregularities, which have been noticed in the RPPs’ contracts, we are not inclined to issue contempt notice. It is evident from the orders passed on different dates that at that time the sponsors had not resisted the return of the down payment. Moreover, without prejudice to the case of GENCOs or the Techno E. Power, suffice it to observe that contempt proceedings are always drawn when there is a violation of the Court order, or the authority of the Court is undermined or ridiculed, etc. Thus, in absence of any such allegations, both the applications are dismissed. HRC 7734-G/09 [RPPs case] 74 65. In respect of Techno E. Power, another CMA has been filed, which indicates that a writ petition is pending on behalf of the applicant (sponsor) before the High Court. This project has been examined on the touchstone of the above illegalities and irregularities in awarding the contract, and we are of the opinion that this transaction has also not been undertaken transparently, therefore, subject to all just exceptions, no order in favour of the applicant (sponsor) can be passed. RECOVERY FROM M/S YOUNG GEN 66. It is to be noted that Khawaja Ahmed Tariq Rahim stated that after the recovery of advance payment from Guddu and Naudero- II, PEPCO had recovered US$ 1.26 billion from Ms Young Gen (a solicited RPP) by getting encashed its bank guarantee during the pendency of these proceedings on account of its failure to achieve COD within the stipulated time. FEASIBILITY STUDY 67. The necessity in introducing the concept of RPPs is apparent from the facts that in the year 2006 when the then Government decided to adopt the phenomenon of rental power projects, no feasibility study was carried out which is crucial because study is based on the input of the experts on the subject to determine whether or not the implementation of the project is advisable. It is well known that feasibility study is based on the extensive research to ascertain that what would be the impact of such a project in terms of costs of the project, its results, future prospects, operational implications, advantages and disadvantages, keeping in view the situation like alleged shortage of electricity. The Government had formulated energy policies in the years 1994-2002 on the basis HRC 7734-G/09 [RPPs case] 75 whereof IPPs were installed, therefore, had the Government allowed the experts on the subject of electric energy/power to examine merits and demerits of introducing the RPP regime, it would have helped in implementing the Rental Power Projects in a highly transparent manner. It is a fact that during the previous regime, Rental Power Projects were installed at Sharaqpur and Bhikki on the recommendation of WAPDA. Though it is stated that tender notices were issued in the newspapers, but no response was received, however, copies of such notices have not been made available on record. Further, it is alleged that decision to install RPPs was based on the recommendations of ECC dated 16.08.2006 in the case No.ECC- 135/9/06, contents whereof have been reproduced hereinabove, but it pertained to 150 MW at Piranghaib, Multan, and subsequent thereto another project on the same site for 192 MW was approved contrary to the PPRA Rules (detailed discussion has been made hereinabove) and the same was signed off, which caused considerable loss to the public exchequer. 68. It is to be noted that when incumbent regime came into power, a meeting was held in the Prime Minister Secretariat on 27.03.2008 wherein it was decided, inter alia, that PEPCO would arrange installation of fast track Rental Power Projects of up to 1067 MW, which were subsequently increased to 2257 MW, but according to the report of ADB, it was reduced to 1257 MW. Apparently, this decision was taken without any feasibility study. 69. When we talk about the importance of the feasibility study it also includes that the Government would have ascertained as to whether there is any necessity of rental power projects to enhance its capacity when allegedly PEPCO already possessed sufficient capability HRC 7734-G/09 [RPPs case] 76 to generate electricity as per existing installed capacity, from other sources. FINANCIAL ASSISTANCE 70. Makhdoom Syed Faisal Hayat and Khwaja Muhammad Asif, petitioners seriously questioned the transparency in awarding the projects of RPPs and vehemently agitated that in terms of clause 2.3 of Request For Proposal (RFP) of Fast Track Rental Power Projects through ICB, the bidders/sponsors were solely responsible for financing of the projects, whereas, while issuing Letter of Award, they were made eligible to obtain, in advance, a down payment in US dollars equal to 7% of the lump sum contract price for the term of Rental Services Contract on submission of a bank guarantee. This condition was reiterated in clause 4.5(a) in Rental Services Contract. In addition to it, another concession of provision of Standby Letter of Credit in the amount equal to 36-60 monthly rental services fee payments, as the case may be, in a form acceptable to the seller was made and the term of the same was to be started with the commercial operation date. Due to this reason, original terms and conditions had changed financial situation in favour of sellers and without getting the required results huge amount has been dolled out to them. 71. Khwaja Ahmad Tariq Rahim, learned Sr. ASC and Raja Parvez Ashraf, former Minister for Water & Power and his counsel Mr. Wasim Sajjad, as well as other learned counsel, i.e., M/s Muhammad Akram Sheikh, Ali Zafar and Raja Anwar-ul-Haq submitted that PEPRA Rules were duly followed in awarding the projects to the sponsors and the Asian Development Bank had not pointed out any violation of the same. They further contended that as far as increase in down payment from 7% to 14% is concerned, it is a norm and practice in HRC 7734-G/09 [RPPs case] 77 international commercial contracts i.e. FIDIC, ICE, ENAA, etc. They also explained that the previous Government had floated the idea of RPPs to overcome the difficulties of the shortage of electricity, using the same as a strategic tool and the present Government also considered the same useful for the purpose of catering the requirement of electricity for the general public. 72. Khwaja Ahmad Tariq Rahim, Sr. ASC as well as the former Minister further contended that as per Rental Service Contract the power generation companies (GENCOs) were to deliver to the seller an irrevocable Standby Letter of Credit (SBLC) for rental period of 36 to 60 months and subsequently it was realized that the foreign banks were not willing to provide SBLC unless charges amounting to 35% of total rental value for 5 years’ term were paid to the banks. Therefore, Ministry of Water & Power in consonance with the RSC submitted summary dated 11.10.2008 urging the Government to provide SBLC for the Rental Projects, but the Ministry of Finance expressed its inability to accept the proposal because of the financial constraints of the Government at that time and financial meltdown worldwide. For such reason, the Ministry of Finance headed by Mr. Shaukat Tareen replaced the provision of SBLC with additional 7% mobilization advance, which, after COD, was recoverable from the rental charges each month to be paid to the consultants and under the circumstances 7% advance was secured by advance payment guarantee in the equivalent amount, additional 7% was disbursed through security and financial arrangements made by the Ministry of Finance through banking consortium set up by them. Since the advance payments were arranged by obtaining loans repayable with mark up, as such, a huge amount has to be returned. Thus, argument of savings made by the HRC 7734-G/09 [RPPs case] 78 Government on this account, as has been quantified at Rs.26 billion, therefore, the step was clearly in the national interest is not acceptable. 73. It is to be seen that in view of the above discussion on the question of responsibility of making arrangements by the bidders and succeeding therein without altering the terms & conditions of the advertisement, 7% down payment on the total rental value of 36 to 60 months was subsequently increased to 14% for extending financial facilities, thus what would be its financial impact on the projects? It may be noted that it was the responsibility of the sellers to finance the projects at their own and also to pay withholding tax, customs duty etc. to the Government on the import of the machinery in accordance with law. However, the machinery was imported in the name of the GENCOs/Government. In addition to it, payment of 6% withholding tax was also deferred and in this manner, benefit of 14% + 6% = 20% was given to the bidders without any legal justification. Similarly, the machinery was allowed to be imported temporarily subject to getting exemption from payment of customs duty. All these conditions, if incorporated in the invitation for bids, would have encouraged more competition amongst the bidders to come forward and participate in the bidding process. Thus, in absence of competition between the bidders, public exchequer sustained huge losses and was likely to continue to suffer further losses in future, if curative measures are not adopted. 74. Surprisingly, RFP along with LOAs were issued by the PPIB, whereas RSCs were executed between by GENCOs. As per Para 2.3 of RFP, the bidders/sponsors were solely responsible for the financing of the project and no incentive of down-payment was given on behalf of HRC 7734-G/09 [RPPs case] 79 GENCOs. For the first time in the LOA incentive of 7% of down payment was divulged by PPIB. In this very context, it is to be noted that as per Paras 5.3 and 5.4 of the RSC, following extraordinary facilities were also extended to the sellers:- “4.5 Payment Terms and establishment of Letter of Credit- a. the SELLER is eligible to obtain in advance a Down Payment amounting to US$ [_______] i.e. 7% of Lump Sum Contract Price for the Term of the Rental Services Contract (the “Down Payment”), on submission of a bank guarantee valid until 30 days after the Target Commercial Operations Date, in a form “A”. the aforesaid Down Payment amount of US$[________]shall be deducted, in [36-60] equal installments of US$ [_______] each, from the monthly rent payable to the SELLER by the Buyer. Buyer shall release 7% Down Payment to be paid within ten (10) Days after submission of Advance Payment Bank Guarantee by the SELLER within five (5) days from the date of signing of this Contract. b. The Lump Sum Contract Price as defined in Section 4.1 less the 7% Down Payment will be divided into [thirty six –sixty] (36-60) equal installments (the “Monthly Rental Services Fees”) . From and after the occurrence of Commercial Operation Date, the SELLER shall submit an invoice to BUYER for Monthly Rental Service Fee payment, on the 15th Day of each Rental Month. Upon confirmation by BUYER of the amount payable against such invoice net of any disputed amount, if any, to the operating bank issuing the ‘Letter of Credit’ the SELLER shall draw on the ‘Letter of Credit’, for such confirmed amount as anytime on 30th Day or next business Day thereafter, following the Day the invoice is delivered to BUYER.” 75. Initially, 7% down payment had to be made on contract price for the term of Rental Service Contract, i.e. 36 to 60 months, against a bank guarantee. We have to observe that transparency of contract is not limited to the extent of following the PPR Rules as at the same time it is also to be seen whether an unusual financial concession is being given to the bidders due to which whole complexion of the contract would be changed. Interestingly, as per LOA issued by PPIB, there is no indication that which agency will advance down payment of 7% as ultimately GENCOs had to arrange this amount from banks on the basis of mark up. Legally GENCOs could not be bound down to arrange payment of 7% down payment, HRC 7734-G/09 [RPPs case] 80 as bids were not invited by GENCOs. No such concession was agreed by GENCOs; inasmuch as the GENCOs had not issued LOA. Similarly, in RFP on behalf of GENCOs such assurance was never given. Thus, imposing such condition on GENCOs to accommodate bidders is against the transparency of the contract. As far as status of GENCOs is concerned, it is a government company but has its own entity and perpetual seal, thus, inescapable conclusion can be drawn that concession of financial assistance under the circumstances to bidder is nothing but a favour which had made bid process as non-transparent. 76. According to the report of Federal Board of Revenue, the Ministry of Water & Power requested for exemption of customs duty on temporary import of power generation plants and the request so made by WAPDA was approved by the Cabinet. Subsequently this concession was incorporated as part of the Financial Bill, 2008. Accordingly, the machinery for Power Generation Plants was exempted from whole of the customs duty by adding Entry No.49 in exemption notification namely SRO No.567(1)/2006 dated 05.06.2006. In view of above notification WAPDA has got cleared following Power Plants on availing the concession of consumption on duty and taxes:- (1) Sammundri Rental Power Project (RPP). (2) Reshma Rental Power Project (RPP). (3) Gulf Rental Power Project (RPP). (4) Guddu Rental Power Project (RPP). (5) Naudero-I Rental Power Project (RPP). (6) Sahuwal Rental Power Project (RPP) (7) Karkay Rental Power Project (RPP). (8) Sheikhupura Rental Power Project (RPP) (Re-exported). (9) Bhikki Rental Power Project (RPP) (Re-exported.) As per summary, the amount to be paid on the above plants comes to approximately Rs.410,163,668/-, which includes customs duty, CED/FED as well as taxes. It has never been heard that in the business of providing motorcars/machinery, etc., on rent, the providers are HRC 7734-G/09 [RPPs case] 81 extended the concession to the extent noted hereinabove. Not only the above concession, but as it has been noted during reply of the arguments made on behalf of above respondents that the Finance Minister due to non-providing Standby Letter of Credit, unilaterally increased 7% down payment in the name of mobilization advance. 77. It is to be noted that when the bidder has been made responsible to make an arrangement for the finances, in absence of any commitment, during the contracting period, what was the necessity to increase 7% of Rental Value on the pretext that no foreign bank was agreeing to issue Standby Letter of Credit. Providing of Standby Letter of Credit, in fact, is making the payment in advance of Rental Services Charges/fee which was to be adjusted for the whole period, for which contract has been executed. It clearly indicates that such clauses were incorporated with no intention except to extend maximum financial benefit to the bidders. Raja Parvez Ashraf, former Minister, however, explained that foreign banks were not willing to confirm SBLC unless charges amounting to 35% of the total Rental Value for 5 years term were paid to them. Arguments on behalf of the respondents that in the interest of nation the conditions of the contract were changed and under the advice of the then Finance Ministry headed by Mr. Shaukat Tareen, the initiative for substitution of SBLC with additional 7% mobilization advance, recoverable/adjustable from the Rental Charges for each month was taken, seems to be unfounded. As it has been explained hereinabove, bidders while submitting bids as per the contents of RFP are required to furnish as many as 13 Proformas in Envelopes I and II. A careful perusal thereof indicates that bidders never demanded for the concessions, which had been extended to them voluntarily. HRC 7734-G/09 [RPPs case] 82 78. Next question for consideration is that how much amount was paid to sponsors by way of 7% + 7% = 14%. Since there were a lot of complaints of corruption in awarding contracts of RPPs against all concerned, individually and collectively, therefore, Ministry of Finance went for 3rd Party Evaluation/Audit and to achieve the object, ADB was appointed to do the needful. The ADB report reveals that enhancement of down payment from 7% to 14% could not be allowed without inviting fresh biddings and changing the terms of the contract with a view to ensuring fair competition amongst the bidders. We have already emphasized on this aspect of the case, and we see no reason to differ with the submission made by the petitioners that there were illegalities committed by Government in making payment of 14% advance to the bidders, particularly, when there was no commitment/agreement at the time of notifying the bids/issuing RFPs. Admittedly, this report was accepted and in pursuance thereof, 9 RPPs were allowed to continue. 79. It is to be seen that 14% advance amount paid to the bidders on the basis of reference value runs into billions of rupees, details whereof are as under: - Name of RPP Amount of advance payment Date of advance payment Techno, Sammundri Road Faisalabad US$ 18.96 M 26.02.2008 (7%) 01.04.2009 (7%) PPR, Guddu, Sindh US$ 10.15 M 17.03.2008 (7%) 12.03.2009 (7%) Techno, Sahuwal Sialkot US$ 11.5 M 04.06.2008 (7%) Karkay Karadeniz US$ 79.05 M 12.05.2009 (14%) Young Gen, Satiana Road, Faisalabad US$ 15.56 M 29.05.2009 (7%) 23.06.2009 (7%) Gulf, Eminabad Gujranwala US$ 11.9 M 19.09.2009 (14%) Reshma, Raiwind Road, Lahore US$ 55.27 M 03.10.2009 (14%) Walters, Naudero-I US$ 11.26 M 16.11.2009 (14%) Walters, Naudero-II US$ 9.93 M 06.04.2010 (14%) Total US$ 223.58 M HRC 7734-G/09 [RPPs case] 83 80. The petitioners have contended that a meagre amount of electricity is being generated through the medium of RPPs, although billions of rupees have been spent on these projects. The learned counsel appearing for the Government/WAPDA/PEPCO/GENCOs have not been able to rebut the contention raised by the petitioners. It is an admitted position that after spending billions of rupees in the shape of 7% to 14% down payment and exemption from payment of customs duty as well as 6% withholding tax, against average cost of Rs.24/- per unit kWh [Karkey: Rs.35/- to Rs.50/-; Gulf: Rs.18/- to Rs.19/- and Naudero-I: Rs.12/- to Rs.19/-], only 120 MW electricity is being generated by the RPPs and its cost is on a very high side and is not in accordance with the provisions of section 7 of the Act, 1997 whereby NEPRA is required to protect the interests of the consumers. Therefore, RPPs’ mode of electricity generation has proved a total failure and incapable of filling the gap in the demand and supply on a short term basis. Further, this cost is not final, rather it is subject to fuel cost component and other charges of overhead transmission payable to NTDC, whereas it is the constitutional requirement that every action of Governmental authorities should be aimed at socio-economic development of the country. In this behalf, a chart showing average production of electricity vis-à-vis the maximum capacity and the advance payment is given below: - Name of RPP Total Rental Value / Rental Term (in Years) Monthly Rental Value (M US$) (in Pak Rs. @ 80) Maximum Capacity Average Price at Maximum Capacity US$ Average Monthly Production MW Monthly Price per MW (US$) KARKEY 231.8 MW US$ 564.64 /5 US$ 9.41 M Rs.752.85 M 231 MW US$ 40,735 Rs.3.26 M 48.33 US$ 2,173,210 Rs.173.85 M GULF Eminabad, Gujranwala US$ 85.00 /5 US$ 1.42 M Rs.113.6 M 62 MW US$ 22,903 Rs.1.83 M 50.08 US$ 28,354 Rs.2.268 M NAUDERO-I 51 MW US$ 80.42 /5 US$ 1.34 M Rs.107.2 M 51 MW US$ 26,274 Rs.2.10 M 9.16 US$ 146,288 Rs.11.70 M Reshma 201 MW US$ 394.78 /5 US$ 6.58 M Rs.526.37 M 201.3 MW US$ 32,687 Rs.2.61 M 14.57 US$ 451,612 Rs.36.13 M HRC 7734-G/09 [RPPs case] 84 Techno E- Power Sammundri Road, Faisalabad US$ 135.00 /3 US$ 3.75 M Rs.300.0 M 150 MW US$ 25,000 Rs.2.0 M 0 -- Guddu 110 MW US$ 72.48 /3 US$ 2.01 M Rs.161.07 M 110 MW US$ 18,272 Rs.1.46 M -- -- Techno Energy (Pvt.) Ltd. Sahuwal, Sialkot US$ 165 /4 US$ 3.44 M Rs.275.0 M 150 MW US$ 22,933 Rs.1.83 M -- -- Naudero-II US$ 70.96 / 5 US$ 1.18 M Rs.94.61 M 45 MW US$ 26,288 Rs.2.10 M -- -- Young Gen 200 MW US$ 111.15 / 200 MW -- -- Independent Power (Pvt.) Ltd. US$ 432.21 /5 US$ 7.20 M Rs.576.28 M 200 MW US$ 36,000 Rs.2.88 M -- -- Sialkot Rental Power US$ 112 /5 US$ 1.87 M Rs.149.33 M 65 MW US$ 28,789 M Rs.2.30 M -- -- Premier Energy (Pvt.) Ltd. US$ 111.86 /5 US$ 1.86 M Rs.149.15 M 57.8 MW US$ 32,180 Rs.2.57 M -- -- Ruba Energy US$ 305.7 /5 US$ 5.09 M Rs.407.60 M 155.5 MW US$ 32,208 Rs.2.62 M -- -- Consortium of Tapal US$ 143.90 /5 US$ 1.87 M Rs.149.33 M 70 MW US$ 26,714 Rs.2.14 M -- -- Walters Power International US$ 325.91 /5 US$ 5.43 M Rs.434.55 M 325.9 MW US$ 16,667 Rs.1.33 M -- -- Techo E. Power, Sammundri Road, Faisalabad (Extension) US$ 135 /3 US$ 3.75 M Rs.300.0 M 150 MW US$ 25,000 Rs.2.0 M -- -- Karkey (Extension) US$ 333 /5 US$ 5.55 M Rs.444.0 M 222 MW US$ 25,000 Rs.2.0 M -- -- 81. Thus, all the Government functionaries, including the Ministers for Water & Power holding charge from 2006 and onward up to 2008 during whose tenure the RPPs were approved/set up, prima facie, violated the principle of transparency, therefore, their involvement in getting financial benefits out of the same by indulging in corruption and corrupt practices cannot be overruled in view of the discussion made hereinabove. Consequently, they are liable to be dealt with under the National Accountability Ordinance, 1999 by the NAB. Similarly, all the functionaries of PEPCO, GENCOs and NEPRA along with sponsors who had derived financial benefits from the RPPs HRC 7734-G/09 [RPPs case] 85 contracts are, prima facie, involved in corruption and corrupt practices, therefore, they are liable both for the civil and criminal action. 82. In conclusion, it may be mentioned that Bhikki RPP was paid Rs.8,698.46 million against 811.605 mkWh electricity whereas Sharaqpur RPP was paid Rs.13,941.82 million against 1520.420 mkWh electricity. As regards the RPPs set up since 2008, out of nine RPPs to whom advance payments were made, six RPPs, namely, Techno Sahuwal, Guddu, Reshma, Young Gen, Naudero-II and Techno Sammundri have returned the advance payments in pursuance of orders passed by this Court from time to time, whereas the advance payments made to Karkey, Gulf and Naudero-I have not so far been returned. Despite down payment of billions of rupees to the RPPs, Karkey is generating 48.33 MW against capacity of 231 MW and Naudero-I is generating 9.16 MW against capacity of 51 MW; whereas, Gulf is generating 50.08 MW against capacity of 62 MW. Pakistan Power Resources (Piranghaib, Multan) did not generate electricity at all although down payment of US$ 14.58 million was made to it, which has not been returned. Though Reshma has returned the down payment, according to learned counsel, yet it is still functioning and generating 15 MW only against capacity of 201.3 MW. Per unit cost of electricity produced by the RPPs is on very high side, e.g., Karkey is ranging from Rs.35/- to Rs.50/-; Gulf from Rs.18/- to Rs.19/- and Naudero-I from Rs.12/- to Rs.19/- whereas as per decision of the ECC dated 10.09.2008, efforts were to be made that the tariff of the RPPs is lower than that of the IPPs based on similar technology for their first 10 years. Thus, in this manner, the decisions of the ECC have also been violated blatantly. All the RPPs are collectively generating just 120 MW of electricity. Huge amount has been paid to Karkey, Gulf and HRC 7734-G/09 [RPPs case] 86 Naudero-I and if they are allowed to continue for the left over term, further huge amounts would be paid to them at the expense of the public exchequer with no corresponding benefit to the consumers. As already discussed in detail, while awarding contracts to RPPs, particularly Gulf, Karkey, Reshma, Naudero-I, Naudero-II, Bhikki and Sharaqpur grave illegalities and irregularities were committed, and procedural lapses and deviations were made from mandatory legal requirements and the same were entered in a non-transparent manner. 83. In pursuance of the orders passed by this Court from time to time, a sum of Rs.8,689,224,000/- (rupees 8 billion 689 million 224 thousand) has been recovered from the RPPs on account of advance payments and interest, whereas, proceedings for recovery of interest amounting to Rs.445,496,000/- (rupees 445 million 496 thousand) from Young Gen and the interest from Reshma, are still pending, details whereof are given as under:- S. No Name of the RPP/capacity Amount of Advance payment and date Amount recovered and date Interest recovered 1. TECHNO, SAHUWAL/ 150 MW Rs.782000000/- on 04.06.2008 Rs.782000000/- on 18.01.2011 Rs.298000000/- 2. GUDDU / 110 MW Rs.301058000/- on 17.03.2008 Rs.405902000/- on 12.03.2009 Rs.301058000/- on 08.12.2010 Rs.405902000/- on 04.12.2010 Rs.120000000/- 3. RESHMA/ 201.3 MW Rs.4576272000/- on 03.10.2009 Rs.4576272000/ - on 18.11.2011 Notice served 4. YOUNG GEN/ 200 MW Rs.628686000/- on 01.06.2009 Rs.630928000/- on 23.06.2009 Rs.628686000/- on 29.12.2010 Rs.630928000/- on Notice for recovery of Rs.445496000/- served on 08.01.2011 5. NAUDERO-II/ 50 MW Rs.930942000/- on 06.04.2010 Rs.930942000/- on 08.12.02010 Rs.15436000/- Total: Rs.8255788000/- Rs.433436000/- HRC 7734-G/09 [RPPs case] 87 84. Thus, in the light of the above facts and circumstances, we hold as under: - (i) Prior to the introduction of RPPs, the system of generation of electricity under the control and management of Ministry of Water & Power, WAPDA, PEPCO, GENCOs, etc., had sufficient potential to produce more electricity, but instead of taking curative steps for its improvement, including clearance of circular debt of the IPPs or resorting to other means of generation of electricity, billions of rupees were spent on BHIKKI and SHARAQPUR RPPs, which proved complete failure because the object could not be achieved as the shortage of electricity persistently continued, and yet more RPPs were installed; (ii) The Federal Government/WAPDA/PEPCO/GENCOs had failed to control pilferage of electricity from the system because of bad governance and failure of the relevant authorities to enforce the writ of the Government. Therefore, the Government is required to improve the existing system of generation and transmission of electricity, by taking all necessary steps, including clearing of circular debt, etc., so that electricity can be generated to the maximum capacity; (iii) The contracts of all the RPPs – solicited and unsolicited, signed off or operational, right from BHIKKI & SHARAQPUR upto PIRANGHAIB, NAUDERO-I & NAUDERO-II were entered into in contravention of law/PPRA Rules, which, besides suffering from other irregularities, violated the principle of transparency and fair and open competition, therefore, the same are declared to be non-transparent, illegal and void ab initio. Consequently, the contracts of RPPs are ordered to be rescinded forthwith and all the persons responsible for the same are liable to be dealt with for civil and criminal action in accordance with law; (iv) On accepting the ADB’s report, 9 out of 19 RPPs were allowed to operate, details whereof have been mentioned hereinbefore. Subsequently, 6 out of 9 RPPs were HRC 7734-G/09 [RPPs case] 88 discontinued either having been signed off or having failed to achieve the target COD whereas remaining RPPs, i.e., KARKEY, NAUDERO-I and GULF are functioning, but they are producing electricity much less than their generation capacity, except GULF which is producing electricity close to the agreed capacity. PPR (Piranghaib, Multan) has not generated electricity at all, although down payment was made to it, which has not been returned. As far as RESHMA is concerned, though it achieved partial COD, but the same was not accepted by NEPRA. BHIKKI and SHARAQPUR were paid exorbitant rentals in billions of rupees, but generation of electricity was much below the agreed capacity; (v) The production from the RPPs is far below the maximum capacity agreed between the parties as per the terms of the RSCs, which is evident from the above charts. The cost per unit kWh is also on the very high side. These RPPs have not achieved target COD. The contracts of all these RPPs are not transparent, as it has been discussed hereinabove, therefore, the same are hereby ordered to be rescinded forthwith; (vi) The Ministry of Finance, WAPDA, PEPCO as well as GENCOs are responsible for causing huge losses to the public exchequer, which run into billions of rupees by making 7% to 14% down payments to, and purchasing electricity on higher rates, from RPPs, therefore, steps are required to be taken to effect recovery of the amounts with mark up outstanding against the RPPs whose contracts have been signed off or who had failed to achieve COD within the stipulated time in terms of the performance guarantees; (vii) The RPPs mode of generation of electricity has proved a total failure and incapable of meeting the demand of electricity on a short term basis. The cost of electricity so produced is on very high side and is not commensurate with the provisions of section 7 of the Act, 1997. As per latest report, KARKEY and GULF are producing only 31 to 81 MW and 51 to 61 MW at an average cost per unit kWh of Rs.35/- to Rs.52/- and Rs.18/- to Rs.19/- HRC 7734-G/09 [RPPs case] 89 rupees respectively, as per information supplied in October/November, 2011, which also are subject to adjustment of fuel cost component and NTDC overhead transmission charges on account of which prices are likely to increase enormously. Thus, it is clear violation of the rights guaranteed to the citizens in terms of Articles 9 & 24 of Constitution and the Regulation of Generation, Transmission and Distribution of Power Act, 1997; (viii) It is the constitutional requirement that every action of Governmental authorities should be aimed at socio- economic development of the country. In terms of Constitution and Act, 1997, the NEPRA is mandated to safeguard the interests of the consumers, but the concerned officials of NEPRA failed to perform their duties diligently; (ix) All the Government functionaries, including the Ministers for Water & Power holding charge in 2006 and onward and from 2008 to onward, during whose tenure the RPPs were approved/set up and Minister as well as Secretary Finance holding the charge when the down payment was increased from 7% to 14%, prima facie, violated the principle of transparency under Articles 9 & 24 of the Constitution and section 7 of the Act, 1997, therefore, their involvement in getting financial benefits out of the same by indulging in corruption and corrupt practices cannot be overruled in view of the discussion made hereinabove. Consequently, they are liable to be dealt with under the National Accountability Ordinance, 1999 by the NAB; (x) All the functionaries of PEPCO, GENCOs, PPIB and NEPRA along with sponsors (successful bidders) who had derived financial benefits from the RPPs contracts are, prima facie, involved in corruption and corrupt practices, therefore, they are also liable both for the civil and criminal action; and (xi) The Chairman NAB is directed to proceed against all the persons referred to in subparagraphs (iii), (ix) & (x) above forthwith in accordance with law and submit fortnightly progress report to Registrar for our perusal in Chambers. HRC 7734-G/09 [RPPs case] 90 85. Before parting with the judgment, we would like to place on record our appreciation of the valuable assistance provided during the hearing of the case by the learned counsel appearing for the parties and learned Amicus Curiae. The role of the petitioners, Makhdoom Syed Faisal Saleh Hayat, Federal Minister for Housing & Works and Khwaja Muhammad Asif, MNA is also laudable; they being the holders of public offices, highlighted the instant scam of corruption and corrupt practices and fulfilled their commitment to the Constitution as well as the general public whose rights enshrined in Articles 9 and 24 of the Constitution were being violated. CHIEF JUSTICE JUDGE Announced in open Court on 2012 at Islamabad. CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J. MR. JUSTICE CH. IJAZ AHMED MR. JUSTICE GHULAM RABBANI HUMAN RIGHTS CASES NO.8340, 9504-G, 13936-G, 13635-P & 14306-G TO 14309-G OF 2009. (Applications by Tariq Aziz-ud-Din & others) Tariq Aziz ud Din: Applicant in HRC 8340/09 Nazir Ahmed Chaudhry: Applicant in HRC 9504-G/09 Farkhanda Wasim Afzal: Applicant in HRC 13635-P/09 Dr. Muhammad Aslam Khaki Applicant in HRC 13936-G/09 Shahnaz S. Hamid: Applicant in HRC 14306-G/09 Bilal Khan: Applicant in HRC 14307-G/09 Bashir Ahmad Chowhan: Applicant in HRC 14308-G/09 Saleem Ullah Khan: Applicant in HRC 14309-G/09 For the applicants/ Mr. Muhammad Akram Sheikh, Sr. ASC affectees: Assisted by Mr. Sajeel Shehryar, Advocate (on behalf of 69 officers) Mr. M. Ikram Chaudhry, ASC (on behalf of M. Hafeez of Foreign service) Dr. Muhammad Aslam Khaki, ASC (in HRC 9504-G & 13936-G/09) Mr. Afnan Karim Kundi, ASC (on behalf of Khurshid Anwar of Foreign service) Mr. Haider Hussain, ASC (on behalf of M. Saleem & Masood of Accounts service) Mr. Saleemullah Khan, (in person in HRC 14309-G/09) Nemo in HRC 14306-7/G of 2009 On Court notice: Mr. Anwar Mansoor Khan, AGP. For the Estt. Division: Mr. Abdul Hafeez Pirzada, Sr. ASC Mian Hassan Aurangzeb, ASC Mr.M.S. Khattak, AOR Mr. Ismail Qureshi, Secretary. Mr. Munir Ahmed, Sr. JS. Syed Mubashar Raza, JS. For Foreign Office: Mr. Ishtiaq H. Andrabi, Addl. Secy (A) Mr. Shair Bahadur Khan, Legal Advisor H.R.C. No. 8340-G/2009 2 Promoted Officers: Mr.Athar Tahir, Mr.Naguibullah Malik, (On court Notice) Mr.Abdul Ghafar Soomro, Maj. ® Qamar Zaman, Mr.Imtiaz Hussain Qazi, Mr.Ishtiaq Ahmed Khan, Mr.Shahid Rashid, Mr.Nasir Mahmood Khan Khosa, Mr.Javed Iqbal, Mr.Nazar Hussain Mahar, Mr.Junaid Iqbal, Mr.M.Sami Saeed, Mr.Imtiaz Inayat Elahi, Mr.Javed Mehmood, Mr.Ghulam Ali Pasha, Khawaja Khalid Farooq, Syed Shabbir Ahmed, Mr.Tariq Masood Khan Khosa, Dr.Wasim Kausar, Mr.Tariq Saleem Dogar, Syed Jawed Ali Shah Bukhari, Mr.Muhammad Zafeer Abbasi, Mr.Jaweed Akhtar, Dr.Inamullah Khan, Mr.Khalid Idrees, Neelam S. Ali, Mr.Abdul Shafiq, Mr.Ahmed Mehmood Zahid, Mr.Batool Iqbal Qureshi, Mr.Ghulam Rasool Ahpan, Mr.Gul Muhammad Rind, Mr.Anisul Hassnain Musavi, Mr.Agha Sarwar Qizalbash, Mr.Ghalibuddin, Mr.Ayub Tarin, Mr.Asif Usman Khan, Mr.Mansoor Sohail, Mr.Haroon Shaukat. (all in person) Dates of hearing: 10.11.09, 26.11.09, 7.1.2010, 20.1.2010, 26.1.2010, 28.1.2010, 29.1.2010 & 15.02.2010. JUDGMENT CH. IJAZ AHMED, J. Facts in brief, relevant for disposal of instant HR Cases, are that one Mr. Tariq Aziz-ud-Din from the Foreign Service Group, moved an application dated 6th November, 2009, addressed to Chief Justice of Pakistan, stating therein that Government of Pakistan has made promotions of officers of various occupational groups, including Foreign Service group to which he also belong, from BS-21 to BS-22, in total violation of Constitutional basis and principles of merit, seniority and fair play. He added in the application that the competent authority has no arbitrary power under the law to pick and choose on his whims although he sits as head of Selection Board. It is averred by him that in this way his fundamental right to expect a fair career progression has been violated as his juniors have been promoted while superseding him without any justification. The application was registered as HR Case No. 8340-G/2009. 2. Initially, the comments on the above said application were called from the Secretary, Ministry of Foreign Affairs, Government of Pakistan, however, ultimately the matter was ordered to be fixed in Court with notice to the H.R.C. No. 8340-G/2009 3 Attorney General for Pakistan, Secretaries, Establishment & Foreign Affairs Divisions, applicant and all those officers who had been superseded as well as to the officers promoted by the Federal Government to be served through Secretary Establishment. In the meantime, some of the other affectees also approached the Court by way of filing separate applications, which were also registered as HR Cases, titled above and clubbed together. 3. Subsequently, Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. M. Ikram Chaudhry, ASC, Dr. Muhammad Aslam Khaki, ASC, Mr. Afnan Karim Kundi, ASC and Mr. Haider Hussain, ASC appeared on behalf of the applicants/officers who have not been promoted, whereas Mr. Abdul Hafeez Pirzada, Sr. ASC appeared on behalf of Federation of Pakistan through Establishment Division. Likewise, Mr. Anwar Mansoor Khan, Attorney General for Pakistan appeared on Court’s notice. On the other hand the officers promoted to BS-22 except few also appeared in response to the notices. 4. Mr. Muhammad Akram Sheikh, Sr. ASC appearing on behalf of the petitioners argued that:- a) In terms of Section 9(1)(b) and 9(2) of Civil Servants Act, 1973 [hereinafter referred to as ‘CSA, 1973’], the Civil Servants (Appointment & Tenure of Post in BPS-22) Rules, 1993 [hereinafter referred to as ‘CSR, 1993’] were framed but these rules were rescinded on 4th April, 1998. In such situation, it is the responsibility of the Government to frame rules with regard to terms and conditions of the services of the Civil Servants in BS-22 and if there is no rules or law made in this regard, then it is called exploitation, within the meaning of Article 3 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as ‘the Constitution’]. b) Section 9(2) of the CSA, 1973, mandates that recruitment should be made on merit, therefore, when merit comes, it excludes discretion. [Reliance placed on Lahore Development Authority v. Shamim H.R.C. No. 8340-G/2009 4 Akhtar (2003 MLD 1549) and Adil Hamid v. Azad Jammu and Kashmir Govt. {1991 PLC (CS) 1195}]. c) Despite framing of rules, if some discretion is left, it should be structured discretion, based on seven instruments of structuring of discretion and scope of that structuring of discretion is left only after framing of rules in the manner prescribed. d) When a criterion is to be structured by rules then the only rules are to be made applicable and nothing else and if no law or rules are framed then the Judge made laws shall fill in the vacuum. e) Merit of course can be taken into consideration with respect to the eligibility but eligibility does not militate against merit. [Reliance placed on Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), Fazali Rehmani v. Chief Minister, NWFP (PLD 2008 SC 769) and Tanvir Shaukat v. District & Sessions Judge, Narowal (2009 SCMR 764)]. f) The promotion relates to the right to life of a civil servant because depriving him from the ultimate glory of his service i.e. BS-22, for which he had made sacrifices, would tantamount to scuttle of his right to life in terms of Article 9 of the Constitution. g) There are neither any rules, guidelines nor compulsions, therefore, the discretion of the Prime Minister, governing the transfers and promotions to BS-22 would negate the entire Esta. Code. [Referred to page 257 of the Esta. Code, 2007 Ed. (regarding Selection Board)]. h) Discretion vested in the competent authority is a sacred trust, which is to be exercised with application of mind to ensure equality of opportunity as envisaged in Article 2A of the Constitution. [Reliance placed on Chairman RTA v. Pak. Mutual Insurance Co. (PLD 1991 SC 14), Director Food, NWFP v. Madina Flour and General Mills (Pvt.) Ltd. (PLD 2001 SC 1), Chief Secretary Punjab v. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab v. Secretary, Govt. of Balochistan (2009 SCMR 1354) and Delhi Transport Corpn. v. D.T.C. Mazdoor Congress (AIR 1991 SC 101)]. H.R.C. No. 8340-G/2009 5 He concluded his arguments by saying that the petitioners are claiming their right guaranteed by the Constitution and policy of merit, which obliges the trustees of the State powers i.e. the chosen representatives to exercise such power with all the conditions prevalent between the trustee and beneficiary. He also referred to the seniority list submitted by the Federal Government, demonstrating that the persons having just few months’ service in BS-21 have been promoted whereas no reason either for selection or rejection has been assigned. 5. Mr. Afnan Karim Khundi, ASC appearing for some of the affectee officers, while adopting the arguments of Mr. Muhammad Akram Sheikh, Sr. ASC, added that:- a) An effort has been made by the Establishment Division in its comments/reply to the applications of the affectee officers, to strike some balance in terms of the Provincial representation in BS-22, however, the Provincial quota is only applicable to appointments initially made and not to be observed while making promotions, for which the criterion is performance, service record and seniority. b) While making promotions, gender balance is being struck by the Federal Government while picking up a person much below in the seniority just because she is a lady. Consideration of gender is not a criterion for promotion specially to the selection posts, where promotions have to be made on merit alone. c) The promotions in question were made without assigning any reasons regarding exercise of such discretion, which is in violation of Section 24-A of the General Clauses Act. 6. Mr. M. Ikram Chaudhry, learned ASC for one of the affectee officers, after giving the service history of the petitioner, argued that:- a) The competent authority has to exercise the discretion in the public interest with transparency, which lacks in the instant case. [Reliance placed on Zia Ullah Khan v. Govt. of Punjab (PLD 1989 Lahore 554)]. H.R.C. No. 8340-G/2009 6 b) When no reason has been assigned either for selection or rejection, therefore, it precisely means that the rule of pick & choose was the prime consideration and there is no transparency in the exercise of discretion by the competent authority. [Reliance placed on Aman Ullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092), Pak. Mutual Insurance Co.’s case (PLD 1991 SC 14) and Abu Bakar Siddique v. Collector of Customs (2006 SCMR 705)]. He concluded his submissions while arguing that although seniority is not the only consideration but it is to be observed to some extent, whereas, in instant case the opportunity to be considered for promotion has not been provided to the petitioner. 7. Dr. Aslam Khaki, ASC appeared on behalf of affectee officers, and argued that:- a) Discretion must be based upon reasons but in the instant case, the petitioners represented by him have not been considered rather ignored, as such they have been condemned unheard against the principle of audi alteram partem. b) When there is no law on a subject, the principles of natural justice would be applicable. c) The competent authority was vested with powers to frame rules in terms of Section 9 of CSA, 1973, but the same has not been done, which shows the mala fide on its part. d) According to the injunctions of Islam as well as under Article 2A of the Constitution and the principles of policy, everything should be done on merit with justice. [Referred to the Holy Quran (Suah-e-Al- Nisa verse 135)]. e) Some of the persons, who were even not eligible for promotion being not part of any occupational group and even not falling within the category of civil servants, such as officers of National Assembly and NLC, have been promoted in violation of rules and law. H.R.C. No. 8340-G/2009 7 8. Mr. Haider Hussain, ASC gave the service record of the petitioner represented by him and argued that:- a) The discretion is bound by the rule of reasons, which must be guided by law and must not be used in an arbitrary, vague and fanciful manner. [Reliance placed on Zubair Ahmad v. Shahid Mirza (2004 SCMR 1747)]. b) Civil servant has a right to be considered for promotion and similarly to be disclosed the reasons for not being promoted. [Reliance placed on Muhammad Zafeer Abbasi v. Govt. of Pakistan {2003 PLC (CS) 503}]. c) The four officers promoted in the occupational group of the petitioner i.e. the Audit Department, even do not qualify for promotion, as they had never served in BS-21 in that occupational group. 9. On the other hand Mr. Abdul Hafeez Pirzada, learned Sr. ASC, appearing for the Federation of Pakistan, through Secretary Establishment Division, argued that:- a) The material for promotions of all these officers was sent to the Prime Minister in November, 2008 which contains the service record of the entire 267 officers in Grade 21. This record remained with the Prime Minister for consideration until September, 2009 (almost for a period of 10/11 months), therefore, the competent authority has made these promotions with due application of mind. b) This Court does not sit as a Court of appeal over the exercise of power by a lawful authority as it has only to satisfy itself as to whether the reducible minimum requirements of good governance have been complied with or not, and the benefit of doubt, if any, will go in favour of the validity of the action taken by the competent authority and not against it. Onus, therefore, very heavily lies upon the person coming to challenge that there has been a foul play in the exercise of executive discretion. H.R.C. No. 8340-G/2009 8 c) The Officers who are working in BS-21 and have not been promoted to BS-22, shall continue to be eligible for promotion to BS-22 in future, therefore, there is no question of supersession. d) Originally only eight persons, who were not promoted, out of 213, approached this Court, whereas a vast majority of them have not come to the Court for the redressal of their grievance and some of them have made the representation before the competent authority for revisiting of their cases. e) In order to see whether the discretion has been exercised properly or not by the competent authority, this Court has to scrutinize each and every case individually in order to severe the good from the bad. f) The principles of seniority, fitness and aptness, as claimed by the affectee officers, are not applicable in a case of promotion from BS- 21 to BS-22. g) The Rules were framed during the time of caretaker government by virtue of SRO.1047(I)/1993 dated 23rd October 1993 in respect of BS-22, which were rescinded in the year 1998 through notification dated 4th April 1998 and since then the Judge made laws have taken effect, therefore, the Court has to satisfy itself in favour of validity of an action, rather than to strike it down, particularly when it will affect a lot of innocent and deserving persons. h) The discretion exercised by the competent authority can only be challenged on the grounds of illegality, bias or malice or mala fide, and proceedings being corum non judice, but in the instant case at the best, the question is of irrationality or lack of procedural propriety, which even has not been substantiated at all by the petitioner/affectee officers. j) The competent authority has exercised the discretion after considering record of each person, with due application of mind, though the satisfaction will not be the same as that of the Court but it cannot be said that the competent authority has not applied its mind. k) Instant cases are not maintainable as the applicants have failed to show as to how their right to life being a fundamental right is H.R.C. No. 8340-G/2009 9 affected in view of the fact that they are only entitled to be considered for promotion and even promotion is not a right, especially when they will continue to be considered for promotion every time when there are vacancies. and Apart from this right no other right has been pleaded or claimed. A right to be considered for promotion cannot be equated with right to life or right to access to justice, etc. under Articles 9 and 25 of the Constitution. In absence of violation of any fundamental rights, although the matter is of great public importance, this Court may not exercise jurisdiction under Article 184(3) of the Constitution, as these are individual grievances. l) Immediately prior to promotions, eleven Additional Secretaries from BS-21 were acting as Secretaries holding independent Divisions, whereas three Inspectors General of Police and three Chief Secretaries were also working on acting charge basis, and their performance was known to the competent authority, which was one of the consideration for promotion. m) While making the promotion under challenge, the competent authority had tried to maintain gender balance. [Referred to Articles 27(1) read with 34 and 37(f) of the Constitution]. n) The competent authority has also tried to observe the quota while making the promotions under challenge, as interpreted by this Court in number of judgments to be the basic feature of the Constitution. o) When actions are taken in exercise of executive discretion, the Courts of Appeal in England have introduced new element in the doctrine of promissory estopple ‘of proportionality’. In future, this Court would be called upon to judge such actions on the doctrine of proportionality i.e. is the action proportionate to the requirement or not. [Referred to Council for Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935 (administrative actions subject to judicial review) and R. v. Secretary of State [1985] 1 All ER 40 – [the doctrine of proportionality in the law of estopple]. H.R.C. No. 8340-G/2009 10 p) The grievance of the petitioner/affectee officers are personal in nature and not that of public importance. [Reliance placed on All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600)]. q) Absence of rules will not render any action, otherwise lawfully taken, to be unlawful. The words ‘necessary or expedient’ used in Section 25 of CSA, 1973 are not mandatory but directory in nature. r) Although, the exercise of discretion by the competent authority is subject to judicial review but the standard required for judicial review will have to be different in case of civil servant, who is already part and parcel of the State vis-a-vis the citizen who seeks remedy against the Government. s) If the affectee officers are aggrieved from the order of promotion under challenge, they should go and seek indivi dual remedy before the competent forum and not through the instant proceedings. He concluded his arguments while saying that according to his instructions, the Government will frame rules with prospective effect in view of the fact that if the rules are made retrospectively it will cause difficulties because some delegated legislation creates rights ex post facto. 10. In rebuttal Mr. Muhammad Akram Sheikh, Sr. ASC added with respect to the question whether fundamental rights are involved or not, that it is not the case of promoted or ignored employees, rather it is a case running the Government in accordance with the Constitution and the Rules of Business. According to him right to employment is a public undertaking as a fundamental right, derivable from Article 9 of the Constitution. He referred to Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) and Rule 5(10)(c), 15(2) & (4) of the Rules of Business. Lastly he referred to Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division [2009 PC (CS) 981] whereby the Service Tribunal directed the Establishment for framing of Rules. H.R.C. No. 8340-G/2009 11 11. Mr. Ikram Chaudhry, ASC placed on record extract from the American Constitution (para 1 from page 12) on the point that whether the king is the law or the law is the king. He also referred to the book Fundamental law of Pakistan by A.K. Brohi to elaborate public policy and public interest. 12. Mr. Afnan Karim Kundi, ASC argued that the admission made by the counsel for the Federation of Pakistan to the effect that there is need to make the rules as required by Section 9(1) of CSA, 1973, concedes our entire case as if there is need to make rules now, then there was always need to have made rules well in time. While referring to Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, he added that the senior most officer should be given the acting charge, therefore, the consideration prevailed upon the competent authority that 17 officers were already functioning in BS-22 on acting charge basis, conceded my case because the seniority is the determining factor for promotion to BS-22. 13. Mr. Anwar Mansoor Khan, learned Attorney General for Pakistan made his submissions as under:- a) Section 9 of CSA, 1973 has two portions i.e. eligibility and how selection is to be made. Section 9(1) provides firstly, the eligibility for promotion having minimum qualification as may be prescribed, in the cadre to which he belongs, and secondly the proviso provides that promotion to the post of Secretary be made in the public interest, therefore, every person in BS-21 will be eligible if he possesses minimum qualification and distinction between this promotion and normal promotion is in the ‘public interest’. b) Section 9(2) of CSA, 1973 emphasized upon the word ‘merit’ so the eligibility for the purpose of promotion is not the sole consideration as thereafter ‘merit’ will come. So all the persons are eligible and merit is to be looked into amongst them. [Reliance placed on Muhammad Yousaf v. Abdul Rashid (1996 SCMR 1297)]. H.R.C. No. 8340-G/2009 12 c) Once a person comes within the ambit of Section 9(1) of CSA, 1973 then the factum of his being acceptable, appropriate, approved and befitting will not be considered. [Reliance placed on Muhammad Anis’s case Supra. d) The sole criterion for selection post is merit. [Reliance placed on Ghuman Singh v. State of Rajasthan {(1971) 2 SCC 452}, State of West Bengal v. Manas Kumar Chakrabarti (AIR 2003 SC 524) and Union of India and others Versus Lt. Gen. Rajendra Singh Kadyan and another {(2000) 6 SCC 698}. e) There is no dispute qua the power of this Court to review any order passed by Executive. [emphasized upon the word ‘any’]. However, if a person, who feels aggrieved from a particular order, unable to show as to with what he is aggrieved and the reasons to which he is aggrieved, then it will not be appropriate to throw away an order passed by the executive, unless there is something so specific. f) In absence of rules, when there is complete practice for the past so many years and it is continuing everyday, therefore, if the competent authority has passed an order on the basis of custom and well known principles regarding consistent departmental practice then malice or mala fide cannot be attributed to it. g) For the past 60 years, whilst a promotion is made in BS-22, there has not been a single occasion where a summary has been moved for promotion and only the files are being sent to the Prime Minister, who examines them and choose to pass an order. This custom and practice has been followed in the instant case and has not been deviated from. h) The competent authority has exercised its discretion properly, keeping in view the settled principles of discretion. j) Section 9(3) of the CSA, 1973 places a restriction upon the competent authority that the promotion to the post of BS-20 & 21 shall not be made without the recommendations of the Selection Board, whereas, for promotion to the post of BS-22, there is no such restriction and it is left on the ‘assessment’ of the competent authority to select the person upon whom he has reasonable H.R.C. No. 8340-G/2009 13 confidence, from those who are eligible, as such now the question of seniority towards eligibility goes out, that is why the lawmaker has omitted the word ‘BS-22’ from this Section. k) It is duty of the Court to interpret and explain the law; when we expand the scope of a certain law, we have to remain within the parameters of the law. If the Court ultimately came to the conclusion that promotion to BS-22 had to be made in the same manner as provided for BS-20 or 21, then the Court is expanding the scope of law. [Referred to R (ProLife Alliance) v. BBC (2003) 2 All ER 977]. 14. Notices were also issued to the officers promoted to BS-22 to provide them opportunity to appear and make submissions in support of their cases. They appeared in-person on 12th & 15th February, 2010 and explained their service profile and stated that vested rights had accrued to them vide impugned notifications. According to them they were promoted purely on merit and they had not exercised any political or other influence and the information of their promotion was conveyed to them through news, release in electronic or print media. It was their case that have un-blemished service record and lot of experience to perform their duties in different capacities. During the service they had secured higher education, passed the departmental examinations and courses with distinction, therefore, they were promoted by the competent authority by comparing their qualifications, experience, ability, eligibility with the officers who were not promoted. Some of them stated, they were going to retire on attaining the age of superannuation after availing the benefits of BS-22, therefore, justice demands that notification should not be set-aside otherwise their reputation would be damaged. The officers of the police group submitted that they belonged to discipline force and Officer in BS-21 is equal to Major General and Officer in BS- 22 is equal to Lt. General, therefore, seniority is not a criterion and the competent authority has discretion to promote any officer. They added that it would not be in H.R.C. No. 8340-G/2009 14 the interest of justice and in case notifications are set aside, it would be difficult for them to perform their duties, removing their badges of ranks and down grading from BS-22 to BS-21. 15. Since the cases are required to be decided on the basis of facts and figures and not in vacuum, it is necessary to reproduce hereinbelow service record of officers promoted and non-promoted from BS-21 to BS-22 along with relevant details:- a) List of Officers of the District Management Group (DMG) BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Muhammad Asadullah Sheikh 01.12.1973 30.05.2009 Not promoted 2. 2 Syed Tanveer Abbas Jaffary 20.02.1976 11.08.2003 Not promoted 3. 3 Mr. Mohammad Athar Tahir 12.03.1977 11.08.2003 Promoted 4. 4 Mr. Shahid Hussain Raja 21.03.1977 20.07.2004 Not promoted 5. 5 Mr. Shaukat Hayat Durrani 21.03.1977 08.09.2003 Not promoted 6. 6 Mr. Neguib Ullah Malik 00.10.1973 20.07.2004 Promoted 7. 7 Mr. Asif Bajwa 21.03.1977 08.07.2004 Promoted 8. 8 Mr. Abdul Ghaffar Soomro 21.03.1977 06.08.2004 Promoted 9. 9 Capt.(R) Akhtar Munir Murwat 26.08.1974 19.09.2005 Not promoted 10. 10. Syed Mohammad Hamid 20.02.1976 03.01.2006 Not promoted 11. 11 Qamar Zaman Major (R) 01.06.1982 19.09.2005 Prompted 12. 12 Mrs. Farkhanda Waseem Afzal 08.03.1978 24.09.2005 Not promoted 13. 13 Mr. Hassan Waseem Afzal 08.03.1978 24.09.2005 Not promoted 14. 14 Mr. Mohammad Javed Malik 08.03.1978 24.09.2005 Not promoted 15. 15 Mr. Hafeez-ur-Rehman 08.03.1978 24.12.2005 Not promoted 16. 16 Mr. Saeed Ahmad Khan 08.03.1978 14.10.2005 Not promoted 17. 17 Mr. Imtiaz Hussain Kazi 08.03.1978 26.10.2005 Promoted 18. 18 Mrs. Rukhsana Saleem 08.03.1978 19.09.2005 Promoted 19. 19 Mr. Ishtiak Ahmed Khan 08.03.1978 19.09.2005 Promoted 20. 20 Mr. Munawar Opel 08.03.1978 15.02.2006 Not promoted 21. 21 Mr. Tariq Yousuf 30.12.1974 08.11.2006 Not promoted 22. 22 Mr. Iqbal Ahmad Maj. (R) 28.06.1983 08.11.2006 Not promoted 23. 23 Shahibzada M. Khalid Maj. (R) 01.06.1983 20.10.2006 Not promoted 24. 24 Mr. Shahid Rashid 29.03.1979 08.11.2006 Promoted 25. 25 Mr. Nasir Mehmood Khan Khosa 29.03.1979 20.10.2006 Promoted 26. 26 Mr. Iftikhar Ahmed 29.03.1979 20.10.2006 Not promoted 27. 27 Mr. Shafiq Hussain Bokhari 29.03.1979 20.10.2006 Not promoted 28. 28 Mr. Abdul Wajid Rana 29.03.1979 20.10.2006 Not promoted 29. 29 Mr. Kamran Lashari 29.03.1976 02.01.2008 Promoted 30. 30 Mr. Javed Iqbal 29.03.1979 20.10.2006 Promoted 31. 31 Mr. Nazar Hussain Mehr 29.03.1979 20.10.2006 Promoted 32. 32 Mr. Fasi-ud-Din 29.03.1979 20.10.2006 Not promoted 33. 33 Kh. Muhammad Siddiq Akbar 29.03.1979 22.11.2008 Not promoted 34. 34 Mr. Junaid Iqbal Ch. Flt. Lt. 08.03.1980 07.11.2006 Promoted 35. 35 Mr. Muhammad Abbas Lt. 10.03.1980 08.11.2006 Not promoted 36. 36 Mr. Ahsanullah Khan 21.04.1977 27.08.2008 Not promoted 37. 37 Mr. Faridullah Khan 29.03.1979 02.01.2008 Not promoted 38. 38 Kh. Muhammad Naeem 10.07.1984 25.06.2008 Not promoted 39. 39 Prince Abbas Khan 10.07.1984 08.01.2008 Not promoted 40. 40 Maj. (R) Haroon Rashid 14.11.1984 02.01.2008 Not promoted 41. 41 Capt.(R) Ghulam Dastagir Akhtar 08.03.1980 02.01.2008 Not promoted 42. 42 Azhar Hussain Shamim 05.04.1980 02.06.2009 Not pro moted H.R.C. No. 8340-G/2009 15 43. 43 Mr. Sohail Ahmed 05.04.1980 02.01.2008 Promoted 44. 44 Mr. M. Sami Saeed 05.04.1980 02.01.2008 Promoted 45. 45 Mr. Akhlaq Ahmad Tarar 05.04.1980 02.01.2008 Not promoted 46. 46 Mr. Attaullah Khan 05.04.1980 02.01.2008 Not promoted 47. 47 Mr. Javed Aslam 05.04.1980 02.01.2008 Not promoted 48. 48 Kazi Afaq Hussain 05.04.1980 02.01.2008 Not promoted 49. 49 Mr. M. Javed Iqbal Awan 05.04.1980 12.01.2008 Not promoted 50. 50 Mr. Shafqat Hussain Naghmi 05.04.1980 02.01.2008 Not promoted 51. 51 Mr. Muhmmad Arif Azim 05.04.1980 02.01.2008 Not promoted 52. 52 Mr. Muhammad Ayub Qazi 05.04.1980 02.01.2008 Not promoted 53. 53 Mr. Habibullah Khan Khattak 05.04.1980 27.08.2008 Not promoted 54. 54 Mr. Imtiaz Inyat Elahi 05.04.1980 02.01.2008 Promoted 55. 55 Mr. Javed Mahmood 05.04.1980 02.01.2008 Promoted 56. 56 Mrs. Viqar-un-Zeb 05.04.1980 02.01.2008 Not promoted 57. 57 Mr. Anwar Ahmad Khan 05.04.1980 04.01.2008 Not promoted 58. 58 Mr. Tauqir Ahmed 20.02.1976 26.06.2008 Not promoted 59. 59 Mr. Liaquat Ali 22.02.1976 26.06.2008 Not promoted 60. 60 Mr. M. Maqbool Ahmad Khan 05.04.1980 08.07.2008 Not promoted 61. 61 Mr. Ghulam Ali Shah 05.04.1980 26.06.2008 Promoted 62. 62 Mr. Ahmed Bakhsh Lehri 05.04.1980 25.06.2008 Promoted 63. 63 Mrs. Nargis Sethi 05.04.1980 26.08.2008 Promoted b) List of Officers of the Police Service of Pakistan (PSP) BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Azhar Ali Farooqui 24.12.1971 30.04.2008 Promoted 2. 2 Mr. Muhammad Arshad Saeed 27.12.1972 24.11.2007 Not promoted 3. 3 Mr. Irfan Mahmood 23.12.1972 21.06.2003 Not promoted 4. 4 Syed Irshad Hussain 23.12.1972 22.10.2002 Not promoted 5. 5 Mr. Niaz Ahmad Siddiki 26.01.1973 11.11.2004 Not promoted 6. 6 Mr. Salahuddin Ahmed Khan Niazi 26.12.1972 24.09.2005 Not promoted 7. 7 Mr. Shaukat Ali Khan 01.12.1973 12.11.2005 Not promoted 8. 8 Mr. Israr Ahmad 31.12.1974 25.01.2007 Not promoted 9. 9 Mr. Muhammad Ejaz Akram 30.12.1974 25.01.2007 Not promoted 10. 10 Mr. Tahir Arif 30.12.1974 07.08.2008 Not promoted 11. 11 Mirza Muhammad Yasin 30.12.1974 19.12.2006 Not promoted 12. 12 Mr. Khalid Farooq 30.12.1974 25.01.2007 Promoted 13. 13 Mr. Muhammad Wasim 30.12.1974 25.01.2007 Not promoted 14. 14 Mr. Fayyaz Ahmed Mir 30.12.1974 25.01.2007 Not promoted 15. 15 Mr. Abdul Latif Khan 30.12.1974 01.03.2007 Not promoted 16. 16 Syed Shabbir Ahmed 30.12.1974 24.02.2007 Promoted 17. 17 Mr. Shaukat Hayat 10.01.1975 18.07.2007 Retired 18. 18 Mr. Rahoo Khan Brohi 30.12.1974 04.01.2007 Not promoted 19. 19 Mr. Akhtar Hussain Memon 17.02.1975 30.04.2008 Not promoted 20. 20 Mr. Tariq Masood Khan Khosa 20.02.1976 19.12.2006 Promoted 21. 21 Malik Muhammad Iqbal 20.02.1976 10.02.2007 Not promoted 22. 22 Mr. Iftikhar Ahmed 20.02.1976 19.12.2006 Not promoted 23. 23 Mr. Asif Nawaz 20.02.1976 10.02.2007 Not promoted 24. 24 Mr. Zahid Mahmood 20.02.1976 07.08.2008 Not promoted 25. 25 Mr. Fiaz Ahmed Khan 20.02.1976 16.01.2007 Not promoted 26. 26 Mr. Javed Iqbal 20.02.1976 07.08.2008 Promoted 27. 27 Mr. Zafar Ahmed Farooqi 20.02.1976 01.03.2007 Not promoted 28. 28 Mr. M. Azam Khan Maj.(R) 01.06.1982 26.04.2007 Not promoted 29. 29 Mr. Muhammad Habib-ur-Rehman 05.02.1976 26.04.2007 Not promoted 30. 30 Dr. Wasim Kausar 21.03.1977 26.04.2007 Promoted 31. 31 Mr. Abdul Majeed 21.03.1977 10.02.2007 Not promoted 32. 32 Mr. Tariq Saleem 30.12.1974 10.02.2007 Promoted 33. 33 Mr. Javed Noor 21.03.1977 10.02.2007 Promoted 34. 34 Mr. Aftab Sultan 21.03.1977 10.02.2007 Not promoted 35. 35 Mr. Fakharuddin 30.12.1974 07.08.2008 Not promoted 36. 36 Mr. Shamsul Hassan 21.03.1977 09.08.2008 Not promoted 37. 37 Mr. Humayun Raza Shafi 21.03.1977 01.06.2009 Not promoted 38. 38 Mr. Zafarullah Khan 21.03.1977 29.05.2009 Not promoted H.R.C. No. 8340-G/2009 16 39. 39 Mr. Waseem Ahmed 09.09.1974 29.05.2009 Not promoted 40. 40 Syed Mohammad Saqlain Naqvi 23.06.1973 01.06.2009 Not promoted 41. 41 Wajid Ali Durrani 08.03.1978 15.06.2009 Not promoted 42. 42 Sayyed Jawed Ali Shah Bukhari 29.01.1974 29.05.2009 Promoted c) List of Officers of the Secretariat Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Humayun Ishaque Chohan 20.04.1974 06.07.2004 Not promoted 2. 2 Mr. Liaquat Ali Chaudhry 30.12.1974 25.11.2006 Not promoted 3. 3 Mr. Muhammad Zafeer Abbasi 20.11.1974 07.10.2006 Promoted 4. 4 Mr. Bashir Ahmed Chauhan 30.12.1974 07.10.2006 Not promoted 5. 5 Mr. Shaukat Nawaz Tahir 30.12.1974 07.10.2006 Not promoted 6. 6 Mrs. Hahnaz S. Hamid 30.12.1973 31.10.2006 Not promoted 7. 7 Mr. Jaweed Akhtar (inducted in Sectt: Group from NLC) 17.11.2007 17.11.2007 Inducted & promoted on the same day 8. 8 Mr. Irfan Nadeem Syed 20.02.1976 21.01.2008 Not promoted 9. 9 Mr. Inamullah Khan 30.01.1974 18.12.2007 Promoted 10. 10. Mr. Fakhar Abbas Naqvi 25.03.1975 21.01.2008 Not promoted 11. 11 Mr. Khalid Idrees 30.12.1974 18.12.2007 Promoted 12. 12 Mrs. Neelam S. Ali 19.03.1975 29.12.2007 Promoted 13. 13 Mr. Zaid Usman 30.12.1974 16.05.2009 Not promoted 14. 14 Mr. Abdul Shafiq 22.03.1975 16.05.2009 Promoted 15. 15 Mr. Ali Akbar Bhurgri 26.05.1975 26.06.2008 Not promoted 16. 16 Mr. Attiq-ur-Rehman Malik 20.02.1976 18.12.2007 Not promoted 17. 17 Mr. Anwar Hafeez Khan 20.02.1976 00.10.2008 Not promoted 18. 18 Sheikh Anjum Bashir 20.02.1976 25.05.2009 Not promoted 19. 19 Raja Muhammad Ikramul Haq 20.02.1976 18.12.2007 Not promoted 20. 20 Mr. Ahmad Mahmood Zahid 20.02.1976 18.12.2007 Promoted 21. 21 Mrs. Batool Iqbal Qureshi 20.02.1976 18.12.2007 Promoted 22. 22 Mr. Fazal-i-Qadir 20.02.1976 18.12.2007 Not promoted 23. 23 Mr. Abdul Majid 30.12.1974 19.06.2008 Not promoted 24. 24 Mr. Shahid Latif Anwar 30.12.1974 11.06.2008 Not promoted 25. 25 Mr. Naeem Baig 30.12.1974 22.10.2008 Not promoted 26. 26 Mr. Sharshar Ahmed Khan 21.03.1977 29.11.2008 Not promoted 27. 27 Mr. Ghulam Rasool Ahpan 26.05.1975 28.05.2009 Promoted 28. 28 Syed Turab Haider Zaidi 20.02.1976 07.05.2009 Not promoted 29. 29 Mrs. Rukan Abdullah Shah Gardezi 06.12.1976 07.05.2009 Not promoted 30. 30 Mr. Ziauddin 17.02.1977 07.05.2009 Not promoted 31. 31 Mr. Moosa Raza Effendi 31.03.1977 07.08.2009 Not promoted 32. 32 Mian Mohammad Younus 21.03.1977 07.05.2009 Not promoted 33. 33 Mr. Zaeem Ahmed Chaudhry 21.03.1977 04.07.2009 Not promoted 34. 34 Miss Naheed Rizvi 21.03.1977 06.06.2009 Not promoted 35. 35 Mr.Muhammad Ahsan Akhtar Malik 21.03.1977 07.05.2009 Not promoted 36. 36 Mr. Sikandar Hayat Maken 21.03.1977 07.05.2009 Not promoted 37. 37 Ch. Mohammad Azam 21.03.1977 12.05.2009 Not promoted 38. 38 Mr. Muhammad Anwar Khan 30.10.1988 07.05.2009 Not promoted 39. 39 Mr. Khalid Ahmed Khan 21.03.1977 07.05.2009 Not promoted 40. 40 Mr. Ghul Mohammad Rind 21.03.1977 23.05.2009 Promoted d) List of Officers of the Commerce & Trade Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. (not provided) Mr. Tariq Iqbal Puri 01.12.1973 (not provided) Promoted 2. 2 Mr. Rahatul Ain 30.12.1974 07.01.2004 Not promoted 3. 3 Mr. Naved Arif 30.12.1974 29.12.2006 Not promoted 4. 4 Agha Zafar Mehdi Shah 09.10.1973 25.09.2009 Not promoted H.R.C. No. 8340-G/2009 17 e) List of Officers of the Income Tax Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Ihsan-ul-Haq 31.12.1974 14.10.2002 Not promoted 2. 2 Mr. Naseer Ahmad 31.12.1974 26.01.2005 Not promoted 3. 3 Mr. Muhammad Istataat Ali 30.12.1974 23.06.2006 Not promoted 4. 4 Mr. Khawar Khurshid Butt 30.12.1974 23.06.2006 Not promoted 5. 5 Mr. Masood Ali Jamshed 30.12.1974 23.06.2006 Not promoted 6. 6 Mr. Bilal Khan 30.12.1974 23.06.2006 Not promoted 7. 7 Mr. Muhammad Fiayaz Khan 20.01.1976 23.06.2006 Not promoted 8. 8 Mr. Qurban Ali 20.02.1976 11.03.2008 Not promoted 9. 9 Mr. Shahid Azam Khan 20.02.1976 23.06.2006 Not promoted 10. 10 Mr. Nazir Ahmad 20.02.1976 23.06.2006 Not promoted 11. 11 Mr. Anis-ul-Hasnain Musavi 16.03.1976 19.12.2007 Promoted 12. 12 Khawaja Shaukat Ali 21.03.1977 19.12.2007 Not promoted 13. 13 Mr. Asrar Raouf 12.03.1977 19.12.2007 Not promoted 14. 14 Agha Sarwar Raza Qazilbash 21.03.1977 19.12.2007 Promoted f) List of Officers of the Pakistan Audit & Accounts Service BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Asif Mahmood Malik 01.12.1973 14.05.2002 Not promoted 2. 2 Mr. Javed Arif 01.12.1973 09.08.2004 Promoted 3. 3 Mr. Masud Muazaffar 30.121.1974 28.09.2005 Not promoted 4. 4 Mr. Yawar Zia 30.12.1974 28.09.2005 Not promoted 5. 5 Mr. Muhammad Ayub Khan Tarin 10.01.1975 30.09.2006 Promoted 6. 6 Mr. Shaukat Muhammad Lundkhaur 10.01.1975 15.12.2007 Not promoted 7. 7 Mr. Muhammad Anwar 30.12.1974 10.01.2008 Not promoted 8. 8 Mr. Muhammad Saleem 30.12.1974 15.12.2007 Not promoted 9. 9 Mr. Muzammil Tayeb Sultan 30.12.2007 15.12.2007 Not promoted 10. 10 Mr. Abdul Waheed Khan 20.02.1976 15.12.2007 Not promoted 11. 11 Mr. Jehangir Aziz 20.02.1976 02.05.2008 Not promoted 12. 12 Ms. Saseem Akhtar 20.02.1976 15.09.2008 Not promoted 13. 13 Mr. Sohail Ahmed 17.05.1976 30.04.2009 Not promoted 14. 14 Mr. Anees Marghub 20.02.1976 16.06.2008 Not promoted 15. 15 Shaikh Muhammad Awais 20.02.1976 16.06.2008 Not promoted 16. 16 Mr. Allah Bux Khan Kalyar 20.02.1976 30.04.2009 Not promoted 17. 17 Mr. Shah Nawaz Khan 20.02.1976 30.04.2009 Not promoted 18. 18 Syed Moazzam Hussain 20.02.1976 30.04.2009 Not promoted 19. 19 Mr. Ghalibuddin 30.12.1950 20.02.1976 Promoted 20. 20 Mr. Saeed Ahmed Panhwar 20.02.1976 11.05.2009 Not promoted 21. 21 Mr. Ejaz Ali Pirzada 20.02.1976 30.04.2009 Not promoted 22. 22 Rana Assad Amin 21.03.1977 30.04.2009 Not promoted 23. 23 Mr. Zahid Saeed 21.03.1977 30.04.2009 Not promoted 24. 24 Mr. Muhammad Junaid 21.03.1977 05.05.2009 Not promoted 25. 25 Mr. Muhammad Shafi 21.03.1977 30.04.2009 Not promoted 26. 26 Mr. Fahimullah Khattak 21.03.1977 12.05.2009 Not promoted 27. 27 Ms. Nasreen Mahdi 21.03.1977 12.05.2009 Not promoted 28. 28 Agha Talat Pervaiz 21.03.1977 30.04.2009 Not promoted 29 29 Mr. Asif Usman Khan 20.01.1954 21.03.1977 Promoted g) List of Officers of the Information Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks H.R.C. No. 8340-G/2009 18 1. 1 Mr. Fazal-ur-Rehman Malik 30.12.1974 04.03.2004 Not promoted 2. 2 Mr. A.S. Abbasy 30.12.1974 30.09.2005 Not promoted 3. 3 Mr. I.N. Abbasi 26.05.1975 27.05.2009 Not promoted 4 4 Mr. Mansoor Suhail 21.03.1977 15.05.2009 Promoted h) List of Officers of the Foreign Service Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Iftikhar H. Kazmi 20.02.1976 09.06.2008 Not promoted 2. 2 Mr. Ashraf Qureshi 21.03.1977 20.07.2004 Not promoted 3. 3 Ms. Humaira Hassan 21.03.1977 24.04.2007 Not promoted 4. 4 Ms. Raana Rahim 08.03.1978 24.04.2007 Not promoted 5. 5 Mr. Khurshid Anwar 08.03.1978 20.07.2004 Not promoted 6. 6 Mr. Tariq Azizuddin 01.08.1975 10.09.2005 Not promoted 7. 7 Mr. M. Khalid Khattak 20.02.1976 10.09.2005 Promoted 8. 8 Mr. Akhtar Tufail 08.03.1978 10.09.2005 Not promoted 9. 9 Mr. M. Haroon Shaukat 08.03.1978 24.04.2007 Promoted 10. 10 Mr. Zamir Akram 02.07.1978 10.09.2005 Promoted 11. 11 Mr. Muhammad Hafeez 08.03.1978 11.12.2007 Not promoted 12. 12 Mr. Masood Khalid 29.03.1979 24.04.2007 Not promoted 13. 13 Mr. Mian Gul Akbar Zaib 29.03.1979 24.04.2007 Not promoted 14. 14 Ms. Kausar Ahsan Iqbal 20.02.1976 09.06.2008 Not promoted 15. 15 Ms. Atiya Mahmood 29.03.1979 11.12.2007 Not promoted 16. 16 Mr. Sanaullah 24.06.1979 11.12.2007 Not promoted 17. 17 Ms. Fauzia Sana 29.03.1979 11.12.2007 Not promoted 18. 18 Mr. Jalil Abbas Jilani 29.03.1979 11.12.2007 Promoted 19. 19 Mr. Rizwanul Haq Mahmood 29.03.1979 11.12.2007 Not promoted 20. 20 Mr. M. Masood Khan 05.04.1980 - Promoted i) List of Officers of the National Assembly Secretariat Group BS-21 Officers who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009. Sr.# Seniority Position in BS-21. Name of the Officer Date of Joining Date of Notification of promotion to BS-21 Remarks 1. 1 Mr. Moeen-ul-Islam Bokhari Ex-Cadre Not available Promoted 16. It would also be advantageous to highlight civil servant’s structure since promulgation of Government of India Act, 1935 till the law framed under Article 240 of the Constitution. The Federal system of Government initially was introduced in Indo-Pak sub-Continent through Government of India Act, 1935 and the spirit of this Act was retained in the Constitutions of 1956 and 1973, thus our present Constitution is Federal in nature under which the areas of responsibilities of the Federation and the federating units have been precisely defined; they have to exercise their legislative and executive authorities within those limits. The concept of All Pakistan Services was introduced in 1935. Section 263 of the Government of India Act, 1935 provided that:- H.R.C. No. 8340-G/2009 19 “If an agreement is made between the federation and one or more Provinces, or between two or more Provinces, for the maintenance or creation of a service common to the Federation and one or more Provinces or common to two or more Provinces, or for the maintenance or creation of the post, the function whereof are not restricted to the affairs of the Federation or one Province, the agreement may make provision that the Governor General or any Governor or any Public Service Commission, shall do in relation to that service or post anything which would under the provision of this chapter be done by the Governor or the Provincial Public Service Commission if the service or post was a service or post in connection with the affairs of one Province only”. A careful perusal of above Section reveals that the independence of the Provinces has not been curtailed by the Federal Government. Further more, it was left to the discretion of the Provinces to agree to such an arrangement or not, not only with the Federation but also between the Provinces and it was in pursuance of one such agreement that All Pakistan Services were created and came to be regulated under the CSP (Composition and Cadre) Rules 1954. According to these rules certain posts in connection with the affairs of the Provinces were to be filled by Members of All Pakistan Service and these posts were determined in the form of a Schedule to the rules. The legal effect of this arrangement was that 30% of the superior posts encadred for the CSP were reserved for the PCS and in this way the posts were created as a result of an agreement between the Governor General of Pakistan and the Governors of the Provinces. Thereafter Constitution of 1956 under Articles 179 to 183 and subsequently Constitution of 1962 under Articles 174 to 179 provided constitutional protection to civil services but the same was withdrawn first time at the time of framing of Constitution of 1973 in terms of Article 240 and it was provided that the terms and conditions of civil service shall be determined by an Act of the Parliament or the Provincial Assembly. As such, Civil Servants Act, 1973 was passed to regulate the service conditions of the H.R.C. No. 8340-G/2009 20 Federal Government Employees. Similarly in accordance with the administrative reforms announced on 20th August, 1973, the classes were abolished and a grading system was introduced at all levels of administration, Federal as well as Provincial and the rules known as Change in Nomenclature and Abolition of Classes Rules were enforced by the Federal and Provincial Governments in 1974, separately. The effect of these changes was that at the time of re-organization of the CSP Cadre, all the posts were encadred for the DMG and the Secretariat Group, which are the successors to the CSP. 17. The trichotomy of power delicately placed in the Constitution cannot be disturbed as it grants power to each organ to perform in its allotted sphere. The subject of appointments to service of the Federation and conditions of service has specifically been mentioned in Article 240 of the Constitution which reads as under: Article 240: -Subject to the constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined:- a) in the case of the services of the federation, posts in connection with the affairs of the federation and all Pakistan services by or under Act of Majlis-e-Shoora (Parliament) ; and b) ……………………………………. 18. As per the command of above provision of the Constitution, CSA, 1973 was promulgated. Its section 9 mainly deals with promotions up to BS-21, procedure whereof has been laid under Appointment, Promotion and Transfer Rules, 1973. It would not be out of context to note that presently rules are not available for promotion to the selection grade i.e. from BS-21 to BS-22; although in the year 1993, vide SRO. 1047 (I)/1993 dated 23rd October, 1993, such rules were framed but those were rescinded on 4th April, 1998. In absence of any rules for promotion to BS-22, reliance has to be placed on section 9 (2) clauses (a) & (b) of the CSA, 1973, according to which in case of selection post, selection has to be H.R.C. No. 8340-G/2009 21 made on the basis of merit and in the case of non-selection post on the basis of seniority-cum-fitness. It may not be out of context to note that under sub section (3) of section 9, promotion to posts in BS-20 and 21 and equivalent shall be made on the recommendations of a Selection Board. Therefore, while examining the case under consideration no other criterion has to be taken into consideration except merit. As it is noted hereinbefore that there are no rules for promotion to selection post of grade-22 meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in the Judge made Law by full application of mind. Reference at this stage has to be made to the case of Aman Ullah Khan and others V. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), relevant para therefrom reads as under:- “Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times”. 19. The above principles are being consistently reiterated in the cases of Chairman, Regional Transport Authority, Rawalpindi V. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food, H.R.C. No. 8340-G/2009 22 N.W.F.P. and another V. Messrs Madina Flour & General Mills (Pvt) Ltd. & 18 others (PLD 2001 SC 1), Chief Secretary Punjab and others V. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab and another V. Secretary, Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation V. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101). In the case of Abdul Wahab (ibid), this Court while dealing with the subject of structuring of discretion observed as follows:- “Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive”. 20. The above principles of structuring of discretion actually has been derived from the concept of rule of law which, inter alia, emphasize that action must be based on fair, open and just consideration to decide the matters more particularly when such powers are to be exercised on discretion. In other words, the arbitrariness in any manner is to be avoided to ensure that the action based on discretion is fair and transparent. The Indian Supreme Court in the case of Delhi Transport Corporation (ibid), while examining a proposition of law, in view of facts of the case mentioned therein concerning removal of an employee under H.R.C. No. 8340-G/2009 23 Regulation 9 (b), where opportunity of hearing was not to be provided before taking action, made the following observation:- “Any action taken without any modicum of reasonable procedure and prior opportunity always generates an unquenchable feeling that unfair treatment was meted out to the aggrieved employee. To prevent miscarriage of justice or to arrest a nursing grievance that arbitrary, whimsical or capricious action was taken behind the back of an employee without opportunity, the law must provide a fair, just and reasonable procedure as is exigible in a given circumstances as adumbrated in proviso to Art.311(2) of the Constitution. If an individual action is taken as per the procedure on its own facts its legality may be tested. But it would be no justification to confer power with wide discretion on any authority without any procedure which would not meet the test of justness, fairness and reasonableness envisaged under Arts. 14 and 21 of the Constitution. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within defined limits. The rule of law form this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey – “Law of the Constitution” – 10th Edn., Introduction cx). “Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlich, (1951) 342 US 98, “when it has freed man from the unlimited discretion of some ruler………Where discretion is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes “means should discretion be guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful,” as followed in H.R.C. No. 8340-G/2009 24 this Court in S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703: (AIR 1967 SC 1427)”. 21. Learned counsel for Federation emphasized that the competent authority (the Prime Minister of Pakistan) has exercised discretion justly and fairly following the recognized principles set out in the judgments relied upon by the learned counsel appearing on behalf of the petitioners and he has been authorized in this behalf to make a statement before the Court that before issuing the notifications of the promotion of some of the officers, he had gone through their service record thoroughly and in this behalf their personal files remained under his consideration for months together and ultimately he decided their cases with due application of mind and as the decision so taken does not suffer from illegality, bias or malice or malafide as well as coram-non-judice, therefore, interference is not called for. 22. However, we have failed to persuade ourselves to agree with the learned counsel for many reasons including; Firstly, as per Rule 15 (2) of the Rules of Business, it is mandatory that a case should be submitted to the Prime Minister for his orders based on self- contained, concise and objective summary stating the relevant facts of the points for decision prepared on the same lines as those prescribed in these rules for a summary of the Establishment etc. Before us, the Secretary, Establishment pointed out that there is no practice prevailing for the last about 60 years for forwarding the cases of promotion from BS-21 to BS-22 and subject to the availability of the vacancies the Prime Minister calls for the files for promoting officers and notification is issued of his/their promotion on receipt of directions from the Prime Minister by the Establishment Division and in the instant case, too, the past practice was followed; to say, unhesitatingly that mandate of relevant rules was ignored. Conversely speaking, there is admitted non-adherence to the Rules of H.R.C. No. 8340-G/2009 25 Business. The Secretary, Establishment sent files without any forwarding letter and the cases of all the officers totaling 267 were not sent in terms of aforesaid Rules of Business. In the cases of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530), Federation of Pakistan through Secretary, Planning & Development Division, Islamabad v. Muhammad Akram & others (1995 SCMR 1647) & Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), it has been held that due weight is required to be given to the Rules of Business which have got constitutional sanction whereas, in the instant case, the mandate of law has uncondonably been violated. It may be stated that adopting such arbitrary procedure, not only in-justice has been caused to officers who are otherwise senior and also have better case on merit as is evident from what follows in next paras but they have been deprived because there was nothing as the circumstances reflect, in black and white before the competent authority. This fact brings the case in the area where the discretion so exercised by the competent authority cannot be said to be in consonance with the well known principle of fair play as the cases of the officers who were not promoted their files were not before him, along with self-contained note by the Secretary Establishment in terms of the aforesaid Rules of Business. Secondly; to ensure justice and openness in view of rule of law it becomes obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers BS-21 who were eligible for promotion to BS-22. This aspect of the matter requires application of mind based on consideration and determination of merit in the light of the material explicitly showing as to why the officers who have H.R.C. No. 8340-G/2009 26 been left out were not found to be competent/below merit in comparison to those promoted to BS-22. Such consideration of the case and determination of merit for parity of treatment becomes all the more necessary and in absence of considering the candidature of the left out officers it would alone be tantamount to pick and choose essentially leading us to hold that there was no transparency in the exercise of discretion by the competent authority. Reference in this behalf can be made to the cases of Aman Ullah Khan (ibid), Chairman, Regional Transport Authority, Rawalpindi (ibid) and Abu Bakar Siddique (ibid). For the sake of convenience, relevant para from the last mentioned judgment is reproduced hereinbelow:- “It is fundamental principle that an authority enjoying the discretionary powers, exercises the same without any guideline but at the same time such authority must not exercise the discretion in an arbitrary and capricious manner. It may not be obligatory for the concerned authority to exercise the discretion in a particular manner but exercise of such power in an unreasonable manner is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of the superior courts. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended”. Thirdly; without going deep into the merits of the case of the petitioners and other left out officers, from the relevant facts concerning their seniority position, date of promotion in grade-21 etc, on a cursory glance one can infer that discretion has also not been exercised reasonably in ignoring their H.R.C. No. 8340-G/2009 27 cases. Mr. Muhammad Akram Sheikh, learned counsel while explaining the case of such officers emphasized that in no manner it could be said that these officers had merit with legitimacy for their promotion to grade-22. According to him, most of them were in grade-21 much before some of the promotees who succeeded in getting promotion in grade-21 in the year 2008-09 but were promoted in the same year to grade-22. A particular reference in this behalf was made to the officers, namely, Mr. Kamran Lashari, Mr. Sohail Ahmed, Mr. M. Sami Saeed, Mr. Imtiaz Inayat Elahi, Mr. Javed Mehmood, Mr. Ghulam Ali Shah, Mr. Ahmed Bakhsh Lehri and Mrs. Nargis Sethi whose names appear at serial Nos.29, 43, 44, 54, 55, 61, 62 & 63 respectively in the seniority list of the DMG occupational group. Whereas the officers namely, Mr. Shahid Hussain Raja, Mr. Shaukat Hayat Durrani, Capt. (R) Akhtar Munir, Syed Muhammad Hamid, Mrs. Farkhanda Waseem Afzal, Mr. Hassan Waseem Afzal, Mr. Muhammad Javed Malik, Mr. Hafeez-ur-Rehman and Mr. Saeed Ahmed Khan etc. of the same occupational group are shown in seniority list at serial Nos.4, 5, 9, 10, 12, 13, 14, 15 & 16, and were the officers promoted in BS-21 much before them but without assigning any reason they were not considered for promotion. Mr. Akram Sheikh, Sr. ASC stated and so we reiterate the principle that promotion is not a right but an officer deserves that his case should be considered for promotion in accordance with law. Had the competent authority considered their cases and informed the reasons for not promoting them probably they would have not grieved to complain the non- adherence to the rule of law and their suffering on that count. At this juncture, it may be stated that Mr. Abdul Hafeez Pirzada learned counsel for Federation, though, emphasized that “there is no question of supersession because the officers who are working in BS-21 and have not been promoted to BS-22 would continue to be eligible for promotion H.R.C. No. 8340-G/2009 28 (emphasis provided), this argument goes in favour of the officers who have not been promoted because there is no question mark on their eligibility and fitness and since there is no reason available on record to deprive them of their deserved position, contention of Mr. Muhammad Akram Sheikh learned counsel and others that discretion has not been exercised reasonably, so also the principles set out to structure the discretion in the judgments cited hereinabove, has not been followed rendering the whole exercise in pursuance of which the aggrieved petitioners have been deprived of the promotion is not sustainable, seems to be tenable. In addition to it, once the argument of learned counsel for the federation in respect of non-supersession of the left out BS-21 officers is accepted then we feel no difficulty in concluding that selection on merit would take place after assessment of all relevant consideration including competence and good service record. It is correct that the interpretation of the word ‘merit’ includes eligibility as well as academic qualifications [Miss Abida Shabqadar v. Selection Committee (1989 SCMR 1585)]. It is equally important to highlight another important principle that when promotion is to be made to a selection post it needs to be purely on merit. However, in case there is a tie qua meritorious past record, credibility and confidence among the officers then seniority would play its role [State of West Bengal v. Manas Kumar Chakrabarti (AIR 2003 SC 524)]. The Federation in parawise comments or through its learned counsel had not pointed out that the affectee officers were lacking above criteria in any manner in comparison to the promoted officers, therefore, their cases were not considered for promotion to BS-22. Actually, in the instant case, the difficulty seems to have arisen on account of the fact that the Establishment Division did not apprise the competent authority and in that all the cases for promotion from BS-21 to BS-22 were not submitted in consonance with the H.R.C. No. 8340-G/2009 29 provisions of relevant Rules of Business highlighting their service record, academic qualification etc. We feel that the competent authority holding an exalted office needed to be assisted properly by the concerned Secretary explaining the concerned case of each of the officer and then leaving to its discretion to exercise on the principles of rule of law, which does not seem to have been done. Having accepted that the left out officers were eligible for promotion, yet not promoted and juniors promoted, it would amount to glaring violation of the command of Article 4 of the Constitution according to which it is an inalienable right of individual to be dealt with in accordance with law. When we make reference of the expression of the ‘Law’ we mean section 9 sub-section 2 clauses (a) and (b) of the CSA, 1973 and in absence of rules for promotion from BS-21 to BS-22, the word ‘merit’ has to apply in the light of principles highlighted hereinabove and following them, no room is left to make distinction between the officers who have been promoted and not promoted though eligible. Even accepting, for the sake of arguments, that the officers who were promoted to BS-22, were enjoying, save seniority, the same position as that of the left out, we fail to understand as to why they were not considered for promotion particularly, when they happened to be senior to them. In such situation the principle noted hereinabove, that when the officers are considered for promotion having equal merit and eligibility, then the seniority would play a decisive role and ought to have been adhered to, shall prevail. In this case that principle, factually, has not been followed, rather it would appear that the cases of both types of officers have not been measured in the same scale to follow the dictates of Article 4 of the Constitution, the rule of law as well as the due process of law. H.R.C. No. 8340-G/2009 30 We are also conscious of the provision of Article 25 of the Constitution which guarantees equality of citizens. However, denying such protection in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification [Dr. Mobashir Hassan V. Federation of Pakistan and others (PLD 2010 SC 265)]. In the instant matter, looking in view of the reply filed by the Establishment Division and the argument advanced by the learned counsel on behalf of Federation, no attempt at all has been made to bring the cases of promoted officers under any reasonable classification. Relevant principles relating thereto have been highlighted hereinbefore. 23. At this juncture, it would not be out of context to make reference to the contention raised by learned Attorney General for Pakistan who placing reliance on section 9 (2) of CSA, 1973, emphasized that the eligibility for the purpose of promotion is not the sole consideration as thereafter merit will come, therefore, according to him, all the persons are eligible and their promotion is to be based on merit amongst themselves. He placed reliance on Muhammad Yousaf v. Abdul Rashid (1996 SCMR 1297). We have no cavil with the proposition discussed therein but on posing a question to ourselves i.e. whether the cited judgment confers arbitrary powers upon the competent authority to side track the principle of structured discretion, rule of law, due process of law, equality before law and the criteria highlighted in the Judge made Law noted hereinabove and finding that the provisions of Article 4 and 25 of the Constitution have not been adhered to, surely, we could not get affirmative answer to persuade ourselves that fate of the officers be left entirely to the discretion of the competent authority. Thus the argument so advanced by the learned Attorney General could be H.R.C. No. 8340-G/2009 31 acceptable only if it comes up to the well-established principles for exercising the discretion highlighted in the judgments noted hereinabove. 24. Learned Attorney General has also relied upon Ghuman Singh v. State of Rajasthan {(1971) 2 SCC 452}, State of West Bengal v. Manas Kumar Chakrabarti (AIR 2003 SC 524) and Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another {(2000) 6 SCC 698}. These judgments need not be discussed in view of the discussion hereinbefore as the Indian Supreme Court has also not favoured the exercise of discretionary powers without following the seven instruments envisaged in various judgments of this Court 25. We have seen the lists relating to the seniority etc. of both the officers (promoted and non promoted) placed before us by the Establishment Division and have also heard the learned counsel for parties as well as promoted officers, who appeared in person and find ourselves in agreement with Mr. Abdul Hafeez Pirzada, learned counsel appearing for the Federation that the affectee officers have not been superseded not finding anything on record that they were ineligible, we see no reason as to why they, majority of whom are seniors as per the seniority list of their occupational groups, were not promoted. With due deference to the competent authority, we are constrained to note that proper assistance which was mandatory to be provided to it by the Establishment Division under the Rules of Business, to enable it to exercise discretion fairly and justly, has not been rendered. Record produced before us reflects that two officers, namely, Mr. Jaweed Akhtar and Mr. Moeen-ul-Islam Bokhari from Secretariat Group & National Assembly Secretariat Group, respectively, were promoted. Of these two promoted officer, Mr. Jaweed Akhtar, was working in NLC and was inducted on 7.11.2009 in Secretariat Group, on the same day was promoted to BS-21 and then awarded promotion in BS-22 considering him to be an officer of Secretariat Group and almost same was the position of Mr. Moeen-ul-Islam H.R.C. No. 8340-G/2009 32 Bokhari. What could else be the example of non-application of mind and non- adherence to the rule as well as the due process of law. 26. Learned Attorney General and learned counsel for the Federation also emphasized that majority of officers of BS-21 who now have been promoted to BS-22 were holding acting charge of different divisions as Secretaries, etc. and competent authority had an opportunity to watch their performance, therefore, it had rightly considered them for promotion as against the left out officers whose performance, though not said to be blemished, could not be watched. We are not impressed with these arguments for, legally speaking, appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 reproduced below:- “8-B (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis. (2) *[Omitted]. (3) In the case of a post in basic pay scales 17 to 22 and equivalent, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer drawing pay in basic pay scale in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service, as the case may be, in excess of the promotion quota. (4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge H.R.C. No. 8340-G/2009 33 appointment may be made according to the orders issued from time to time. (5) Appointment on acting charge basis shall be made on the recommendations of the Departmental Promotion Committee or the Central Selection Board, as the case may be, save in the case of post in basic pay scale 22 and equivalent. (6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority. (7) Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis.” A careful perusal of the above rule reflects that in case where the appointing authority is satisfied that no suitable officer is available to fill the post and it is expedient to fill the same, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the cadre or service as the case may be. In the instant case, the officers who were holding the post on acting charge basis were not all senior to those of affectee officers and moreover it is quite evident that even in their cases, holding the acting charge under whatever circumstances, shall not confer any vested right for regular promotion. 27. It was further contended by the learned Attorney General that Chief Executive/competent authority was to select his team with the object in view to ensure the good governance in the country. Suffice to observe as is pointed out hereinabove, as well, that posting a junior officer to hold the charge of a senior post, ignoring seniors who are eligible for promotion, does not advance the object of achieving good governance because the rules framed on the subject, noted hereinabove, are not redundant in any manner, therefore, same need to be respected and followed accordingly. It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be H.R.C. No. 8340-G/2009 34 achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country, no room is left to allow any authority to make departure from any of its provisions or the law and the rules made thereunder. By virtue of Articles 4 and 5 (2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide the issues after application of mind with reasons as per law laid down by this Court in various pronouncements [Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada (1999 SCMR 2744)]. It is also a settled law that even Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383)]. It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxta position to find out the meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is the command of the Constitution. Expression ‘merit’ includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power [Director Food, NWFP v. M/s Madina Flour and General Mills (Pvt) Ltd. (PLD 2001 SC 1)]. Equally, discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions, required for exercise of such power within the scope of law. All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and seven instruments which have already been referred to above regarding exercise of discretion. The obligation to act fairly on H.R.C. No. 8340-G/2009 35 the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of justice [Mansukhlal Vithaldas Chauhan v. State of Gujrat {1997 (7) SCC 622}]. 28. We may observe here that it is not the case of few individuals who have been promoted or left out, the questions for consideration raised in this case are of far-reaching effect. Essentially, under the trichotomy of the powers, the Executive (Bureaucracy) has to play the most important role for well being of general public. Although, they are not representing any class of masses but whole structure of the government depends upon the efficient and competent officers who matter in making policies which are ultimately approved by the Ministers etc. and if for this purpose the selection of officers is made following the principle to determine the merit are not employed, the running of government on the basis of good policies would ultimately affect the general public as in this matter it is no body’s case that the officers who have been left out are not eligible for promotion to BS-22. Thus they stand at par with those who have been promoted and depriving them to enjoy the higher status of a civil servant would indirectly affect smooth functioning of the government on account of despondency developed amongst the officers, who always have stood by law and worked hard but ultimately are deprived of their legitimate right of promotion. 29. Needless to observe that when we talk about the public interest and the welfare of the State, we definitely have in our minds the concept of rule of law as well as access to justice to all as is enshrined in our Constitution. 30. Learned counsel for the Federation and Attorney General for Pakistan were of the opinion that as few persons have approached this Court by sending Misc. applications which have been treated petition under Article 184 (3) of the Constitution whereas majority of the officers have accepted the decision, therefore, for this reason petitions may be dismissed directing the aggrieved party to avail legal remedy permissible under the law, instead of invoking constitutional H.R.C. No. 8340-G/2009 36 jurisdiction of this Court. Reliance was placed on All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600). We are not impressed with this argument; as well, for the judgment cited by the learned counsel for the Federation is not relevant to the issue involved because the exercise of discretion contrary to settled principles has not only affected the left out officers but has left a far-reaching adverse effect upon the structure of civil servants – be in the employment of the Federal or the Provincial Governments, autonomous and semi-autonomous bodies, etc. – and if the decision of the competent authority under challenge is not examined keeping in view the Constitutional provisions and the law as well as the judgments on the subject, the competent and efficient officers who have served honestly during their service career, would have no guarantee of their future service prospects. Consequently, such actions are also likely to affect the good governance as well as framing of polices in the welfare of the public and the State. Therefore, to assure the public at large, more particularly the civil servants in this case that their fundamental rights will be protected, this Court is constrained to exercise jurisdiction under Article 184(3) of the Constitution. 31. It is contended by the learned counsel appearing for the Federation that the officers who have been promoted to BS-22 by the competent authority had been promoted following the provisions of Articles 27 (1), 34 and 37 (F) of the Constitution as an effort has been made to maintain gender balance. It may be noted that according to service structure of different occupational groups, no concession can be extended to any officer in respect of any appointment on the ground only for race, religion, caste, sex, residence or place of birth. Thus Articles 27, 34 and 37 (f) of the Constitution have no application to the facts and circumstances of the instant case. According to clause (2) of the Article 25 of the Constitution, there shall be no discrimination on the basis of sex alone, thus H.R.C. No. 8340-G/2009 37 considering an officer on the basis of sex shall be violation of the mandate of the Constitution. 32. Mr. Abdul Hafeez Pirzada learned counsel for the Federation was also of the opinion that reference of rules on the subject will not render any action otherwise lawfully taken to be unlawful because in section 25 of CSA, 1973, law giver has used the word ‘necessary’ or ‘expedient’ for carrying out the purpose of this Act are not mandatory but directory in nature. There is no need to go into this discussion because we have already emphasized that in absence of the rules, the competent authority had a legal commitment to exercise discretion while making the selection of the officers on merit in BS-22 following the settled principles highlighted in the Judge made Law, discussed in detail hereinabove. At the cost of repetition, it is to be noted that the question in issue came up under consideration in Sajjad Javed Ahmed Bhatti v. Secretary, Establishment Division [2009 PLC (C.S.) 981] wherein respondents Federation of Pakistan, etc. were well advised to prescribe guidelines for promotion to BS-22 and to facilitate the exercise of discretionary powers fairly, judiciously without favour and discrimination. The said case was decided on 14-1-2007 but, regretfully said, the Federation neither filed any petition there-against before this Court nor framed rules in terms of the directions therein. 33. As it has been observed, hereinabove, that on 23rd October, 1993, vide SRO. 1047 (I)/1993 in respect of promotion to BS-22 Rules were framed, but, subsequently the same were rescinded in the year, 1998. Although, these rules are no more in the statute books but the competent authority/Chief Executive while considering the promotions could have used them as guidelines to ensure just and fair and non-discriminatory treatment to the officers of BS-21 who had legitimate expectancy to be promoted to BS-22 as there is no question mark on their eligibility and it is also the case of the Federation itself that non promotion would not be tantamount to supersede them. However, in view of the statement of Mr. H.R.C. No. 8340-G/2009 38 Abdul Hafeez Pirzada learned counsel for the Federation, referred to hereinabove regarding the framing of rules with retrospective effect, we observe that it would be in all fairness and to streamline the procedure of promotion to the selection grade from BS-21 to BS-22 and also to avoid unjustness, arbitrariness etc. the rules shall be framed by the competent authority as early as could be possible. 34. Before parting with the judgment, we may observe that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to the bureaucracy. Civil service is the back bone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and Constitution, without favouritism or nepotism. It is a time tested recognized fact that institution is destroyed if promotions/appointments are made in violation of law. It will, in the ultimate result, paralyze automatically. The manner in which the instant promotions in the Civil Services have been made, may tend to adversely affect the existence of this organ. Honesty, efficiency and incorruptibility are the sterling qualities in all fields of life including the Administration and Services. These criteria ought to have been followed in the instant case. Fifty-four persons were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which is likely to destroy the service structure. No doubt petitioners/affectee officers had no right to be promoted yet in accordance with section 9 of the CSA, 1973, they were, at least, entitled to be considered for promotion. The right contemplated under section 9 supra is neither illusionary nor a perfunctory ritual and withholding of promotion of an officer is a major penalty in accordance with the Civil Servants (Efficiency and Disciplinary) Rules, 1973, therefore, consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material relating H.R.C. No. 8340-G/2009 39 to merit and eligibility which can be lawfully taken note of. According to Article 4 of the Constitution the word “law” is of wider import and in itself mandatorily cast the duty upon every public functionary to act in the matter justly, fairly and without arbitrariness. 35. For the foregoing reasons: (a) Listed petitions are accepted as a consequence whereof, notifications No.41/317/2009-E-I, 41/343/2009-E-I, 41/321/2009/E-I, 41/318/2009/E-I, 41/319/2009/E-I, 41/344/2009/E-I, 41/341/2009/E- I, 41/320/2009/E-I, 41/345/2009/E-I, 41/346/2009/E-I, PF(190)E- 5/DMG, 41/328/2009/E-I, 41/329/2009/E-I, 41/322/2009/E-I, 41/330/2009/E-I, 41/331/2009/E-I, PF(208)E-5/DMG, 41/332/2009/E-I, PF(218)E-5/DMG, PF(229)E-5/DMG, 41/334/2009/E-I, PF(224)E-5/DMG, 41/336/2009/E-I, 41/335/2009/E-I, PF(245)E-5/DMG, 41/339/2009/E-I, PF(257)E- 5/DMG, PF(262)E-5/DMG, 41/338/2009/E-I, 41/340/2009/E-I, 21/1/2009-E-I, 12(178)/80-E.3(Police), 12(285)/80-E.3(Police), 12(242)/80-E.3(Police), 12(251)/80-E.3(Police), 12(267)/80- E.3(Police), 12(279)/80-E.3(Police), 12(285)/80-E.3(Police), 12(288)/80-E.3(Police), 12(309)/80-E.3(Police), 41/342/2009/E-I, 44/1/2009-E-I, 41/325/2009/E-I, 41/326/2009/E-I, 41/323/2009/E-I, 41/327/2009/E-I, 41/324/2009/E-I dated 4th September, 2009 and Notification No. PF(227)/E-5(DMG) dated 10th September, 2009 are hereby set-aside and declared to be of no legal consequences. (b) The Chief Executive/competent authority may consider the cases of all the officers holding the posts of BS-21 afresh in view of the observations, made hereinabove. (c) The officers who have been promoted to BS-22 in pursuance of above referred notifications, which now have been declared of no H.R.C. No. 8340-G/2009 40 legal effect, shall not be entitled for the benefit, perks and privileges, if any. (d) It would be appreciated that to ensure fairness and justness, the Rules rescinded on 4th April, 1998 are re-enacted accordingly. (e) Parties are left to bear their own costs. Chief Justice Judge Judge Islamabad Announced on 28-04-2010 J. “A.Rehman: APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM INTRA COURT APPEAL NO. 1 OF 2012 [Against the order dated 02.02.2012 passed by this Court in Criminal Original No. 06/2012] Syed Yousaf Raza Gillani Prime Minister of Pakistan … APPELLANT VERSUS Assistant Registrar Supreme Court of Pakistan & another ... RESPONDENTS For the appellant: Mr. Aitzaz Ahsan, Sr. ASC Mr. M.S. Khattak, AOR Respondents: Not represented. Date of hearing: 09.02.2012 -.-.- ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Attention of Barrister Aitzaz Ahsan, who is instructed by Mr. M.S. Khattak, AOR was drawn towards the following questions of law, which according to them arise for consideration in the instant appeal:- Questions 45, 51 & 52 45. Could a Prime Minister who undid the draconian action of a military dictator (of arresting judges of the superior courts, including the Hon’ble Chief Justice and his children) even ICA No. 1/2012 2 before he had taken oath as Prime Minister, be presumed to have contemplated committing contempt? 51. Whether it is not ironic that a Prime Minister who released the detained judges should be sent to prison, or sentenced otherwise, by the judiciary? 52. Can the duly elected Prime Minister of Pakistan not even expect to be dealt with in a manner similar to real, actual and blatant contemners of the variety that:  Sacked the superior courts and their judges in November 2007;  Expressly and brazenly flouted the historic order dated November 3, 2007;  Arrested the judges of the superior courts along with their children members of their families, detained and continued to hold them captive for prolonged periods;  Promulgated and/or applied and administered anti- judiciary laws such as the PCO and the Judges, Oath of Office Order;  Unleashed brutal state violence on Members of the Bar (as officers of the Court) and other citizens of Pakistan seeking the reinstatement of the sacked judges; But have yet to be formally charged and indicted for their patently criminal actions? They were further apprised that the questions reproduced hereinabove were phrased in such a manner, which should not have been recorded by the appellant who is the incumbent Prime Minister of Pakistan and is supposed to possess highest moral values being the constitutional head and the impression is being created as if the judiciary as a whole is being influenced on account of alleged favourable actions done by him for its members by performing the acts noted therein. Therefore it is tantamount not to embarrass the Court, but the appellant himself as he ought not to have claimed relief or presumed that some relief should be given to him for such action. The learned counsel appearing on his ICA No. 1/2012 3 behalf, however, stated that these questions were framed with a view to show respect and deference to the judiciary and in no manner it should be considered that perhaps the judiciary is being influenced for any purpose. However, under instructions received from the learned AOR of the appellant, he stated at the bar that the above questions be deleted from the pleadings. 2. On having considered the request of the learned counsel and also considering that the above questions are being required to be deleted under instructions from the appellant through his AOR, we accede to the request so made. Consequently, questions No. 45, 51 and 52 are deleted from the pleadings. 3. Similarly, in the CMAs wherever these questions have been repeated shall be deemed to have been deleted under instructions received by the learned counsel for the appellant through his AOR. 4. Mr. Aitzaz Ahsan, Sr. ASC is continuing with his arguments, which are not likely to be concluded in the course of the day. It is already 4.00 p.m., as such the case is adjourned for 10.02.2012. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. MIAN SHAKIRULLAH JAN, J. JAWWAD S. KHAWAJA, J. ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J. MIAN SAQIB NISAR, J. AMIR HANI MUSLIM, J. Islamabad, the 9 February, 2012

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ. MR. JUSTICE JAVED IQBAL MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM INTRA COURT APPEAL NO. 3 OF 2011 Mr. Justice Hasnat Ahmed Khan … APPELLANT INTRA COURT APPEAL NO. 4 OF 2011 Mr. Justice Syed Shabbar Raza Rizvi … APPELLANT VERSUS Federation of Pakistan/State … RESPONDENT For the appellants: Dr. A. Basit, Sr. ASC. Mr. Arshad Ali Chaudhry, AOR Respondent: Not represented. Date of hearing: 18.02.2011 … ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - Listed appeals filed on behalf of Justice Hasnat Ahmed Khan and Justice Syed Shabbar Raza Rizvi have been fixed before this Special Bench in pursuance of request made on their behalf by their learned counsel. He has concluded his arguments. ICA 3 & 4-2011 2 2. Immediately thereafter, Mr. S.M. Zafar, learned Sr. ASC and other learned counsel present in Court have informed that against the same judgment few other appeals have been filed, therefore, it will be appropriate that all the cases are clubbed and disposed of together, after hearing them. It is to be noted that on the request for hearing of the case made by the learned counsel appearing for the appellants, instant Bench was constituted. No other request for fixation of the other cases was received by the office within time; therefore, the same were not fixed along with these appeals. Be that as it may, in the interest of justice, we consider it appropriate to allow the learned counsel appearing in other appeals to make application for hearing of their cases before this Bench today till 2:30 p.m. and on receipt of such application for urgent hearing, the cases shall be fixed on 21.02.2011 before this Bench. 3. The Registrar has put up following note: - “The Worthy Registrar, Peshawar High Court informed me that Mr. Justice Jehanzeb Rahim passed an order on 17.02.2011 in his Chambers to issue contempt notices to some Hon. Judges of the Supreme Court, even though no such contempt proceedings were pending in the Peshawar High Court. However, the Hon. Chief Justice, Peshawar High Court initially took up the matter on the administrative side and passed an order on the same day saying that the order is passed in vacuum, hence need not be acted upon by the office. That today this matter was examined on the judicial side by a 3-member bench, which set aside the said order.” It seems that the persons whose cases are pending before the 4-Member Bench of this Court, instead of obeying the orders of the Court have started making attempts to undermine the authority of the Hon’ble Judges of this Court, particularly the Hon’ble Members of the Bench and have issued notices to all of them to appear, as has been done by Justice Jehanzeb Rahim of the Peshawar High Court, according to the note reproduced hereinabove. Although the order ICA 3 & 4-2011 3 passed by him has been set aside by the Peshawar High Court on the judicial side, but in order to preserve and protect the dignity and respect of the Hon’ble Judges of the Bench seized with the matter as well as other Judges of this Court, and in order to ensure that system of administration of justice and honour of this institution including High Courts and District Courts is preserved, we are constrained to pass order that all the six Judges, namely, Syed Shabbar Raza Rizvi, Hasnat Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah (Lahore High Court), Justice Ms Yasmeen Abbasey (High Court of Sindh), Justice Jehanzeb Rahim (Peshawar High Court) and Justice Sayed Zahid Hussain (Supreme Court) shall not pass any such order against the Members of the Bench or the Judges of the Supreme Court, and if any such order is passed by them, the same shall have no legal or binding effect upon this Court as well as any other functionaries in the country and shall be deemed to be an order, which is not in existence at all. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. JAVED IQBAL, J. MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. MIAN SAQIB NISAR, J. SARMAD JALAL OSMANY, J. AMIR HANI MUSLIM, J. Islamabad, February 18, 2011 APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH INTRA COURT APPEALS NO.4, 6, 8, 9, 18, 19, 21 TO 23 OF 2017 AND 2 OF 2018 (Against the judgment dated 29.3.2017 of this Court passed in Crl.O.Ps.No.33, 60, 55 and 62/2017) AND CRIMINAL MISC. APPLICATIONS NO.43 TO 45 OF 2018 (Applications for impleadment) AND CRL. REVIEW PETITIONS NO.42, 68 AND 523 OF 2017 (On review of this Court’s judgments dated 29.3.2017/28.3.2017 passed in Crl.O.P.60/2017 and C.M.A.687/2017) AND CIVIL MISC. APPLICATION NO.3347 OF 2017 IN CIVIL REVIEW PETITION NO.NIL OF 2017 IN CIVIL MISC. APPLICATION NO.687 OF 2017 (Permission to file and argue review petition - On review of this Court’s judgment dated 28.3.2017 passed in C.M.A.687/2017) AND CRIMINAL ORIGINAL PETITIONS NO.138, 96, 121 TO 127, 132, 139, 167 AND 217 OF 2017, 4 OF 2018, 92 OF 2017, 152 OF 2016, 104 AND 214 OF 2017 (Non-compliance of Court’s order) AND CRL. MISC. APPLICATIONS NO.1002 AND 937 OF 2017 (Applications for impleadment) I.C.A.4/2017: Akhter Umar Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira & others I.C.A.6/2017: Manzoor Ahmed Vs. Mushtaq Ahmed Sukhaira and others Intra Court Appeals No.4 of 2017 etc. -: 2 :- I.C.A.8/2017: Awais Malik and others Vs. Mushtaq Ahmad Sukhera and others I.C.A.9/2017: Awais Malik and others Vs. Mushtaq Ahmad Sukhera and others I.C.A.18/2017: Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and others I.C.A.19/2017: Malik Muhammad Sabir Vs. Mushtaq Ahmed Sukhera I.C.A.21/2017: Muhammad Sarwar Awan Vs. Mushtaq Ahmed Sukhaira and others I.C.A.22/2017: Muhammad Ashraf Chadder Vs. IGP, Punjab and others I.C.A.23/2017: Mian Shafqat Ali Vs. Capt. (R) Zahid Saeed and others I.C.A.2/2018: Muhammad Haseeb Vs. Muhammad Amin Vans and others Crl.M.A.43/2018: Impleadment application on behalf of Tahir Maqsood, DSP, CTD, Lahore Crl.M.A.44/2018: Impleadment application on behalf of Zulfiqar Ali Virk, Inspector Crl.M.A.45/2018: Impleadment application on behalf of Malik Muhammad Nawaz, Inspector Crl.R.P.42/2017: Province of Punjab through Chief Secretary, Punjab Vs. Awais Malik and others Crl.R.P.68/2017: Kafayat Ullah Bajwa Vs. I.G. Police, Punjab Crl.R.P.523/2017: Mrs. Nasim Chaudhry Vs. Inspector General of Police/Provincial Police Officer, Punjab Lahore C.M.A.3347/2017: Jamil Ahmed Vs. Government of Punjab through Secretary etc. Crl.O.P.138/2017: Jamil Ahmed Vs. Capt. (R) Zahid Saeed and others Crl.O.P.96/2017: Zafar Iqbal and others Vs. Azhar Hameed Khokhar etc. Crl.O.P.121/2017: Fida Hussain Vs. Usman Khattak and others Crl.O.P.122/2017: Muhammad Shahbaz Vs. Usman Khattak and others Crl.O.P.123/2017: Muhammad Shahbaz Vs. Usman Khattak and others Intra Court Appeals No.4 of 2017 etc. -: 3 :- Crl.O.P.124/2017: Muhammad Zaman Vs. Usman Khattak and others Crl.O.P.125/2017: Muhammad Ashraf Chadder Vs. Capt. Zahid Saeed and others Crl.O.P.126/2017: Khalid Farooq Khan Vs. Capt. Zahid Saeed and others Crl.O.P.127/2017: Mian Shafqat Ali Vs. Capt. Zahid Saeed and others Crl.O.P.132/2017: Yousaf Ali Vs. Israr Abbasi and another Crl.O.P.139/2017: Shaikh Muhammad Arshad Latif Vs. Major (R) Azam Suleman and another Crl.O.P.167/2017: Abdul Majid and others Vs. Khalil Ahmed and others Crl.O.P.217/2017: Athar Naveed Vs. Sultan Azam Temuri Crl.O.P.4/2018: Rana Mansoor Ahmad Khan Vs. Capt. (R) Zahid Saeed, Chief Secretary Crl.O.P.92/2017: Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and others Crl.O.P.152/2016: Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and others Crl.O.P.104/2017: Khalid Mahmood Afzal, DSP Vs. Syed Tahir Shahbaz and others Crl.O.P.214/2017: Abdul Majid and others Vs. Muhammad Akbar Harifal and others Crl.M.A.1002/2017: Impleadment application on behalf of applicant namely Muhammad Sarwar Awan Crl.M.A.937/2017: Impleadment application on behalf of applicant namely Shahid Pervaiz For the appellant(s)/ applicant(s)/petitioner(s): Malik Muhammad Qayyum, Sr. ASC (In I.C.As.4 & 18/2017) Khawaja Haris Ahmed, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In I.C.As.8, 9 & 17/2017) Mr. Talat Farooq Sheikh, ASC Mr. Maqbool Hussain Sheikh, ASC Ch. Akhtar Ali, AOR (In I.C.As.6, 21, 22 & 23/2017) Mr. S. A. Mehmood Khan Sadozai, ASC (In I.C.A.19/2017) Intra Court Appeals No.4 of 2017 etc. -: 4 :- Mr. Muhammad Ahsan Bhoon, ASC (In I.C.A.2/2018) Nemo (In Crl.M.As.43 to 45/2018) Mr. Shakeel-ur-Rehman Khan, A.G. Punjab Mr. Waseem Mumtaz Malik, Addl.A.G. (In Crl.R.P.42/2017) Mr. Qamar-uz-Zaman, ASC (In C.R.P.523/2017) In person (In C.M.A.3347/2017) In person (In Crl.R.P.68/2017) Mr. Talat Farooq Sheikh, ASC (In Crl.O.Ps.125, 126, 127, 139/2017 & 4/2018, Crl.M.A.1002/2017) Mr. M. Bashir Khan, ASC (In Crl.O.P.132/2017) Mr. Qausain Faisal, ASC (In Crl.O.P.217/2017) Mr. Mushtaq Ahmed, ASC (In Crl.O.Ps.121 to 124/2017) Mr. Aziz Ahmed Malik, ASC (In Crl.O.P.96/2017) Malik Muhammad Qayyum, Sr. ASC (In Crl.O.Ps.92/2017 & 152/2016) Mr. Muhammad Faiz Ahmed Cheema, ASC (In Crl.O.P.214/2017) Malik Azmatullah Kasi, ASC (In Crl.O.P.167/2017) Nemo (In Crl.O.P.104/2017) Nemo (In Crl.M.A.937/2017) For the respondent(s): Mr. Makhdoom Ali Khan, Sr. ASC (For respondent No.5 in I.C.As.4,6,8,18,21 & 23/2017) Nemo (In Crl.R.P.42, 68 & 523/2017, C.M.A.3347/2017 & Crl.O.P.138/2017) On Court’s notice: Syed Nayyar Abbas Rizvi, Addl.A.G.P. Mr. Shakeel-ur-Rehman Khan, A.G. Punjab Mr. Saif-ul-Murtaza, AIG Legal (For IGP Punjab) Rana M. Ashraf, SO (Police) Home Deptt. Pb. Date of hearing: 21.2.2018 Intra Court Appeals No.4 of 2017 etc. -: 5 :- JUDGMENT Mian Saqib Nisar, CJ:- The titled cases, which we intend to decide through this consolidated judgment, pertain to the following three categories: i. Intra Court Appeals (ICAs) against the judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (2017 SCMR 868); ii. Criminal Original Petitions (Crl.O.Ps) for violation of the judgment dated 30.12.206 reported as Shahid Perviaz Vs. Ejaz Ahmad (2017 SCMR 206), and orders dated 08.12.2016 & 26.01.2016; and iii. Review Petitions (Crl.R.P/C.R.P) against judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (2017 SCMR 868). 2. All these matters stem out of the judgments of this Court reported as Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456). Through the former judgment inter alia the practice/concept of out of turn promotions was declared unconstitutional, being against Fundamental Rights as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973. Through the latter judgment the Review Petitions filed by the aggrieved persons were dismissed by this Court. Copies of both these judgments were ordered to be sent to the Chief Secretaries of all the Provinces as well as the Secretary, Establishment Division, Islamabad with the direction to streamline the civil service structure in line with the principles enunciated in the aforesaid judgments. On 26.01.2016, while hearing Civil Appeal No. 184-L of 2013 (Regional Police Officer Gujranwala and another Vs. Ejaz Ahmad and others), wherein the issue of anti-dated Intra Court Appeals No.4 of 2017 etc. -: 6 :- seniority of a police official was involved, this Court observed that the directions issued by this Court through the above mentioned two judgments delivered in the year 2013 and 2015 were not being complied with, especially in the Punjab Police Department. Relevant para therefrom reads as under:- “3. The learned Additional Advocate General, Punjab, states that the Punjab Government has started implementing judgments of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and till date substantial portion of seniority of the Police personnel has been re-fixed. We must record our displeasure over the inaction on the part of the Punjab Government for the directions issued by this Court in 2013 and 2015. We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be re-fixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from Constable to any gazetted officers shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I.G Police Punjab, Home Secretary, Punjab and Chief Secretary, Punjab, shall submit compliance report with the Assistant Registrar of this Court for our perusal in Chambers. This order shall be communicated to the I.G, Punjab, Home Secretary, and Chief Secretary, Punjab, for their information and compliance and non- compliance of this judgment shall expose the concerned officials to contempt proceedings.” 3. The above mentioned order of this Court dated 26.01.2016 was challenged by the employees of the Punjab Police Department through Civil Review Petition No. 49 of 2016 etc. inter alia on the ground Intra Court Appeals No.4 of 2017 etc. -: 7 :- that their out of turn promotions were earned by the acts of gallantry/ bravery during the performance of duties and they were promoted under Section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. These Review Petitions were heard by a Bench of five Honourable judges of this Court and after giving opportunity of exhaustive hearing to all the petitioners therein, these Review Petitions alongwith other connected applications were dismissed vide judgment dated 30.12.2016 (By majority of 4 to 1), and is reported as Shahid Pervaiz Vs. Ejaz Ahmed (2017 SCMR 206). 4. In Para 111 of Shahid Pervaiz’s case (supra), it was inter alia observed that the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court, “shall remain intact unless reviewed”. The relevant portion of the said Para No. 111 reads as under:- “111. Yet another anomalous consequence of this argument is that while two identical provincial laws are enacted and acted upon and one province repeals the law while the other continues with its operations. Subsequently, the vires of the law that continues on the statute books is examined by the Court and its provisions have found to be inconsistent with the Constitution or Fundamental Rights with the result that the benefits conferred or availed thereunder, unless protected by the category of past and closed transaction, have to be reversed and its deleterious effects undone. This category, quite obviously, consists of the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed.” Intra Court Appeals No.4 of 2017 etc. -: 8 :- 5. Moreover, while dismissing the said Review Petitions/Applications, compliance report was also directed to be submitted by the concerned authorities, within one month for perusal in Chambers. This exercise was directed to be completed within a period of one month. Para 143 of Shahid Pervaiz’s case (supra), wherein these observations were made is also being reproduced hereunder for ease of the reference:- “143. For the aforesaid reasons, all the listed Review Petitions and the Applications are dismissed. The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion. However, the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held without further loss of time and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers. This exercise shall be completed within a period of one month. The Advocate General, Punjab, and the learned Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities.” 6. In pursuance of the above directions, compliance report was submitted by the Inspector General of Police, Punjab (IGP) wherein, the IGP looked into each case of out of turn promotion after issuance of notices to all concerned and decided each case individually. The out of turn promotions given through the judgments of Court/ Tribunal were Intra Court Appeals No.4 of 2017 etc. -: 9 :- also withdrawn and de-notified. However, the Home Department, Government of Punjab took a contrary view and objected to it (this action by the IGP) on the premise that under Para 111 read with Para 143 of Shahid Pervaiz’s case (supra), there was an absolute protection afforded to such employees and their out of turn promotions could not be withdrawn. Against this withdrawal of out of turn promotion(s) various police employees again approached this Court by filing Criminal Original Petitions (Contempt Petitions) and various C.M.As, claiming, inter alia, that the IGP could not review their cases of out of turn promotions, which were already protected by this Court through the judgment in Shahid Pervaiz’s case (supra) in Para 111 whereby this Court had observed that the out of turn promotions granted to individuals pursuant to the judgments of High Court, Service Tribunal and the Supreme Court shall remain intact unless reviewed. These Criminal Original Petitions alongwith applications were disposed of vide judgment dated 29.03.2017 in the terms that the view point of the Inspector General of Police, Punjab was correct and the officers should be de-notified in terms of the speaking orders passed by the Inspector General of Police, Punjab. This judgment dated 29.03.2017 is reported as Interim Report by AIG Legal for I.G. Punjab, Home Department, Govt. of Punjab and Inspector General of Police, Punjab respectively (2017 SCMR 868). 7. After the judgments dated 30.12.2016 in the case of Shahid Pervaiz (Supra) and 29.03.2017 Interim Report by AIG Legal for I.G, Punjab (Supra), certain aggrieved persons have now again approached this Court by filing Intra Court Appeals, Review Petitions, Civil Review Petition and Criminal Original Petitions. Moreover, some other applications for impleadment as party have also been filed, which will follow the fate of the main cases in which they are filed. Some other petitioners have also invoked the contempt jurisdiction for violation of Intra Court Appeals No.4 of 2017 etc. -: 10 :- orders dated 26.01.2016 and 08.12.2016 passed by this Court which we will discuss in the later part of this judgment. The police officials/officers from the Province of Balochistan have also invoked the contempt jurisdiction (Crl.O.P.No.167 and 214/2017) for non-implementation of orders dated 26.01.2016 and 30.12.2016 passed by this Court in the Province of Balochistan. 8. The brief facts and relevant service profiles of the appellants/petitioners, who have claimed that the withdrawal of their out of turn promotions was against the judgments of this Court referred to above, are as under. I.C.A 4/2017 in Crl.O.P 33/2017 (Akhtar Umer Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira & others) 9. It was pleaded before us that Umer Hayat Lalayka was serving as Inspector in the Punjab Police and when he was posted at Police Station Piplan, Mianwali he displayed exemplary courage in an encounter with highly desperate elements including Ahmed Nawaz Barbari, who was killed by the appellant by putting his own life at risk. For this act of gallantry, he was recommended for out of turn promotion as Deputy Superintendent of Police (DSP) by the Superintendent of Police (SP), Mianwali to the Deputy Inspector General (DIG) on 27.07.1993. But he was denied the out of turn promotion by the Inspector General of Police (IGP), whereafter he approached Lahore High Court by filing Writ Petition No. 2445/1995, which was accepted on 03.12.1996. CPLA No.656/1995 was filed by the Government of Punjab before this Court against the said order, which was dismissed as being barred by time, however, the compatriots of the appellant filed CPLA No.1446-L/1997, which was dismissed on 18.04.1998 holding that the appellant was entitled to the out of turn promotion due to his act of gallantry. The Intra Court Appeals No.4 of 2017 etc. -: 11 :- Review Petition against this order was also dismissed by this Court on 08.07.1998. It is further pleaded that vide Notification dated 17.10.1997, appellant was promoted from the post of Inspector to DSP and now whilst he was serving as D.I.G Police, his out of turn promotion from the post of Inspector to DSP has been withdrawn vide Notification dated 17.02.2016, in pursuance of the judgments of this Court in the cases of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456). I.C.A 6/2017 in Crl.O.P 33/2017 (Manzoor Ahmed Vs. Mushtaq Ahmed Sukhaira and others) 10. It was pleaded before us that the appellant in ICA No.6/2017 namely, Manzoor Ahmed was appointed as Constable in the Punjab Police Department on 17.01.1987. He was granted out of turn promotion as Head Constable w.e.f 30.04.1990 in recognition of his performance in arresting five notorious criminals in Chiniot. Then he was granted out of turn promotion as Assistant Sub-Inspector (ASI) w.e.f 18.10.1993. Thereafter, he was granted out of turn promotion as (Sub-Inspector) SI w.e.f 05.01.2001. He filed departmental representation requesting ante- dated promotion to the rank of SI w.e.f 22.12.1996 citing and relying upon the case of out of turn promotion of one Hussain Haider, S.I. His departmental representation was rejected on the ground that the benefit extended to Hussain Haider, SI had also been withdrawn by the IGP, therefore appellant’s claim had become infructuous. He filed Service Appeal No. 908/2005 before the Punjab Service Tribunal (PST), which was disposed of with the direction to the departmental authorities to consider his case on merits. But his case was considered and rejected by the department. He again filed CMA No.789/2012 in Appeal No. 908/2005, which was rejected by the PST and decision of the department Intra Court Appeals No.4 of 2017 etc. -: 12 :- was upheld. On 30.04.2007, he was granted regular promotion to the rank of Inspector. Now his promotions to the ranks of Head Constable and then ASI, SI and Inspector have been withdrawn and after re-fixation of his seniority his status is now ASI w.e.f 12.08.2004. I.C.A 8 and 9/2017 in Crl.O.P 33/2017 (Awais Malik and others Vs. Mushtaq Ahmad Sukhera and others) 11. There are eight appellants in these ICAs. It was pleaded before us that Appellant No. 1 namely, Awais Malik joined the Punjab Police Department as ASI on 22.06.1982 and thereafter, he was promoted as SI on 22.08.1987 and subsequently promoted as Inspector on 27.08.1995. On 18.01.1997, he suffered injuries in a bomb blast, which took place in the premises of the Sessions Court, in which the Chief of a banned outfit and fifteen officers lost their lives. It was pleaded that in view of his excellent performance, the appellant was recommended for out of turn promotion as DSP, by the then IGP, Punjab, under section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which recommendation was not executed, therefore, the Petitioner filed Writ Petition before the Lahore High Court. The learned High Court disposed of the Writ Petition of the Petitioner with the direction to issue formal notification of promotion of the Petitioner as DSP. Thereafter, the Department approached this Court through CPLA Nos.443 and 584-L of 2001, which were dismissed on the ground of limitation. After dismissal of the Petitions of the Department by this Court, the Petitioner made a representation to the Home Secretary, Punjab, and eventually he was given out of turn promotion as DSP w.e.f. 18.01.1997 i.e. the date of incident and in due course he has been promoted as SP. Intra Court Appeals No.4 of 2017 etc. -: 13 :- 12. It was next pleaded that Appellant No. 2 namely, Ijaz Shafi, joined the Punjab Police Department as ASI in the year 1982 and he was promoted as SI on 09.09.1986. Due to his exceptional courage and outstanding performance shown in elimination of Wazir Khshk, a notorious Sindhi Dacoit, and recovering the entire looted amount, his name was admitted in List “F” as Inspector on 14.05.1992. But he was denied his regular promotion. He approached PST and vide judgment dated 21.03.2000 he was given ante-dated confirmation as Inspector w.e.f 06.04.1993. Pursuant to his representation before the competent authority regarding his seniority, he was given promotion as Inspector w.e.f 07.10.1990 instead of 14.05.1992 vide order dated 29.01.2003. Thereafter, in another incident, owing to his daring and persistent efforts and team work, the entire network of Lashkar-e-Jhangvi, involved in various cases of sectarian terrorism, was broken and the Governor of Punjab on a visit to Vehari on 04.04.2002 appreciating the performance of the team was pleased to announce one step promotion to the members of the team and the appellant was to be promoted as DSP, but his promotion was deferred by the Provincial Selection Board in its meeting held on 08.01.2004. Thereafter, he filed Writ Petition No. 1257/2005 before the Lahore High Court which was disposed of on 14.07.2005 having borne fruit and he was promoted as DSP w.e.f 02.02.2007. Thereafter, due to his representation to the Home Department, Punjab his date of promotion was changed to 13.03.2002 instead of 02.02.2007. He was then promoted as SP on regular basis vide Notification dated 31.01.2012. 13. It was next pleaded that the Appellant No. 3 namely, Muhammad Umer Virk joined the Police Department as ASI on 31.03.1985 and thereafter, he was promoted to the rank of Sub- Inspector on 01.11.1990. Pursuant to his outstanding performance, he Intra Court Appeals No.4 of 2017 etc. -: 14 :- was promoted as Inspector. Thereafter, again on account of gallantry performance in an operation at Thokar Niaz Beg, Lahore he was recommended for promotion to the rank of DSP. However, these recommendations did not materialize and he filed Writ Petition No. 17232/1997 before the Lahore High Court which was allowed and he was directed to be treated at par with those who had participated in the operation. The Department assailed the said order before this Court by filing CPLA No. 1226-L/1998, which was dismissed being barred by time, vide order dated 09.09.1998. Thereafter, the appellant filed contempt petition before the High Court for implementation of its orders which was disposed of as he was promoted as DSP by the Department. Now the appellant is serving as SP w.e.f 30.12.2007. 14. Appellant No. 4, namely, Rana Shahid Pervaiz was appointed as ASI on 04.03.1984 in the Punjab Police; he was promoted as SI on 05.07.1987 and then as Inspector on 05.03.1990. In the year 1996, while he was posted as SHO Hanjarwal, he participated in an operation for the arrest of notorious outlaws Mujahid @ Musa and others, who were involved in the murder of deceased Mureed Abbas Yazdani. The accused were alleged to have started indiscriminate firing at the time of Fajar Prayer in Masjid Alkhair at Multan, which resulted in the murder of many people and injuries to others. It was pleaded that as a corollary of this gallant performance, he was recommended for promotion as DSP, but not promoted hence he approached the Lahore High Court, by filing Writ Petition No. 28879 of 1997, with the prayer that he may also be given out of turn promotion like the other members of the raiding party. This Writ Petition was clubbed with an identical Writ Petition No. 8147 of 1998, and both were allowed and the learned High Court directed the Respondent-Department to grant one step out of turn promotion to the appellant. However, the Department did not accept the decision of the Intra Court Appeals No.4 of 2017 etc. -: 15 :- High Court and approached this Court through Civil Appeal No. 259-L of 2000, which was dismissed on the ground of limitation. It was pleaded that on dismissal of Appeal of the Government by this Court on the ground of limitation, the relevant committee was formed under section 8- A of the Punjab Civil Servants Act, 1974 read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which also recommended out of turn promotion of the appellant and thus he was granted one step out of turn promotion as DSP, vide Notification dated 24.05.2001, with a rider that he would be allowed to wear the rank of DSP subject to the condition that his substantive promotion would be allowed in due course after his seniors got promotion. It was further pleaded that against the above condition, the appellant filed another Writ Petition before the Lahore High Court, which was allowed and it was directed that as a civil servant is entitled to promotion from the date he performed his duties as recognized by section 8-A ibid, therefore, the condition incorporated in the Notification dated 24.05.2001 was in violation of section 8-A ibid. The Department filed CPLA before this Court, which was dismissed. After dismissal of the Petition of the Department by this Court, the appellant made a representation to the Government and accordingly he was given out of turn promotion vide Notification dated 16.08.2007, w.e.f 24.10.1996. Now he is working as SP. 15. It was next pleaded that Appellant No. 5 namely, Mr. Muhammad Usman Anwar joined the Punjab Police Department on 23.05.1988 as ASI and then was promoted as SI on adhoc basis w.e.f 29.05.1991. He filed departmental representation before IGP for his confirmation as ASI and promotion as SI on regular basis w.e.f 22.08.1990 instead of 29.05.1991. No decision was made on his representation, as such he filed Appeal No. 929/1995 before the PST, Intra Court Appeals No.4 of 2017 etc. -: 16 :- which was allowed and it was observed that the appellant should be confirmed as ASI and promoted as officiating Sub-Inspector w.e.f 22.08.1990 (instead of 29.05.1991) i.e. from the date of the act of gallantry performed by him and he should be confirmed as Sub-Inspector w.e.f 22.08.1990. Then due to change in the law, the judgment of the PST became ineffective and due to his seniority the appellant became eligible for further promotion. He submitted representation for his admission in List “F” and promotion as Inspector w.e.f 16.11.1995. His representation was rejected and he filed Appeal before the PST which was allowed on 15.04.2008 and he was directed to be confirmed as Inspector w.e.f 16.11.1995. Subsequently, a seniority list was issued, wherein his date of appointment as Inspector was not shown as 16.11.1995, therefore, he filed Writ Petition No. 9780/2014 before the Lahore High Court, which was allowed on 24.04.2014 and respondents were directed to show the seniority of the appellant w.e.f 16.11.1995 as already declared by the PST in its judgment dated 15.04.2008. Against this judgment CPLA No. 820-L/2014 was filed by the government before this Court, which was dismissed and thereafter, Review Petition No. 9/2015 was also dismissed by this Court. 16. It was further pleaded that the Appellant No. 6 namely, Naeem-ul-Hassan Babar joined the Police department on 10.03.1981 as ASI and thereafter, he was promoted as SI on 04.12.1985 and further promoted as Inspector on 08.04.1991. He was promoted as DSP vide Notification dated 29.04.1998 with immediate effect, in recognition of his extraordinary performance and exemplary courage in securing the arrest of hardcore sectarian terrorists of Lashkar-e-Jhangvi namely Nadeem alias Deemi and Muhammad Ali alias Ashfaqa. He filed representation with the Home Department, Government of Punjab for his promotion from the date of the act of gallantry i.e 04.08.1997. His representation Intra Court Appeals No.4 of 2017 etc. -: 17 :- was not decided by the department, so he filed Writ Petition No. 4816/2007 before the Lahore High Court, wherein on 13.05.2008 the Court directed that an appropriate order preferably before next date of hearing should be passed in his representation pending before the department. Thereafter, on 21.06.2008 the Writ Petition was disposed of by observing that the “Learned Additional Advocate General submits that representation filed by the petitioner has been accepted. Perhaps for the said reason, the petitioner is no more interested in following-up this petition. Disposed of accordingly.” He was promoted as SP w.e.f 31.01.2012. 17. It was next pleaded that Appellant No. 7 namely Jamat Ali Bokhari, joined the Punjab Police Department as ASI on 08.03.1982 and was promoted to the rank of SI on 12.01.1985 and then promoted as officiating Inspector on 15.11.1990. On 14.03.1998 he was granted out of turn promotion as DSP and allowed to wear the rank of DSP on the condition that his substantive promotion would be allowed in due course after his seniors got promotion. He filed departmental representation which was not decided and he then approached Lahore High Court by filing Writ Petition No. 1848/2007, which was disposed of on 22.04.2008 as having borne fruit, because the department had promoted him. Thereafter, appellant was promoted as SP w.e.f 31.01.2012. 18. It was also pleaded that the Appellant No. 8 namely Karamat Ullah Malik, joined the Punjab Police Department as ASI on 07.11.1988, was promoted as SI on 12.02.1991 and then promoted as Inspector on 05.05.1996. During his posting as Inspector on 05.03.1998 he arrested notorious Lashkar-e-Jhangvi terrorist namely Aziz Gujjar and also arrested the kidnapper of Dr. Bashir Ahmad, a renowned Neurosurgeon. On account of these achievements the then Chief Minister, Punjab on 06.03.1998 announced his one-step promotion from the rank of Intra Court Appeals No.4 of 2017 etc. -: 18 :- Inspector to DSP. Thereafter, he was again recommended for out of turn promotion on account of an encounter with Abdul Rauf alias Googa Sheesh Naag and notorious outlaws. On account of delay in his promotion he filed Writ Petition No. 4483 of 2006 before the Lahore High Court and during pendency of this Writ Petition he also filed C.M.No.539/2008 praying for decision of already filed departmental representation for his ante-dated promotion as DSP. Directions were passed in the Writ Petition for disposal of his departmental representation. Thereafter, his departmental representation was accepted on 21.06.2008 and on 30.06.2008 the Court was pleased to dispose of the said Writ Petition as having borne fruit. It was also pleaded that on account of his gallantry, the President of Pakistan was also pleased to confer upon him the President Police Medal on 12.10.2007. Later on, he earned his regular promotion as SP vide Notification dated 03.07.2015. I.C.A 18/2017 in Crl.O.P 33/2017 (Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and others) 19. It was pleaded before us that the Appellant Mansoor Naji, Inspector in the Punjab Police, while posted in FIA on deputation on 28.08.1998, smashed a gang of smugglers and recovered 5 Kg heroine from a passenger. DG, FIA on 21.05.1999 recommended his accelerated promotion as DSP in view of his excellent performance and the two employees of FIA, who were deputed with him during the said incident were given out of turn promotion by the FIA, but the appellant was not promoted. He approached PST by filing Service Appeal No. 1788/2004 which was accepted on 27.12.2004. Although he was promoted as SP on his own turn but when his appeal was accepted by the PST, then he was granted ante-dated promotion w.e.f 24.06.1998 and on that basis his seniority was re-fixed. His seniority was affirmed in the C.P.No.1486- Intra Court Appeals No.4 of 2017 etc. -: 19 :- L/2007 filed before this Court. It was further pleaded that apart from the judgment of the PST, there were two decisions of this Court in C.P.No.1486/2007 dated 15.07.2009 and C.A.No.293/2008 dated 08.09.2008 in favour of the appellant and he was entitled to the protection granted by the judgment dated 30.12.2016 in Shahid Pervaiz’s case (supra). I.C.A 19/2017 in Crl.O.P 55/2017 (Malik Muhammad Sabir Vs. Mushtaq Ahmed Sukhera) 20. It was pleaded that the Appellant Malik Muhammad Sabir was appointed in the Punjab Police Department in the year 1980 and when in the year 1993 he was Sub-Inspector and not promoted with his batch-mates, he filed an appeal before the PST, which was accepted on 27.03.2000, by holding that he should be promoted along-with his batch-mates. Then he was promoted from Sub-Inspector to Inspector. Later on in the year 2009 he was promoted as DSP as a matter of routine. I.C.A 21/2017 in Crl.O.P 33/2017 (Muhammad Sarwar Awan Vs. Mushtaq Ahmed Sukhaira and others) 21. It was submitted that the Appellant Muhammad Sarwar Awan was appointed as ASI in the year 1998 and was promoted as officiating Sub-Inspector in the year 1991. Later on, he was recommended for one step out of turn promotion as Inspector under section 8-A (supra) read with Rule 14-A (ibid), which was not implemented, therefore, the Petitioner filed Writ Petition No.8147 of 1998, which was allowed, by judgment dated 22.06.1996. However, the Department challenged the judgment of the learned High Court before this Court through Civil Petition No.226-L of 2000, which was dismissed, vide judgment dated 26.04.2000. In the intervening period, the Petitioner Intra Court Appeals No.4 of 2017 etc. -: 20 :- was promoted as DSP and now has been reverted to the post of Inspector. I.C.A 22/2017 in Crl.O.P 33/2017 (Muhammad Ashraf Chadder Vs. IGP, Punjab and others) 22. It was next pleaded before us that the Appellant in ICA No. 22/2017, Muhammad Ashraf Chadder, joined the Punjab Police Department as ASI on 20.07.1986. He was granted out of turn promotion from the post of ASI w.e.f 07.10.1989, but it was withdrawn by the competent authority, which was challenged by the appellant through Writ Petition No. 8588/2008 before the Lahore High Court and the same was allowed on 20.11.2008. Thereafter, the out of turn promotion of the appellant was confirmed on 01.07.2009 and he was deemed to be promoted from that date. His date of promotion/confirmation as Sub- Inspector was modified as 07.10.1989 from 21.07.1998. Then he was promoted as Inspector in routine and also granted promotion as DSP. Now his out of turn promotion as SI has been withdrawn by the Department and he has been reverted back to the post of Inspector. I.C.A 23/2017 in Crl.O.P 33/2017 (Mian Shafqat Ali Vs. Capt (R) Zahid Saeed and others) 23. The appellant in ICA No. 23/2017 namely Mian Shafqat Ali (Hockey Player) joined the Punjab Police Department on 22.12.1990 as temporary ASI, on the basis of Sports Policy and was confirmed w.e.f 12.06.1993. He was promoted as Sub-Inspector on 24.10.1993 and confirmed w.e.f 25.10.1995. He filed representation before IGP for promotion to the rank of officiating Sub-Inspector w.e.f 01.05.1991 i.e the date of victory at the National Junior Hockey Championship. He also filed representation before Addl.IGP seeking ante-dated promotion/confirmation as SI w.e.f 01.05.1991 instead of 24.10.1993 Intra Court Appeals No.4 of 2017 etc. -: 21 :- which was refused. Thereafter, he filed Appeal No. 1149/2007 before the PST, which was disposed of on 20.02.2008 and the department was directed to decide his representation. He was granted out of turn promotion/confirmation as Inspector w.e.f 17.10.2009 but later on his date of promotion was revised and he was promoted as Inspector w.e.f 22.10.1997. Now his out of turn promotion as ASI, confirmation as ASI, ante-dated out of turn promotion as SI and promotion to the rank of Inspector have been withdrawn by the department. I.C.A 2/2018 in Crl.O.P 62/2017 in C.R.P 89/2016 (Muhammad Haseeb Vs. Muhammad Amin Vans and others) 24. It was pleaded before us that the Appellant in ICA No. 2/2018 Muhammad Haseeb Anjum was appointed as Constable in the year 1980 and in due course he was promoted as Head Constable (HC) and on 26.12.1990 he was promoted temporarily as ASI. He was confirmed as ASI in the year 1998 and was then promoted from the date of appointment as temporary ASI. He filed a representation before the department, which was rejected vide order 07.04.2006 thereafter, he filed appeal before the PST, which was allowed vide order dated 13.10.2006 and he was granted promotion from the date of his confirmation/appointment which has now been withdrawn by the department. Crl.O.P.96/2017 (Zafar Iqbal and others Vs. Azhar Hameed Khokhar and others) 25. It was pleaded before us that the Petitioners in these contempt petitions were never promoted out of turn on the basis of gallantry rather they were promoted in accordance with the Rule 13.6 (2) of the Police Rules, 1934 as they stood either first or second in order of merit in the training. Their grievance is that their cases pending before the Punjab Service Tribunal may be decided expeditiously. Intra Court Appeals No.4 of 2017 etc. -: 22 :- Crl.O.P 121/2017 (Fida Hussain Vs. Usman Khattak and others) 26. It was pleaded before us that the petitioner in Crl.O.P 121/2017, namely Fida Hussain was appointed as Constable on 08.10.1990 and thereafter, he passed the lower class course in the year 1995. He approached PST through Appeal No. 2678/2008 for ante-dated promotion, which was accepted on 30.03.2010 and the department was directed to consider him for anti-dated promotion as ASI and SI w.e.f the date when his juniors were granted the same benefit and then he was given anti-dated promotion w.e.f 12.07.1993 in pursuance of PST Judgment dated 30.03.2010. He passed training Intermediate Class Course in the year 2008 and was promoted as ASI on 12.08.2008 and was then promoted as Sub-Inspector on 05.01.2012. Now he has been reverted to the rank of Head Constable. Crl.O.P 122 /2017 (Muhammad Shahbaz Vs. Usman Khattak) 27. The petitioner in Crl.O.P 122/2017 namely, Muhammad Shahbaz was granted promotion in pursuance of the judgment of PST dated 17.05.2012 in Service Appeal No. 48/2011, whereby the department was directed to consider his case for promotion and confirmation as ASI w.e.f 18.07.1998 and S.I w.e.f 26.11.2004. The department approached this Court by filing CPLA No. 2094/2012, which was disposed of on 28.02.2013 having become infructuous as the department had considered him for promotion. Crl.O.P 123 /2017 (Muhammad Shahbaz Vs. Usman Khattak) 28. The petitioner in Crl.O.P 123/2017 namely, Muhammad Shahbaz joined the Punjab Police Department as Constable and then was granted out of turn promotion as Head Constable in recognition of his good performance w.e.f 13.07.1993 and thereafter he filed Service Intra Court Appeals No.4 of 2017 etc. -: 23 :- Appeal before Punjab Service Tribunal for ante-dated promotion to the rank of ASI/SI being senior in rank to some other officials and his Appeal was accepted by Punjab Service Tribunal vide judgment dated 28.05.2010. He was given ante-dated promotion to the rank of ASI w.e.f 18.07.1998 and then promoted as SI w.e.f 26.11.2004. Crl.O.P 124 /2017 (Muhammad Zaman Vs. Usman Khattak and others) 29. The petitioner in Crl.O.P 124/2017 namely, Muhammad Zaman was appointed as Constable on sports basis on 19.03.1995. On winning Gold Medal in National Games, 1995 he was promoted as Head Constable w.e.f 30.04.1995. On winning Gold Medal in National Games, 1998 he was again promoted to the rank of ASI w.e.f 27.04.1998 on sports basis. He was then sent for Intermediate Class Course on acceptance of Service Appeal No. 1131/2007 by the PST vide judgment dated 15.04.2008. After qualifying the Intermediate Class Course, his case for confirmation in the rank of ASI, admission of name to promotion list “E” and promotion to the rank of Officiating SI was considered by the DPC. On recommendation of DPC he was granted confirmation in the rank of ASI w.e.f 07.04.1998 i.e. the date of promotion on sports basis, he was admitted to promotion list “E” w.e.f 04.08.2009 and further promoted to the rank of Officiating S.I w.e.f 04.08.2009. Crl.O.P 125/2017 (Muhammad Ashraf Chadder Vs. Capt. Zahid Saeed and others) 30. Crl.O.P 125/2017 has been filed on behalf of the petitioner Muhammad Ashraf Chadder against the judgment dated 30.12.2016 i.e. Shahid Pervaiz’s case (supra). He has also filed ICA No. 22/2017 against judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (supra). The detail of his service profile is given in the ICA 22/2017 above and need not be repeated. Intra Court Appeals No.4 of 2017 etc. -: 24 :- Crl.O.P 126/2017 (Khalid Farooq Khan Vs. Capt. Zahid Saeed and others) 31. Crl.O.P 126/2017 has been filed on behalf of petitioner Khalid Farooq Khan. It was pleaded that he joined the Punjab Police Department as Constable on 24.10.1989. On the basis of ‘family claim’ in the year 1993, the petitioner was promoted as Head Constable w.e.f 08.08.1993 on ad-hoc basis, keeping in view the services rendered by his elder brother late Sub-Inspector Mushtaq Ahmad, who breathed his last on duty, while serving in Karachi and was declared as “Shaheed”. It was pleaded that in the year 1994-1995, the petitioner underwent Lower Class Course and was enlisted in list “E” on 08.09.1998 and then was enlisted in list ‘C” on 01.02.1995 and then in list “D” in the year 2002. He was granted promotion as ASI on 08.09.1998 in routine and then as SI in the year 2007. The petitioner claimed that he should have been appointed initially as ASI on the basis of family claim, therefore, he filed Service Appeal No. 1853/2006 which was allowed on 15.12.2006 in which it was inter alia held that the petitioner should have been granted promotion as ASI form the date his next junior and others were promoted. Thereafter, he was promoted by the order of PST, which was got implemented by filing Writ Petition No. 11383/2007 before the Lahore High Court. He was granted promotion as ASI w.e.f 08.09.1998 as per entitlement on family claim basis and Sub-Inspector w.e.f 04.12.2004. Crl.O.P 127/2017 (Mian Shafqat Ali Vs. Capt. Zahid Saeed and others) 32. Crl.O.P 127/2017 has been filed on behalf of the petitioner Mian Shafqat Ali for violation of the judgment dated 30.12.2016 reported as Shahid Pervaiz (supra). He has also filed ICA No. 23/2017 against judgment dated 29.03.2017 Interim Report by AIG Legal for I.G, Punjab Intra Court Appeals No.4 of 2017 etc. -: 25 :- (Supra). The detail of his service profile is given in the ICA 22/2017 above and need not be repeated. Crl.O.P 132/2017 (Yousaf Ali Vs. Israr Abbasi and another) 33. It was pleaded that in the year 2003 when the petitioner was working as Head Constable in Rawalpindi, there was an attack on the President of Pakistan in Rawalpindi. He identified and arrested the accused and due to this performance on 26.05.2005 the DIG granted him shoulder promotion as ASI, but no seniority or salary of ASI was given to him, thereafter on 05.07.2011 after six years his shoulder promotion was withdrawn. He filed Service Appeal before the PST, which was accepted on 19.07.2012. The Department approached this Court by filing CPLA against this decision, which was dismissed by this Court and his rank was restored. Now again w.e.f 03.10.2016, he has been reverted to the rank of Head Constable. Crl.O.P 139/2017 (Shaikh Muhammad Arshad Latif Vs. Major (R) Azam Suleman and another) 34. Crl.O.P 139/2017 was filed on behalf of petitioner Shaikh Muhammad Arshad Latif. It was pleaded that he joined the Police Department as ASI in the year 1984. He was confirmed as such in the year 1989 and was promoted as SI in the same year. He was confirmed as SI in 1991 and admitted to list “F” in the year 1993. He was considered for out of turn promotion as Inspector and back dated confirmation as SI. He was promoted as Inspector on officiating basis w.e.f 17.10.1990 in view of the recommendations made for his accelerated promotion. He filed Service Appeal No. 2128/2005 before the PST which was accepted on 19.07.2006 and the competent authority was directed to consider him for confirmation as ASI from the date of his appointment and it was further directed that he should also be Intra Court Appeals No.4 of 2017 etc. -: 26 :- considered for ante-dated benefits provided his service record during the period of probation as ASI had remained satisfactory and if the seniority of anyone essentially senior to him was not compromised. He filed W.P.No.12998/2012 before the Lahore High Court, for implementation of order of PST dated 19.07.2006 and for confirmation as Inspector w.e.f 04.04.1991, which was disposed of on 24.11.2015 due to the fact that the judgment had been complied with as he was considered for promotion and his case was rejected, but in pursuance of some other judgment he was again considered for promotion and promoted as DSP. Now he has been reverted to the post of Inspector. Crl.O.P 4/2018 (Rana Masroor Ahmad Khan Vs. Capt. (R) Zahid Saeed, Chief Secretary) 35. It was pleaded that the Petitioner Rana Masroor Ahmad Khan joined the Punjab Police Department as ASI on 13.03.1983. He was promoted as Sub-Inspector on 03.10.1986 and thereafter, granted out of turn promotion as Inspector on 08.10.1989, which was withdrawn and he was promoted as confirmed Inspector w.e.f 14.06.1991 and then vide Notification dated 30.04.1997 he was promoted as DSP. He filed Service Appeal No. 2583/2005 before the Punjab Service Tribunal for anti-dated seniority, which was allowed vide judgment dated 11.03.2008 and the petitioner was deemed to be promoted from the year 1997. Thereafter, the department approached this Court through Civil Appeals No. 627 to 631 & 1753/2008 against the petitioner and other employees of the Department assailing the judgment rendered by the PST dated 11.03.2008; the said Appeals were dismissed by this Court on 18.05.2009 having become infructuous and the order was got implemented by filing Writ Petition No. 25940/2010 before the Lahore High Court, which was disposed of on 10.05.2012 having fructified. The Intra Court Appeals No.4 of 2017 etc. -: 27 :- petitioner was promoted as SP on 10.05.2012 and now stands reverted to the post of DSP. Crl.R.P.68/2017 (Kafayat Ullah Bajwa Vs. IGP, Punjab) 36. Kafayat Ullah Bajwa (in person) was promoted as Inspector w.e.f 20.12.1991 due to his participation and gallant performance in a police encounter, which took place in the area of P.S Bhikki, District Sheikhupura on 20.12.1991, wherein one DSP and a Constable were martyred and four proclaimed offenders were killed. He was confirmed as Sub-Inspector due to a decision of this Court reported as Inspector- General of Police, Lahore Vs. Qayyum Nawaz Khan (1999 SCMR 1594), wherein it was settled that the date of confirmation cannot be other than the date of promotion. Therefore, he was granted date of confirmation as 07.10.1990 instead of 20.12.1991. During the interregnum period he was also promoted as DSP w.e.f 05.08.2005. He approached PST, Lahore by filing Service Appeal No.604/2008, which was accepted vide judgment dated 09.06.2009, but it was not implemented. Therefore, for its implementation he filed Writ Petition No. 3862/2010 before the Lahore High Court which was accepted on 25.05.2010. The said judgment attained finality when CPLA filed by the department before this Court was dismissed on the point of limitation. It was pleaded that when he was not being considered for promotion by the competent authority, he filed contempt petition before the Lahore High Court and it was in pursuance of that contempt petition that he was promoted from the rank of DSP to that of SP w.e.f 10.05.2012. He has been reverted to the post of DSP vide notification dated 28.06.2016. C.R.P 523/2017 in CMA. 687/2017 (Mrs. Nasim Chaudhry Vs. IGP/Provincial Police Officer, Punjab, Lahore) Intra Court Appeals No.4 of 2017 etc. -: 28 :- 37. It was pleaded that the petitioner Mrs. Nasim Chaudhry was originally appointed as Sub-Inspector on 27.11.1986 and was confirmed on 01.07.1987 and in due course she became officiating Inspector on 27.11.1991 after five years. She was confirmed as Inspector on 20.11.1992. In the year 1993, she was given ante-dated seniority w.e.f 1988 on account of some outstanding action/ gallant act on her part when she had arrested some desperado in 1988. However, in 1997 the ante-dated seniority given in the year 1993 was withdrawn. Meanwhile DPC was held for promotions as DSP but she was not considered for the promotion. She approached the Punjab Service Tribunal and it was observed by the PST that she should be promoted along-with her juniors and she had not superseded anyone. IGP filed CPLA No.1617-L/1997 before this Court, which was dismissed on 15.04.1999. The petitioner approached Lahore High Court for implementation of the orders of this Court and in the contempt petition learned High Court vide order dated 27.09.1999 directed that the petitioner should be given promotion, but the IGP again approached this Court by filing Petition against the order dated 27.09.1999. This Court dismissed the petition vide order dated 20.10.1999 which is reported as Ziaul Hassan Vs. Naseem Chaudhry (2000 SCMR 645). Finally on 02.11.1999 the petitioner was promoted as DSP. Now in pursuance of judgments of this Court the Department has withdrawn her promotion as DSP and she has been reverted to the post of Inspector w.e.f 2014. C.M.A 3347/2017 in C.R.P Nil/2017 in C.M.A 687/2017 in C.R.P.51/2016 (Jamil Ahmed Vs. Capt. (R) Zahid Saeed and others) 38. It was pleaded that the Petitioner Jamil Ahmed was appointed as ASI in the year 1998. Being instrumental in causing arrest of wanted terrorists, he was granted out of turn promotion in the year 1991 as Sub-Inspector and then out of turn promotion as Inspector in Intra Court Appeals No.4 of 2017 etc. -: 29 :- the year 1998, under Section 8-A ibid. It was further pleaded that even in the year 1999, the Petitioner was recommended for out of turn promotion as DSP, which recommendation was not considered, therefore, he filed numerous writ petitions and Contempt Applications before the Lahore High Court and eventually he was promoted as DSP on 20.09.2010. It was pleaded that after an observation made by this Court vide order dated 26.01.2016, in Civil Appeal No.184-L of 2013, the Petitioner has been relegated to the post of ASI. 39. Khawaja Haris Ahmad, learned Sr.ASC, appeared for the appellants in ICA Nos. 8, 9 & 17/2017 and Crl.M.A.937/2017 in Crl.O.P 104/2017. He contended that the issue of out of turn promotions was first taken up in the case of Contempt Proceedings against the Chief Secretary Sindh (2013 SCMR 1752) and two things which come into focus in the said judgment are: i) the manner in which out of turn promotions were granted alongwith the legal frame work which governed them in the province of Sindh; and ii) that the concept of out of turn promotions was declared unconstitutional being against the Fundamental Rights of others whose smooth promotion was hampered. He next contended that in the Review Petition of this case i.e. Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456), again the concept of out of turn promotions was considered and while considering the issue of retrospective application of the judgment the cut-off date of 1994 given in the earlier judgment i.e Contempt Proceedings against the Chief Secretary (Supra) was left open. He next submitted that the present appellants filed Review Petitions before this Court, in light of the laws applicable to the Province of Punjab, but ultimately their Review Petitions were dismissed by this Court vide judgment dated 30.12.2016 in Shahid Pervaiz’s case (supra) inter alia on the ground that the law of out of turn Intra Court Appeals No.4 of 2017 etc. -: 30 :- promotions was unconstitutional and any person who had benefited from it, could not be allowed to continue taking that benefit. He also contended that two exceptions were created in the said judgment of Shahid Pervaiz (supra) i.e. i). the persons who had retired or died; and ii). as per 111 of the said judgment, the employees who got their out of turn promotions in pursuance of some judgments, whether of the Service Tribunal, High Court or the Supreme Court, were protected unless their cases were reviewed. 40. He next submitted that in pursuance of this judgment dated 30.12.2016, the IGP, Punjab as well as Home Department, Punjab undertook an exercise and made a report regarding persons whose out of turn promotions were to be protected and then there arose the difference of opinion between the IGP and the Home Department, Punjab. The first difference was that the Home Department was of the view that all those who had any judgment in their favour had absolute protection but the IGP went into greater details and stated that if some judgment was passed on the ground that the petitioner was being discriminated against in comparison to some other employee who had been granted out of turn promotion (without having any judgment in his favour) and now when that other person was no longer protected, therefore, the out of turn promotions of those petitioners (having judgments in their favour) also could not be protected as the very basis of the judgment(s) i.e discrimination stood removed. He submitted that the other factor which was taken into consideration by the Home Department and not agreed to by the IGP, Punjab was the fact that seven out of the eight appellants had already been encadred and had become Superintendent of Police (SP) in the normal course and now they were part of the Police Service of Pakistan (PSP) which was not a matter, wherein the jurisdiction lay with Intra Court Appeals No.4 of 2017 etc. -: 31 :- the IGP, as the Home Department had to move the Establishment Division for withdrawal of their out of turn promotion. He went on to submit that once a Police officer becomes DSP he is part of the Provincial cadre and then a Provincial Selection Board has to be convened to consider whether he is fit to be promoted as SP and when he becomes SP then he becomes part of the Police Service of Pakistan. 41. He also contended that in the given circumstances, the appellants took this protection as an absolute protection. Moreover, in each and every order passed by the Service Tribunal/Courts, whether decided on merits or otherwise, their rights were protected. Therefore, in terms of the judgment in the case of Shahid Pervaiz’s case (supra) itself, their cases were protected. He next contended that in Shahid Pervaiz’s case (supra) mainly two sets of Criminal Original Petitions (Contempt Petitions) were filed. In first set the petitioners were those who had judgments of judicial fora in their favour; and in the second set were Petitioners who sought implementation of the above mentioned judgment. 42. The learned counsel, after referring briefly to the Service Profiles of all the eight appellants, further contended that the law itself had provided for the out of turn promotions and Section 8-A was inserted in the Punjab Civil Servants Act, 1974 on 08.11.1987 through an amendment and then correspondingly on 09.02.1989 Rule 14-A was also introduced in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. He further contended that section 8-A ibid provided for promotion in case of exceptional and extra ordinary performance on the basis of gallantry and honesty etc., but this section was omitted on 17.10.2006 and similarly, Rule 14-A ibid was also omitted through a Notification dated 02.11.2007. The learned counsel next contended that neither the appellants/petitioners were instrumental in enacting this law Intra Court Appeals No.4 of 2017 etc. -: 32 :- nor did they have any role in its omission. Furthermore, all of the appellants/petitioners before this Court earned their out of turn promotions whilst this law was intact and even in the report of the IGP Punjab, there is no indication whatsoever that the promotion granted to any of the individuals before this Court was against the law or in breach of any rule. Learned counsel also submitted that when the Review Petitions were dismissed by this Court vide Judgment dated 30.12.2016 in Shahid Pervaiz’s case (supra), the five member bench protected past and closed transactions through a saving clause. He claimed that the present appellants/petitioners fall in that saving clause as provided in para 111 of the judgment in Shahid Pervaiz’s case (supra). 43. He further submitted that the appellants/petitioners are exceptional police officers and there is no element of fake/illegal police encounters, manipulation or corruption on their part. They have also won awards and medals. He went on to argue that it was the law of the land in terms of Article 4 of the Constitution of Pakistan and there is long chain of judgments of this Court, starting from the case of Capt. (Retd). Abdul Qayyum v. Muhammad Iqbal (PLD 1992 SC 184) to Farhat Abbas Vs. Inspector General (2009 SCMR 245), wherein the law of out of turn promotions has been upheld. In all these cases the out of turn promotions were either upheld or the departmental authorities were directed to act according to law and grant the out of turn promotions to the employees and the Service Tribunal/ High Court/this Court never decided the merits, suitability or fitness of the employees. Moreover, he contended that most of these cases were decided mainly on two grounds; firstly, that if once the out of turn promotion was announced under the valid law and the procedure was followed then the concerned authorities had to abide by that and the petitioners could not be denied the out of Intra Court Appeals No.4 of 2017 etc. -: 33 :- turn of promotion; and secondly, when the other employees were given out of turn promotions then claimants were also held entitled. 44. His next contention was that in terms of Article 189 of the Constitution, the judgments of this Court are binding on all other Courts and it was for the first time in the case of Muhammad Nadeem Arif v. Inspector General of Police (2011 SCMR 408), that the concept of out of turn promotions was declared against the Constitution and Islam, but even in this Judgment the out of promotion was not set-aside. He then referred to the case of Ghulam Shabbir v. Muhammad Munir Abbasi (2011 PLC (C.S.) 763), to substantiate that the law on the point of out of turn promotions was never struck down, despite observing it unconstitutional and against the injunctions of Islam and it was only so done in the case of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) on 12.06.2013, but none of the above referred judgments were either recalled or specifically discussed and held to be per incuriam. 45. He next argued that certain exceptions were created by the Court itself in Shahid Pervaiz’s case (supra), e.g. in para No. 111 the judgments of judicial fora were protected; in para No. 119 an exception was created to save retired/ dead employees; and in Para No. 143 this Court observed that “the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment”. He next referred to para No. 123 of Shahid Pervaiz’s case (supra) regarding past and closed transactions wherein it was observed that:- “123. We are clear in our view that the issue of past and closed transaction (except what has been concluded in paragraph 111) does not arise in the instant case as we have already declared void ab initio Intra Court Appeals No.4 of 2017 etc. -: 34 :- the legislative instruments that provided for out of turn promotions.” The learned counsel contended that nowhere in the judgment were the legislative instruments declared void ab initio, and if these legislative instruments had been void ab initio then why were the exceptions created? 46. He then submitted that both in terms of Articles 4 and 189 of the Constitution of Pakistan sanctity and certainty is attached to the orders of the Court. When law is made by the legislature, thereafter interpreted and declared by this Court and followed by the department then the rights of the parties should be protected. He also contended that in these cases the out of turn promotions were granted 15-20 years prior to the striking down of this law. There will be no judgment on the merits of the out of turn promotions because the law had itself provided that the recommendations made for out of turn promotion would be placed before the Selection Board, for its determination and only thereafter, the out of turn promotion would be granted. He next submitted that the judgments rendered by the Courts are mostly those, wherein the out of turn promotions in the first instance were provided, promised and/or being processed, but thereafter, were either withheld or delayed or the IGP was transferred and the next IGP, who followed, thought differently. 47. Khawaja Haris Ahmad, learned Sr.ASC also contended that the phrase “in pursuance of” as used in para 111 of Shahid Pervaiz’s case (supra) should be given concrete meaning, because through this phrase a saving clause was created for the employees who had judicial verdicts in their favour and in most of the Notifications while granting out of turn promotions under the orders of Service Tribunal /Court this phrase has been used. He next contended that when the judgment dated Intra Court Appeals No.4 of 2017 etc. -: 35 :- 30.12.2006 was delivered by the five member bench then nothing could be added or subtracted in that judgment but this Court through judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (supra) while upholding the view point of IGP added something new which was not there in the main judgment. He further submitted that while considering interim report of IGP, a Bench consisting of two Hon’ble Judges also passed an order dated 14.02.2017, wherein certain additional observations were made which were not there in the original order. He added that this Court vide judgment dated 30.12.2016 had directed that the seniority of all those having earned out of promotion be fixed with their batch-mates, but in the order dated 14.02.2017 reference was also made to the earlier judgments of this Court and the compliance of all those judgments was sought by observing that in no case would out of turn promotions be upheld, so it was an addition to the judgment dated 30.12.2016 rendered in the case of Shahid Pervaiz’s case (supra). He also contended that although the judgment dated 29.03.2017 itself clarifies that this Court is not reviewing the judgment dated 30.12.2016, but in essence the judgment was reviewed. 48. Adding to the above contention the learned counsel next submitted that the other ground on which the judgment dated 29.03.2017 was passed, was that these cases could be reviewed because these matters do not fall within the jurisdiction of the High Court under Article 212, and the employees should have approached the Service Tribunal and these orders of the High Court are nullity in the eyes of law. This according to the learned counsel was an additional reason given for denying the out of turn promotions. He also contended that this was not a case of promotion in terms of eligibility, rather it was case of fitness & suitability and it has been held by the Courts that fitness and suitability Intra Court Appeals No.4 of 2017 etc. -: 36 :- does not come within the jurisdiction and domain of the Service Tribunal. 49. Learned Counsel next submitted that the orders passed by the IGP for withdrawal of the out of turn promotions are not the speaking orders for the reason that he also took into account the order of this Court dated 14.02.2017, whereby this Court had directed that the earlier judgments of this Court be adhered to and since the judgment in Shahid Pervaiz’s case (supra), which had created exceptions, was not referred to in the order dated 14.02.2017 of this Court, therefore, the IGP was made to follow and implement the earlier judgments, which was against the mandate of Shahid Pervaiz’s case (supra) and an addition in the main judgment. 50. He lastly submitted that the appellants have been enjoying these offices for a long period of time and are not responsible for whatever benefit they have gained or acquired through out of turn promotions. They approached the Courts of law and the Courts granted them the benefit of an out of turn promotion. Now it is a matter of human dignity that their rights may be protected as they are going to be adversely affected. While concluding his arguments he prayed that as in Para 119 of Shahid Pervaiz’s case (supra) dead and retired employees were saved by creating an exception, in the same lines, keeping in view the spirit of Articles 9 and 14 of the Constitution of Pakistan, an option to retire may be given to these persons within a reasonable period of time. 51. Malik Muhammad Qayyum, learned Sr.ASC appeared in ICA Nos. 4 & 18/2017 on behalf of Appellants Akhtar Umer Hayat Lalayka and Mansoor Naji respectively. He has also appeared in Crl.O.P.Nos.92 and 152/2016 filed on behalf of Mansoor Naji. The learned counsel after giving the service profile of both appellants contended that in the Intra Court Appeals No.4 of 2017 etc. -: 37 :- judgment dated 30.12.2016 rendered in Shahid Pervaiz’s case (supra) an exception was created by this Court itself and the out of turn promotions earned through judicial orders were protected and this exception should be implemented,. He also contended that the out of promotions already granted were to be protected under the principle of past and closed transactions and these past and closed transactions could not be hit by some new interpretation and now by way of changing the interpretation the benefit of out of turn promotion earlier granted, under the valid law at that time and thereafter validated through judgments, could not be taken away especially by the judgments in which the appellants were not a party, despite the fact that section 8-A supra was omitted in the year 2006. Regarding doctrine of past and closed transactions he referred to the cases of Income Tax Officer Karachi v. Cement Agencies (PLD 1969 SC 322), Pir Baksh and another v. Chairman Allotment Committee (PLD 1987 SC 145). He further added that if an exception is correctly created then there is no need to review it. The learned counsel lastly submitted that the appellant Mansoor Naji did not want to exercise the option of retirement. However, Umer Hayat Lalayka wanted to exercise the option of retirement, if it was so provided. 52. Mr. Tallat Farooq Sheikh, ASC appeared for appellants in ICA Nos. 6, 21, 22 & 23/2017 on behalf of appellants Manzoor Ahmed, Muhammad Sarwar Awan, Muhammad Ashraf Chadder and Mian Shafqat Ali, respectively. He has also appeared in Criminal Original Petition Nos. 125, 126, 127, 139/2017 & 4/2018 on behalf of petitioners namely Muhammad Ashraf Chadder, Khalid Farooq Khan, Mian Shafqat Ali, Shaikh Muhammad Arshad Latif and Rana Mansoor Ahmad Khan, respectively. The learned counsel submitted that the promotions of the appellants/petitioners were protected in light of Para 111 of Shahid Pervaiz’s case (supra). He further added that Khalid Farooq Khan was Intra Court Appeals No.4 of 2017 etc. -: 38 :- never granted out of turn promotion and his promotion as Head Constable was based on a family claim as his brother was martyred, while serving as SI in the Sindh Police, therefore the same could not be withdrawn. He further submitted that the out of turn promotion granted to Rana Masroor Ahmad Khan had already been withdrawn, therefore, the Department had violated the judgment dated 30.12.2016. He also contended that the out of turn promotions granted through the judgments of the Service Tribunal / Courts were protected under Para 111 of Shahid Pervaiz’s case (supra) and Article 264(c) of the Constitution which provided that the rights accrued under a repealed law would not be affected. He has also prayed that contempt proceedings be initiated against the Respondents for not implementing the judgment of this Court in Shahid Pervaiz’s case (supra) in its letter and spirit. 53. Mr. S.A Mehmood Khan Saddozai, ASC appeared on behalf of Malik Muhammad Sabir appellant in ICA 19/2017 and submitted that in the year 1993, when appellant was Sub-Inspector and not promoted with his batch-mates, he filed appeal before the PST which was accepted on 27.03.2000, by holding that he should be promoted alongwith his batch-mates. Then he was promoted from Sub-Inspector to Inspector. Later on in the year 2009 he was promoted as DSP as a matter of routine. The learned counsel contended that the appellant never got out of turn promotion and now the department had reverted him under the garb of implementation of judgments of this Court. He added that the appellant was inducted in 1980 in the police department and now having 36 years of service, he was on the verge of retirement. 54. Mr. Ahsan Bhoon, learned ASC appeared for the appellant Muhammad Haseeb Anjum in ICA No. 2/2018 and submitted that the appellant was appointed as Constable in 1980 and in due course he was promoted as Head Constable and on 26.12.1990 he was promoted Intra Court Appeals No.4 of 2017 etc. -: 39 :- temporarily as ASI. He was confirmed as ASI in 1998 and was then promoted from the date of appointment as temporary promotion. He filed a representation before the department, which was rejected vide order 07.04.2006 thereafter, he filed an appeal before the PST which was allowed vide order dated 13.10.2006 and he was granted promotion from the date of his confirmation/appointment which has now been withdrawn by the department. 55. The learned counsel contended that during the hearing of these matters earlier, IGP was directed to submit a report of all those cases which were protected by Court orders and in response to that direction, the IGP had filed a list of 129 persons whose cases were protected, as falling in the exception created by para 111 in Shahid Pervaiz’s case (supra) and the name of the petitioner was present in that list. He further submitted that the appellant had filed Crl.O.P.No.62/2017 against the judgment dated 30.12.2016, which was dismissed vide judgment dated 29.03.2017. Now he has filed this ICA against the judgment dated 29.03.2017. 56. Mr. Aziz Ahmed Malik, learned ASC appearing for the petitioners in Crl.O.P No. 96 of 2017 submitted that the petitioners in this case were never promoted out of turn on the basis of gallantry rather they were promoted in accordance with the Rule 13.6 (2) of the Police Rules, 1934 as they stood either first or second in order of merit in training. He further submitted that the petitioners had earlier approached this Court by filing review petition (C.R.P.No.285/2016 in C.A.No.184-L/2013) against the order of this Court dated 26.01.2016 which was disposed of by this Court in the following terms: “We have heard the learned ASCs for the review Petitioners. Their prime contention is that the judgment under review dated 26.01.2016, and the ratio of other two judgments in the case of Contempt Proceedings Intra Court Appeals No.4 of 2017 etc. -: 40 :- against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), was not at all applicable or attracted in their cases, however, through different Orders, they have been non-suited by the departmental authority, solely on this account. 2. When confronted with this position, Mr. Kamran Adil, AIG (Legal), Punjab, states that the departmental authority will be ready to examine such contentions of the petitioners in case representations are made in this regard. 3. With the above statement, the learned ASCs for the review petitioners are satisfied, but they request for some fixed time frame to avoid inordinate delay in such exercise. 4. In view of the above, these petitions are disposed of with the observation that in case representations are made by the petitioners before the competent authority, that shall be heard and disposed of as expeditiously as possible.” The learned counsel next contended that the petitioners had approached the departmental authorities in light of the above observations, but as their representations did not receive any positive response, they approached the PST and now their matters are pending before the said forum. He further submitted that he will be satisfied if directions are given for decision of these cases expeditiously before the said forum. 57. Mr. Mushtaq Ahmed, ASC appeared on behalf of petitioners in Crl.O.P.No.121 to 124/2017 and contended that the petitioners were protected under Para 111 of Shahid Pervaiz’s case (supra) and the respondents have committed contempt of this Court by not implementing the judgment dated 30.12.2016 and the petitioners despite having Intra Court Appeals No.4 of 2017 etc. -: 41 :- judicial orders in their favour have been reverted/ demoted, therefore, contempt proceedings be initiated against the Respondents. 58. Mr. Qausain Faisal, learned ASC appeared for the petitioner in Crl.O.P.No.217/2017 and contended that the appellant’s case was protected under para 111 of Shahid Pervaiz’s case (supra) as the petitioner had a judgment of the PST dated 28.02.2008 in Appeal No. 2549/2007 in his favour, whereby he was granted seniority as confirmed Inspector w.e.f 21.04.1999 which was implemented and the said judgment having not been assailed before any higher fora had attained finality and was protected under the principle of past and closed transaction. He prayed that contempt proceedings be initiated against the Respondents for not implementing the judgment of this Court in Shahid Pervaiz’s case (supra) in its letter and spirit. 59. Yousaf Ali appeared in person in Crl.O.P.No.132/2017 and submitted that his case was also protected as having been decided upto the level of this Court and now when he has been reverted to the rank of Head Constable, the department has committed contempt of the judgment of this Court. He has prayed that contempt proceedings be initiated against the Respondents for not implementing the judgment of this Court in Shahid Pervaiz’s case (supra) in its letter and spirit. 60. Mr. Shakil-ur-Rehman Khan, learned Advocate General Punjab through Crl.R.P. No.42/2017 seeks review of judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (supra), whereby the view point of IGP, Punjab was considered as correct as against that of the Home Department, Government of Punjab which was of the view that all the persons having judicial decisions in their favour were protected by the judgment of this Court in Shahid Pervaiz’s case (supra). The learned law officer contended that when this Court in Para Nos. 111 & 143 of Shahid Pervaiz’s case (supra) had directed that Intra Court Appeals No.4 of 2017 etc. -: 42 :- the cases decided by the judicial forums will not be opened and will be treated as past and closed, then how could the executive authority i.e. IGP, Punjab review the judgments passed by the judicial fora? He next submitted that although the Government of Punjab had no cavil with the implementation of the judgment, but the remarks in Para 17 of the judgment dated 29.03.2017 Interim Report by AIG Legal for I.G, Punjab (Supra), may be expunged, wherein this Court was pleased to observe that: “17. ….…….However, now before us the Home Department and the learned AG have taken a complete u-turn and support the very same out of turn promotions that were earlier opposed by them of the pretext of the judgment in the Shahid Pervaiz case.” 61. Kafayat Ullah Bajwa appeared in person in Crl.R.P.No.68/2017 in Crl.O.P.No.60/2017. He seeks review of the judgment dated 29.03.2017. He submitted that his case was protected under Para No. 111 read with Para No.143 of the judgment dated 30.12.2016 and the three member Bench could not withdraw the protection given by Para 111 in Shahid Pervaiz’s case (supra) by endorsing the view point of IGP. 62. Mr. Jamil Ahmed appeared in person in the two petitions i.e. C.M.A.No.3347/2017 in C.R.P.No.Nil/2017 in C.M.A.No.687/2017 in C.R.P.No.51/2016 and Crl.O.P.No.138/2017. Through the first one which is an impleadment application, wherein after being impleaded he seeks review of the judgment of this Court dated 29.03.2017 in the case of Interim Report by AIG Legal for I.G, Punjab (Supra), whereas, through the second one he has invoked the contempt jurisdiction of this Court alleging that contempt of judgment dated 30.12.2016 has been committed. He has submitted that the three member bench of this Court Intra Court Appeals No.4 of 2017 etc. -: 43 :- vide judgment dated 29.03.2017 could not review the judgment dated 30.12.2016 passed by 5-Member Bench and moreover the IGP Punjab had no authority whatsoever, under the law to review the orders of this Court as the out of turn promotions earned through judicial orders were protected under Para 111 of Shahid Pervaiz’s case (supra). He also contended that the then IGP Punjab committed contempt of this Court by not protecting his out of turn promotion and the IGP could not sit in appeal over the judgment of this Court and review a matter which was already decided by the High Court and protected through the judgment of this Court. He prayed that contempt proceedings be initiated against the Respondents for not implementing the judgment of this Court in Shahid Pervaiz’s case (supra) in letter and spirit. 63. Mr. Makhdoom Ali Khan, learned Sr.ASC appeared on behalf of Respondent No.5 in ICA Nos.4, 6, 8, 18, 21 and 23 of 2017. He contended that the main line of arguments before this Court by the appellants / petitioners (in the Intra Court Appeals or the Contempt Petitions) has been the gallant record of the appellants/petitioners and that they were deservedly promoted out of turn. According to the learned counsel this argument was already considered in Shahid Pervaiz’s case (supra) and rejected and against that judgment no Review or Intra Court Appeal is pending before this Court, therefore, that judgment has become final. Learned counsel referred to Para 118 of Shahid Pervaiz’s case (supra) relevant part of which is reproduced hereunder: “118. The contention of the learned Counsel that the effect of the aforesaid judgments which declares the concept of out of turn promotion unconstitutional cannot be extended to apply retrospectively on the cases where law granting out of turn promotions was omitted, is without force…………….. Thus, there is neither any reason in principle nor any precedent which bars the Intra Court Appeals No.4 of 2017 etc. -: 44 :- Courts from examining the provisions of a repealed statute in a case pending before it on the touchstone of its inconsistency with the provisions of the Constitution or the Fundamental Rights, as enumerated in the Constitution.” Mr. Makhdoom Ali Khan, learned Sr.ASC next contended that the argument regarding prospective or retrospective application of the judgment and the principle of past and closed transactions was also considered and rejected with a few carve outs and it was observed by this Court that the officers, who are presently serving the department cannot seek shelter under the doctrine of past and closed transactions. He further submitted that this view of the Court was in line with the case of Pensionary benefits of Judges reported as Application by Abdul Rehman Farooq Pirzada v. Begum Nusrat Ali Gonda (PLD 2013 SC 829). Moreover, he added that the learned Bench itself observed that there were two carve outs from the principle of past and closed transactions and the retrospective application of the judgment. These carve outs were the employees who had retired or died. He relied on Para No. 119 of the judgment in the Shahid Pervaiz’s case (supra). 64. The learned counsel next contended that regarding employees who are still in service, there was a further carve out in the judgment and it was observed that the cases decided by the Service Tribunal/Courts would be protected unless reviewed. He pointed out that the cases decided by the Service Tribunal /Courts were mostly decided on the basis of limitation and there were no orders on the merits of the cases. He further contended that these cases decided by the judicial forums were either decided on the ground of discrimination or merely disposed of without discussing the merits of the case on the ground that the petition/appeal had borne fruit as during pendency of the matter, the Intra Court Appeals No.4 of 2017 etc. -: 45 :- employee was promoted out of turn by the department itself. He also contended that the cases which were decided on the basis of discrimination were again divided into two parts i.e. One, the cases wherein the persons were granted out of turn promotion on the basis of a gallant act in the same incident; and second, the cases wherein the appellants were relying on each other’s case. He also added that in one case all that the Service Tribunal said was to decide the case on merits and nothing further, so all these cases did not belong to the category, which could be said to be protected by a Court order. 65. He further contended that when the report of IGP, Punjab came up before the three member bench then there were two options i.e. either the IGP had the power or did not have the power to review. In either case it would end up giving meaning to the words “they shall remain intact, unless reviewed”. The meaning which the 3-Member Bench of this Court placed on this phrase was that the review had to take place at the departmental level and this was the interpretation of the Bench given in the judgment dated 29.03.2017. 66. He lastly, contended that now even this Court can Suo Moto review the matter and remove the exception given in Para 111 read with Para 143 of the judgment dated 30.12.2016, whereby the out of turn promotions granted in pursuance of any judicial order were protected. He added that the Court would be absolutely justified to review it on account of three reasons: i. These cases were decided on the basis of discrimination with some other person/officer and those persons themselves have now been reverted; ii. In some of the cases there was no protection given at all because the matter was disposed of due to the reason that the petition had borne fruit or it was directed that the case should be decided on merits by the department; and Intra Court Appeals No.4 of 2017 etc. -: 46 :- iii. The cases pertaining to the Sports category were never part of the carve out either in para 111 or 119 of Shahid Pervaiz’s case (supra). The learned counsel while concluding has prayed that these cases may be dismissed with costs. 67. We have heard learned counsel for the parties and perused the record with their able assistance. 68. First of all we would like to deal with the argument of past and closed transactions, which is the core issue in the instant matter. In Shahid Pervaiz’s case (supra), this argument was also raised and considered, wherein it was inter alia observed that:- “116. As to the claim that the out of turn promotions are covered by the doctrine of past and closed transaction, the infirmity of the argument is self-evident. Sometimes there are wrongs without individual victims while in other cases there are identified individual victims. The brunt of out of turn promotions is always borne by the individual officers who were bypassed due to out of turn promotions. The damaging effect on the careers of deserving officers who suffered due to these out of turn promotions continue during service and even after retirement in terms of pensionary benefits. If the beneficiaries of this illegal exercise are reverted to the positions to which they would have been entitled to, on their respective merit and promotion, on their turn, this would immediately open up vistas of promotion for those deserving officers who were earlier bypassed due to out of turn promotions. 117. In the light of the rules and principles laid down by this Court, we with respect are not inclined to agree with the proposition that vested rights that were created under a law subsequently declared unconstitutional by this Court have attained finality under doctrine of past and closed transaction, and that they are immune from Intra Court Appeals No.4 of 2017 etc. -: 47 :- the application of the aforementioned judgments of this Court. We have maintained that vested rights are generated only under a valid and uncontested instrument of law. An instrument that was still born or treated by this Court as non est is barred from creating any vested rights, let alone being protected under the doctrine of past and closed transactions. We believe that it is our duty to protect the rights and interests created under a law and also to deny the enjoyment of rights created under an invalid law. In the instant case, the Petitioners are claiming the protection of rights that were created under a law that has failed to pass the test of constitutionality, as determined by this Court; hence, they cannot take the plea of past and closed transaction.” However, in Para 111 it was further observed that, “……the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed.” 69. Similarly, other argument advanced by the learned counsel for the parties was that the out of turn promotions were earned when section 8-A ibid was a valid law, and the rights created under the said law are protected in light of Article 264(c) of the Constitution, moreover, it was not the fault of the appellants/petitioners that they were promoted out of turn, so they have vested rights which need to be protected. This argument was also considered in Shahid Pervaiz’s case (supra), and it was observed that:- “118. The contention of the learned Counsel that the effect of the aforesaid judgments which declares the concept of out of turn promotion unconstitutional cannot be extended to apply retrospectively on the cases where law granting out of turn promotions was omitted, is without force. Insofar as the issue of examining the Intra Court Appeals No.4 of 2017 etc. -: 48 :- provisions of a repealed statute is concerned, such an exercise is carried out by Courts in routine in the context of section 6 of the General Clauses Act, as well as Article 264 of the Constitution of Pakistan. Whenever any right, obligation, privilege or liability acquired, accrued or incurred under the repealed law is raised, the Courts are necessarily required to examine the provisions of the repealed statute. Thus, there is neither any reason in principle nor any precedent which bars the Courts from examining the provisions of a repealed statute in a case pending before it on the touchstone of its inconsistency with the provisions of the Constitution or the Fundamental Rights, as enumerated in the Constitution. Any other conclusion would lead to the absurd consequences that while the statute remains on the statute book, the Courts can examine its vires but once it was repealed by a subsequent statute, its effect, even if ex facie inconsistent with the Constitution or Fundamental Rights goes beyond the realm of judicial review. If such were the effect of repeal, then all that would be required to create a protected class of legislation is promulgation of patently unconstitutional statutes creating rights in favour of certain interested persons which though completely destructive of the Fundamental Rights of others, stood protected behind an impenetrable wall by the mere repeal of the statute through such unconstitutional Act. Such would not only be a fraud upon the statute but would be completely destructive of the rule of law and constitutional governance. Thus, there is no reason which compels the Court to sustain such an absurd proposition. As and when a repealed statute is invoked or raised in support of any claim, right, office or act, before the Court, the Court would always be entitled to examine its validity on the touchstone of the Constitution and Fundamental Rights. We have not been able to discover any instance from our own history as well as that of other legal systems with entrenched judicial review on the Intra Court Appeals No.4 of 2017 etc. -: 49 :- touchstone of the Constitution, where the Courts have refrained from examining the vires of the statute on the mere ground that at the time of review such law stood repealed by a subsequent statute.” 70. With respect, we do not agree with the learned counsel for the appellants/ petitioners that the exception created in Para 111 read with Para 143 in the judgment of Shahid Pervaiz’s case (supra), is an absolute one. It was observed that “the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed.” The Court in judgment dated 29.03.2017 has taken the word “Review” in its general meaning, whereby the Department/ IGP could also re-examine the individual cases. Seen from another angle if we take it to mean that the review was to take place by the judicial authorities then this itself would be contrary to the judgment itself. In Para 119, it was observed that the employees who are still in service cannot seek refuge in the doctrine of past and closed transaction. It was held that:- “119. ……………the case of an employee who had enjoyed an out of turn promotion pursuant to a law found to be ultra vires the Fundamental Rights, who now stands retired and or died, it would constitute a past and closed transaction inasmuch as it would be a futile exercise to re-open the case of such an employee. On the other hand, employees who were so promoted under such a statute and who continue to remain in service, would be liable to be restored to the position that existed prior to the benefit conferred under the statute found inconsistent with Fundamental Rights. Indeed, once a statute has been declared as being unconstitutional for any reason, all direct benefits continuing to flow from the same are to be stopped. Intra Court Appeals No.4 of 2017 etc. -: 50 :- Reference in this behalf may be made to the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265)…..” 71. When the very concept of out of turn promotion was declared to be unconstitutional then the exception created in Para 111 could not be said to be extended to the in service employees whether they had any judicial verdict in their favour or not. They were not protected under the doctrine of past and closed transaction as observed above. Moreover, no such protection was provided in the cases of Contempt Proceedings against the Chief Secretary Sindh (Supra) and Ali Azhar Khan Baloch (Supra), which were required to be followed by all the provinces to streamline the civil service structure. It would not be justified if any such benefit were to be extended to the employees of the Punjab Police. Although no one has sought review of this exception and the judgment in Shahid Pervaiz’s case (supra) was already passed under the review jurisdiction. Second review is barred by law and no party can now approach this Court for a second review, however, this Court has absolute power to re-visit its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. This Power is not dependant upon an application of any party and it was so held in the case of Khalid Iqbal Vs. Mirza Khan (PLD 2015 SC 50), in the following words:- “12. The question of maintainability of the 2nd Criminal Review Petition on the ground that this Court has to do complete justice by invoking Article 187(1) of the Constitution is also misconceived. The provisions of Article 187(1) cannot be attracted in the present case, as this Court has already recorded findings against the petitioner by the Judgment dated 28-2-2001, against which review was also dismissed and there was no ‘lis’ pending before this Court warranting exercise of its Intra Court Appeals No.4 of 2017 etc. -: 51 :- jurisdiction under Article 187(1) of the Constitution, besides Rule 9 of the Order XXVI of the Supreme Court Rules, bars 2nd Review Petition. There is a distinction between right of a party to approach the Court and jurisdiction of the Court to do complete justice on its own. Once this Court has finally determined the right of the petitioner in the judgment dated 28-2-2001, holding him guilty, the petitioner through 2nd Review Petition, cannot re-agitate it. If such a Review Petition is allowed to be entertained, it will land in a situation where findings of this Court against a party will never attain finality. 13. This, however, does not mean that the jurisdiction of this Court is barred by any restriction placed by the Constitution; there is no Article in the Constitution which imposes any restriction or bar on this Court to revisit its earlier decision or even to depart from them, nor the doctrine of stare decisis will come in its way so long as revisiting of the judgment is warranted, in view of the significant impact on the fundamental rights of citizens or in the interest of public good. ... … On perusal of the paragraphs referred to hereinabove, we can safely reach a conclusion that this Court has absolute powers to re-visit, to review and or to set aside its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. The Powers of this Court to exercise its inherent jurisdiction under the above referred Articles of the Constitution are not dependant upon an application of a party.” The same view has been reiterated in a recent judgment dated 5.1.2018 passed in the case of Syed Shabbar Raza Rizvi Vs. Federation of Pakistan (Const.P.No.1/2016). Intra Court Appeals No.4 of 2017 etc. -: 52 :- 72. The acts of gallantry in no way justify out of turn promotions. However, in order to increase the morale of the police personnel, we support the proposition that on exhibiting exceptional acts of gallantry, they should be given awards and rewards on merits and this concept is in line with the spirit of Article 259 (2) of the Constitution. 73. The contention of Khawaja Haris Ahmad, learned Sr.ASC that in Para No. 123 of Shahid Pervaiz’s case (supra) this Court had wrongly observed that “we have already declared void ab initio the legislative instruments that provided for out of turn promotions.” because nowhere in the earlier judgment was such a declaration made, is also without force. Suffice it to say that in Para 104 of Shahid Pervaiz’ Case (Supra), it was observed that: “104. Through the successions of its orders, this Court has consistently maintained the unconstitutionality, and the consequential nullity of the instruments providing for the out of turn promotion.” Moreover, in Para 129 of the judgment of Ali Azhar Khan Baloch’s case (supra), this Court was pleased to observe that when any legislative instrument is declared unconstitutional, the effect of such declaration is that such legislative instrument becomes void ab initio. The relevant part of Para 129 is being reproduced hereunder: “129. ……………….. Now, it is a settled law of this Court that no right or obligation can accrue under an unconstitutional law. Once this Court has declared a legislative instrument as being unconstitutional, the effect of such declaration is that such legislative instrument becomes void ab initio, devoid of any force of law, neither can it impose any obligation, nor can it expose anyone to any liability.” Intra Court Appeals No.4 of 2017 etc. -: 53 :- 74. Regarding the Sports Policy it has already been observed in Shahid Pervaiz’s case (supra) that this policy to the extent of accelerated promotions is not sustainable, being violative of “the provisions of Punjab Civil Servants Act, 1974, and the rules framed thereunder, and which Act itself is created pursuant to the provisions of Articles 240 and 242 of the Constitution”. However, it was further observed in the said judgment that “it would be open to the government to frame rules providing a Sports Group within police in order to encourage and incentivize sports, which will not form part of the regular police force. In other words, the members of Sports Group shall not be assigned field posting, but will be restricted to their specialized Group.” We are in agreement with these observations. 75. As far as the Review Petition filed by the Advocate General Punjab for expungement of remarks in Para 17 of the Interim Report by AIG Legal for I.G, Punjab (2017 SCMR 868) is concerned, it is clear that the Court had rightly observed in judgment dated 29.03.2017 that “It should also not be lost sight of that the competent authority/the IG had decided not to grant out of turn promotion to the officials/officers who then went to court/tribunal. At that juncture the Government of Punjab had resisted these cases, but, had belatedly filed appeals before this Court against the orders/judgments granting out of turn promotions. However, now before us the Home Department and the learned AG have taken a complete u-turn and support the very same out of turn promotions that were earlier opposed by them on the pretext of the judgment in the Shahid Pervaiz case….”. The learned Advocate General Punjab has placed no material on record to show that such observations were incorrect rather he has objected to the words “u-turn” used in these observations. These words were used in their common meaning and when there is no denial Intra Court Appeals No.4 of 2017 etc. -: 54 :- of the fact that the petitions/appeals filed by the Government of Punjab were mostly dismissed by this Court on the point of limitation, therefore, we do not find any reason to expunge these remarks. 76. Keeping in view the above we hold as under:- i. The exception, created in para No.111 of the Shahid Pervaiz’s Case (Supra) read with para No.143 thereof, wherein the protection was extended to the category of cases “wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court”, is hereby withdrawn by exercising Suo Moto Review Jurisdiction; ii. The Intra Court Appeals filed against judgment dated 29.03.2017 and the Criminal Original Petitions filed for violation of judgment dated 30.12.2016 are dismissed. Furthermore, the Review Petitions filed against judgment dated 29.03.2017 are also dismissed. As the main cases have been decided hereinabove, the applications for impleadment as party are dismissed; iii. The Criminal Original Petition No. 96/2017 filed for violation of order dated 08.12.2016 is disposed of with the direction that the Punjab Service Tribunal shall proceed to decide the cases of the petitioners pending before it expeditiously, preferably within a period of two months of the decision of this case; iv. It would be open to the government to frame rules providing a Sports Group within the police in order to encourage sports but it will not form part of the regular police force and the members of Sports Group shall not be assigned field posting, and will only be restricted to their specialized Group; as already observed in Shahid Pervaiz’s case (supra); Intra Court Appeals No.4 of 2017 etc. -: 55 :- v. The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers/Officials who were given out of turn promotions along with their batch-mates, as if they were never given out of turn promotion; vi. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers within a period of one month. The Advocate General, Punjab, and the learned Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities. 77. Before parting with this judgment, we acknowledge the assistance rendered by all the learned counsels for the parties and the learned Law Officer on the issue at hand. 78. Criminal Original Petitions No.167 and 214 of 2017 relate to the province of Balochistan, wherein it has been complained that the judgments of this Court dated 26.01.2016 and 30.12.2016 have not been implemented in letter and spirit in the Province of Balochistan. The same are, therefore, separated and office is directed to fix them before the appropriate Bench. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on 13.5.2018 at Islamabad Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Sardar Tariq Masood Mr. Justice Amin-ud-Din Khan Mr. Justice Muhammad Ali Mazhar Mr. Justice Syed Hasan Azhar Rizvi Ms. Justice Musarrat Hilali Mr. Justice Irfan Saadat Khan 1. I.C.A.5/2023 IN Const.P.24/2023 2. I.C.A.6/2023 IN Const.P.24/2023 3. I.C.A.7/2023 IN Const.P.25/2023 4. I.C.A.8/2023 IN Const.P.24/2023 5. I.C.A.9/2023 IN Const.P.26/2023 6. I.C.A.10/2023 IN Const.P.26/2023 7. I.C.A.11/2023 IN Const.P.30/2023 8. I.C.A.12/2023 IN Const.P.35/2023 9. I.C.A.13/2023 IN Const.P.27/2023 10. I.C.A.14/2023 IN Const.P.24/2023 11. I.C.A.15/2023 IN Const.P.35/2023 12. I.C.A.16/2023 IN Const.P.26/2023 13. I.C.A.17/2023 IN Const.P.24/2023 14. I.C.A.18/2023 IN Const.P.30/2023 15. I.C.A.19/2023 IN Const.P.25/2023 16. I.C.A.20/2023 IN Const.P.25/2023 17. I.C.A.21/2023 IN Const.P.28/2023 18. I.C.A.22/2023 IN Const.P.25/2023 19. I.C.A.23/2023 IN Const.P.30/2023 20. I.C.A.24/2023 IN Const.P.26/2023 21. I.C.A.25/2023 IN Const.P.28/2023 Shuhada Forum, Balochistan through its Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. and others …Appellants Versus Justice (R) Jawwad S. Khawaja and others …Respondents For the Appellants: Mr. Mansoor Usman Awan, AGP Ch. Aamir Rehman, Addl. AGP Malik Javed Iqbal Wains, Addl. AGP Raja Muhammad Shafqat Abbasi, DAG Mr. Khalid Ishaq, AG, Pb Mr. Baleegh-uz-Zaman Chaudhry, Addl. AG, Pb Malik Waseem Mumtaz, Addl. AG, Pb Mr. Khurram Shahzad, Addl. AG, Pb Mr. Ayaz Khan Swati, Addl. AG, Balochistan Khawaja Haris Ahmad, Sr. ASC Mr. Yaser Aman Khan, ASC Mr. Shumail Butt, ASC Mr. Sikandar Bashir Mohmand, ASC Mr. Tariq Aziz, AOR ICAs 5-25/23 2 Mr. Jawaid Masood Tahir Bhatti, AOR Syed Rifaqat Hussain Shah, AOR Ms. Imrana Parveen Baluch, AOR Mr. Zahid Yousaf, AOR Mr. Anis Muhammad Shahzad, AOR For the Respondents: Sardar M. Latif Khan Khosa, Sr. ASC Ch. Aitzaz Ahsan, Sr. ASC Mr. Abid S. Zuberi, ASC Mr. Faisal Siddiqui, ASC Mr. Salman Akram Raja, ASC Mr. Salahuddin, ASC Ms. Bushra Qamar, ASC Mr. M. Arif Ansari, ASC Syed Ali Imran, ASC Ms. Samia Faiz Durrani, ASC Mr. Rafaqat Islam, ASC Sardar Shahbaz Ali Khosa, ASC Mr. Muqtadar Akhtar Shabbir, ASC Mr. Uzair Karamat Bhandari, ASC (via video link from Lahore) Date of Hearing: 13.12.2023 O R D E R These Intra Court Appeals filed under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 are directed against the impugned Order dated 23.10.2023 passed by the learned bench of this Court in Constitution Petition Nos.24, 25, 26, 27, 28, 30 & 35 of 2023, whereby, for detailed reasons to be recorded later, the aforesaid Constitution Petitions were decided in the following terms: “ORDER OF THE COURT For detailed reasons to be recorded later, and subject to such amplification and/or explanation therein as is considered appropriate, these petitions are decided in the following terms: i. It is hereby declared by Mr. Justice Ijaz ul Ahsan, Mr. Justice Munib Akhtar, Mr. Justice Sayyed Mazahar Ali Akbar Naqvi and Mrs. Justice Ayesha A. Malik that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. ii. Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the learned ICAs 5-25/23 3 Attorney General for Pakistan by way of CMA No.5327 of 2023 in Constitution Petition No.24 of 2023 and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and / or special law of the land in relation to such offences of which they may stand accused. iii. It is further declared that any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are and would be of no legal effect. iv. Mr. Justice Yahya Afridi reserves judgment as to para (i) above, but joins the other members of the Bench as regards paras (ii) and (iii)” 2. The learned counsel for the appellants argued, inter alia, that on 09.05.2023, numerous military installations and establishments throughout the country faced targeted attacks for which several First Information Reports (FIRs) were lodged at different Police Stations. Initially, in some FIRs, the offences covered under the Pakistan Army Act, 1952 (“Army Act”) were not mentioned, but subsequently the said offences were also added for the trial of the accused persons. According to the learned counsel, 103 persons have been found to be involved in the offences under the Army Act, and were taken into custody in accordance with law and procedure. It was further contended that the detailed reasons in support of the short order have not been released by the learned bench so far, but keeping in mind the urgency, and to avoid the rigors of limitation, the present Intra Court Appeals have been filed without prejudice to the right of filing amended memo of appeals upon the detailed reasons being released. It was further averred that, in the light of sub-clause (a) to clause (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), the laws relating to members of the Armed Forces for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them are not susceptible to be adjudged on the touchstone of the Fundamental Rights as contained in the Constitution. It was further contended that while declaring clause (d) of sub-section (1) of Section 2 of the Army Act (in both of its sub-clauses (i) and (ii)), and sub-section (4) of Section 59 of the said Act as ultra vires the Constitution, the learned bench has deviated from the ratio of the judgment rendered by this Court in Brig. (Retd.) F. B. Ali's case (infra) whereby the provisions of the Army Act were declared intra vires the Constitution, hence there was no justification for holding clause (d) of sub-section (1) of Section 2 of the Army Act (in both its sub-clauses (i) and (ii)), and sub- section (4) of Section 59 of the said Act ultra vires the ICAs 5-25/23 4 Constitution. It was further argued that the courts under the Army Act do not form part of the judicial hierarchy contemplated by Articles 175 and 203 of the Constitution and, as such, neither the provisions of clause (3) of Article 175 of the Constitution, nor those of Article 203 are applicable to, or have any relevance to the said Courts. It was further contended that the process of trial under the Army Act is consistent with the recognized principles of criminal justice as held in Brig. (Retd.) F. B. Ali's case (PLD 1975 SC 506), Shahida Zahir Abbasi's case (PLD 1996 SC 632), and the majority judgment of this Court rendered in the case of District Bar Rawalpindi case (PLD 2015 SC 401). It was further contended that clause 2 (d) was inserted into the Army Act vide Section 2 of the Defence Services Laws Amendment Ordinance, 1967 which is protected under Article 268 of the Constitution. It was further argued that due to the striking down of the law in question by dint of the impugned order, no action can be taken against the hardcore criminals and terrorists involved in the attacks on army installations and/or against the martyrdom of innocent civilians and personnel of the armed forces who are devoting and sacrificing their precious lives to combating the menace of terrorism. He further argued that even in the present situation, no action can be taken against the persons accused of espionage. In the end, all the counsel for the appellants collectively requested that the impugned Order may be suspended till further orders, because the detailed reasons have not been released. 3. Although it is the first date of hearing and no notice has been issued to the respondents, some of the respondents are represented by their counsel who addressed their preliminary arguments. They have insisted that the detailed reasons be allowed to be released by the learned bench of this Court before the passing of any interim order(s) in these Intra Court Appeals, but it is an admitted position that the detailed reasons have not been released hitherto to expound and amplify the reasons for striking down the law in question. 4. Issue notice to the respondents for a date that may be fixed by the office in the third week of January 2024. Office is further directed to append the detailed reasons, if released by the learned bench initially seized of the matter, on the next date of hearing. CMAs No.10534 to 10551 of 2023 Notice. Since the appellants have raised various questions of law which require consideration, therefore till the next date of hearing, with the majority of five to ICAs 5-25/23 5 one (the latter being Musarrat Hilali-J, who only issued notice on the stay applications and main appeals), the operation of the impugned Order striking down clause (d) of subsection (1) of Section 2 of the Army Act (in both of its sub clauses (i) & (ii)), and subsection (4) of Section 59 of the said Act as being ultra vires the Constitution, is suspended subject to the condition that no final judgment shall be passed against the 103 accused persons by the Military Courts. The Civil Misc. Application No.10514/2023 filed by respondent No.1 in ICA.No.5/2023 for reconstitution of bench and Civil Misc. Application No.10522/2023 filed by respondent Nos.1 to 5 in ICA No.10/2023 for broadcasting/live streaming of the Court proceedings of the instant Intra Court Appeals will be heard on the next date of hearing. Sardar Tariq Masood, J. Amin-ud-Din Khan, J. Muhammad Ali Mazhar, J. Syed Hasan Azhar Rizvi, J. Musarrat Hilali, J. Irfan Saadat Khan, J. ISLAMABAD 13th December, 2023 “Approved for reporting”

IN THE SUPREME COURT OF PAKISTAN (Appellate jurisdiction) Present: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan Mr. Justice Sajjad Ali Shah Mr. Justice Munib Akhtar Intra Court Appeal No. 07 of 2018 in Criminal Original Petition No, 09 of 2018 (Against the order dated 2.8.2018 passed by this Court in Crl. Original Petition No. 09 of 2018) Talal Ahmed Chaudhry. … Appellant(s) VERSUS The State. … Respondent(s) For the Appellant(s) : Mr. Kamran Murtaza, Sr. ASC a/w Talal Ahmed Chaudhry. For the Respondent(s) : Ch. Aamir Rehman, Addl. Attorney General. Date of hearing : 09.10.2018 ORDER Sajjad Ali Shah, J. Through the instant appeal under Section 19 of the Contempt of Court Ordinance, 2003, the appellant has impugned the order of this Court passed by a three-Member Bench whereby the appellant, after being put to trial, was convicted under Sections 3 and 5 of the said Ordinance of 2003 and was sentenced to suffer imprisonment till the rising of the Court with a fine of Rs.100,000/-. 2. Briefly, the appellant who at the relevant time was ‘Minister of State’ of the ruling Party PML(N), in his public speeches delivered on 24.1.2018 and 27.1.2018 duly telecast by different television channels, made the following derogatory remarks against the Supreme Court and its Judges:- ’’  : ىو � ��ا24.01.2018 ىر�� ل�: � ںو�آ � ں� legitimacy  �ز ب��� ہو � ےد � �ر ������ ہو �� � ں� � ىد  � �ر��� � ن���� � � �� � ت� � �� � �آ � � � �ر ������ ۔� ىد � I.C.A. No.7/2018 2 �  � � � ������ ۔� ہر � �ر ������۔� � � �ز ������ �  ‘‘ ’’ : ىو � �27.01.2018 ب� � ىر�� ل� � � � � ن � �ا�ا�:  ��ا� �ا� � � � � �� � سا ۔� سا �� ود ۔�� � � ۔��ا� �ا� � � ��� ں� ��� � رود ��ا ��� ں� ۔� �� �� � � �  � ��ا� جآ � �� � ��� � �  � سا �� � نا �� زا� ں� ،� �� ے� ��� � وا � � � ں�و � ہرادا �وا ا���� � ��  زا� ےو �� ، � �� ��ا � ح� سا � ۔� �د � ف�ا � ۔و� ������ � ل� � ��ا� � �� زا� � � �� �� ���زو � � سا روا ے� �� زا� ��� � ىد� �د � ۔۔۔۔۔۔ ۔� � �� � روا �� � �ا‘‘ 3. Through a formal note the Registrar of this Court brought the contents of the afore-stated speeches to the attention of the Hon’ble Chief Justice of Pakistan. The Hon’ble Chief Justice initiated Suo Moto proceedings in Contempt of Court in terms of Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 and directed to place the matter before a Bench of this Court for hearing accordingly. 4. Consequently the appellant was issued a show cause notice on 10.2.2018 to which he responded on 22.2.2018 by filing a written response which was considered by the Court on 8.3.2018. After finding the same to be unsatisfactory, a formal charge was framed which was read over to him on 15.3.2018 to which he pleaded “not guilty” and thereafter he was put to trial. 5. The prosecution examined only one witness namely Haji Adam son of Haji Sahib Khan, Director General (Monitoring) Pakistan Electronic Media Regulatory Authority (PEMRA) who produced a letter, transcript and CD containing video clips as Exhibits: P-1, P-2 and P-3. The witness, thereafter, was duly cross examined by Mr. Kamran Murtaza Sr. ASC for the appellant. Thereafter the statement of the appellant under Section 342 Cr.P.C. was also recorded. The appellant, however, denied examination under oath according to Section 340(2) Cr.P.C. The appellant thereafter produced five witnesses in his defence namely, I.C.A. No.7/2018 3 Asrar Ahmed Khan as DW-1, Musaddiq Malik as DW-2, Muhammad Tahir as DW-3, Atta Muhammad as DW-4 and Imtiaz Khan as DW-5. These witnesses were duly cross examined by the Additional Attorney General for Pakistan. After completion of evidence and hearing the parties, the appellant was convicted and sentenced as mentioned above. 6. Mr. Kamran Murtaza learned Sr. ASC appearing for the appellant submitted that the appellant deeply regrets his words and submits an unconditional apology if the utterances on 24.1.2018 and 27.1.2018 amounted to contempt of this Court. It was contended that the Courts had always shown magnanimity and restraint in taking stern action against alleged contemnors. Therefore, since the appellant has thrown himself at the mercy of this Court and begged pardon, a similar treatment ought to be given to him by setting aside his sentence which in fact has disqualified him under Article 63(1)(g) by debarring him from taking part in politics for a period of five years. Mr. Kamran Murtaza while citing the judgment of this Court in Contempt proceedings against Imran Khan, Chairman, Pakistan Tehreek-i-Insaf (PLD 2014 SC 367) contends that in the said case this Court has held that proceedings of such nature are to be viewed on the golden principles of forgiveness, remission and pardon enshrined in Islam, which is one of the hallmarks of the Islamic system of dispensation of justice. A prudent Qazi/Judge entrusted with the onerous task of dispensation of justice is supposed to be composed and cool minded so as to tactfully deal with such petty notions and remarks, which might have been made in good faith or due to a slip of the tongue. Moreover, just and fair remarks made unconsciously or under the tide of momentary emotions, in somewhat harsh language, are not to be readily taken in the negative sense, but as means for soul-searching and improvement in the system. Learned counsel further relied on paragraph 5 of the judgment of this court delivered in the case of Riaz Hanif Rahi vs. Saeed-uz-Zaman Siddiqui (2011 SCMR 948) wherein it was observed that where a personal opinion is not derogatory to the I.C.A. No.7/2018 4 judiciary and the viewpoint does not ridicule the judiciary, all fair comments are rather a healthy sign of the public reposing trust owed to its judicial system. He further referred to the case of General (Retd.) Mirza Aslam Baig (PLD 1993 SC 310) to contend that the Court in this case was of the view that though contempt was established, severe admonition and reprimand was sufficient to retrieve the honor and dignity of the Court and the purpose and object of the law of contempt stood satisfied. Lastly, counsel relied on the case of Habibul Wahab Elkheiri vs. Khan Abdul Wali Khan and 4 others (PLD 1978 SC 85) and contended that in similar circumstances Mr. Abdul Wali Khan had made very offensive remarks but the Court had considered his statement in the context in which it was made and came to the conclusion that he had no intention of maligning the Court or attributing motives to any of the Judges. His apology was accepted, and it was held that the dignity and the authority of the Court has been duly vindicated and that it was not necessary to proceed any further in the matter. Mr. Kamran Murtaza, in the circumstances, contends that the appellant had no intention of maligning the Courts or ridiculing any of the Judges through utterances made on 24.1.2018 and 27.1.2018, therefore, in view of the principles laid down by this Court in the referred judgments, the appellant ought to be forgiven and pardoned. 7. Before we examine the submission and the worth of the apology so tendered, we would like to reiterate the consistent view of this Court that the real object and the ultimate purpose in the mind of the Court while initiating contempt proceedings is not to afford protection to the judges from imputation to which they might be exposed personally as individuals or to satisfy the ego of a judge by punishing such person, instead, it is to maintain and strengthen the confidence of the public in general and the litigants, in the Court and to vindicate the honor and dignity of the Court to ensure that the administration of justice is not diminished or weakened. On the other hand, it is also true that Courts in the matter of contempt tend to show grace and magnanimity towards the alleged contemnor in cases where I.C.A. No.7/2018 5 the contemnor without justifying his action/statement shows his repentance, remorse and at the earliest opportunity submits an unconditional apology by throwing himself at the mercy of the Courts. However, this is not a rule of thumb and cannot be applied to every case as an apology tendered does not automatically purge the contemnor of the contempt and may not necessarily be accepted unless the Court from the surrounding circumstances is satisfied about the bona fide of the contemnor. 8. Coming to the submission on the issue in hand, it has not been disputed or denied before us that the offending words uttered by the appellant in his speeches made on 24.01.2018 and 27.01.2018, the gists whereof have been reproduced above, were prejudicial to the integrity and independence of the judiciary of Pakistan and surely detrimental to the safe administration of justice beside tending to bring this Court and the judges of this Court into disrespect and ridicule. It is important to note that the case law referred to by the learned counsel for the appellant in order to plead that the Courts in contempt proceedings have always been showing magnanimity and restraint and avoid taking any stern action against the alleged contemnor who begs an apology by throwing himself at the mercy of the Court pertain to instances where this Court has come to the conclusion that the offending words/speech were made in good faith without any intention of scandalizing the Court or to bring its judges into disrespect, contempt or to abuse the judiciary but were made to project a genuine issue, however the selection of words in projecting their point of view was improper. It is, therefore, important that before we consider the apology tendered at the appellate stage and that too orally through an advocate, the circumstance in which the derogatory and insulting remarks against the judges of this Court and the judiciary as an institution were made be examined. 9. It is very important to note that the offending speech was made by the appellant after this Court had pronounced its verdict in the case of Imran Ahmed I.C.A. No.7/2018 6 Khan Niazi vs. Muhammad Nawaz Sharif (PLD 2017 SC 692) and had declared that Mian Muhammad Nawaz Sharif the then Prime Minister of Pakistan was not honest in terms of Section 99(f) of the Representation of the People Act, 1976 (ROPA) and Article 62(1)(f) of the Constitution and, therefore, disqualified to be a Member of the Parliament, soon thereafter some of the Members of the ruling party (PML- N) in order to show their allegiance with Mian Muhammad Nawaz Sharif started a campaign of maligning the Office of the Hon’ble Chief Justice of Pakistan and the Judges of this Court in public gatherings and on electronic media. The appellant being one such firebrand speaker has deliberately and intentionally in the stated background, through the stated utterances, attacked the integrity and independence of the judiciary to please and support his leader with the sole intent to ridicule and lower the respect and to shake the confidence of people at large from the safe administration of justice. This conduct compelled the Court to initiate contempt proceedings against him for undermining the authority, integrity and independence of this Court. The tenor and content of the speech of the appellant clearly shows that it was designed and worded to scandalize the Court and to bring the Hon’ble Judges of this Court into hatred, ridicule or contempt. In the circumstance, the utterance made by the appellant can by no stretch of imagination be termed as bona-fide or to highlight a genuine issue to earn him a lenient view in the light of the dicta laid down by this Court in the cases referred to by the learned ASC for the appellant. 10. Besides, an apology consists of acknowledgement of commission of contempt and an unequivocal expression of regret for such commission whereas in the instant case the appellant throughout has been trying to justify his offending statement by taking different pleas and even the apology so tendered was in case his justification with regard to the offending statement was not accepted. Unfortunately we see neither genuine remorse nor sincerity on the apology which in the instant case is being used by the Appellant to get out of a difficult situation I.C.A. No.7/2018 7 that he finds himself in for having used intemperate and contemptuous language against the highest Court of the country and the Judges. 11. Additionally, the apology so tendered on behalf of the appellant cannot be accepted as it does not meet the requisite criteria laid down by a five- Member Bench of this Court in the case of Syed Masroor Ahsan and others vs. Ardeshir Cowasjee and others (PLD 1998 SC 823) which has been followed in a number of cases including Baz Muhammad Kakar and others vs. Federation of Pakistan through Ministry of Law & Justice and others (PLD 2012 SC 923) and Ch. Iftikhar Ahmed, IG Islamabad and others vs. the State (2018 SCMR 1385) consisting of the same number of Judges, in the following terms:- “96. It is, therefore, quite apparent that if apology is tendered it would not automatically purge the contemnor from the contempt and may not necessarily be accepted unless the Court from surrounding circumstances is satisfied about his bona fides. The acceptance or rejection of apology, therefore, depends upon the volume and nature of contempt allegedly committed. However, prepondered view revolves around the bona fides of the contemnor and satisfaction of the Court about genuineness of the apology being tendered. 97. Some of the fundamentals for accepting the apology can be enumerated as: (a) The apology must be offered at the earlier stage of the contempt proceedings and may not be postponed till fag- end of the proceedings. (b) The apology must be unconditional, unreserved and unqualified. (c) The apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality. (d) The contemnor should not endeavour to justify his conduct”. I.C.A. No.7/2018 8 12. In the circumstances, notwithstanding the fact that the apology tendered by the appellant does not meet the required standard laid down by this Court or lacks bona fide, we are of the view that the contempt committed by the appellant is so grave that the apology is not sufficient to purge the contempt. 13. On merits, learned counsel for the appellant, without denying or disputing the contents of the speeches as reproduced above, contends that the proceedings initiated on the basis of such utterances are in gross violations of Article 19 of the Constitution which guarantees freedom of speech to the citizen. Therefore, the appellant should not be punished under the Ordinance of 2003. 14. The right to freedom of speech and expression as guaranteed under Article 19 of the Constitution admittedly is not absolute, unlimited or unfettered but subject to reasonable restrictions imposed by the law and one such restriction so imposed is in relation to the contempt of Court. The protective cover so provided to freedom of speech and expression cannot be stretched to cover a speech, comment or publication which may tend to influence, impede, embarrass or obstruct the administration of justice, scandalizes the Court and brings the Hon’ble Judges of this Court into hatred, ridicule or contempt. The argument justifying offending remarks used against the judiciary by taking the shield of freedom of speech and expression as guaranteed under Article 19 of the Constitution was considered and turned down by the three-Member Bench of this Court in the order impugned by holding that:- “It is undeniable that every citizen has been conferred right of freedom of speech and expression and such right has been conferred in Article 19 of the Constitution, which is one of the fundamental right provided in Para-II of the Constitution. However, such freedom of speech and expression given to every citizen has been made subject to reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with the foreign States, public order, decency or I.C.A. No.7/2018 9 morality, or in relation to contempt of Court, [commission of] or incitement of an offence. Thus it is apparent that contempt of Court is one of the law to which the fundamental right of every citizen to freedom of speech and expression has been subjected to. In exercising the fundamental right of freedom of speech and freedom of expression, if a citizen impinges upon and transgresses the reasonable restrictions of law of contempt of Court, he will make himself culpable and liable to be proceeded against under the contempt of Court Law. The rationale of imposition of conditions on freedom of speech and expression as underlined by the Constitution itself is that the citizens while exercising such right have to maintain decency and decorum and not in a manner, which will infringe upon the rights of other citizens or transgress the mandate of law in relation to the working of State Institutions. Further the rationale of making of law of contempt by the Constitution itself and by promulgation of the Ordinance is as a matter of public policy to secure the law of the land which it is the duty of the Court to uphold and to secure the judges and the Court from being scandalized into hatred or ridicule. The contempt law thus is meant basically to maintain the efficacy of the Courts of justice and to secure public confidence in the administration of justice”. 15. The reasoning reproduced above appears to be in consonance with the consistent view of this Court taken by a five-Member Bench in the case of Syed Masroor Ahsan (supra), again followed in number of cases including in the case of Baz Muhammad Kakar (supra), in the following terms:- “Fundamental rights wherever exercised, impose corresponding restrictions for ensuring protection of collective benefit and safety including preservation of the society and its morals. Absolute liberty of an individual for doing what he pleases even with regard to innocent matters can sometimes be detrimental. Therefore, object of the exercise of rights should be subservient to common good. Observations made in Atkin v. Children Hospital (1923) 261 US 555) can be referred. Bare perusal of Article 19 of the Constitution postulates reasonable I.C.A. No.7/2018 10 restraints whereby citizen while exercising his right of freedom of speech or expression and freedom of Press is prohibited to conduct himself in any manner which may violate security or defence of Pakistan or part thereof, or could affect friendly relations with Foreign States, in the same way citizen under freedom clause is bound to ensure that his freedom does not strike against public order, decency or morality or provisions regarding contempt of Court. The right of freedom further prohibits incitement of citizen for committing any offence. Therefore, owning the responsibility of honouring the dictates of Constitution the Supreme Law of the country firmly embodied in Article 19 of the Constitution, every citizen while making speech, expressing himself or causing publication in the press is obligated to refrain from all such acts which may be calculated to constitute contempt of Court. For emphasis we may impress upon normal circumstance, which under the Constitution disdains immoral, indecent, anti-State, or un-Islamic Publications, expressions or speeches. It equally creates an obligation for the citizen, while exercising his right to ensure that his comment with regard to conduct of a Judge or the Court should not be violative of law. From scrutiny of the precedent case-law and all relevant factors coupled with fundamental rights, the Authors of editorial/articles, Publishers, Editors of newspapers or journals or Advocates have bounden duty to avoid from using strikingly pungent language which smacks of loud bitterness or aimed at emitting intemperate expression or abnormal understanding suggesting scandalization of the Court or cause obstruction to the impartial administration of justice”. 16. Examining the offending speeches on the touch stone of the law laid down by this Court in the judgments cited above, we are of the considered view that the offending speeches impinge upon and transgress the bench mark of reasonable restriction imposed by the Constitution itself as well as the law on the subject. The appellant in fact has crossed the boundary of decency and morality by a calculated move with an aim to obstruct and diminish the administration of justice I.C.A. No.7/2018 11 and, therefore, he cannot be allowed to escape the consequences by pleading freedom of speech and expression. 17. It was next contended that the charge so framed was defective as it did not contain the contents of the public speeches dated 24.1.2018 and 27.1.2018 and, therefore, no punishment could be imposed upon the appellant on the basis of such defective charge. The contention needs examination of the record which reflects that the contents of the offending speeches were brought to the notice of the Hon’ble Chief Justice by the learned Registrar of this Court on 1.2.2018 through a written note. The Hon’ble Chief Justice of Pakistan on the same day constituted a Bench and directed the Office to list the matter for hearing on 6.2.2018. Accordingly notices were issued. The appellant effected appearance on 6.2.2018 when the Court examined the transcript of the offending speeches dated 24.1.2018 and 27.1.2018 made by the appellant and after finding the speeches derogatory, initiated proceedings under Article 204 of the Constitution read with Section 5 of the Ordinance of 2003 and directed issuance of show cause notice. In consequent to the show cause notice, appellant effected his personal appearance on 13.2.2018 and requested for time to engage a counsel. The matter was adjourned to 19.2.2018 and on that date the appellant’s counsel sought time to furnish response to the show cause notice and ultimately furnished such response on 22.2.2018. Per record, when the case had came up for hearing on 26.2.2018, the appellant himself appeared and on his request, he was allowed to examine the transcript containing contemptuous speeches which was already annexed with the paper books supplied to him. Again on 6.3.2018 when the case came up for hearing, the learned Sr. ASC for the appellant stated that though he has gone through the transcript of the offending speeches but he has not been provided a compact disk wherein such offending speeches were recorded. The C.D. (Compact Disc) was accordingly provided to the appellant and the matter was adjourned to 8.3.2018. On the said date, the response submitted by the appellant was examined and the matter was placed for framing of I.C.A. No.7/2018 12 charge on 14.3.2018. The charge was accordingly framed and read over to the appellant which specifically stated the making of offending speeches by the appellant on 24.1.2018 and 27.1.2018. 18. No doubt the contents of the speeches were not reproduced in the charge but it is not the case that the appellant was misled or prejudiced on account of such omission. We have even repeatedly asked the appellant who was present in person as well as his counsel about the prejudice if any caused to the appellant on account of not detailing the speeches in the charge. However, they were not able to point out any prejudice caused to the appellant as throughout the appellant knew the derogatory utterances made by him leading to the initiation of the instant proceedings. Additionally, the appellant in his statement under Section 342 Cr.P.C. was confronted and his response was sought on the derogatory utterances. Though he admitted that he made such statement in his speech and press talk but according to him, these were edited and do not contain reference to the context. However, no explanation was provided as to the editing or the context in which such derogatory utterances were made. Even the C.D. containing the audio and visual recording of the derogatory speeches was played in open court to seek a possible explanation from the appellant, however, the appellant or his counsel had no answer but to take refuge of seeking an unconditional apology. The apology patently lacks remorse and sincerity and is being tendered to avoid consequences without showing lack of intent to malign the Court or any of the Hon’ble Judges. The contemnor has tried to explain away and justify his actions and has tendered an apology only as a matter of abundant caution and as a fall back. Such an apology cannot be accepted. Further, it has been settled by this Court in a number of cases, that since there is no yardstick available to fix the essential factors which a charge must contain, therefore, an omission or defect in charge which does not mislead or prejudice the right of the accused could be regarded as material and made the basis to vitiate a trial on the ground of error or omission in framing charge, it does not even make a I.C.A. No.7/2018 13 case of remand. Reference can readily be made to the case of Nadir Shah vs. the State (1980 SCMR 402), S.A. K. Rehmani vs. the State (2005 SCMR 364), M Younus Habib vs. the State (PLD 2006 SC 153) and Malik Muhammad Mumtaz Qadri vs. the State (PLD 2016 SC 17). The argument, therefore, fails. 19. Additionally, the record reflects that the appellant in his Section 342 Cr.P.C. statement refused examination under oath to show his bona fide and to explain what exactly he meant by such utterances. At this juncture, we may reiterate that the proceedings for contempt of Court are sui generis in their nature and being unique and one of a kind, contain some elements of both civil and criminal trial. Therefore, the principle of criminal trial that the burden of proof barring few exceptions never shifts to the accused, has hardly any application. In such cases once the prosecution has brought on record all the incriminating and contemptuous material attributed to the alleged contemnor and confronted to him while recording his statement under Section 342 Cr.P.C., then the burden shifts to the alleged contemnor to prove his innocence by showing his bona fide and proving that the offending statement was never meant to undermine the authority or obstruct/embarrass the administration of justice. The appellant has failed miserably in discharging that burden. The impugned order takes note of all pleas and defences taken by the Appellant and gives elaborate reasons for discarding the same. The learned counsel for the Appellant has not been able to show any legal, procedural or jurisdictional defect, error or flaw in the impugned order that may warrant any interference in the impugned order. 20. In the end, it was halfheartedly contended that the list of the witnesses provided by the prosecution did not contain the summary/gist of the evidence to be adduced by such witness, however, the learned counsel could not point out any statute or case law in support of his contention. To our mind, the only law which requires mentioning of gist/summary of facts against the name of every witness which he would depose is Section 7(2) of the Family Court Act, 1964 which provides that the plaint to be accompanied by a Schedule giving the number of witnesses intended to be produced in support of the plaint, the name and addresses I.C.A. No.7/2018 14 of the witnesses and brief summary of the facts to which they would depose. This being a provision of Special Law and of course is applicable to the category of cases provided therein. Even the study of case law on the subject would show that the requirement laid down by Section 7(2) of the Act 1964 is only directory in nature as instead of providing penal consequences for its non-compliance, it specifically through second proviso empowers the Court to permit the parties to call any witness at any later stage if the Court considers that the evidence of such witness is in the interest of justice. 21. For the foregoing reasons, this Intra Court Appeal is found meritless and, therefore, dismissed. Chief Justice Judge Judge Judge Judge Islamabad October 09, 2018 Approved for reporting A. Rehman/

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ. MR. JUSTICE JAVED IQBAL MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM INTRA COURT APPEAL NO. 9 & 10 OF 2011 Abdul Hameed Dogar, former Judge/CJP … APPELLANT (ICA 9/2011) Mr. Justice Sayed Zahid Hussain … APPELLANT (ICA 10/2011) INTRA COURT APPEALS NO. 3, 4, 6 TO 8 & 11 OF 2011 Mr. Justice Hasnat Ahmed Khan … APPELLANT (ICA 3/2011) Mr. Justice Syed Shabbar Raza Rizvi … APPELLANT (ICA 4/2011) Mr. Justice Syed Hamid Ali Shah … APPELLANT (ICA 6/2011) Mr. Justice (R) Iftikhar Hussain Chaudhary… APPELLANT (ICA 7/2011) Mr. Justice Syed Sajjad Hussain Shah … APPELLANT (ICA 8/2011) Justice Mrs. Yasmin Abbasey … APPELLANT (ICA 11/2011) VERSUS Federation of Pakistan/State … RESPONDENT For the appellants: Raja Muhammad Ibrahim Satti, Sr. ASC (ICA 9/2011) Mr. Ejaz Muhammad Khan, AOR (absent) For the appellants: Mr. S.M. Zafar, Sr. ASC (ICA 10/2011) Raja Abdul Ghafoor, AOR For the appellants: Dr. A. Basit, Sr. ASC (ICA 3 & 4/2011) Mr. Arshad Ali Chaudhry, AOR ICA 3 /2011 ETC 2 For the appellants: Syed Raza Kazim, Sr. ASC (ICA 6/2011) Mr. G.N. Gohar, AOR (absent) For the appellants: Dr. Khalid Ranjha, Sr. ASC (ICA 7/2011) Mr. Mehmood A. Sheikh, AOR For the appellants: Sh. Zamir Hussain, Sr. ASC (ICA 8/2011) Mr. Ejaz Muhammad Khan, AOR (absent) For the appellants: Raja Abdul Ghafoor, AOR (ICA 11/2011) On Court’s notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan Respondent: Not represented Date of hearing: 03.03.2011 … ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – By Intra Court Appeals No. 9 & 10 of 2011 filed under section 19 of the Contempt of Court Ordinance, 2003, appellants Justice (Retd.) Abdul Hameed Dogar and Justice Sayed Zahid Hussain have questioned the legality of the order dated 02.02.2011 passed by a Bench of this Court in Criminal Original Petitions. The concluding paragraph therefrom reads as under: - “Let the cases now be fixed for framing of charge against the aforesaid respondents on 21.02.2011. The respondents, if they so desire, appear on that date to enter their plea on the charge(s) framed. In the alternative, they may, if they choose, enter their pleas through counsel who are duly instructed.” Mr. Justice Sayed Zahid Hussain, Judge of the Supreme Court, after filing the appeal realized that he had taken oath under a misunderstanding on 03.11.2007, when a 7 – Member Bench of the Supreme Court had passed a restraint order to block imposition of unconstitutional rule in the country, inter alia, directing as follows: - ICA 3 /2011 ETC 3 “(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary; (ii) No judge of the Supreme Court or the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-Constitutional step; (iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil arid' Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts; (iv) They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces, under new development shall be unlawful and without jurisdiction.” 2. Mr. Justice Sayed Zahid Hussain admittedly had taken oath in violation of above order of this Court and now after having regretted opted for retirement and addressed a letter to the President of Pakistan in this behalf. Copy thereof was also endorsed to the Registrar of this Court. The competent authority has acceded to his request as is evident from the contents of the notification dated 01.03.2011, issued by the Government of Pakistan, Ministry of Law and Justice, which reads as under: - “In exercise of the powers conferred by Article 179 of the Constitution of Islamic Republic of Pakistan, the President is pleased to allow retirement to Mr. Justice Sayed Zahid Hussain, Judge of Supreme Court of Pakistan with immediate effect in terms of Paragraph 15 of the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997.” 3. Mr. S.M. Zafar, learned Sr. ASC for appellant Mr. Justice Sayed Zahid Hussain, now retired, has filed an application under Order XXXIII, rules 5 & 6 of the Supreme Court Rules, 1980, wherein besides mentioning the different dates on which Justice Sayed Zahid Hussain ICA 3 /2011 ETC 4 had taken oath as an Additional Judge, as a Judge and as Chief Justice of the Lahore High Court, and thereafter as a Judge of the Supreme Court, already referred to in the judgment of this Court in Sindh High Court Bar Association's case (PLD 2009 SC 879), it is categorically stated that “he is extremely sorry for having taken oath on 03.11.2007 under a misunderstanding and has regretted for the same”. The learned counsel submitted that Mr. Justice Sayed Zahid Hussain, for the sake of the dignity and respect of the Institution of Judiciary, has sacrificed his four years’ service as a Judge of the Apex Court and henceforth he would be no more adorning the Bench, as the notification of his retirement has already been issued, therefore, while exercising jurisdiction available to this Court to decide not to proceed against a person facing the charge of contempt who offers regrets, the proceedings against him be terminated. 4. The learned Attorney General for Pakistan, after having gone through the notification of retirement of Justice Sayed Zahid Hussain and the contents of the application containing statement of regrets for taking oath on 03.11.2007 stated that regrets so expressed by him may be accepted, particularly keeping in view that he had stood retired and was no more the Judge of this Court. 5. It may be observed that in a case of contempt of Court like the one in hand all that the Court is required to be satisfied is that the dignity and authority of the Court by flouting its judgments/orders are not put at stake. The law of contempt is primarily intended to ensure that the majesty of the law is upheld and the dignity of the Institution of Judiciary, which is a most important pillar of the State, is protected and it also restores confidence of the general public in the due and proper administration of justice in the country. Indeed, Courts are ICA 3 /2011 ETC 5 vested with an extraordinary jurisdiction to punish a person for committing contempt of Court, and armed with a powerful weapon, but the same is to be exercised/used judiciously and sparingly depending upon the facts and circumstances of each case. However, with reference to instant case, it needs to be emphasized that on 03.11.2007, a 7 – Member Bench of this Court passed a restraint order not only to save the dignity of the judiciary, but also to protect Constitution as it is the duty of Judges of Superior Courts who have taken oath to preserve and protect it. Thus, it was all the more necessary for the Judges of the Superior Courts to respect the order in all circumstances. However, Mr. Justice Sayed Zahid Hussain having realized that he had taken oath under a misunderstanding has regretted for his action and decided to quit in the larger interests of the Institution and he would not be adorning the Bench. Therefore, we accept the request so made by him. Consequently, appeal (ICA No. 10 of 2011) is allowed and proceedings for contempt of Court to his extent pending before a Bench of this Court are terminated. 6. Now, turning towards the case of Justice (Retd.) Abdul Hameed Dogar, mentioning of the facts in detail may not be necessary in view of the judgment of this Court in Sindh High Court Bar Association's case wherein this Court has declared that Justice (Retd.) Abdul Hameed Dogar, in view of violation of order dated 03.11.2007 noted above, was never a constitutional Chief Justice of Pakistan and all the appointments of the Judges made in consultation with him were declared to be unconstitutional. For reference, relevant portion from the short order/judgment is reproduced hereinbelow: - “(ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the ICA 3 /2011 ETC 6 Chief Justice of Pakistan was unconstitutional; void ab initio and of no legal effect.” “(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally held the said office from 3.11.2007 to 22.3.2009 (bath days inclusive) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith.” 7. It is pertinent to mention here that against the above judgment review petitions were also filed, which have been dismissed in Justice Khurshid Anwar Bhinder’s case (PLD 2010 SC 483). Subsequent thereto, notices for contempt of Court were issued to Justice (Retd.) Abdul Hameed Dogar and others. He contested the proceedings and ultimately a Bench of this Court decided to proceed against him for contempt of Court as is evident from the concluding paragraph of the order dated 02.02.2011, reproduced hereinabove. Thus, instant appeal has been filed. 8. Mr. Muhammad Ibrahim Satti, learned Sr. ASC appeared and placed on record a statement under the signature of Justice (Retd.) Abdul Hameed Dogar, which is reproduced hereinbelow in extenso: - “STATEMENT OF MR. JUSTICE (RETD) ABDUL HAMEED DOGAR (APPELLANT) With all humility and humbleness at my command, it is submitted that under abrupt, unexpected changes, confusion, misconception and misunderstanding, the order dated 3.11.2007 could not be complied which is highly regretted with repentance and sorrow. I stood retired on 21.3.2009 and not enjoying good health. It is humbly requested that, in view of my ailment, the explained scenario, for which I am really sorry, my regrets may very kindly be accepted and notice of contempt may please be ICA 3 /2011 ETC 7 withdrawn for which I shall highly obliged and place myself at the mercy of Court. Sd/- (Abdul Hameed Dogar) Appellant 02.03.2011” 9. The learned counsel has submitted that Justice (Retd.) Abdul Hameed Dogar has already retired on 21.03.2009, he is no more a Judge of this Court, he is not enjoying good health and while feeling sorry and expressing regrets he has stated that he could not comply with the order dated 03.11.2007 under confusion, misconception and misunderstanding. Besides, he has placed himself at the mercy of the Court, therefore, his regrets may be accepted and his appeal may be disposed of accordingly. 10. The learned Attorney General for Pakistan, on having gone through the statement noted hereinabove has stated that as Justice (Retd.) Abdul Hameed Dogar has placed himself at the mercy of the Court, therefore, on account of the realization that he ought to have complied with the aforesaid order, the request so made by him may be accepted. 11. We have considered the request made before us vide statement reproduced hereinabove and have also gone through the judgments of this Court in the cases of Sindh High Court Bar Association and Justice Khurshid Anwar Bhinder. We are of the opinion that as against the past practice, the order dated 03.11.2007 was passed by a 7 – Member Bench for the first time in the history of this Court whereby Judges of Supreme Court and High Courts including Chief Justices of High Courts were restrained not to take oath under PCO or any other extra-constitutional act with a view to block the imposition of martial law and abrogation of the Constitution as it has ICA 3 /2011 ETC 8 already been clarified hereinabove, as the dignity and respect of the Institution of Judiciary are to be guarded first of all by its own members. Admittedly, Justice (Retd.) Abdul Hameed Dogar violated the order dated 03.11.2007 as it is evident from the conclusion drawn by this Court in the case of Sindh High Court Bar Association (ibid). However, in the case of Justice (Retd.) Abdul Hameed Dogar much water has already flown under the bridges, during course whereof all the actions taken by the then Chief of Army Staff had been declared unconstitutional including appointment of Judges of Supreme Court and High Courts. Reference may be made to the case of Justice Khurshid Anwar Bhinder (ibid). At this stage, Mr. Justice (Retd.) Abdul Hameed Dogar has regretted for his actions and has also thrown himself at the mercy of the Court. In the case in which helplessness has been shown by a person facing contempt proceedings has persuaded us to exercise jurisdiction of contempt sparingly. We accept appeal (ICA No. 9 of 2011) and terminate the contempt proceedings against him too. However, no exception of whatsoever nature shall be claimed by him in respect of observations made in the Sindh High Court Bar Association's case as well as in Justice Khurshid Anwar Bhinder’s case. 12. M/S Raza Kazim, Khalid Ranjha and Sh. Zamir Hussain, learned counsel for Justice Syed Hamid Ali Shah, Justice Iftikhar Hussain Chaudhry and Syed Sajjad Hussain Shah, appellants in ICA No. 6, 7 & 8 of 2011 have submitted that they may be allowed two weeks’ time to take instructions from the appellants in view of the orders/observations made hereinabove. 13. Mr. Ali Zafar, learned ASC who is representing Justice Ms. Yasmin Abbasey, appellant in ICA No. 11 of 2011 is not present. Mr. ICA 3 /2011 ETC 9 Raza Kazim, learned ASC submitted that instead of dismissing the appeal in default, the same may also be adjourned in the interest of justice along with other appeals. Adjourned to 21.03.2011. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. JAVED IQBAL, J. MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. MIAN SAQIB NISAR, J. SARMAD JALAL OSMANY, J. AMIR HANI MUSLIM, J. Islamabad, March 3, 2011 APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.105 of 2020 (Against judgment dated 17.03.2020 passed by the Islamabad High Court Islamabad in Criminal Revision No.20 of 2019) Mufti Kafayat Ullah …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Mir Afzal Malik, ASC Ch. Akhtar Ali, AOR For the State: Niazullah Niazi, Advocate General, Islamabad with M. Anwar I.O. Margallah. Date of hearing: 04.06.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Mufti Kafayat Ullah, petitioner, was tried by a Magistrate at Islamabad for murderous assault on his estranged wife Mst. Sabiha (PW-1) as well as brother-in- law Abdul Majeed (PW-2) in District Court premises on 8.2.2013 where they confronted him after proceedings before a Family Judge. It is alleged that soon after the adjournment of proceedings in a suit filed by the complainant seeking dissolution of her marriage, the petitioner confronted them in the parking lot and attempted repeated fire shots, both luckily stuck in the chamber; the witnesses with the assistance of a police official on duty snatched the gun while he took to the heels, shadowed by his brother Shafiullah. Vide judgment dated 17.12.2018, the learned Magistrate returned a guilty verdict; convicted under Jail Petition No.105 of 2020 2 section 324 of the Pakistan Penal Code, 1860, he was sentenced to six months RI with a fine of Rs.5000/- or to undergo one month SI in default thereof, pre-trial period inclusive. Learned Sessions Judge (West) Islamabad vide judgment dated 27.2.2019 dismissed the appeal; recourse to the High Court met with no better fate vide judgment dated 17.3.2020, vires whereof, are being assailed on a variety of grounds ranging from a cooked up accusation by inimical witnesses to an inherently self-destructive charge, clamouring for interference by this Court. The motion is contested by the learned Law Officer on the ground of unanimity of finding of guilt by the three tribunals. 2. Heard. Record perused. 3. Going by complainant’s narrative, the petitioner twice attempted fire shots and a miracle shielded the family and it was during this process that the petitioner was subdued and disarmed with the assistance of an unnamed police officer. Story of unusual failure of an assault, allegedly preconcerted, is resting upon word of mouth alone with inherent missing links; the Investigating Officer who recorded crime report at the spot did not secure missed bullets therefrom nor he associated the police official, who according to the witnesses while being in the line of duty, intervened to snatch the gun; he is conspicuous by his absence both at the spot as well as witness-box. Inclusion of petitioner’s brother Shafiullah in the array for being in the community of intention evinces desires oblique and suspect with inevitable reflections in the retrospect. According to note of police proceedings, the complainant with her brother Abdul Majeed, upon arrival of Fakhar Abbas ASI (PW-3) presented a .30 caliber pistol with five live bullets in the magazine; seizure does not qualify the riders of Article 40 of the Qanun-e-Shahadat Order, 1984 so as to be received as corroboration of a story that otherwise runs counter to the case set up in the crime report. Given the persisting animosity, it would be unsafe to maintain the conviction on the basis of a script, inherently flawed. Petition is converted into appeal and allowed; impugned judgments are set aside and the appellant is acquitted of the charge. These are the reasons of our short order of even date, reproduced below: “For reasons to follow, this petition is converted into appeal and allowed; conviction and sentence recorded by the learned trial Court, affirmed by the Appellate Court and the High Court are set aside. Jail Petition No.105 of 2020 3 The appellant shall be released forthwith if not required to be detained in any other case.” Judge Judge Judge Islamabad, the 4th June, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed JAIL PETITIONS NO.10 AND 50 OF 2016 (Against the Judgment dated 26.10.2015 passed by Lahore High Court, Lahore in Cr.A. No.215-J/2010) Muhammad Shahbaz Ali Khalid (in Jail Petition No.10/2016) Shujat Ali alias Tikka (in Jail Petition No.50/2016) …Petitioner(s) Versus The State …Respondent For the petitioner(s): Mr. Muhammad Junaid Akhtar, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General, Punjab Date of hearing: 2.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Shahbaz Ali Khalid and Shujat Ali alias Tikka, while travelling in a public vehicle, were intercepted on 3.6.2009 within the precincts of Police Station Essakhel, District Mianwali; the former had deceitfully clad himself in a veil, however, exposed on search, with a suicide vest wrapped around his body; the explosive weighed 15 kilograms; Shujat Ali was found carrying five leads along with detonators and electric fuses; upon indictment, they claimed trial, culminating into their convictions under Section 4 read with Section 5-A of the Explosive Substances Act, 1908 read with Section 7(g) of the Anti Terrorism Act, 1997; Shahbaz Ali Khalid was additionally convicted under Section 419 of Pakistan Penal Code for impersonating himself as a female; they were sentenced to imprisonment for life with forfeiture of their Jail Petitions No.10 and 50/2016 2 properties, Muhammad Shahbaz Ali Khalid with extra tag of three years Rigorous Imprisonment on the third count; their appeals met with no better fate in the High Court on 26.10.2015 albeit with reduction of imprisonment for life imposed upon Shujat Ali alias Tikka to ten years R.I.; as per report of Superintendent, High Security Prisons, Sahiwal dated 28.9.2019, he has since been released after serving out his sentence, however, since his property has been ordered to be confiscated, fate of his petition is also being decided alongside the present petition. 2. Learned counsel for the petitioners has assailed the impugned judgment on a variety of grounds; he emphatically stressed prosecution’s failures ranging from omissions on vital aspects of the case, non-association of independent witnesses admittedly available at the spot to an inclusive expert report to conclusively establish lethality of the contraband. The learned Law Officer has faithfully defended the convictions and sentences consequent thereupon. 3. Heard. 4. The very genesis of the case is somewhat intriguing, inasmuch as, the crime report sans some important details without any plausible explanation; registration number of the vehicle wherein the petitioners travelled is conspicuously missing, in absence whereof, interrupted journey is relegated into a suspect detour. Similarly, crime report is also silent on the names of driver and cleaner of a public vehicle, if at all, the petitioners were surprised therein. Despite an extensive search, police have not been able to retrieve the tickets, a surer means within the realm of possibility, to establish petitioners’ journey with the contraband. Muhammad Shahbaz Ali Khalid’s interception, attired in feminine garments by the male personnel in the presence of public without a lady constable, that too, per chance, without prior information is a story that may not find a buyer. Prosecution’s reliance on the statement of Auliya Khan (PW-3) as an expert to establish explosive potential of the contraband is beside the mark in the face of admission by the witness that he was not an expert in the field and as such hardly in a position to drive home the charge. Imprisonment for life is quite a span and an accused cannot be deprived of best portion of his life on slipshod, incoherent and suspect Jail Petitions No.10 and 50/2016 3 evidence even in cases with heinous contours. In the totality of circumstances, prosecution case cannot be viewed as entirely free from doubt and, thus, it would be unsafe to maintain the conviction. Consequently, these petitions are converted into appeals and allowed; the impugned judgment is set aside; the appellants are acquitted from the charge. Shahbaz Ali Khalid, appellant shall be released forthwith, if not required in any other case. Judge Judge Judge Islamabad 2nd October, 2019 Not approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.112 of 2017 (Against judgment dated 30.1.2017 passed by the Lahore High Court Lahore in Criminal Appeal No.8 of 2012 along with M.R. No.7 of 2012) Javed Ishfaq …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Safdar Hussain Tarrar, ASC Syed Rifaqat Hussain Shah, AOR For the State: N.R. Date of hearing: 06.07.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted for homicide, Javed Ashfaq, petitioner herein, claimed trial along with six others before a learned Additional Sessions Judge at Wazirabad; they were arrayed in the backdrop of shifting of an electric transformer in the village that disrupted power supply to the annoyance of co-villagers, lined up into two groups that clashed at the site, 6:00 p.m. on 2.7.2010; both suffered injuries, opined to have been caused with blunt weapons with the exception of Noor Muhammad, deceased, 70, fatally trapped by petitioner’s solitary shot in the abdomen with a corresponding exit. Receipt of injuries suffered by the accused failed to weigh with the police to set up a counter-version and the accused faced trial without recourse to a private complaint. The petitioner was alone to receive a guilty verdict with death sentence, altered into imprisonment for life by the High Court vide impugned judgment dated 30.1.2017. 2. Learned counsel for the petitioner contends that evidence disbelieved qua majority of the accused cannot haul up the petitioner without independent corroboration, according to him, hopelessly lacking; that the crime report is completely silent on the injuries suffered by no less than five accused, a suppression spelling out an incident incompatible with the details mentioned in the crime report; Jail Petition No.112 of 2017 2 that there exists a clear conflict between ocular account and medical evidence as presence of blackening around the wound belies the inter se distance mentioned in the crime report as well as site plan; it is next argued that the deceased, in his late seventies, was done to death by his own clan to hush up the mischief. 3. Heard. 4. With no previous bad blood, shifting of an electric transformer, with power breakdown, rocked an otherwise peaceful neighbourhood in the sizzling heat of the season and in this backdrop initial receipt of injuries, established during the course of investigation to have been caused by clubs, etc. has to be viewed in the peculiar background of the incident. This appears to be a reason for absence of the injured from the witness box; worst casualty was the deceased, hit by petitioner’s shot as the clash graduated more violent and, thus, in the given circumstances acquittal of the co-accused by the trial Court in the absence of the injured from both sides has been an option wisely preferred by the learned trial Judge; acquittals do not extenuate petitioner’s culpability for additional reasons as well; the police declined to entertain the counter version and the accused by their own choice considered institution of private complaint as a futile exercise. A bipartisan suppression appears to be the predominant cause behind the acquittal of co-accused with roles trivially different, thus, by itself does not pave way for the petitioner to escape consequences of his individual criminal act, otherwise established beyond doubt. In the circumstances, plea of indivisibility of evidence is not available to the petitioner. It was held by this Court in the case of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502)“…..the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances”, a view re- affirmed in the case of Ali Raza alias Peter and others Vs. The State and others (2019 SCMR 1982). Hypothesis of conflict between ocular account and medical evidence, inordinately agitated to highlight presence of burning around the entry aperture is without foundation as well. According to site plan (Ex.PU), the petitioner fired fatal shot from point ‘B’ standing in a window that hit the deceased at point ‘A’. According to Masood Ahmed Bhatti (PW-12), the inter se distance between two points is four feet and, thus, presence of blackening around the entry wound is not surprising; the relevant portion of the cross-examination is reproduced below: Jail Petition No.112 of 2017 3 “It is incorrect to suggest that according to the scaled map the distance between point ‘A’ and point ‘B’ is 12 feet. Volunteered that it is four feet.” Burning/blackening, though a predominant factor to determine distance inter se the assailant and the victim, nonetheless, is not the conclusive indicator; it depends upon factors more than one i.e. quality of munition and process of combustion that may possibly vary the impact of combusted gun powder; a smudging shot may cause deceptive appearance as well, therefore, in the absence of other qualifying evidence, hypothesis of inter se distance cannot be constructed with empirical exactitude on the presence of burning alone (Parikh’s Text Book of Medical Jurisprudence and Toxicology, 1989 Edition, Pages 280/282). Even otherwise, site plan has never been considered as a substantive piece of evidence nor any benefit may be extracted therefrom unless the witnesses are duly confronted with the purported anomaly or discrepancy therein; no such attempt has been undertaken by the defence. Ocular account has been furnished by Zafar Ullah (PW-7) and Fazal Ahmed (PW-8); they are in tune with each other on all the salient features of the case as well as details collateral therewith; they have no axe to grind to point their fingers on the petitioner alone, in a situation that cropped up with no past strings. Defence version that apprehending death of the injured, the deceased, in his late seventies, related in first degree with the complainant, was executed by his own kith and kin to fabricate a counter version is a story that being most preposterous would hardly find a buyer. Despite strenuous efforts, learned counsel for the petitioner has not been able to point out any flaw, discrepancy, legal or factual, calling for interference with the conclusions concurrently drawn by the Courts below. Petition fails. Leave declined. Judge Judge Islamabad, the 6th July, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 148 OF 2022 (On appeal against the judgment dated 15.02.2022 passed by the Lahore High Court, Rawalpindi Bench in Criminal Revision No. 205/2021) Muhammad Usman …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Mr. Junaid Iftikhar Mirza, ASC Mr. Anis Muhammad Shahzad, AOR For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. Date of Hearing: 11.04.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Usman along with co-accused was tried by the learned Judicial Magistrate, Section 30, Kahuta, District Rawalpindi pursuant to a case registered vide FIR No. 201 dated 18.07.2017 under Sections 324/337-F(v)/34 PPC at Police Station Kahuta, District Rawalpindi for attempting to take life of the complainant and his wife. The learned Trial Court vide its judgment dated 17.05.2021 convicted the petitioner as under:- i) Under Section 324 PPC To suffer rigorous imprisonment for five years and to pay fine of Rs.50,000/-. In case of default of payment of fine, the petitioner shall undergo SI for a term of three months. ii) Under Section 337-F(v) PPC To pay Daman amounting to Rs.50,000/- to injured Qudrat Hussain. The amount of Daman was directed to be paid in lump sum. Benefit of Section 382-B Cr.P.C. was also given to the petitioner. JAIL PETITION NO. 148 OF 2022 -: 2 :- 2. The co-accused of the petitioner was also convicted and sentenced on various charges. In appeal the learned Additional District Judge, Rawalpindi while acquitting the co-accused, maintained the conviction of the petitioner and the same was upheld by the learned High Court vide impugned judgment pursuant to Criminal Revision filed by the petitioner. The prosecution story as given in the judgment of the learned Additional District Judge reads as under:- “4. Briefly stated the facts of the prosecution case are that Qudrat Hussain complainant/PW-1 moved complaint EX.PA before the police claiming therein that the accused persons came to his house for affecting compromise between Muhammad Usman accused and daughter of complainant who are husband and wife. In the meanwhile the accused persons became furious, the accused Ghulam Qadir made fire shot on the son of complainant which was missed. The accused repeated the fire which hit the wife of the complainant on left thigh and then Muhammad Usman after snatching the pistol made fire shot to the complainant which hit him on left elbow joint and then the witnesses rescued them and requested the accused persons who thereafter fled away, hence the case.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced ten witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he neither appeared as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him nor produced any evidence in his defence. 4. At the very outset, learned counsel for the petitioner contended that the petitioner has been falsely involved in this case against the actual facts and circumstances. Contends that the ocular account in this case is coming from a source which is related and it does not inspire confidence to sustain conviction of the petitioner. Contends that the prosecution witnesses of the ocular account are at variance on salient features of the prosecution version, as such, the same cannot be made basis to sustain conviction of the petitioner. Contends that the pistol allegedly recovered from the petitioner was not sent to the Forensic Science Laboratory, therefore, the recovery is inconsequential. Contends that the JAIL PETITION NO. 148 OF 2022 -: 3 :- learned High Court did not take into consideration the above aspects of the matter, therefore, the impugned judgment may be set at naught. In the alternative, learned counsel contended that the sentence of the petitioner may be reduced to what he has already undergone. 5. On the other hand, learned Law Officer vehemently opposed this petition on the ground that the eye-witnesses had no enmity with the petitioner to falsely implicate him in this case and the medical evidence is also in line with the ocular account, therefore, he does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. A bare perusal of the record shows that the unfortunate incident, wherein the complainant and his wife sustained injuries, took place on 18.07.2017 at 10:30 pm. The injured were firstly taken to Tehsil Headquarter Hospital where the matter was reported to the Police through written complaint and thereafter the FIR was lodged on the same day at 11:30 pm i.e. just after one hour of the occurrence. Thus, it can safely be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. The ocular account in this case has been furnished by Qudrat Hussain, complainant (PW-1), Rukhsana Bibi (PW-2) and Muhammad Zaheer (PW-3). These prosecution witnesses were subjected to lengthy cross- examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be brought on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical JAIL PETITION NO. 148 OF 2022 -: 4 :- evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of injured is concerned. Qudrat Hussain, complainant (PW-1) had received injury at the hands of the petitioner. The testimony of this injured PW as well as the stamp of injuries on his person clearly proves his presence at the place of occurrence. Qudrat Hussain (PW-1) and Mst. Rukhsana Bibi (PW-2) were the inmates of the house where the occurrence took place, therefore, both these witnesses were the most natural witnesses. In the present case, the eye witnesses, one of whom had received injuries by the petitioner, have spoken consistently and cogently in describing the manner of commission of the crime in detail. The testimony of an injured eyewitness carries more evidentiary value. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. Although, the weapon of offence i.e. a pistol was recovered from the petitioner but as the same was not sent to the Forensic Science Laboratory, therefore, the recovery is inconsequential. To prove the motive part of the prosecution story, the witnesses of the ocular account appeared in the witness box and deposed against the petitioner. The perusal of the record reflects that the defence did not seriously dispute the motive part of the prosecution story. In these circumstances, there is sufficient evidence available on the record to sustain conviction of the petitioner. However, so far as the sentence of 05 years is concerned, we are of the view that the occurrence took place at the spur of the moment without there being any pre-meditation on the part of the petitioner. The complainant himself stated that his daughter was married with the petitioner and due to strained relations she was living in her parents’ house for the last one month. The petitioner came there to convince her and to take her to his house. They also had taken meal there. However, subsequently a quarrel took place between the parties, which resulted in the commission of the crime. The injured Qudrat Hussain only sustained one firearm injury and the petitioner did not repeat the same. The locale of the injury suggests that the petitioner had no intention to kill the injured. The petitioner has already suffered most of his JAIL PETITION NO. 148 OF 2022 -: 5 :- sentence. In this view of the matter, while maintaining the conviction of the petitioner under Sections 324/337-F(v) PPC, the sentence of 05 years RI awarded to him under Section 324 PPC is reduced to the period which he has already undergone. During the course of arguments, learned counsel for the petitioner had prayed that petitioner is a poor person and cannot pay the Daman amount in one go, therefore, requested for installments of the Daman amount. Section 337-Y(2) PPC provides that “in case of non-payment of daman, it shall be recovered from the convict and until daman is paid in full to the extent of his liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may be released on bail if he furnishes security equal to the amount of daman to the satisfaction of the Court.” In this view of the matter as we have already reduced the sentence of the petitioner to what he has already undergone, keeping him behind the bars for the indefinite period till the payment of Daman would not be in the interest of justice. We, therefore, direct that the petitioner may be released subject to his furnishing surety equal to the amount of Daman to the satisfaction of the learned Trial Court. The learned Trial Court is directed to grant one year’s time to the petitioner for payment of Daman amount, which would be payable in equal installments. However, it is made clear that in case of any default in payment of monthly installment, the petitioner shall be taken into custody and dealt with in accordance with law. 8. For what has been discussed above, this jail petition is converted into appeal, partly allowed and the impugned judgment is modified accordingly. JUDGE JUDGE Islamabad, the 11th of April, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.14 of 2016 and Criminal Petition No.180 of 2016 (Against the judgment dated 27.10.2015 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Crl. Appeal Nos.265 & 434/2010, Crl. Revision No.170/2010 with M.R. No.35/RWP/2010) Shaukat Ali (in J.P. No.14 of 2016) Muhammad Akhtar (in Cr.P. No.180 of 2016) …Petitioner(s) Versus The State (in J.P.14/2016) Shaukat Ali & others (in Cr.P.180/2016) …Respondent(s) For the Petitioner(s): Mr. Basharat Ullah Khan, ASC (in J.P.14/2016) For the Complainant: Mr. Sanaullah Zahid, ASC (in Cr. P.180/2016) Date of hearing: 18.09.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The petitioner was indicted alongside seven others, since acquitted, for a fatal shot to Sakina Bibi, 45, at 7:00 p.m. on 2.7.2008 within the precincts of Police Station Domaili, District Jhelum; she succumbed to the injuries on 4.7.2008. The mischief struck the family a week before the incident in an otherwise peaceful neighbourhood, followed by a brawl between the women folk over petitioner’s move to get some girls snapped through Adil PW, given up as having been won over. It is in this backdrop that on the fateful day the petitioner armed with a rifle accompanied by Niaz Ali and Muhammad Saleem, differently armed, confronted the deceased with the fatal shot while she was busy in fetching water at Jail Petition No.14 of 2016 2 the spot; she was rushed to the hospital and it is prosecution’s case that the acquitted co-accused, variously armed, intercepted the PWs on way to the hospital and dealt them injuries, however, after intervention by the locals, they succeeded to reach the hospital. Gasping for life, Sakina Bibi was examined by Dr. Gul Nisa (PW-2) at 8:15 p.m. with a semi circular entry wound in the right hypochondrial region with a corresponding exit, confirmed in autopsy, held on 4.7.2008, as cause of death. Muhammad Ashraf (given up) and Khalid Mehmood (PW-15) were also medically examined on 2.7.2008; they were noted with multiple injuries comprising mostly of swellings and lacerations. The accused claimed trial. The learned trial Judge vide judgment dated 30.04.2010 returned a guilty verdict to the petitioner; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death; remainders were acquitted from the charge. Appeals filed, both by the convict as well as the complainant, were dismissed by the High Court; penalty of death awarded to the petitioner was altered into imprisonment for life vide impugned judgment dated 27.10.2015. Shoukat Ali, petitioner, has assailed his conviction through J.P. No.14 of 2016 whereas the complainant, dissatisfied with consecutive failures qua the acquitted accused as well as alteration of death penalty, seeks conviction as well as enhancement through Crl. P. No.180 of 2016; bound by a common thread, these are being decided through this single judgment. 2. Mr. Basharat Ullah Khan, ASC, has argued for the convict; he contends that after wholesale acquittal of co-accused there was no occasion for the learned trial Judge as well as the High Court to condemn the petitioner on the strength of evidence massively disbelieved vis-à-vis the co-accused; adds that in the absence of any forensic comparison recovery of gun P-4 cannot be viewed as independent corroboration against the convict, particularly after prosecution’s failure on the motive set up in the crime report and, thus, the only juridical course available to the courts below was his acquittal. Contrarily, learned counsel for the complainant submits that the learned trial Judge acquitted the respondents without citing any cogent or plausible reason by extending benefit of doubt, on grounds vague, non-specific and illusory, an error that escaped High Court’s notice as well and, thus, intervention by this Court is called for in circumstances to avoid miscarriage of justice. 3. Heard. Record perused. Jail Petition No.14 of 2016 3 4. The incident is split into two episodes, though in quick succession; the petitioner, in the first place, effectively shot Sakina Bibi while Niaz Ali and Muhammad Saleem, co-accused accompanied him, though armed with a club and an hatchet, they were assigned no harm the deceased. It was after receipt of solitary shot assigned to Shoukat Ali petitioner that on way to the hospital the witnesses were allegedly intercepted where another brawl took place. Insofar as first part of the occurrence is concerned, we do not find any error of approach by the trial Court to hold the petitioner guilty for the crime; the injury assigned to him is confirmed by medico legal examination of Sakina Bibi conducted shortly after the assault; it proved fatal as was confirmed by the medical officer who conducted the autopsy. Occurrence taking place at 7:00 p.m. in the month of July in a small rural neighborhood does not allow to admit hypothesis of mistaken identity or substitution. Absence of empty from the spot in the face of single shot without repetition cannot be viewed as a circumstance intriguing upon the prosecution case; similarly, failure, in the wake of defection by Adil PW to testify in support of the motive, does not tremor the foundational structure of the prosecution case, otherwise firmly founded on ocular account furnished by the witnesses of the locality, having no axe to grind. Culpability in the first part of the occurrence revolves around the petitioner alone with no escape route seemingly available to him nor prosecution’s failure in the second part of the occurrence cast any shadow thereon. Scales are in balance with a wage settled conscionably. No interference is called for. Insofar as acquittal of co-accused entangling the witnesses on way to hospital is concerned, much water has flown under the bridge and in view of the period, the respondents endured tribulation of trial for causing injuries to the witnesses one of whom abstained from the witness box, their acquittal cannot be viewed as perverse or resulting into miscarriage of justice. Petitions fail. Leave declined. Judge Judge Islamabad, the 18th September, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE VAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI JAIL PETITION NO. 154 OF 2016 AND CRIMINAL PETITION NO. 108-1 OF 2016 (Against the judgment dated 23,12,2015 passed by the Lahore High Court, Lahore passed in Criminal Appeal No. 810/2011 & Murder Reference No. 209/2011) Shamsher Ahmad On JP 154/2016) Manzoor Ahmed (complainant) (In Cr.P. 108-L/2016) Petitioner(s) VERSUS The State (In JP 1S4/2016) ShamsherAhmad and another (In Cr.P. 108-L/20161 ...Respondent(s) For the Petitioner(s): Malik Matee UIlah, ASC (in J p 154/2o16)cv %a or ciso Unic iDLakeyt). Mr. Saiful Malook, ASC (In Cr.P. 108-LJ2016) For the State: Mirza Abid Majeed, DPG Date of Hearing: 01.08.2022 JUDGMENT SAWED MAZAHAR All AKBAR NAQVI, 3.- Petitioner Shamsher Ahmed was tried by the learned Sessions Judge, Mianwali pursuant to a case registered vide FIR No. 185 dated 03.06.2009 under Section 302 PPC at Police Station Kundian, District Mianwali for committing murder of Ishtiaq Ahmed, son of the complainant. The learned Trial Court vide its judgment dated 28.04.2011 convicted petitioner Shamsher Ahmed under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further suffer six months SI. In appeal the learned High Court while maintaining the conviction of the . ., I - JAIL PETITION NO. 154 OF 2016 AND -: 2 CRIMINAL PETITION NO, 108-L OF 2016 petitioner/convict under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P,C. was also extended to the petitioner/convict. Being aggrieved by the impugned judgment, the petitioner/convict filed Jail Petition No. 154/2016 whereas the complainant has filed Criminal Petition No. 108-L/2016 before this Court seeking enhancement of the sentence of the petitioner/convict. 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- "2. The brief facts of the case are that Manzoor Ahmed complainant (PW-6) got registered FIR (Ex.PE) alleging that he is resident of Doaba and serving as a teacher in Elementary School, JaaI Shuniali, his sister Mst. Wazir Khatoon widow of Malik GuI Sher is residing in Mohallah Seelwan, Kundian along with her children and is a patient of paralysis. Yesterday at Degar vela he along with Ishtiaq Ahmed his son aged 18 years and Riaz Ahmed son of Allah Ditta went to inquire about her health, after having dinner he along with Riaz Ahmed, Ishtiaq Ahmed his son and Sami Ullah son of his sister came on Jernaili Road for easy load and did the needful after having tea at the hotel and then returned back at about 10.15 PM when they reached in front of house of Malik GuI Sher deceased, then Shamsher Ahmed accused armed with double barrel 12 bore gun came from the front street and raised a lalkara at Ishtiaq Ahmed his son to be prepared as he has come to teach him a lesson being an impediment in his marriage from the house of GuI Sher and fired a shot with his 12 bore double barrel gun hitting his son Ishtiaq Ahmed on the Chest who fell down after receiving the injury; that the occurrence was seen by Riaz Ahmed and Sami Ullah in the tube light installed on the main gate along with the complainant. The motive for the occurrence is that Shamsher Ahmed accused wanted to tie the knot with the daughter of his sister but his sister had refused to accede to his request to which the accused Shamsher Ahmed had a grouse that the deceased was hurdle in his way to be married from the house of Gui Sher, therefore, due to this reason he has committed Qatl-e-Amad of Ishtiaq Ahmed, his son with 12 bore double barrel gun. The accused ran away while brandishing the gun towards east, they did not went near due to fear and took Ishtiaq Ahmed in injured condition to hospital who succumbed to the injuries after reaching in the hospital." 3. After completion of the investigation, report under Section 173 Cr,P,C. was submitted before the Trial Court. The prosecution in order to prove its case produced 11 witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner/convict pleaded his innocence and refuted all the allegations leveled against him. However, he did not make JAIL PETITION NO. 154 OF 2015 AND CRIMINAL PETITION NO. 108-L OF 2016 his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence, 4. Learned counsel for the petitioner/convict contended that there is a delay of about three hours in lodging the FIR whereas the inter se distance between the place of occurrence and the police station was 1 & 'I, kilometers. Contends that it was a night time occurrence and it was not possible for the prosecution witnesses to identify the accused. Contends there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. Contends that the prosecution case is based on whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the recovery of weapon of offence in absence of recovery of empty is inconsequential. Contends that the postmortem was conducted after eight hours of the occurrence for which no reason is given. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment has to be set at naught. S. On the other hand, learned Law Officer assisted by learned counsel for the complainant submitted that the learned High Court has converted the sentence of death of the petitioner on the grounds, which are not tenable in law. Contend that to sustain conviction of an accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Lastly contend that the ocular account is supported by the medical evidence, therefore, the petitioner/convict does not deserve any leniency by this Court. Learned counsel for the complainant vehemently argued that the entence of the petitioner/convict may be enhanced. JAIL PETITION NO. 154 OF 2016 AND 4:- CRIMINAL PETITION NO. 108-L OF 2016 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. The ocular account in this case has been furnished by ManzoOr Ahmed, complainant (PW-6) and Samiullah (PW-7). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner/convict or adverse to the prosecution could be produced on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased is concerned. So far as the argument of learned counsel for the petitioner that the medical evidence contradicts the ocular version is concerned, we may observe that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. It is settled that casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appeared to have landed and it becomes highly improbable to mention their location with exactitude. However, learned counsel could not point out as to how the medical evidence contradicts the ocular evidence. As far as the question that the complainant was father of the deceased, therefore, his testimony cannot be believed to sustain conviction of the petitioner/convict is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. samiullah (PW-7) was son of Mst. Wazir Khatoon, sister of the complainant EJ - JAIL PETITION NO, 154 OF 2016 AND -: 5 CRIMINAL PETITION NO. 108-L OF 2016 and resident of the same area where the occurrence took place whereas the complainant has reasonably explained his presence at the place of occurrence. According to him, he went to his paralyzed sister's house to inquire about her health. Learned counsel for the petitioner/convict could not point out any reason as to why the complainant has falsely involved the petitioner/convict in the present case and let off the real culprit, who has committed murder of his real son. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his son and falsely involve the petitioner without any rhyme and reason. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. While appreciating the evidence, the court must not attach undue importance to minor discrepancies and such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The accused cannot claim premium of such minor discrepancies. If importance be given to such insignificant inconsistencies then there would hardly be any conviction. Reliance is placed on Allah Bakhsh Vs. Ahmad Din (1971 SCMR 462). So far as the delay of about 2 hours 45 minutes in lodging the FIR is concerned, the complainant in his cross-examination has reasonably explained the delay by furnishing the details about the consuming of time as it took 15/20 minutes at the spot, about 30 minutes in reaching the hospital, he remained in hospital for about one hour and then reached the police station in another 35-40 minutes where he had to wait for the SHO for more than an hour. Learned counsel for the petitioner/convict had argued that as it was a night time occurrence, therefore, it was not possible for the prosecution witnesses to identify the accused. However, this argument of the learned counsel is misconceived as the petitioner is paternal cousin of Samiullah (PW-7), therefore, the parties were known to each other and no question of mistaken identify arises. Even otherwise, the prosecution witnesses of ocular account had clearly mentioned that a tube-light was glowing at the - JAIL PETITION NO. 154 OF 2016 AND -: 6 CRIMINAI PETITION NO. 108-1 OF 2016 main gate of Mst. Wazir Khatoon, sister of the complainant, in front of which the occurrence took place. Although it has been argued that the tube-light, which has been shown as source of the light was not taken into possession and as such it hampers the prosecution case. However, this aspect of the argument has no legal foundation. Firstly, it depends upon the ownership of the article, which ultimately provided the source for identification, and secondly, it is for the Investigating Officer either he deems it essential or otherwise Even if this aspect of the argument is evaluated broadly, it is suffice to state that this principle is not absolute because it depends upon (i) source, (ii) question of ownership, (iii) public or private, & (iv) essential to show the source. When all these matters are taken into consideration, it is established that it was a tube-light and as such the same cannot be made part of case property merely on the ground that the assailant was identified from the source, which has been shown. This source of light is also established from the rough site plan as well as scaled site plan, which is essential part of the prosecution case. The delay of about eight hours in conducting postmortem examination is also not beneficial to the petitioner/convict. The occurrence took place at 10.15 PM whereas the FIR was lodged at 1.00 am (mid night) and it was after the registration of FIR that the state machinery came into action and after usual proceedings the postmortem examination was conducted at 6.15 am in the morning i.e. after five hours of registration of FIR. After the occurrence, the petitioner also remained absconder for about six months, which is also a corroboratory piece of evidence against him. The learned High Court has rightly disbelieved the motive by holding that there is no positive proof that the deceased was instrumental in rejection of matrimonial proposal sent by the petitioner. So far as the recovery of weapon of offence i.e. .12 bore rifle is concerned, admittedly no empty was recovered from the place of occurrence, which could be sent to Forensic Science Laboratory for analysis, therefore, the recovery is inconsequential. In these circumstances, there is sufficient evidence available to sustain the conviction of the petitioner/convict. So far as the antum of punishment is concerned, keeping in view the fact that I JAIL PETITION NO. 154 OF 2016 AND -:7:- CRIMINAL PETITION NO, 108-L OF 2016 recovery is inconsequential and motive has not been proved, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life. No further leniency can be shown to the petitioner. The impugned judgment is well reasoned, proceeds on correct principles of law on the subject and does not call for interference by this Court. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. Islamabad, the I' of August, 2022 Approved For Reporting Iiti,iit.i.ii

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR JAIL PETITION NO. 169 OF 2021 (On appeal against the judgment dated 16.03.2021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 76554/2017) Nazir Ahmed …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Mr. Sikandar Zulqarnain Saleem, ASC (Via video link from Lahore) For the State: Mirza Abid Majeed, DPG Mr. Haseeb Ashraf, D.O. CTD Date of Hearing: 01.06.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the learned Special Judge, Anti Terrorism Court, Sargodha pursuant to a case registered vide FIR No. 43 dated 29.06.2016 under Sections 4/5 of Explosive Substances Act, 1908 read with Section 7 of the Anti Terrorism Act, 1997 at Police Station CTD, Faisalabad as explosive material weighing 1150 grams along with four detonators and two safety fuses were recovered from his possession. The learned Trial Court vide its judgment dated 14.09.2017 convicted the petitioner as under:- i) Under Section 5 of the Explosive Substances Act, 1908 To undergo fourteen years RI and his whole property was forfeited to the government. ii) Under Section 7(ff) of the Anti Terrorism Act, 1997 To undergo fourteen years RI with forfeiture of his property. JAIL PETITION NO. 169 OF 2021 -: 2 :- 2. In appeal the learned High Court maintained the conviction and sentences recorded by the learned Trial Court. The prosecution story as given in the judgment of the learned High Court reads as under:- “2. Brief facts of the case are that on 29.06.2016 the Complainant, Noor Muhammad/SI (PW-1), was patrolling with other police officials on Watta Khel Chowk, Mianwali, when he received a source information that Nazir Ahmad (the “Appellant”) was waiting for someone at Hassan Chowk with a red and white cloth bag containing explosives and that he could be apprehended if an immediate action was taken. On this tip-off, the Complainant and his contingent reached that place and nabbed the Appellant on the pointing out of the informer. He checked his bag and found explosive substance weighing 1150 grams, one match box, four detonators and two safety fuses. On his personal search he recovered Rs.570/- from his pocket. The Complainant drew 20 grams from the recovered explosive substance and prepared a sampled parcel for chemical analysis. Then he secured the entire case property vide Recovery Memo Exh. PA, drafted the complaint Ex.PC and sent it to the Police Station CTD, Faisalabad, through Hammad Qadeer 791/CP on the basis of which Muhammad Shahid Anwar 720/CP (PW-3) registered FIR No.43/2016 Exh. PC/1 at 03:10 p.m.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced eight witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not make statement on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him. However, he produced some defence witnesses and documentary proof. 4. At the very outset, learned counsel for the petitioner contended that the petitioner has been falsely implicated in this case and the Police has planted the explosive material upon him. Contends that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses, which have escaped the notice of the learned courts below. Contends that the learned courts below did not take into consideration the defence plea of the petitioner that he was kidnapped by the law enforcing agencies and was falsely framed in the picture with ulterior motives. Contends that none from the public was associated in the case and only official witnesses deposed against the JAIL PETITION NO. 169 OF 2021 -: 3 :- petitioner. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the petitioner was caught red handed while in possession of a huge quantity of explosive material and the Police officials had no enmity to falsely involve him in the present case. Contends that the prosecution has proved its case against the petitioner beyond shadow of doubt and mere technicalities cannot absolve the petitioner of his criminal liability. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. It is the prosecution case that the petitioner was caught red handed while he was carrying a cloth bag, which contained explosive substance weighing 1150 grams wrapped in a polythene bag, four detonators wrapped in blue polythene, a match box and two safety fuses. Twenty grams explosive material was separated and was sent to Punjab Forensic Science Agency for chemical analysis. To bring home the guilt of the petitioner, the prosecution mainly relied upon the statements of Noor Muhammad, SI/complainant (PW-1), Ahmed Nawaz, SI (PW-2) and Khaliq Dad Khan, Bomb Disposal Commander (PW-5). Noor Muhammad (PW-1) and Ahmed Nawaz (PW-2) appeared to prove the factum of recovery whereas Khalid Dad Khan (PW-5) gave its report to the effect that the detonators and safety fuses were alive. These witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be produced on record. Therefore, it can safely be concluded that the testimonies of these PWs are reliable, straightforward and confidence inspiring. The said witnesses had no enmity with the petitioner to falsely JAIL PETITION NO. 169 OF 2021 -: 4 :- implicate him in the present case. This Court in a number of cases has held that testimony of official witnesses is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioner in this case. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statements of official witnesses, as no legal bar or restriction has been imposed in this regard. Police/official witnesses are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination. The parcel containing sample of recovered explosive substance was sent to the office of Punjab Forensic Science Laboratory and according to the report of the Agency the sample contained explosive material. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The petitioner had taken a defence plea that he was arrested by CTD due to his relation with one Mukhtar, who was his cousin and belonged to TTB and was falsely framed in the picture with ulterior motives. It is worth mentioning that during the course of proceedings before the Trial Court, the petitioner did not opt to appear on oath in terms of Section 340(2) Cr.P.C. However, he produced defence JAIL PETITION NO. 169 OF 2021 -: 5 :- witnesses. When the person who is himself seized with first hand information does not appear on oath and only produces witnesses, this move lowers the sanctity of defence version simply for the reason that the accused was a best witness to depose entire detail as to when and who abducted him, what was the reason behind this, where he was kept, who brought him to the place of occurrence, why he was falsely involved in the case etc. When the petitioner took a specific plea and he was a best witness for the same then his non-appearance is to be taken as withholding of the best evidence. The learned High Court in paragraph 15 of the impugned judgment has dealt with this issue and has rightly held as under:- “To prove this plea, he examined DW-1 to DW-4 and produced the documents mentioned above. So far as the DWs are concerned, their evidence does not inspire confidence because they did not explain why they neither approached senior officers in police hierarchy nor a court of law to get the appellant released. Importantly, the appellant did not produce his brother Zahoor Ahmed, who was a material witness as DW-1 Zameer Haider stated that he had informed him about his arrest by the CIA staff. In our opinion, the documents are also of little help to the appellant. The application under Section 22-A Cr.P.C. did not specifically state that the CTD officials were involved in his alleged arrest.” 8. According to Article 119 of the Qanun-e-Shahadat Order, 1984, the burden to prove any particular fact lies on the person who wishes the court to believe its existence. There is no denial to this fact that the prosecution has to discharge the burden of proving the case beyond reasonable doubt. However, once the prosecution becomes successful in discharging the said burden, it is incumbent on the accused who had taken a specific defence plea to prove the same with certainty but we are of the view that the petitioner has failed to prove the same. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. JAIL PETITION NO. 169 OF 2021 -: 6 :- 9. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 1st of June, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN LAPPELLA EJURISDIGION PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR All AKBAR NAQVI )Aii PETITION NO. 190 OF 2017 AND CRIMINAL PETITION NO 398 1 OF 2 Onl 'OOZ ^017 Pa ssed by the Lahore High Court, Mijitan Bench In Murder Ref prence Na. 111/2012 & Cdmlr.aj Appeal No. 77212012) VERSUS Azhar Hussain Hafl Ghous Bakhsh (complainant) The State & others (In JP 190/2017) (In Cr.P. 398-L/2017) ...Petitioner(s) (In both cases) Respondent(s) For the Petitioner(s). Ms. Saba Saeed Sheik!,, ASC (In JP fJ/zot)V. Via video link Lahore Mr. Sikancjar Javed, ASC (In Cr.P. 398-1.12017. Via video link Lahore For the State: N. R. Date of Hearing: 16.08.2022 YYED MAZAHAR All AKBAR JUDGMEN NAQVI, J.- Petitioner Azhar Hussain along with two co-accused was tried by the learned Additional Sessions Judge, Jatoi, District Muzaffargarh pursuant to a case registered vide FIR No. 731/2010 dated 05.10.2010 under Sections 302/34 PPC at Police Station Jatoi for committing murder of Mst. Sajda Bibi, daughter of the complainant The learned Trial Court vide its judgment dated 17.11.2012 while acquitting CO-accused convicted petitioner Azhar Hussain under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.100,000,L. to the legal heirs of the deceased or in default whereof to further suffer six months SI. In appeal the learned High Court while maintaining the conviction of the petitioner under Section 302(b) PPC, altered the sentence of death into JAIL PETITION NO. 190 OF 2017 AND CRIMINAL PETITION NO. 3981 OF 2017 imprisonment for life. The amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the petitioner/convict. Being aggrieved by the impugned judgment, the petitioner/convict filed Jail Petition No. 190/2017 whereas the complainant has filed Criminal Petition No. 398-L/2017 before this Court seeking enhancement of the sentence of the petitioner/convict. 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- "2. The brief facts of the prosecution case are that on 05.10.2010, the complainant of this case namely Hap Ghaus Bakhsh appeared before the police and got recorded his statement Exh.P.E. contending therein that today at morning time he (complainant) alongwith his wife Mst. Ashraf and children was cultivating vegetable near his house while his daughter namely Mst. Sajda aged 16/17 years was present in the house. At about 7.30 AM he heard hue and cry and rushed towards his house and saw that two unknown persons were coming out form his Havaili. He reached in the house and saw that his daughter Mst. Sajda had grappled with accused Azhar Hussain. When he (complainant) reached near, the accused Azhar Hussain made fire with his pistol which hit in the belly of Saida Bibi who fell on the ground. In the meanwhile PWs namely Mukhtiar Hussain and Muhammad Siddique reached at the spot and they tried to catch accused Azhar Hussain but accused gave threats while raising his pistol but PW namely Mukhtiar Hussain chased the accused Azhar Hussain and caught hold him in the cotton crop near the house and they grappled with each others. The accused Azhar Hussain fled away while leaving his Qamiz, Shalwar alongwith broken Azarband, pair of shoe and identity card before they reached there. His daughter succumbed to the injuries. On these facts and circumstances, the above mentioned case was registered." 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced nine witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner/convict pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. JAIL PETITION NO. 190 OF 2017 AND -: 3 CRIMINAL PETITION NO. 398-L OF 2017 4. Learned counsel for the petitioner/convict contended that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. Contends that the prosecution case is based on whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that there was no blood stained earth at the place of occurrence, which shows that the occurrence took place somewhere else. Lastly contends that the impugned judgment is based on misreading and non-reading of the evidence, therefore, the same may be set at naught. 5. On the other hand, learned counsel for the complainant submitted that the learned High Court has converted the sentence of death of the petitioner on the grounds, which are not tenable in law. Contends that to sustain conviction of an accused on a capital charge, Un- rebutted ocular evidence alone is sufficient. Lastly contends that the ocular account is supported by the medical evidence, therefore, the petitioner/convict does not deserve any leniency by this Court, rather his sentence may be enhanced. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. The ocular account in this case has been furnished by Ghous Bakhsh, complainant (PW-3) and Mukhtiar Hussain (PW-6). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner/convict or adverse to the prosecution could be brought on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, fr,t -- U - JAIL PETITION NO. 190 OF 2017 AND -: 4 CRIMINAL PETITION NO. 398-1 OF 2017 therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased is concerned. As far as the question that the complainant was father of the deceased, therefore, his testimony cannot be believed to sustain conviction of the petitioner/convict is concerned, this Court has time and again held that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. Learned counsel for the petitioner/convict could not point out any plausible reason as to why the complainant has falsely involved the petitioner/convict in the present case and let off the real culprit, who has committed murder of his real daughter. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his daughter and falsely involve the petitioner without any rhyme and reason especially when admittedly there was no previous enmity between the parties. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query she could not point out any major contradiction, which could shatter the case of the prosecution. While appreciating the evidence, the court must not attach undue importance to minor discrepancies and such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The accused cannot claim premium of such minor discrepancies. If importance be given to such insignificant inconsistencies then there would hardly be any conviction. Reliance is placed on Allah Bakhsh Vs. Ahmad Din (1971 SCMR 462). Learned counsel for the petitioner had argued that there was no blood stained earth at the place of occurrence, which shows that the occurrence took place somewhere else and just to bring the case within the prosecution version, the place of occurrence was mentioned at the complainant's house. However, this argument of the learned counsel is JAIL PETITION NO. 190 OF 2017 AND -: 5 :- CRIMINAL PETITION NO. 398-1 OF 2017 misconceived. The postmortem examination clearly suggests that gut was coming out of the only injury sustained by the deceased. The learned Trial Court has rightly observed that in such like injuries when the gut comes out of the belly, it seals the margin of the wound and the blood falls inside the body cavity instead of oozing outside the body. Dr. Samreen Rasheed, (PW-2) who had conducted postmortem examination had observed that the peritoneum was injured anterioly at the level of umbilicus and the abdominal cavity was full of blood, the small intestines were perforated, therefore, non-existence of blood at the place of occurrence is easily understandable and does not shatter the prosecution case. The petitioner had taken defence plea that he had friendly relations with the deceased and when he was seen by the complainant's son with the deceased sitting in the cotton crop, he ran away and later heard that the deceased has been murdered. However, he could not substantiate his plea by placing on record cogent evidence. It seems he has concocted a false story just to save his skin. However, this stance of the petitioner extends support to the prosecution case that he was followed by Mukhtiar Hussain (PW-6) till the cotton crop where confrontation took place and his identity card along with other belongings were left by him in the field. It was one of the arguments of the learned counsel that the Investigating Officer did not properly investigate the case, the investigation remained incomplete and the challan was not properly sent. However, on our specific query, learned counsel admitted that neither any attempt was made by the defence to get the Investigating Officer declared hostile nor did they file private complaint nor even the Investigating Officer was cross-examined on this aspect of the matter. Therefore, raising this argument at this stage 15 of no avail to the petitioner. The prosecution had not disclosed the motive, which resulted in the commission of the offence but since there was no enmity between the parties, therefore, the complainant did not narrate any motive in the crime report. So far as recovery is concerned, admittedly neither the weapon of offence was recovered from the petitioner nor any empty was collected from place of occurrence. However, we may observe at where ocular evidence is found trustworthy and confidence Inspiring I T - JAIL PET II[ON NO. 190 OF 20].] AND CRIMINAL PETITION NO, 398-1 OF 2017 then the conviction can be solely based upon it. In these circumstances, there is sufficient evidence available to sustain the conviction of the petitioner/convict. So far as the quantum of punishment is concerned, keeping in view the fact that no recovery was affected and motive has not been proved, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life. No further leniency can be shown to the petitioner/convict. The impugned judgment is well reasoned, proceeds on correct principles of law on the subject and does not call for interference by this Court. 7. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave to appeal is refused. Islamabad, the 16th of August, 2022 r'4Approved For Reporting ILiIffitii•i

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.1 of 2016 (Against judgment dated 02.11.2015 passed by the Lahore High Court Lahore in Crl. Appeal No.243 of 2011 & M.R. No.133 of 2011) Arfan Akram …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Nemo For the State: Mr. M. Usman, Deputy Prosecutor General Punjab Date of hearing: 03.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Irshad Bibi, 62, was shot dead at 11:00 a.m. on 26.1.2009, outside the threshold of her home, located within the precincts of Police Station Tandlianwala, District Faisalabad by Irfan Akram, petitioner, no other than her son-in-law; incident was reported 11:45 p.m. at the spot by her son Shakil Ahmed (PW-7). It was alleged that armed with a .30 caliber pistol, the petitioner persuaded the deceased to sell her residential enclave to apportion the proceed thereof with him; she declined the suggestion at the cost of her life. Arrested on 27.10.2009, the petitioner pursuant to a disclosure led to the recovery of a .30 caliber pistol, found wedded with the casing secured from the spot, dispatched for forensic analysis earlier to his arrest. A learned Additional Sessions Judge vide judgment dated 3.2.2010 returned a guilty verdict; he was sentenced to death under clause (b) of Section 302 of the Pakistan Penal Code, 1860; altered by the High Court into imprisonment for life vide impugned judgment dated 2.11.2015, vires whereof are being Jail Petition No.1 of 2016 2 assailed through a jail petition, filed with a delay of 23 days, condoned with a view to ensure safe administration of criminal justice. 2. We have examined the entire record with the assistance of the learned Law Officer to discover that the incident was reported with a remarkable promptitude. Occurrence took place at 11:00 a.m, reported to the police 45 minutes thereafter; autopsy conducted at 5:00 p.m. cannot be viewed as delayed; durations mentioned therein synchronize with the point of time reflected in the crime report. Shakil Ahmed (PW-7), deceased’s real son and inmate of the same premises is a natural witness by all standards; his evidence is duly corroborated by Munawar Hussain (PW-8). On all the salient features of the case as well as details collateral therewith, we have found them consistent, straightforward and confidence inspiring; even otherwise, seemingly they do not have an axe to grind. On the contrary, petitioner being a brother-in-law could not be conceivably swapped as a scapegoat. Forensic reports are in the positive. Solitary fire shot is consistent with the weapon recovered and found wedded with the casing dispatched before arrest. Petitioner’s absence from law for a considerable span of time heavily militates against the position taken by him during the trial; his wife Raheela Bibi, a common link with the deceased, was the best person to vindicate his position; she is conspicuous by her absence from the scene. Prosecution successfully drove home the charge to the hilt and we have not been able to find out any space to admit any hypothesis other than petitioner’s guilt. Scales are in balance with wages conscionable in circumstances. Petition fails. Leave declined. Judge Judge Islamabad, the 3rd March, 2020 Not approved for reporting Azmat/- Jail Petition No.1 of 2016 3

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 206 OF 2019 (On appeal against the judgment dated 11.03.2019 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 394/2018) Muhammad Ijaz …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Syeda B.H. Shah, ASC For the State: Mirza Abid Majeed, DPG Date of Hearing: 08.05.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Ijaz was tried by the learned Additional Sessions Judge, Rawalpindi pursuant to a case registered vide FIR No. 66 dated 19.04.2012 under Section 302 PPC at Police Station Chountra, Rawalpindi for committing murder of Mst. Naveeda Bibi, daughter of the complainant. The learned Trial Court vide its judgment dated 26.03.2018 convicted the petitioner under Section 302(b) PPC and sentenced him to imprisonment for life. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further suffer six months SI. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. In appeal the learned High Court maintained the conviction and sentence recorded by the learned Trial Court. 2. The prosecution story as given in the impugned judgment reads as under:- JAIL PETITION NO. 206 OF 2019 -: 2 :- “3. Precisely stated the case of prosecution, as unveiled by Ghulam Akbar (PW-14) is to the effect that on 19.04.2012 he along with his wife, namely, Ghulam Shafian went to fields in order to harvest wheat crops; that at about 12:00 noon his daughter, namely, Naveeda Bibi, who was married with accused Muhammad Ejaz about 14/15 years back and at present was residing with him due to the strained relation with her husband, after giving meals to them went back to the house; that at about 02:15 pm after harvesting wheat crops, the complainant, his wife, Muhammad Qurban and Abdul Latif along with their cattle reached in the street nearby his house; that he heard reports of fire shots from his house, upon which complainant along with persons mentioned above rushed towards his house and saw Muhammad Ejaz while decamping and brandishing his pistol therefrom; that Naveeda Bibi was found screaming in the room while smeared with blood and shortly thereafter died.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced seventeen witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he neither appeared as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him nor produced any evidence in his defence. 4. At the very outset, learned counsel for the petitioner contended that it was an un-witnessed occurrence and the petitioner has been falsely involved in this case against the actual facts and circumstances. Contends that the whole case of the prosecution is based upon the statements of two witnesses, who furnished the evidence of waj takar and the same is partisan and it does not inspire confidence. Contends that the prosecution witnesses are at variance on salient features of the prosecution version, as such, the same cannot be made basis to sustain conviction of the petitioner. Contends that the motive in this case is shrouded in mystery and the report of the Forensic Science Laboratory with regard to weapon of offence is negative, which makes the prosecution case doubtful. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. JAIL PETITION NO. 206 OF 2019 -: 3 :- 5. On the other hand, learned Law Officer vehemently opposed this petition on the ground that the witnesses had no enmity with the petitioner to falsely implicate him in this case and the medical evidence is also in line with the ocular account, therefore, the petitioner does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. A bare perusal of the record shows that the unfortunate incident, wherein the daughter of the complainant was done to death, took place on 19.04.2012 at 02:30 pm whereas the matter was reported to the Police on the same day at 06:05 pm. The distance between the place of occurrence and the Police Station was 18 kilometers. Thus, it can safely be said that FIR was lodged with promptitude. Ghulam Akbar, complainant (PW-14) and Abdul Latif (PW-15) had heard the gunshot and witnessed the petitioner fleeing away from the place of occurrence after commission of offence while he was having a pistol in his hands. Evidence of these witnesses is in the nature of waj takar, the probative strength of which rests in the doctrine of res gestae in view of Article 19 of the Qanun-e- Shahadat Order, 1984. The said doctrine of res gestae is based upon the assumption that statements of witnesses that constitute part of the res gestae are attributed a certain degree of reliability because they are contemporaneous making them admissible by virtue of their nature and strength of their connection with a particular event and their ability to explain it comprehensively. These prosecution witnesses were residents of the same locality, therefore, their presence at the place of occurrence was natural. These prosecution witnesses were subjected to lengthy cross- examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be brought on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. These PWs remained consistent on each and every material JAIL PETITION NO. 206 OF 2019 -: 4 :- point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that their statements are reliable, straightforward and confidence inspiring. There is no denial to this fact that these PWs were related with the deceased but the law in this regard is well settled. A related witness cannot be termed as an interested witness under all circumstances. A related witness can also be a natural witness. If an offence is committed within the presence of the family members then they assume the position of natural witnesses. In case, their evidence is reliable, cogent and clear, the prosecution case cannot be doubted. However, a related witness would become an interested witness when his evidence is tainted with malice and it shows that he is desirous of implicating the accused by fabricating and concocting evidence but the learned counsel for the petitioner could not show us anything in this regard. The Court is required that the evidence of an eye- witness who is a near relative of the victim should be closely scrutinized. Learned counsel for the petitioner could not point out any plausible reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit, who has committed murder of his daughter. Substitution in such like cases is a rare phenomenon. The medical evidence available on the record further corroborates the prosecution case so far as the nature, time, locale and impact of the injuries on the person of the deceased is concerned. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query she could not point out any major contradiction, which could shatter the case of the prosecution. Where discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the salient features of the prosecution version, they need not be given much importance. As the report of the Punjab Forensic Science Laboratory is negative, therefore, the recovery of weapon of offence is inconsequential. So far as motive part of the prosecution story is concerned, the learned Trial Court has rightly disbelieved the motive by holding that is a vaguely formulated motive because no material evidence JAIL PETITION NO. 206 OF 2019 -: 5 :- could be placed on record to prove the motive. There is no denial to this fact that the petitioner remained absconder for a long period of more than five years, which is also a corroboratory piece of evidence against him. The learned courts below have already taken a lenient view while awarding the sentence of imprisonment for life to the petitioner, which in our view leaves no room to further deliberate on this point. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 7. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 8th of May, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.210 of 2018 (Against the judgment dated 19.12.2017 passed by the Peshawar High Court, Abbottabad Bench in Crl. Appeal No.67-A of 2014) Abdul Khaliq …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Qazi Adil Aziz, ASC Mr. Mehmood A. Sheikh, AOR For the State: Mr. Arshad Hussain Yousafzai, ASC Date of hearing: 04.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Amraiz, 25, along with the witnesses was on way to attend a marriage ceremony on 13.3.2011 at 1:00 p.m. when the petitioner accompanied by his brother Javed repeatedly shot him in the chest; he initially survived the assault and himself laid information with the police in the hospital, however, succumbed to the injuries shortly thereafter. No motive is cited in the crime report, however, subsequently disclosed as a previous brawl between deceased’s cousin and the assailants. The deceased was examined in injured condition at 2:15 p.m; the medical officer noted two entry wounds surrounded by blackened margins with corresponding exits on the chest, confirmed in the autopsy report as cause of death; the petitioner was arrested on the following day with a .30 caliber pistol (P-3), forensically found wedded with the casings, eight in number, secured from the spot. Both the accused were indicted before the learned Sessions Judge Haripur; the trial culminated into petitioner’s conviction under clause (b) of Section 302 Jail Petition No.210 of 2018 2 of the Pakistan Penal Code, 1860; he was sentenced to death vide judgment dated 14.06.2014, however, the co-accused was acquitted from the charge. The High Court upheld petitioner’s conviction albeit with alteration of death penalty into imprisonment for life vide judgment dated 19.12.2017, vires whereof are being assailed through a jail petition, taken up by Qazi Adil Aziz, ASC. It is argued that evidence disbelieved qua the co-accused cannot be relied upon for petitioner’s conviction in the absence of independent corroboration, hopelessly lacking in view of exclusion of motive from consideration by the High Court; it is next argued that none was present at the scene and the petitioner was arrayed as an accused after deliberations and consultations on the basis of a misplaced and ill-conceived suspicion. The learned counsel has also assailed dying declaration, relied upon by the courts below, as according to him, the deceased in view of nature of his injuries was physically not in a position to make any statement. It is next argued that statement of Sher Afzal (DW-1) being truthful and confidence inspiring merited preference over the prosecution evidence, a unanimous error committed by the courts below. It would be unsafe to rely upon the solitary statement of an eye witness supported by an inherently flawed dying declaration, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment. 2. Heard. Record perused. 3. Shortly after the incident, the deceased was rushed to D.H.Q. Hospital Haripur; Dr. Dildar Khan (PW-3) attended him and according to his deposition, he endorsed/attested statement (Ex.PW-4/1), subsequently treated as dying declaration; subjected to extensive cross-examination at an inordinate length, he was unambiguously categorical about deceased’s capacity to communicate at the time when he examined him in injured condition; he further confirmed that the statement was recorded in his presence; he has vehemently denied connivance with the police; his evidence has been found by us straightforward and confidence inspiring throughout without any taint. Mere presence of relatives who brought the deceased in injured condition to the hospital would not by itself impair the evidentiary value of statement made by the declarant face to face with God. In his last agonizing moments, he confined his case to the petitioner instead of attributing second shot to the co-accused, a Jail Petition No.210 of 2018 3 circumstance that by itself goes a long way to vindicate his position. Dying declaration is further corroborated by the weapon recovered from the accused at the time of his arrest, found wedded with the casings secured from the spot and consistent with the injuries that cost the deceased his life. Statement of Phul Nawaz (PW-7), a resident of the same locality, is in line with the details of events given in the dying declaration; mere relationship of a witness with the deceased does not undermine the value of his testimony, if otherwise found with a ring of truth. Prosecution’s failure on motive and acquittal of co- accused, with the role vastly distinguishable, do not tremor its case vis-à-vis the petitioner, firmly structured on pieces of evidence more than one. Recovery of pistol (P-3) and forensic report (Ex.PW-8/1) provide ample independent corroboration to sustain charge against the petitioner. Even otherwise, given the inconsequential role to the co-accused, his acquittal, seemingly out of abundant caution, does not adversely impact prosecution case qua the petitioner. Evidence of Sher Afzal (DW-1) is entirely beside the mark; he has not uttered a single word regarding the occurrence or to contradict prosecution case against the petitioner and instead attempted to merely blur date of his arrest; his partisan alliance with the petitioner cannot override positive evidence, found by us sufficient to constitute “proof beyond doubt”. View taken by the High Court, being well within the remit of law, calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 4th September, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017 (Against judgment dated 10.12.2015 of the High Court of Sindh, Karachi passed in Special Criminal Anti-Terrorism Appeal Nos.5,6 & 36 of 2005 with Confirmation Case No.1 of 2005) Muhammad Siddique (J.P. No.24/2016) Ali Muhammad (J.P. No.69/2016) Syed Bilal Ali (J.P. No.215/2016) Fateh Muhammad (J.P. No.486/2016) Arshad Parvez & another (J.P. No.682/2017) …Petitioner(s) Versus The State (in all cases) …Respondent(s) For the Petitioner(s): Mr. Mahmood Akhtar Qureshi, ASC (in J.P. No.215/2016) Dr. Raana Khan, ASC (in J.P. Nos.24,69,486/2016 & JP No.682/2017) For the State Mr. Hussain Bux Baloch, Additional Prosecutor General Sindh. Date of hearing: 2.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Kamran-ud-Din (PW-3) was on way after dropping his sister at a school on 24.5.2004; at about 7:30 a.m. he was whisked away, within the remit of Police Station Shah Faisal Colony Karachi, in a white car by six assailants; information was laid by Ashiq Hussain (PW-2) with Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017 2 abductee’s father Ikram-ud-Din (PW-1) who reported the incident to the police same day. An anonymous caller demanded Rs.2 millions as ransom for abductee’s release; after protracted negotiations, the amount was settled as Rs.500,000, finally paid on 16.6.2004 by Zain-ul-Abideen (PW-10) at the designated place; the abductee was released soon thereafter. As the investigation progressed, on a tip off, Jamil Akhtar, Inspector/SHO (PW-11), arrested Syed Abdul Kaleem, Fateh Muhammad and Arshad Parvez on 2.9.2004 followed by Syed Bilal Ali, Muhammad Siddique, Muhammad Hassan and Ali Ahmed on 3.9.2004. Pursuant to a disclosure, Muhammad Siddique, petitioner got recovered a part of ransom in the tune of Rs.100,000 on 8.9.2004. Vehicle P-2, conveying the abductee into captivity, was also secured by the Investigating Officer. Muhammad Siddique, Arshad Parvez, Bilal Ali, Abdul Kaleem and Fateh Muhammad were rightly picked by the witnesses in the test identification parade held under magisterial supervision on 9.9.2004; Muhammad Hassan and Ali Ahmed were identified on 11.10.2004; it is in this backdrop that they were nominated as the six culprits who took away the abductee whereas Syed Abdul Kaleem was blamed to have provided premises to confine him. Upon indictment, the accused claimed trial, resulting into their conviction with penalty of death for each, accompanied by fine and forfeiture of properties. The High Court of Sindh vide judgment dated 10.12.2015 maintained the convictions, however, altered penalty of death into imprisonment for life, vires whereof are being impugned by Fateh Muhammad, Arshad Parvez, Syed Bilal Ali, Muhammad Siddique, Muhammad Hassan and Ali Ahmed through captioned petitions; bound by a common thread, these are being decided through this single judgment. 2. Learned counsel for the petitioners, in a unison with vehemence, contend that there was no occasion for the courts below to return and uphold a guilty verdict, in a case, according to them, inherently flawed inasmuch as initially four persons were alleged to have committed the crime whereas the number was graduated to seven during the trial; it is next argued that test identification parade, conducted in violation of judicial guidelines, without assigning specific roles, reliance thereon was beside the mark. Recoveries being fractional as well as inconsequential were liable to be excluded from consideration, concluded the learned counsel. The Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017 3 learned Law Officer, contrarily, defended the impugned judgment; he argued that prosecution produced the best evidence available under circumstances to successfully drive home the charge by excluding every hypothesis of innocence; he submits that the petitioners have already been dealt with leniently, therefore, scales being in balance, interference is not called for. 3. Heard. Record perused. 4. Prosecution case is primarily structured upon three statements furnished by Ikram-ud-Din (PW-1), Ashiq Hussain (PW-2) and Kamran-ud-Din (PW-3). PW-1 being complainant is not an eye witness of the occurrence; he was informed by Ashiq Hussain (PW-2) that his son was taken away by the assailants mentioned as four in number in the crime report; in the witness-box, however, he blamed six accused as privies to the crime. Surprisingly despite the lengthy cross-examination, he is not confronted with his departure from the crime report; as he is not an eye witness, therefore, an apparent discrepancy does not adversely impact the prosecution, particularly in the face of defence’s failure to impeach the witness in terms of procedure contemplated under Article 140 of the Qanun-i-Shahadat Order, 1984 mandatorily requiring the attention of a witness to the impugned portion of his statement. On the contrary, while responding to a question, during cross-examination, the witness stated as under:- “PW Ashiq Hussain had informed me that he had seen that 6 culprits came there in a car, out of whom, 4 persons who were sitting in the car taken away my son and remaining two had taken away his motorcycle.” Even attention of Muhammad Nadeem ASI (PW-5), who recorded the complaint, was not solicited to explain the actual number of assailants, narrated by the complainant; Ashiq Hussain (PW-2) and the abductee (PW-3) are consistent on the number of assailants; nothing contrary is suggested to them in their statements, otherwise found by us as confidence inspiring; the argument cannot be viewed more than a far cry. 5. Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017 4 case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case, indeed a fine piece of juridical literature, nonetheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject. Test identification parade is a method of proof contemplated by Article 22 of the Qanun-i-Shahadat Order, 1984, reproduced below for the convenience of reference:- “Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.” The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses; appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under consideration in a criminal trial; there are no additional barricades as is evident from the plain reading of the Article ibid; without prejudice to the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied in one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequences thereof, however, there are cases in which totality of transaction may not warrant separability for such determination, like the one in hand. Cases involving abductions, dacoities and sudden assaults, more often than not, constitute episodes wherein different Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017 5 roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, has to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs. 6. Having found the witnesses, with no axe to grind, in a comfortable unison on all the salient features of the prosecution case as well as events collateral therewith, we do not feel persuaded by the arguments, couched on hyper technical premise. Petitions fail. Dismissed. Judge Judge Judge Karachi, the 2nd January, 2020 Approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.255 of 2017 (Against judgment dated 23.01.2017 passed by the Lahore High Court Multan Bench Multan in Criminal Appeal No.706 of 2011 along with M.R. No.5 of 2011) Nasir Abbas alias Nasiri …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Muhammad Sharif Janjua, ASC/AOR For the State: Mr. Ahmed Raza Gillani Addl. Prosecutor General Punjab Date of hearing: 27.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Nasir Abbas alias Nasiri, tried alongside acquitted co-accused for homicide, was returned a guilty verdict by the trial Court vide judgment dated 30.04.2011, upheld, albeit with alteration of death penalty, vide impugned judgment dated 23.01.2017, vires whereof, are being assailed through Jail Petition No.255 of 2017, barred by 41 days, condoned in the interest of justice. It is alleged that on the fateful day i.e. 07.08.2008, within the precincts of Police Station Saray Sidhu District Khanewal, with a view to restrain him from deposing in a murder case, he repeatedly shot Muhammad Aslam, deceased, accompanied by companions that included his son Muhammad Aamir PW; co-accused were blamed for conspiracy as well as facilitation. Mr. Muhammad Sharif Janjua, ASC, at State expense, contends that there is inordinate delay between the occurrence and postmortem examination, suggesting the incident being an un-witnessed affair, details whereof, were discovered and deliberated subsequently; while highlighting the role assigned to the acquitted co-accused, he argued that though somewhat inconsequential, nonetheless, was indivisible inasmuch as two of them had allegedly clutched the deceased before he Jail Petition No.255 of 2017 2 was repeatedly shot on the opposite sides of his body and, thus, prosecution’s failure qua the co-accused goes a long way to tremor the entire structure; he has further referred to massive improvements in graduation of number of accused as well as manner of occurrence to argue that it would be unsafe to maintain the conviction particularly in the backdrop of ongoing blood feuds inter se the parties. Leave to appeal is granted to appraise entire evidence to ensure safe administration of criminal justice. Judge Judge Islamabad, the 27th April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR MR. JUSTICE ATHAR MINALLAH JAIL PETITION NOs. 255 & 272 OF 2018 (Against the judgment dated 08.03.2018 passed by the Lahore High Court, Rawalpindi Bench in Capital Sentence Reference No. 04-T/2014, Criminal Appeal Nos. 31/2014 & 11-J/2014) Ali Taj (In JP 255/2018) Afzaar @ Afzaal (In JP 272/2018) …Petitioner(s) VERSUS The State (In both cases) …Respondent(s) For the Petitioner(s): Qari Abdul Rasheed, ASC For the State: Mirza Muhammad Usman, DPG Date of Hearing: 12.01.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners Ali Taj and Afzaar @ Afzal were tried by the learned Anti Terrorism Court-II, Rawalpindi Division pursuant to a case registered vide FIR No. 269 dated 08.07.2012 under Sections 302/324/353/186/341/394/224/225/427/34 PPC read with Section 7 of the Anti Terrorism Act, 1997 at Police Station Saddar, Attock for committing murder of Najam ul Hassan and Mudassar Riaz and for causing injuries to Jamil Ahmed and Asfhaq Ahmed. The learned Trial Court vide its judgment dated 15.01.2014 convicted the petitioners as under:- i) Under Section 302(b) PPC Sentenced to death on two counts. ii) Under Section 7 of the Anti Terrorism Act, 1997 Sentenced to death on two counts and to pay compensation of Rs.100,000/- each as compensation under Section 544-A Cr.P.C. and fine of Rs.100,000/- each under Section 7(a) of the ATA. The compensation and fine payable shall be recovered as Jail Petition Nos. 255 & 272 of 2018 -: 2 :- arrears of land revenue and in default whereof to undergo SI for six months each. iii) Under Section 396 PPC Sentenced to death each and to pay fine of Rs.50,000/- each or in default whereof to undergo SI for six months. iv) Under Section 324 PPC Sentenced to 10 years RI each on two counts along with fine of Rs.20,000/- each on two counts, in default whereof to undergo SI for six months each. They were further directed to pay compensation of Rs.50,000/- each to Jamil Ahmed and Azshfaq Ahmed PWs under Section 544-A Cr.P.C. The compensation and fine payable shall be recovered as arrears of land revenue and in default whereof to further undergo SI for six months each. v) Under Section 353 PPC Sentenced to one year RI each. vi) Under Section 186 PPC Sentenced to three months RI each. vii) Under Section 412 PPC Sentenced to ten years RI each with fine of Rs.10,000/- each or in default whereof to further undergo SI for six months. viii) Under Section 341 PPC Sentenced to one month RI each along with fine of Rs.1000/- each. ix) Under Section 225 PPC Sentenced to two years RI each along with fine of Rs.10,000/- each or in default whereof to further undergo six months SI each. x) Under Section 148 PPC Sentenced to three years RI each along with fine of Rs.5000/- each or in default whereof to further undergo SI for six months each. All the sentences except under Section 302(b) PPC and 7 of the Anti Terrorism Act, 1997, were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended to the petitioners. 2. In appeal the learned High Court maintained the convictions and sentences awarded to the petitioners by the learned Trial Court. The prosecution story as given in the impugned judgment reads as under:- Jail Petition Nos. 255 & 272 of 2018 -: 3 :- “The brief facts as narrated in the complaint (Ex.PCC) lodged by Jamil Ahmed, complainant (PW.16) are that on 08.072012, he along with Ashfaq Ahmed, Najam ul Hassan, on a yellow cab car No.RIW/993, being driven by Mudassar Riaz, were going to District Jail Attock to lodge accused Amjad Khan of case F.I.R No.203/2012 dated 26.06.2012, under Sections 381-A/411 PPC registered at Police Station City, Rawalpindi. At about 02:45 p.m. due to a speed breaker, Kamra Road, District Attock, when the speed of the car was reduced, they were surprised by four armed persons, who started firing with their pistols 30-bore from the sides which resulted into death of Najam-ul- Hassan, 8981/C and Mudassar Riaz (cab driver) and the others including complainant received injuries. The features of the accused persons were that they were young persons of middle height, wearing shalwar qamiz. After that, they took Amjad Khan accused in handcuffs along with them. The accused also snatched official SMG rifle, 30-bullets and magazine and fled away from the spot towards Teen Meela Haji Shah, on two motorcycles.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 18 witnesses. In their statements recorded under Section 342 Cr.P.C, the petitioners pleaded their innocence and refuted all the allegations leveled against him. However, they did not appear as their own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against them. They also did not produce any evidence in their defence. 4. At the very outset, learned counsel for the petitioners argued that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution case is based on whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the medical evidence contradicts the ocular account. Contends that although the injured PWs and the deceased had sustained injuries on the different parts of the bodies but there is not even a single scratch on the car, which shows that the occurrence had not taken place in the manner as stated by the prosecution witnesses. Contends that the identification parade was conducted without observing the instructions/guidelines enunciated by the superior courts, as such, it has no value in the eye of law. Lastly contends that the reasons given by the Jail Petition Nos. 255 & 272 of 2018 -: 4 :- learned High Court to sustain conviction of the petitioners are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer submitted that to sustain conviction of an accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the petitioners do not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. A bare perusal of the record reflects that the instant case is a case of promptly lodged FIR. The unfortunate incident wherein Najam-ul- Hassan, Police Constable and Mudassir Riaz, driver of the yellow cab were brutally murdered and two persons were grievously injured, took place at 02:45 PM on 08.07.2012 whereas the crime report was lodged at 04:20 PM i.e. just after two hours of the occurrence. The distance between the place of occurrence and the Police station was five kilometers. Thus, it can be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story. The ocular account in this case has been furnished by Jamil Ahmed, Sub-Inspector (PW-16) and Ashfaq Hussain, Constable (PW-17). Both these witnesses had sustained injuries during the occurrence, which have fully been supported by the medical evidence given by Dr. Muhammad Ali Bokhari, who appeared as PW-7. The testimonies of these injured PWs as well as the stamp of injuries on their person clearly proves their presence at the place of occurrence. They had no relationship with the deceased nor had any animosity against the petitioners, therefore, they are regarded as the most reliable and credible witnesses. These prosecution witnesses were subjected to lengthy cross-examination by the Jail Petition Nos. 255 & 272 of 2018 -: 5 :- defence but nothing favourable to the petitioners or adverse to the prosecution could be produced on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of witnesses, manner of occurrence, kind of weapon used in the occurrence and the locale of injuries. These PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. This Court in a number of judgments has held that testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioners in this case. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross- examination. Learned counsel for the petitioners could not point out any reason as to why these injured PWs have involved the petitioners in the present case and let off the real culprits, who have committed murder of not only of their colleague but of an innocent taxi driver. Admittedly, these PWs had no animosity or ill-will against the present petitioners. If they had any reason to substitute the real culprits, they would have nominated the petitioners in the FIR on the very first day when the occurrence took place. As the petitioners were not known to the PWs, therefore, they were not nominated in the FIR but their features had been given by the injured PWs. After their arrest, the petitioners were identified by the PWs during identification parade, which was conducted under the supervision of Tahir Mehmood, Judicial Magistrate (PW-15). The said Judicial Magistrate categorically stated that the injured witness Jameel Ahmed had identified the accused in unambiguous terms and this process was repeated twice so that no ambiguity could be left and after completion of identification parade, he prepared the form and then issued the certificate. Both Tahir Mehmood, Jail Petition Nos. 255 & 272 of 2018 -: 6 :- Judicial Magistrate (PW-15) and Jameel Ahmed (PW-16) were subjected to lengthy cross-examination but they remained consistent on all material particulars of the prosecution case and their testimony could not be shattered despite lengthy cross-examination. Even otherwise, process of identification parade has to be essentially carried out having regard to the exigencies of each case in a fair and non-collusive manner and such exercise is not an immutable ritual, inconsequential non-performance whereof, may cause failure of prosecution case, which otherwise is structured upon clean and probable evidence. Reliance is placed on Tasar Mehmood Vs. The State (2020 SCMR 1013). During the course of arguments, learned counsel argued that although the injured PWs and the deceased had sustained injuries on the different parts of the bodies but there is not even a single scratch on the car. However, this argument of the learned counsel is misconceived. The learned Trial Court has very elaborately dealt with this issue and observed that the site plan prepared by the Investigating Officer and the scaled site plan reflect that the accused persons were very close to the car when they had fired on deceased and the injured PWs. The petitioners were armed with .30 bore pistols. The occurrence took place in the month of July when the summer is at its peak, therefore, it was obvious that the windows of the car were opened, therefore, it was natural that the bullets did not hit the car. 8. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and the injured PWs is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reliance is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR 1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled principle of law that the value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain the conviction. Casual discrepancies and conflicts appearing in medical evidence Jail Petition Nos. 255 & 272 of 2018 -: 7 :- and the ocular version are quite possible for variety of reasons. During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries. It becomes highly improbable to correctly mention the number and location of the injuries with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account. Even otherwise, conflict of ocular account with medical evidence being not material imprinting any dent in prosecution version would have no adverse affect on prosecution case. Requirement of corroborative evidence is not of much significance and same is not a rule of law but is that of prudence. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye- witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The petitioners were arrested on 17.07.2012 and from their possession the weapons of offence i.e. pistols .30 bore were recovered. The Investigating Officer had already sent eight crime empties, which were collected from the place of occurrence, to the office of Forensic Science Laboratory on 16.07.2012 whereas the pistols were sent on 23.07.2012. According to the report of the FSL, the empties were found fired from the pistols recovered from the petitioners. After their arrest, the petitioners also got recovered snatched official SMG along with 25 live bullets and handcuffs, which also Jail Petition Nos. 255 & 272 of 2018 -: 8 :- provides corroboration to the prosecution story. To prove the motive part of the prosecution story, the witnesses of the ocular account appeared in the witness box and deposed against the petitioners. The perusal of the record reflects that neither the defence seriously disputed the motive part of the prosecution story nor the PWs were cross-examined on this aspect of the matter. Keeping in view the facts and circumstances of the present case, we are of the view that the prosecution has established each limb of its case by producing unimpeachable and trustworthy evidence. The learned High Court has evaluated the evidence in its true perspective and has come to the conclusion, which is neither arbitrary nor perverse. No exception can be taken to the findings arrived at by the learned High Court. 9. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 12th of January, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.262/2015, Criminal Petition Nos.402-L/2015 & 412-L/2015 (Against the judgment dated 13.03.2015 passed by the Lahore High Court Lahore in Criminal Appeal No.2628/2010 with M.R. No.33/2012) Muhammad Sharif (in J.P. No.262 of 2015) Muhammad Ajmal (in Cr.P. No.402-L of 2015) Asif Ali (in Cr.P. No.412-L of 2015) …Petitioner(s) Versus The State & another (in J.P. No.262 of 2015) The State (in Cr. P. No.402-L of 2015) The State & another (in Cr.P. No.412-L of 2015) …Respondent(s) For the Petitioner(s): Mr. M. Yar Khan Daha, ASC (in J.P. No.262 of 2015) Mr. Zubair Afzal Rana, ASC (in Cr.P. No.402-L of 2015) Rai Sajid Ali Kharal, Adv. HC (with permission of the Court in Cr.P. No.412-L of 2015) For the State: Mr. Khurram Khan, Addl. Prosecutor General Punjab Date of hearing: 16.07.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ahmad Ali, deceased, 45, was statedly shot dead at 3:00 p.m. on 30.6.2009 within the remit of Police Station Chak Baidi, District Pakpattan; incident was reported by his brother Asif Ali (PW-1) at 8:30 p.m. in the Rural Health Center Bonga Hayat; it is alleged that the deceased along with the complainant, Umar Fareed (PW-2), their father Rehmat Ali (given up) were on way to visit Allah Ditta, a relative convalescing some disease; they were on two motorbikes when the petitioners along with co-accused, differently armed, confronted Jail Petition No.262/2015, Criminal Petition Nos.402-L/2015 & 412-L/2015 2 the entourage; after subduing them, the deceased was separated and repeatedly shot by Ajmal petitioner followed by Manzoor Ahmed (P.O.) and Muhammad Sharif petitioner within witnesses’ view, kept at bay on gunpoint; they took away a .30 caliber pistol held by the deceased. A previous brawl between the deceased and Ajmal petitioner is cited as motive for the incident. Crime report suggests that gunshots attracted the nearby patrolling police that shifted the casualty to the Rural Health Center Bonga Hayat where he was provided assistance at 3:20 p.m. and referred to Jinah Hospital Lahore, however, succumbed to the injuries on way near Pattoki, at 6:00 p.m. Dissatisfied with the police investigation, the complainant instituted a private complaint, wherein pursuant to issuance of process, petitioners along with Ghulam Rasool were indicted by a learned Additional Sessions Judge at Pakpattan; the trial culminated into acquittal of Ghulam Rasool, however, vide the same judgment dated 28.10.2010, Muhammad Ajmal and Muhammad Sharif, petitioners, were convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced to death and imprisonment for life, respectively; the High Court maintained the convictions albeit with alteration of death penalty into imprisonment for life vide impugned judgment dated 13.03.2015, vires whereof, are being separately assailed by both the convicts through Jail Petition No.262 of 2015 and Criminal Petition No.402-L of 2015; complainant seeks through Criminal Petition No.412-L of 2015 enhancement of sentences awarded to the convicts; bound by a common thread, these are being decided through this single judgment. 2. Learned counsel for the petitioners contend that the deceased was done to death in an un-witnessed occurrence under mysterious circumstances and that the witnesses were taken on board much late in the day to set up a false case after deliberations and consultations, a hypothesis that according to the learned counsel is confirmed by the investigative conclusions; that despite seizure of casings of different calibers from the spot and recovery shown by one of the petitioners, namely, Muhammad Ajmal, the weapon was not dispatched for forensic comparison; that the complainant massively improved upon his previous statement on fundamental aspects of the case and as such was not worthy of reliance; that the case was fraught with irreconcilable contradictions and inconsistencies and as such it would be unsafe to maintain the convictions, concluded the learned counsel. Contrarily, the learned Law Officer defended the impugned judgment on the ground that the view Jail Petition No.262/2015, Criminal Petition Nos.402-L/2015 & 412-L/2015 3 taken by the High Court being factually sound as well as realistically balanced called for no interference. Learned counsel for the complainant citing magnitude of brutality inflicted upon the deceased urged enhancement of sentence to death being a conscionable wage in circumstances. 3. Heard. Record perused. 4. According to the crime report, the assailants distinctively targeted the deceased with multiple shots, as a consequence whereof, he received five fire shots on different parts of the body; examined in injured condition under a police docket at 3:20 p.m. he was noted with five entry wounds of various dimensions with corresponding exits. We are mindful of the fact that in a sudden crisis situation, it would be callously unrealistic to expect from a terror stricken witness to furnish immaculate details with precision, nonetheless, the complainant by his own choice took specific positions wherefrom he deviated in the private complaint and was duly confronted therewith, as under: “I had stated to the police in Ex.PA that Ajmal accused has inflicted four firearm injuries on the person of Ahmad Ali deceased. Confronted with Ex.PA wherein three injuries are mentioned. I had also stated in my private complaint Ex.PC that Ajmal accused had made four fires which hit the deceased Ahmad Ali. Confronted with Ex.PC wherein two fires are mentioned. I had also stated in my cursory statement Ex.DA that Ajmal accused had inflicted four fire shots on the person of the deceased Ahmad Ali. Confronted with Ex.DA wherein two fires have been mentioned and receipt of injury of second shot is not mentioned.” Since there are three accused assigned fire shots, shift in complainant’s position cannot be viewed as trivial or inconsequential as it realigns his entire case and in retrospect admit possibilities that reflect upon the factual details set out in the crime report. This deviation is not the only factor that puts us on caution as we are more profoundly intrigued by discrepancies evident in the police note wherein according to Muhammad Ashraf ASI (CW-3), upon receipt of information, he along with Ghulam Murtaz 647/C, Muhammad Ejaz 95/C and Noushair Ali 137/C met the complainant at RHC Bonga Hayat 8:30 p.m. when he recorded complaint Ex.PA and arranged papers for autopsy, whereas as per MLR No.1659 Ex.PH/1, the deceased in injured condition was examined under a police docket carried by the above named Ghulam Murtaz 667/C who appeared as CW-7 and remained silent about his having escorted the deceased for medical examination while he was alive; it was most opportune occasion to record the crime report; on the contrary, he stated to have escorted the Jail Petition No.262/2015, Criminal Petition Nos.402-L/2015 & 412-L/2015 4 dead body from RHC Bonga Hayat to DHQ Hospital Pakpattan, a position that went unchallenged, both by the complainant as well as the defence, however, in retrospect confirms beyond doubt that police were available with the deceased at 3:20 p.m. and, thus, recording of complaint Ex.PA as late as at 8:30 p.m. is mindboggling. Argument that crime report Ex.PA is outcome of consultations and deliberations cannot be dismissed out of hand and as such shadows upon the possibility of witnesses’ presence who otherwise surprisingly survived a devastating assault unscathed. Presence of a .30 caliber pistol with the deceased and his failure to use it in a situation when it was most warranted is also part of an incomplete tale; despite an elaborate investigative process, it was never recovered. Exoneration of Muhammad Sharif and Ghulam Rasool during the investigation is yet another dilemma confronting the prosecution; it requires a serious consideration as seemingly there was no reason for three assailants to jointly take on the deceased, lying at their mercy when every single of them could individually accomplish the premeditated purpose without incurring corporal consequences for the entire clan; plea of a wider net cannot be thrown to the wind. 5. In the absence of proof beyond doubt, it would be unsafe to maintain the convictions. Criminal Petition No.402-L of 2015 and Jail Petition No.262 of 2015 are converted into appeals and allowed; impugned judgment dated 13.03.2015 is set aside; petitioners/appellants are acquitted of the charge and shall be released forthwith, if not required to be detained in any other case. As a natural corollary, Criminal Petition No.412-L of 2015 stands dismissed. Judge Judge Judge Lahore, the 16th July, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.263 of 2018 (Against the judgment dated 7.3.2018 of the Lahore High Court, Lahore passed in Cr. Appeal No.190-J/2015 and M.R. No.227/2015) Muhammad Ashraf .…Petitioner(s) Versus The State ….Respondent(s) For the Petitioner(s): Mr. Muddasir Khalid Abbasi, ASC For the State: N.R. Date of hearing: 03.08.2020. ORDER Qazi Muhammad Amin Ahmed, J.- A sudden brawl in the family cost Samra Hafeez, 21, deceased, her life whereas her sister Misbah Hafeez (PW-3) and brother Murtaza Hafeez (PW-4) survived gun shots at 2:30 p.m. on 10.12.2010 within the precincts of Police Station Aroop, Gujranwala; incident was reported by their father Muhammad Hafeez (PW-3) at the police station; he blamed his brother Sana Ullah and sister- in-law Farzana Bibi for having ignited the situation, pursuant whereto, the petitioner, a close relative, along with Muhammad Azam (P.O.) targeted Samra Hafeez with a .44 caliber gun while the absconder trapped Murtaza Hafeez, PW; they jointly injured Misbah Hafeez PW; he was indicted alongside Sana Ullah and Farzana Bibi, since acquitted, vide judgment dated 30.04.2015 convicted under clause (b) of section 302 and sentenced to death; on the coordinate charge of murderous assault, he was also held guilty for the crime. The High Court maintained the convictions, however, altered penalty of death into imprisonment for life vide impugned judgment dated 07.03.2018, vires whereof, are being assailed through a jail petition, taken up by Mr. Mudassar Khalid Abbasi, ASC, who argued that the petitioner was an innocent visitor, unsuspectingly trapped in a fight that raged between the two brothers, a circumstance which according to the Jail Petition No.263 of 2018 2 learned counsel, is self evident from the crime report as the occurrence cropped up while the family members were taking meal on the rooftop. The learned counsel has also attempted by referring to some selective portion of prosecution evidence to demonstrate that petitioner was not present at the scene when the deceased and the injured received fire shot, insinuating the entire blame onto the absconding co-accused. It is further contended that in a dispute between two real brothers, petitioner had no earthly reason to shoot the family members and it appears that he is being hounded as a scapegoat. To qualify the point, the learned counsel referred to the failure of prosecution motive with the High Court as well as inconsequential recovery of weapon allegedly used. 2. Heard. Record perused. 3. Occurrence is a daylight affair, graphic details whereof, have been furnished by the witnesses who are not merely injured but inmates of the premises as well. An unfortunate situation cropped up all of a sudden and in that backdrop, the complainant or the witnesses had no axe to grind so as to swap the petitioner with the real offender. There is no space to entertain any hypothesis of innocence. The witnesses have been thoroughly cross-examined during the trial and we have not been able to find out any serious flaw, contradiction or infirmity reflecting upon their depositions. Reference by the learned counsel to the statement of Muhammad Hafeez (PW-5) to demonstrate that the petitioner as well as the absconding accused were not present during the fateful moments is preposterous and out of context to say the least; he has referred to the following portion of the statement of the witness:- “When we were taking meal accused Azam and Ashraf were not present.” He has skipped the very next line wherein the witness in the same breath said: “However, they came afterwards from inside the house.” The statement is continuity of a narration illustrating the events preceding commencement of assault and by no stretch of imagination or through any mode of interpretation one can construe it as implying absence of the accused. Ocular account furnished by the witnesses is duly corroborated by medical evidence. Weapon recovered upon petitioner’s disclosure though excluded from consideration by the High Court, nonetheless, is consistent Jail Petition No.263 of 2018 3 with the injuries received both by the deceased as well as the witnesses. Investigative conclusions in the wake of various steps taken with a remarkable promptitude are inescapably pointed upon petitioner’s culpability who remained away from law for a considerable span of time before he was finally arrested on 10.9.2012. The Courts below have rightly appraised the evidence and found no space to entertain any hypothesis other than petitioner’s guilt. We, on our own analysis, have found petitioner’s conviction in accord with the principles of safe administration of criminal justice with a wage settled conscionably. Petition fails. Leave declined. Judge Judge Islamabad, the 3rd August, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No. 282 of 2017 (Against the judgment dated 26.01.2017 passed by the Lahore High Court Lahore Multan Bench Multan in Crl. Appeal No.689- J and 840 of 2012 with M.R. No.77 of 2011) Muhammad Ramzan …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. M. Sharif Janjua, ASC For the State: Ch. Muhammad Sarwar Sandhu, Addl. Prosecutor General Punjab Date of hearing: 12.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The petitioner, alongside his brothers, namely, Muhammad Akram, Muhammad Aslam and Nazar Hussain, stands convicted by a learned Additional Sessions Judge, vide judgment dated 15.06.2011, for committing Qatl- i-Amd of Mushtaq Ahmad, 45, at 9:00 a.m. on 15.10.2010 within the precincts of Police Station Saddar Vehari in the backdrop of a dispute over turn of water; he was sentenced to death while the remainders to imprisonment for life; the High Court altered penalty of death into imprisonment for life while acquitting the co-convicts from the charge vide impugned judgment dated 26.01.2017. Incident was reported by deceased’s widow Khurshid Bibi (PW-7) in the DHQ Hospital at 10:35 a.m; she was statedly present with the deceased while irrigating the field when the accused, armed with clubs, confronted them within the view of Javed Abbas and Fateh Sher PWs. Muhammad Akram exhorted his companions whereupon the petitioner Criminal Petition No.282 of 2017 2 dealt the deceased a club blow on his head; as he felled on the ground, the co-accused thrashed him with multiple blows; commotion attracted the neighbourhood whereupon the accused took to the heels. The injured was medically examined 10:07 a.m. at D.H.Q. Hospital Vehari where he was brought by his cousin Nazeer Hussain; relevant column sans reference to police docket, however, the name of a PQR as Mumtaz Ahmed is mentioned therein. The medical officer, after receipt of a fee of Rs.200/- examined him to find a swelling measuring 8 cm x 10 cm on the left side of the skull; after a brief struggle, he succumbed to the injury, a short while later. The petitioner, alongside co-accused, was arrested on 01.112010; pursuant to disclosures, they led to the recovery of clubs P-3, P-4, P-5 and P-6, albeit without blood stains. From amongst the accused, Nazar Hussain, statedly deaf and dumb, was medically examined same day through a Magisterial order of even date; he was noted with a wound with ruptured skin on the left side of skull; a cross-version agitated by the accused soon failed with the police, despite a direction by the Justice of Peace. Upon indictment, the accused claimed trial that resulted into their conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860 primarily on the strength of ocular account furnished by Mst. Khurshid Bibi (PW-7) and Fateh Sher (PW-8), confronted by the accused with a counter plea of assault, unleashed in the first place, by the deceased on Nazar Hussain co-accused, supported by medico legal certificate as well as a direction for registration of a cross case by a Justice of Peace. 2. Learned counsel for the petitioner contends that ocular account disbelieved by the High Court qua three out of four accused cannot provide evidential basis to single out the petitioner on a capital charge, particularly after exclusion of motive by the High Court; inconsequential recoveries also fail to qualify additional corroboration required to rescue the charge, next argued the counsel. The counter- version, vividly spelt out by the skull injury of Nazar Hussain co-accused, has been pressed into service to argue that the genesis of the occurrence, shrouded into mystery, the petitioner cannot be blamed with any degree of certainty for inflicting solitary injury as each of the assailant was independently assigned blows to the deceased and, thus, trapped by a wider net, his conviction cannot be maintained without possibility of error. The learned Law Officer has faithfully defended the impugned judgment. Criminal Petition No.282 of 2017 3 3. Heard. Record perused. 4. The deceased, gasping for his life, was first examined at 10:07 a.m; medico legal certificate Ex.PE sans details about examinee’s physical condition in terms of his orientation to time and space or otherwise at the said point of time. Police Karwai recorded by Zahid Hussain SI tends to suggest that he took over the deceased unconscious in injured condition in the emergency ward of DHQ Hospital Vehari to get him examined through Mumtaz Ahmed PQR, surprisingly without injury statement and a police docket, apparently, to have been issued after the injured had already been examined. Relevant column of Ex.PE reflects name of Nazeer Hussain son of Abdullah who brought the injured to the hospital; he is conspicuously absent both at the crime scene as well as the report and as to how he was able to escort the injured on his own to the hospital is a circumstance that clamours explanation; one Riaz is mentioned to have paid a fee of Rs.200/- for medical examination against his signatures whereas no fee was required for a medical examination in a police case as is evident by a cross on the relevant portion of Ex.PE relating to exemption for a police case; a cover up through overwriting as Govt. Fee on Ex.PE is a ludicrous attempt to hoodwink the reality. The deceased, still alive, was certainly brought by individuals other than mentioned in the crime report, a real possibility unmistakably suggested by Ex.PE and in retrospect tears apart the structure supporting the charge. Entire family comprising four brothers has been aligned in the crime report, each armed with a club and taking on the deceased; the solitary wound though proved fatal, nonetheless, does not correspond with the array and, thus, argument that the prosecution had cast a wider net merits serious consideration; with a real possibility of presence of innocent proxies, identification of the actual offender, through human endeavour, is an exercise fraught with potential risk of error, attribution of first blow assigned to the petitioner notwithstanding. Misfortune struck the neighbours, who otherwise lived in peaceful harmony, on a small event involving diversion of water by Nazar Hussain, a deaf and dumb member of petitioner’s family, as is evident from the charge as well as his examination under section 342 of the Code of Criminal Procedure 1898; he has been acquitted from the Criminal Petition No.282 of 2017 4 charge and it is also on the record that he received an injury during the brawl in his head for which the prosecution has not taken the investigating agency or the Court into confidence. These circumstances inescapably intrigue upon the integrity of the prosecution story; though ominous, nonetheless, calculated to have massively withheld relevant details of the events that occurred on the fateful day; concomitant uncertainty would inevitably cast away the entire case; it would be unsafe to maintain the conviction. Petition is converted into appeal and allowed; impugned judgment is set aside; the petitioner/ appellant is acquitted of the charge and shall be released forthwith, if not required to be detained in any other case. Judge Judge Judge Islamabad, the 12th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.296 of 2016 (Against the judgment dated 29.03.2016 passed by the Lahore High Court Lahore in Crl. Appeal No.849 of 2014, Cr. PSLA No.126/2020 with M.R. No.230 of 2010) Shaheen Ijaz alias Babu …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Sahibzada Ahmed Raza Qureshi, Sr.ASC Syed Rifaqat Hussain Shah, AOR For the State: N.R. Date of hearing: 10.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Indicted in a private complaint, alongside his son Muhammad Umar, since acquitted, the petitioner was returned a guilty verdict; convicted vide judgment dated 29.3.2010 by a learned Additional Sessions Judge at Wazirabad, under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death, altered into imprisonment for life by the High Court vide impugned judgment dated 29.3.2016, vires whereof, are being assailed on a variety of grounds. 2. Muhammad Azhar, 35/36, was fatally shot at 5:00 p.m. on 8.8.2008 within the remit of Police Station Saddar Wazirabad; the incident was reported at the police station, situating one kilometer from the venue, at 5:35 p.m. by deceased’s brother Muhammad Rafique (PW-3). Besides the petitioner, his three sons, namely, Muhammad Umar, Muhammad Usman and Muhammad Abu Bakar, were arrayed in the backdrop of complaints by the deceased over Jail Petition No.296 of 2016 2 discharge of filthy water from petitioner’s rooftop. The petitioner is attributed repeated fire shots, resulting into multiple injuries with blackened and burnt margins, confirmed during autopsy, conducted at 10:20 p.m. Spot inspection includes seizure of human blood and casings found wedded with a .12 caliber pump action gun (P-4), recovered pursuant to disclosure dated 03.09.2008. 3. Learned counsel for the petitioner contends that the complainant has manifestly cast a wider net to implicate the entire family and in the wake of his failure qua three out of four accused nominated in the crime report as assailants in a preconcert, there was no occasion left to still hold the petitioner as guilty; that even dated dispatch of casings (P-6/1-2) alongside gun (P-4) rendered the forensic report (Ex.PR) as inconsequential and, thus, after exclusion of motive from consideration by the High Court, reliance upon a substantially disbelieved ocular account, is an option fraught with a potential risk of error. 4. Heard. Record perused. 5. The deceased and the petitioner lived in the same neighbourhood; though disbelieved by the High Court, nonetheless, motive alleged in the crime report appears to have ignited the unfortunate situation with a past, otherwise peaceful and smooth; in this backdrop, petitioner’s nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation. Petitioner’s sole nomination as being the one to have targeted the deceased with five entrance wounds is a circumstance that reflects positively on complainant’s conduct; nomination of co-accused with inconsequential roles notwithstanding, their presence at the scene followed by acquittal, seemingly out of abundant caution, does not tremor prosecution’s mainstay qua the role assigned to the petitioner. In the totality of circumstances, presence of petitioner’s sons in an incident, coming about next door, would not by itself bring them into the community of intention and as such their acquittal cannot be viewed as a circumstance casting away the entire case. Forensic report Ex.PR, though viewed with suspicion by the High Court in view of even dated dispatch of casings (P-6/1-2) with gun (P-4), nonetheless, unmistakably confirms injuries sustained by the deceased consistent Jail Petition No.296 of 2016 3 therewith. A straightforward and consistent ocular account furnished by the witnesses overwhelmingly preponderates over petitioner’s plea of an accidental fire by the deceased costing his own life in a brawl wherein he admits his own presence. The plea in view of repeated fire shots widely covering different parts of deceased’s body, merits outright rejection being preposterous. The courts below rightly placed implicit reliance on the prosecution evidence that squarely constituted “proof beyond doubt”; scales are in balance with wage settled conscionably. Leave declined. Judge Judge Islamabad, the 10th September, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Jail Petition No. 298 of 2018 (Against the judgment dated 20.03.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 167868/J of 2018 and Capital Sentence Reference No. 1/T of 2018) Imran Ali … Petitioner versus The State … Respondent For the petitioner: Ms. Sarwat Nawaz, ASC For the complainant: In person. For the State: Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of hearing: 12.06.2018 JUDGMENT Asif Saeed Khan Khosa, J.: For allegedly kidnapping, sodomizing, raping and murdering a minor girl namely Zainab Amin, aged about 7/8 years, the petitioner was booked in case FIR No. 8 registered at Police Station A-Division, Kasur on 04.01.2018 and after a regular trial he was convicted by the trial court for offences under sections 364-A, 376, 377, 302(b) and 201, PPC and section 7(a) of the Anti-Terrorism Act, 1997 and for some of the above mentioned offences he was sentenced to death apart from some other sentences passed against him. The petitioner challenged his convictions and sentences through an appeal which was dismissed by the High Court and all his convictions and Jail Petition No. 298 of 2018 2 sentences recorded by the trial court were upheld and confirmed. Hence, the present petition before this Court. 2. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the record of the case with their assistance. 3. It has straightaway been noticed by us that when the charge was framed by the trial court against the petitioner he had pleaded guilty as charged and on that occasion he had got recorded a detailed confessional statement wherein he had admitted almost every aspect of this case alleged against him. Despite such pleading guilty to the charge and making of a confessional statement by the petitioner the trial court had decided to proceed with recording of evidence and during the trial statements of as many as 32 prosecution witnesses were recorded and many other pieces of evidence were brought on the record. In his statement recorded under section 342, Cr.P.C. the petitioner had once again admitted almost all the vital pieces of evidence produced by the prosecution against him as correct and had once again admitted his guilt unreservedly. We have observed that even in his arguments addressed before the trial court the learned counsel for the petitioner had only prayed for some lenience to be shown to the petitioner in the matter of his sentence and no argument had been advanced before the trial court challenging the merits of the prosecution’s case against the petitioner. We have further observed that in his memorandum of appeal filed by the petitioner before the High Court once again only lenience in the matter of sentence had been prayed for by the petitioner without questioning his convictions recorded by the trial court. It was for the first time during the arguments before the High Court that the learned counsel for the petitioner had maintained that admission of guilt by the petitioner before the trial court was a result of coercion but during such arguments he had not provided any detail regarding coercion applied against the petitioner so as to extract a confession. In paragraph No. 4 of the memorandum of the present Jail Petition No. 298 of 2018 3 petition filed before this Court it has been maintained by the petitioner that the confession made by him was a result of duress and inducement but in paragraph No. 10 of this very petition the petitioner has, once again, admitted his involvement in the alleged offences in clear and categorical terms. Apart from pleading guilty to the charge and making a confession by the petitioner there were many pieces of evidence brought on the record by the prosecution which proved every word of the confession to be correct and in that regard we may refer to the CCTV footages, photographs, DNA tests and the medical evidence which had confirmed every aspect of the confession made by the petitioner. All such pieces of evidence have convinced us that the confession made by the petitioner was not only voluntary but also true. After proper assessment and evaluation of the evidence available on the record both the courts below had concurred in their conclusion regarding guilt of the petitioner having been proved to the hilt and upon our own independent evaluation of the evidence available on the record we have found no occasion to take a view of the matter different from that concurrently taken by the courts below. We are also mindful of the provisions of section 412, Cr.P.C. according to which in a case where an accused person pleads guilty to the charge and he is convicted on the basis of such pleading guilty then he can file an appeal only to the extent or legality of the sentence passed against him and he cannot file an appeal challenging his conviction. 4. As regards the sentences passed by the trial court against the petitioner which sentences had subsequently been upheld and confirmed by the High Court we may observe that the crimes committed by the petitioner were absolutely horrendous and barbaric and the same had been committed with a minor and innocent girl aged about 7/8 years. The petitioner had not only deceitfully kidnapped her but had also brutalized her by committing sodomy and rape with her and had then ultimately killed her mercilessly. In his pleading guilty to the charge as well as in his statement recorded under section 342, Cr.P.C. the petitioner had admitted committing similar offences with eight other minor victims and in that backdrop the petitioner did not Jail Petition No. 298 of 2018 4 deserve any sympathy in the matter of his sentences. This petition is, therefore, dismissed and leave to appeal is refused. Judge Judge Judge Lahore 12.06.2018 Approved for reporting. Arif

* IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAUVI MR. JUSTICE MUHAMMAD All MAZHAR MR. JUSTICE SHAHID WAKED JAIL PETITION NO. 300 OF 2022 (On appeal against the judgment dated 17.05,2022 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 215/2021 and criminal Revision No. 109/2021) Saghir Ahmed VERSUS Petitioner(s) The State et c Respondent(s) For the Petitioner(s): For the State: For the Complainant: Date of Hearing: Malik Muhammad Aslarn, ASC Syed Rifaqat Hussain Shah, AOR Mirza Muhammad Usman, OPG In person 28.11,2022 JUDGMENT SAYYED M ZAHAR All AKBAR NAQVI, J.- Petitioner along with three co- accused was tried by the learned Additional Sessions Judge, Fortabbas pursuant to a case registered vide FIR No. 135/2020 under Sections 377/506-B/337H(ii)/377B/34 PPC at Police Station Maroot for committing sodomy with son of the complainant. The learned Trial Court vide its judgment dated 22.04.2021 while acquitting the co-accused, convicted the petitioner under Section 377 PIt and sentenced him to ten years RI along with fine of Rs.200,000/ or in default whereof to further undergo six months SI. In case of realization of fine, the same was ordered to be given to the victim as compensation Benefit of Section 382-8 Cr.P.C. was also extended in his favour. In appeal the learned High Court while maintaining the conviction of the petitioner under Section 377 PPC, reduced the Jail Petition No. 300/2022 -: 2 quantum of punishment to five years RI. The amount of compensation and the sentence in default whereof and the benefit of Section 382-B Cr.P.C. was also maintained. Hence, the instant jail petition seeking leave to appeal. 2. The prosecution story as given in the impugned judgment reads as under:- "2. The prosecution story as portrayed in the FIR lodged on the complaint of Nasir Mehmood, complainant (PW-1) is to the effect that on 08.042020 at about 07.40 pm, when Munecb-ur-Rehman, complainant's son, aged about 9/10 years old who had gone to the shop of the accused to get repair the mobile, did not return, the complainant along with Zaheer Ahmed, Muhammad Abid went to his shop and found the shutter of shop more than half down while the light on, son of the complainant weeping and witnessed underneath the shutter, the accused committed sodomy with him, who upon seeing them, pull down the shutter and locked it and thereafter he called his relatives through telephone and after a while, Muhammad Asif, Muhammad Khalid and Naseer Ahmed armed with pistols reached there, asked the accused not to worry upon which, the accused opened the shutter and started aerial firing while loading his pistol. The accused persons threatened them to kill and accused Asif etc took the accused Saghir Ahmad and fled away." 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court, In order to prove its case the prosecution produced as many as nine witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not appear in his own defence under Section 340(2) Cr.P,C. However, he produced copy of FIR No. 115/2020 under Sections 452/148/149 PPC at Police Station Maroot as Exh.DB in his defence. 4. At the very outset, learned counsel for the petitioner contends that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the medical evidence in the shape of medico legal report as also the report of the Forensic Science Agency does not support the ocular account. Lastly contends that the reasons given Jail Petition No. 300/2022 -: 3 by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer assisted by the complainant ! in person vehemently opposed the petition. It has been contended that the prosecution witnesses had no enmity with the petitioner to falsely implicate him in the present case and their testimony is in line with the medical evidence, therefore, the petitioner does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. It is the case of the prosecution that on 08.04.2020 at about 07.40 pm, the son of the complainant namely Muneeb-ur-Rehman aged about 9/10 tears went to the shop of petitioner Zaheer Ahmed to get the mobile phohe repaired. However, he did not return in time, which prompted the complainant to go to the shop of the petitioner. When the complainant along with other eye-witnesses came at the shop of the petitioner, they saw that shutter of the shop was down more than half and light was on. When they saw underneath, the petitioner was committing sodomy with the son of the complainant. There is no denial to this fact that the victim vitas medically examined on the same day by Dr. Muhammad Zeeshan, Medical Officer (PW-9). The medical report, which is available at page 84 of !the paper book, clearly states that the "child has not yet defected, nor took shower or clean the area after the act. On general physically eamination, no signs of physical trauma noted on body." The doctor further observed that "there is mild redness around the anal sphincter. No bruise, no swelling, no abrasion or laceration noted on skin around anal sphincter." The victim neither complained of pain on walking or defecation. the doctor took two external and three internal anal swabs and sent the same to Forensic Science Laboratory for DNA analysis. The Punjab Forensic Science Agency gave its report on 27.10.2020 but it did not give Jail Petition No, 300/2022 A any definite finding and the report just denotes that "the victim may have been victimized with the act of sodomy." In this view of the matter, the report of the Forensic Science Agency can be interpreted in two ways, one in favour of. the petitioner and second against him. However, it is a well settled principle of law that if two views are possible on the evidence adduced in the case, one indicating the guilt of accused and other to his innocence, the view favourable to the accused is to be adopted. Reliance is placed on Shahid Orakzai Vs. Pakistan Muslim League (2000 SCMR 1969). jjz Hussain Vs. The State (2002 SCMR 1455), lftikhar Hussain and others Vs. The State (2004 SCMR 1185) and Muhammad Zubair Vs The State (2010 SCMR 182). Mere heinousness of the offence if not proved to the hilt is not a ground to 'punish an accused. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer" Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." The above report of the Forensic Science Laboratory is sufficient to cast a shadow of doubt on the prosecution case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner, this Court in the case of Mst. Asia Bibi Vs. The State (PLO 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession but as of right. Reference in this regard may be made to the cases of Twig Pervaiz v. The State (1995 SCMR 1345) and Avub Masih V. The State (PLO 2002 SC 1048)." The same view was reiterated in Abdul bbar vs. State (2019 SCMR 129) when this Court observed that once a Jail Petition No. 300/2020 -: 5 single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye- witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. 7. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The petitioner is acquitted of the charge. He shall be released from jail forthwith unless detained/required in any other case. The above are the detailed reasons of our short order of even date. Islamabad. the 28th of November, 2022 Approved For Reporting Ilpui•r.ii.i

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.302 of 2017 (Against the judgment dated 16.03.2017 passed by the Lahore High Court Lahore in Crl. Appeal No.1294 of 2012 with M.R. No.313 of 2012) Zia Ullah Waheed Anwar …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ms. Tehmina Mohibullah Kakakhel, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 19.01.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Javed Iqbal, 40/41, was shot dead in front of his house located within the precincts of Police Station Sitara District Sialkot at 7:30 p.m. on 30.10.2009; the incident was reported by his son Aitzaz Ahsan (PW-8) 9:30 p.m. at Civil Hospital Daska; he blamed the petitioners for the crime in the backdrop of a dispute, raging over immovable property on the instigation of Nasrullah and Zulfiqar Hussain, since acquitted. Three unknown accomplices taking shelter in the dark, presumably aiding the crime, are off the scene till date. According to the complainant, on the fateful evening, the deceased was watering the bricks when Ziaullah petitioner armed with a .12 caliber repeater shotgun accompanied by Waheed Anwar petitioner with a .44 caliber rifle surprised him within the view of the witnesses; the latter opened the assault with a burst followed by the former, landing on the different parts of his body; gasping for life, he was rushed to Civil Hospital; where after a brief struggle, he succumbed Jail Petition No.302 of 2017 2 to the injuries. The petitioners stayed away from law and were finally arrested on 4.2.2010 and 21.5.2010, respectively; the Investigating Officer recovered weapons of offence shortly thereafter, found wedded with the casings secured from the spot. Upon indictment, they claimed trial that resulted into their conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860; they were sentenced to death vide judgment dated 20.07.2012; the abettors, however, were acquitted from the charge; the High Court while maintaining convictions altered the penalty of death into imprisonment of life vide impugned judgment dated 16.03.2017. 2. Learned counsel for the petitioners contends that the entire case is structured upon a conspiracy allegedly hatched by Zulfiqar and Nasrullah, co-accused; their acquittal casts away the entire case. Seizure of two casings during the spot inspection in the face of as many as nine entry apertures is a circumstance that does not synchronize with the theory of a burst made by Ziaullah petitioner and, thus, discrepancy by itself constitute conflict between ocular account and medical evidence, benefit whereof, has unduly been withheld. Finally, he has blamed the medical officer for being in connivance with the prosecution in setting up a false case against the petitioner. Mirza Abid Majeed, learned Deputy Prosecutor General Punjab has faithfully defended the impugned judgment. According to him, the ocular account furnished by the witnesses whose presence at the spot cannot be doubted successfully drove home the charge beyond a shadow of doubt. In the backdrop of an ongoing dispute, the petitioners had a strong motive to settle the score, concluded the learned Law Officer. 3. Heard. Record perused. 4. The prosecution case is primarily structured upon ocular account furnished by deceased’s son Aitzaz Ahsan (PW-8) and Ishtiaq Ahmed (PW-9); former being resident of the house in front whereof the deceased was engaged by the assailants can be safely viewed as a natural witness. A subsisting dispute notwithstanding, Aitzaz Ahsan (PW-8) is not expected to swap the assassins of his father with the innocent; there does not appear any earthly reason for such a senseless indiscretion; both of them confidently furnished graphic details of the incident; the former was subjected to lengthy cross-examination, a directionless exercise, soliciting inconsequential details on peripheral matters, hardly relevant to the core issue; remainder comprises of bald Jail Petition No.302 of 2017 3 suggestions, vehemently denied. Ishtiaq Ahmed (PW-9) also firmly held the ground. 5. Inclusion of abettors and three unknown aids in the crime though a suspect circumstance with embarrassing failure, nonetheless, does not decisively reflect upon petitioners’ culpability, independently established by confidence inspiring evidence, excluding, to their extent every hypothesis, other than their guilt; plea of false implication with the assistance of a medical officer being preposterous merits outright rejection. View concurrently taken by the Courts below, found by us on our own analysis being inconsonance with the principle of safe administration of criminal justice, calls for no interference. Petition fails. Leave refused. Judge Judge Judge Islamabad, the 19th January, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.317 of 2018 (Against judgment dated 12.03.2018 passed by the Lahore High Court Lahore in Crl. Appeal No.1285/2013 along with M.R. No.260/2013) Fateh Sher …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Sarfraz Khan Gondal, ASC For the State: Mr. Ahmed Raza Gillani Addl. Prosecutor General Punjab Date of hearing: 29.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- From amongst a large array of accused, prosecuted through a private complaint after complainant’s dissatisfaction with the investigative process, Fateh Sher, petitioner, alone was returned a guilty verdict in a case of homicide by a learned Additional Sessions Judge at Pindi Bhatian; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 vide judgment dated 01.8.2013, he was sentenced to death, altered into imprisonment for life by the learned High Court vide impugned judgment dated 12.3.2018, vires whereof are being assailed on a variety of grounds, wholesale failure of prosecution case being most prominent. The incident is a night affair on fringe of the village Abadi when according to the complainant he accompanied the deceased and the injured at 10:45 p.m, without any apparent purpose. Besides the petitioner, his brothers Ikram Ullah and Ihsan Ullah, each lethally armed, alongside three unknown, confronted them with fire shots. Abid Hussain and Asghar Ali PWs were statedly attracted to the scene at Jail Petition No.317 of 2018 2 that unearthly hour of the night to witness the occurrence, instigated by Javed co-accused. Through a supplementary statement purportedly recorded on 24.5.2010, unknown assailants were introduced by their names with specific roles. The co-accused were exonerated by the Investigating Officer and the complainant having found investigative conclusions inconsistent with the case set up in the crime report, preferred a private complaint which again resulted into failure barring the petitioner. Prosecution’s failure qua majority of the accused, one of whom is indivisibly assigned identical role, question of identity of the assailants in a moonlit night as mentioned in the crime report, an unanticipated encounter between the deceased and the injured with the assailants and inconsequential forensic report, makes out a case for reappraisal of evidence to ensure safe administration of criminal justice. Leave granted. Judge Judge Islamabad, the 29th April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.324 of 2015 (Against judgment dated 09.04.2015 passed by the Lahore High Court Bahawalpur Bench Bahawalpur in Criminal Appeal No.14 of 2011 along with M.R. No.3 of 2011) Munir Ahmad …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mian M. Tayyab Wattoo, ASC For the State: Mr. Ahmed Raza Gillani Addl. Prosecutor General Punjab Date of hearing: 27.04.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted by the learned Judge Anti-Terrorism Court, Bahawalpur, alongside 12 others, Munir Ahmed, petitioner, is the lone recipient of a guilty verdict vide judgment dated 07.02.2011, upheld vide impugned judgment dated 09.04.2015, albeit with alteration of death penalty into imprisonment for life on two counts with concurrent commutation, pre-trial period inclusive. Being a proclaimed offender in a case of murderous assault, the petitioner resisted a police contingent on 27.7.2008 at 8:05 p.m. within the remit of Police Station Kot Sabzal, District Rahim Yar Khan; his accomplices joined him in the quest; one of the fire shots caught Shafqat Ali 1083/C in the line of duty with his boots on; ensuing darkness facilitated the assailants to take on their heels; they were, however, subsequently taken to the task. Solitary fatal fire shot, attributed to the petitioner weighed with the learned trial Judge to let off the co-accused, a view juridically flawed in the totality of circumstances, nonetheless, countenanced by the State. According to the prosecution, on a tip off, Abdul Hameed ASI (PW-4), surprised the petitioner, a proclaimed offender in his hideout; he along with the accomplices opened fire on the police contingent; taking shelter behind the official van, the complainant kept the Jail Petition No.324 of 2015 2 assailants at bay and continued to engage them till arrival of reinforcement headed by Junaid Ahmad, Assistant Superintendent of Police with whom the deceased was deputed as a guard, fatally hit soon after he alighted the official vehicle. 2. Petition filed by the convict through Superintendent Jail is barred by 72 days, condoned in the interest of justice; it has been taken up by Mian Muhammad Tayyab Wattoo, ASC, to argue that there was no occasion for the Courts below to return a guilty verdict after prosecution’s wholesale failure qua the majority of the accused, no less than 12 in numbers; he has argued that the darkness had shielded the identity of the assailants and, thus, it was not humanly possible for the witnesses for having seen the petitioner while taking on the deceased; negative forensic report of gun P-3 squarely vindicated petitioner’s position, leaving nothing in the field to sustain the impugned conviction without potential risk of error, shrouded in the haze, concluded the learned counsel. Syed Ahmed Raza Gillani, Additional Prosecutor General Punjab has faithfully defended the impugned judgment. 3. Heard. Record perused. 4. Prosecution case is structured upon ocular account furnished by Nisar Ahmed/C (PW-3), Abdul Hameed, ASI (PW-4) and Muhammad Riaz, Inspector (PW-6); they have furnished details of criminal case wherein petitioner’s arrest along with others was required and, thus, successfully established the purpose behind the raid; petitioner being prominent amongst the accused was required by law. Deceased’s detachment as a guard with an Assistant Superintendent of Police posted in the Sub-Division has not been disputed. The darkness had not yet engulfed the scene when the encounter commenced and it is so mentioned in the cross-examination itself “As soon as, we reached at the place of occurrence, the accused made firing on us. Firing was started at about 7:30 pm. There was some daylight at that time. When firing started, I came out of my vehicle and made wireless calls to SHO Police Station Bhong SHO Police Station Kot Sabzal and SHO Police Station Ahmadpur Lamma for my help”. Cross- examination is a continuation of examination-in-chief. Disclosures solicited by defence’s own choice and election from the witness during the process, if found embarrassing or counterproductive, their adverse consequences cannot be skipped or hushed up to ward off cumulative impact of the exercise. It rules out the theory of complete darkness at Jail Petition No.324 of 2015 3 the fag-end of the month of July. The witnesses are in a comfortable corroborative unison on all the salient aspects of the prosecution case as well as details collateral therewith; they being functionaries of the Republic are second to none in status, having otherwise no axe to grind; a directionless cross-examination, couched in suggestions, each vehemently denied, reflects nothing but an exercise in futility. Position taken by the defence that no encounter took place on the fateful day nor at a place depicted in the site plan is a far cry in the face of formidable evidence comprising seizure of human blood and a large number of casings secured vide inventories of even date from the designated spot in the village. Petitioner’s absence from law for a considerable span of time (1 year 8 months) and involvement in antedated criminal cases do not brilliantly reflect upon his credentials; his absconsion in retrospect withers away the impact of negative forensic report; similarly, he cannot claim benefit of en bloc acquittal of his co-accused as they had been acquitted by the trial Judge without any determinative finding excluding their participation in the combat; their acquittal merely on the premise that none fell prey to their retaliation is a conclusion, inherently incompatible with the well entrenched principle of community of intention for prosecution of a common object and mere absence of harm in consequence thereof by itself does not vitiate culpability of an unlawful assembly. A flawed acquittal without recourse cannot be viewed as a failure intriguing upon an indictment otherwise positively established. Even a most stringent analysis of prosecution evidence does not allow space to admit any hypothesis other than petitioner’s guilt. Petition fails. Leave refused. Judge Judge Islamabad, the 27th April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed JAIL PETITION NO.333/2013 AND CRIMINAL PETITION NO.845-L/2013 (Against the judgment dated 3.7.2013 of the Lahore High Court, Lahore passed in Criminal Appeal No.8-J/2009 and Murder Reference No.324/2008) Aamir Hanif (In Jail Petition No.333/2013) Mst. Shamim Akhtar (In Criminal Petition No.845-L/2013) . . . Petitioner(s) Versus The State (In Jail Petition No.333/2013) Aamir Hanif and another (In Criminal Petition No.845-L/2013) . . . Respondent(s) For the Petitioner(s) Nemo. (In Jail Petition No.333/2013) Mr. A.G. Tariq Ch., ASC (In Criminal Petition No.845-L/2013) For the State : Mr. Muhammad Jaffar, Additional Prosecutor General Punjab Date of hearing : 5.3.2020. J U D G M E N T Qazi Muhammad Amin Ahmed, J.- Aamir Hanif, petitioner, along with his sister Samina Bibi, since acquitted, was indicted by a learned Additional Sessions Judge for committing Qatl-i-Amd of Mehboob Alam, no other than his brother-in-law and for murderous assault upon Hakeem Nazeer Ahmad (PW-8) on 22.2.2008 at 6:00 p.m. within the remit of Police Station Karana District Sargodha. The incident was reported on the spot by deceased’s father Manzoor Ali (PW-7) at 5:30 p.m. It is alleged that the deceased was not getting along well with his wife and in this backdrop on the fateful day family elders gathered to settle the Jail Petition No.333/2013 and Criminal Petition No.845-l/2013 2 differences; petitioner was also in the session and during the conversation after exhortation repeatedly targeted the deceased with a .30 caliber pistol; Hakeem Nazeer Ahmad PW tried to intervene but was shot instead. Casualties were attended; the deceased succumbed to the injuries at the spot while Hakeem Nazeer Ahmed (PW-8) was shifted to the hospital; he was medically examined at 5:30 p.m. followed by deceased’s autopsy at 9:30 p.m. Deceased’s wife Mst. Samina Bibi was arrayed as accused for abetment on the basis of supplementary statement dated 28.2.2008. Petitioner was arrested on 4.3.2008; pursuant to a disclosure on 8.3.2008 he led to the recovery of a .30 caliber pistol (P-1). Trial concluded on 13.11.2008 in petitioner’s conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860 as well as under section 324 of the Code ibid; he was sentenced to death and imprisonment on coordinate charge; Mst. Samina Bibi was acquitted vide the same judgment. The High Court maintained petitioner’s conviction albeit with alteration of death penalty into imprisonment for life vide impugned judgment dated 03.07.2013, vires whereof are being challenged by the convict through a jail petition; the complainant seeks reversal of death penalty as well as Samina Bibi’s acquittal; issues bound by a common thread are being decided through this single judgment. 2. Heard. Record perused. 3. The convict is unrepresented and for that we have gone through the entire record with caution and curiosity. Relationship inter se the deceased and the convict alongside his co-accused is admitted at all hands. Though no casing was secured from the spot, nonetheless, blood taken therefrom is forensically established that of human origin; that confirms the venue. Excluding the strained relations between the spouses, blessed with three siblings there was no motive left to bring the convict face to face with his brother-in-law. Autopsy report confirms three entry wounds, consistent with the weapon recovered on convict’s disclosure. Events are recorded with a remarkable promptitude. Occurrence took place at 4:00 p.m; it is reported after one and half hour with medico legal examination of the injured soon thereafter; autopsy at 9:30 p.m. in a non tertiary Jail Petition No.333/2013 and Criminal Petition No.845-l/2013 3 hospital cannot be viewed as delayed. Hakeem Nazeer Ahmed (PW-8), with a stamp of injury, in his early seventies, is an independent witness; he was requested to join reconciliation when he came out of a nearby mosque after prayer; he has no axe to grind and can be believed without demur. Witnesses are in a comfortable unison on all the relevant details of the incident; cross-examination on the complainant, though inordinately lengthy, merely sets up a case of substitution that merits outright rejection; deceased’s murder by his brother Ilyas and his son Azhar, as suggested by the defence, is a story that may not find a buyer. Even the convict himself abandoned the plea in his examination under section 342 of the Code of Criminal Procedure 1898. Even a most stringent appraisal of prosecution evidence does not admit any space to entertain any hypothesis other than convict’s guilt. View taken by the courts below being well within the remit of law does not call for interference. Quantum of sentence opted by the High Court has also been found by us as a conscionable wage. Petitions fail. Leave declined. Judge Judge Lahore, the 5th March, 2020 Not approved for reporting Azmat/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO.335/2017 (Against the judgment of the Lahore High Court Lahore dated 04.04.2017 passed in Murder Reference No.467/2012 and Criminal Appeal No.443-J/2012). Muhammad Arshad …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Miss Syed BH Shah, ASC For the State N.R Date of Hearing: 07.10.2020 … ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been sought calling in question impugned judgment dated 04.04.2017 passed by learned Division Bench of Lahore High Court, Lahore. 2. The facts culminated into filing of the instant petition are that the petitioner was booked in case bearing FIR No.654/10 dated 11.12.2010 offence u/s 302/324 PPC registered with Police Station Malakwal, District M.B Din. As per contents of the crime report, it is alleged that the petitioner while armed with hatchet gave repeated blows on the head of Saee Muhammad, who succumbed to injuries. He also caused injuries to Mst. Rasulan Bibi & Mst. Sardaran Bibi and thereafter fled away from the scene. Motive behind the occurrence was that there was a dispute over the possession of a plot. The petitioner was taken into custody on Jail Petition No.335/2017 Muhammad Arshad vs, The State 2 21.12.2010. During course of investigation, recovery of hatchet was affected from him on 24.12.2010. During course of investigation, he was found fully involved in the case and as such, his name was placed in column No.3 of the report u/s 173 Cr.PC. The challan of the case was sent to court. The learned trial court vide judgment dated 22.11.2012 convicted the petitioner u/s 302(b) PPC and sentenced to death. He was also burdened with compensation of Rs.1,00,000/- u/s 544-A Cr.PC and in default thereof, he was to suffer six months S.I. He was also found guilty of causing injuries to Mst. Rasulan Bibi and Mst. Sardaran Bibi and as such was sentenced 05 years as Taazir u/s 324/337-A(ii)/337-A(iii) PPC. He was also liable to pay Arsh which shall be 5% of Diyat notified in the official Gazette of year 2010. He was convicted and sentenced u/s 337- A(iii) PPC with R.I of 10 years as Taazir and also liable to pay Arsh which shall be 10% of Diyat notified in the official Gazette of year 2010. The petitioner was however sentenced u/s 324 PPC with imprisonment of 10 years alongwith fine Rs.50,000/- and in default thereof to further undergo six months S.I. The sentences shall run concurrently. Benefit of section 382-B Cr.P.C. was also extended. 3. The judgment of the learned trial court was challenged before learned High Court through Criminal Appeal No.443-J/2012 whereas the learned trial court sent the Murder Reference bearing No.467/2012 u/s 374 Cr.PC. The learned High Court while maintaining the conviction u/s 302(b) PPC but altered the sentence from death to imprisonment for life however the rest of the judgment of the learned trial court was maintained. Hence, the instant petition for leave to appeal. 4. At the very outset, it is argued by the learned counsel for the petitioner that in fact, both the courts below had not taken into consideration the evidence available on record and the same has not been evaluated according to the principles of “appreciation of evidence” Jail Petition No.335/2017 Muhammad Arshad vs, The State 3 enunciated by the superior courts from time to time. Contends that it is an admitted fact that the petitioner himself sustained injury and the same has been suppressed by the prosecution while lodging the crime report. Contends that the petitioner while making statement u/s 342 Cr.PC has taken a definite stance that in fact, he was not the actual perpetrator of this occurrence rather he has been substituted. Contends that due to previous animus, the petitioner has been roped against the actual facts and circumstances and he being first offender requires leniency by this Court and if at all the whole prosecution case is admitted the maximum punishment which can be inflicted is sentenced u/s 302(c) PPC. Finally, it has been prayed that the leave to appeal be granted on this aspect. 5. We have heard learned counsel for the petitioner at length and gone through the record. There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society. The petitioner was saddled with responsibility of causing injuries to Saee Muhammad who was done to death in a brutal manner and the injuries ascribed to the petitioner are fully established from the medical evidence. Similarly, the injuries caused to the women folk, and the manner in which these were inflicted are also reflective from the medical legal reports. The ocular account in this case is supported by 02 injured PWs, the statements of the prosecution witnesses coincide with each other on salient features of Jail Petition No.335/2017 Muhammad Arshad vs, The State 4 prosecution version. The ocular account is corroborated by the medical evidence, recovery of hatchet further lend support to the prosecution case and during the course of investigation, the petitioner was found involved and his name was placed in column No.03 of the report u/s 173 Cr.PC. The contention of the learned counsel that the petitioner was himself injured but it was suppressed by the prosecution, we have minutely gone through the medical legal report of the petitioner which is placed on the record, it is reflecting that it was caused two weeks back. Unfortunately, the petitioner never made any endeavor to lodge counter version with the local police qua the injury he sustained during the occurrence as argued by the learned counsel. Similarly, the doctor who examined him was never produced. We are conscious of the fact that the accused is having the privilege just to show the glimpse of his version being true but in the instant case even we could not find any such material on the record either in the shape of any application to the police or any application in the court to summon the doctor to supplement the medical legal report which could prove the factum of injury on the person of the petitioner. No doubt it is within the domain of this Court to do complete justice but without any substantial material the same is beyond its scope. 6. As a consequence, in view of the facts and circumstances narrated above, we do not find any scope for interference, hence, the instant petition before us is dismissed and leave to appeal is declined. JUDGE JUDGE Islamabad, the 7th October, 2020 Approved for reporting *Syed Rashid Maqsood/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMED MALIK MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Jail Petition No.348 of 2019 (Against the judgment dated 18.04.2019 of the Lahore High Court, Lahore passed in Criminal Appeal No.866 of 2017) Ibrar Ullah Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s) Mr. S.M. Mehmood Khan Sadozai, ASC Ch. Akhtar Ali, AOR For the State: Mirza Abid Majeed Deputy Prosecutor General, Punjab Date of hearing: 27.10.2020. … ORDER Qazi Muhammad Amin Ahmed, J.- During a routine haul up, Ibrar Ullah, petitioner, was intercepted shortly after alighting a public vehicle hailing from Peshawar on a police post set up within the precincts of Police Station Rawat at 9/10:00 on 10.10.2016; baffled by a sudden encounter, he attempted to slip away, however, was subdued by the contingent with 3500 grams of contraband, wrapped in a polythene bag, forensically turned out as cannabis. Upon conclusion of investigation, the petitioner was indicted before the learned Special Judge (CNS) Rawalpindi; he claimed trial that culminated into his conviction under Section 9(c) of the Control of Narcotic Substances Act, 1997; sentenced to six and half years rigorous imprisonment with a direction to pay Rs.30000/- as fine or to undergo six months simple imprisonment in lieu thereof, vide judgment dated 20.09.2017; his appeal failed before a learned Division Bench of the Lahore High Court vide impugned judgment dated 18.04.2019, vires whereof, are being assailed on a variety of grounds that include false implication, non-availability of witness from the public, discrepant statements Jail Petition No.348 of 2019 -: 2 :- of the witnesses of recovery and absence of ‘protocol’ to validate the forensic report. 2. Heard. Record perused. 3. We have found it somewhat difficult to persuade ourselves by the hypothesis of false implication. Admittedly, the petitioner is a resident of Peshawar; he had apparently no business to attend at the spot wherefrom he was unanticipatedly arrested. Similarly, it is difficult to contemplate his substitution to swap the real offender as the volume of cache being substantial could not be conceivably planted in the absence of a strong motive that does not appear the case. Absence of a witness from the public to support the prosecution despite availability, being symptomatic of public apathy towards civic responsibilities does not by itself shadow upon the credibility of official witnesses, repeatedly held us as second to none in status, found otherwise in a comfortable unison on all the relevant details relating to the arrest, search and recovery. Presence of a police picket has not been disputed by the defence itself. Criticism on forensic report Ex.PE carries no weight as it contains relevant details of the procedure followed by the analyst to confirm the narcotic character of the contraband; acquiesced by the defence during the trial. Belated arrangement by the petitioner of a well wisher to testify in his favour during the trial miserably failed to override positive evidence pointed towards his culpability on all fours. The said defence witness never joined police investigation and came up with a cock and bull story rather late in the day that fails to inspire confidence of even a most unsuspecting listener. Conclusions drawn by the courts below, on our own independent analysis, have been found by us well within the remit of law, being inconsonance with the principles of safe administration of criminal justice. Petition fails. Leave declined. JUDGE JUDGE JUDGE Islamabad, the 27th October, 2020 Not approved for reporting Azmat/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 34 OF 2020 (Against the judgment dated 21.11.2019 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1584/2015 & Criminal Revision No. 907/2015) Sabtain Haider …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Mrs. Bushra Qamar, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Muhammad Jaffer, Addl. P.G. Punjab For the Complainant: Rai Zamir ul Hassan, ASC Date of Hearing: 21.09.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the learned Additional Sessions Judge, Mandi Bahauddin in a private complaint under Sections 302/34 PPC for committing murder of Altaf Saqib and Mst. Safeeran Bibi. The same was instituted being dissatisfied with the investigation conducted by the Police in case FIR No. 242 dated 12.06.2010 registered under Sections 302/34 PPC at Police Station Gojra, District Mandi Baha-ud-Din. The learned Trial Court vide its judgment dated 23.06.2015 convicted the petitioner under Section 302(b) PPC on two counts and sentenced him to imprisonment for life on each count. He was also directed to pay compensation amounting to Rs.100,000/- to the legal heirs of the deceased or in default whereof to further suffer six JAIL PETITION NO. 34 OF 2020 -: 2 :- months SI. In appeal the learned High Court set aside the conviction and sentence of the petitioner under Section 302(b) PPC for the murder of Mst. Safeeran Bibi. However, his conviction and sentence under Section 302(b) PPC for committing murder of Altaf Saqib was maintained. Benefit of Section 382-B Cr.P.C. was also extended to him. Being aggrieved by the impugned judgment, the petitioner/convict has filed the instant jail petition. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Succinctly stated the facts of the prosecution case as unveiled by complainant Naveed Iqbal (PW-1) in FIR (Exh.PA/2) are to the effect that he is resident of Mauza Khai and is running Iqra Model School as well as a grocery shop; that on the night falling in between 11/12.06.2010 his younger brother Altaf Saqib and Abbas Ali son of Abdul Sattar went to Iqra Model School for playing badminton but did not return till late night; that at about 3.30 am (night) he along with Bashir Ahmad son of Muhammad Siddique reached the said school; that in the meantime Sabtain Haider (appellant) and Zulqarnain Haider (since PO), whose house was adjacent to the house of the complainant while armed with pistol .30 bore entered the school premises while scaling over the wall; that Sabtain Haider (appellant) asked to switch on the light, upon which Abbas Ali said as to what was the matter; that Zulqarnain (since PO) made a pistol shot which missed; that Altaf Saqib while getting up from the cot ran towards the outside and the second fire made by Sabtain Haider hit him at the right side of his back which went through and through, due to which he fell down in the haveli adjacent to the school and died at the spot; that thereafter the accused killed their own sister, namely, Safeera Bibi due to suspicion of illicit liaison with Altaf Saqib.” 3. The conviction of the petitioner was recorded in a private complaint. The complainant produced cursory evidence whereafter the formal charge was framed against the petitioner on 26.03.2011 under Sections 302/34 PPC to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced as many as thirteen witnesses and one CW. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded that deceased Altaf Saqib had developed illicit relations with his sister Mst. Safeeran Bibi and when he saw them in a compromising position, he lost his control and on account of ghairat and JAIL PETITION NO. 34 OF 2020 -: 3 :- sudden and grave provocation, he committed the murders. However, he did not make his statement on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. Learned counsel for the petitioner/convict contended that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the eye-witnesses failed to prove their presence at the spot especially in the mid of the night. Contends that the medical evidence contradicts the ocular account, benefit of which must go to the petitioner. Contends that the occurrence took place in dark hours of the night but no source of light was proved by the prosecution. In the alternative, learned counsel contended that the case in hand is indeed a case of grave and sudden provocation as the petitioner had seen the deceased in highly objectionable position, which attracts the provisions of Section 302(c) PPC. Contends that from the day one, it is the stance of the petitioner that he committed the murders under the impulses of ghairat and grave and sudden provocation but the learned High Court did not even consider it. 5. On the other hand, learned Law Officer assisted by the learned counsel for the complainant have defended the impugned judgment. It has been contended that to sustain conviction of the petitioner, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the petitioner does not deserve any leniency by this Court. It was lastly contended that in terms of the first proviso to section 302(c) PPC the case in hand does not attract the provisions of Section 302(c) PPC. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. JAIL PETITION NO. 34 OF 2020 -: 4 :- The instant case is a case of double murder committed under the impulses of ghairat and on grave and sudden provocation. The FIR in respect of the same had been lodged with sufficient promptitude wherein the petitioner was specifically nominated. Although, the learned Trial Court had convicted the petitioner under Section 302(b) PPC on two counts but the learned High Court has exonerated the petitioner for the charge of murder of his sister Mst. Safeeran Bibi, which finding has not been challenged before us. The ocular account in this case has been furnished by Naveed Iqbal (PW-1) and Bashir Ahmad (PW-2). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner/convict or adverse to the prosecution could be brought on record. Both these PWs remained consistent on each and every material point and successfully advanced the prosecution case so far as it relates to the homicidal death of Altaf Saqib, deceased is concerned, the said eye-witnesses have given a reasonable explanation for their presence at the place of occurrence at the relevant time and have made consistent statements before the trial court which statements have inspired confidence. As far as the question that the complainant was brother of the deceased, therefore, his testimony cannot be believed to sustain conviction of the petitioner/convict is concerned, this Court has time and again held that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased is concerned. The motive set up by the prosecution was based upon a suspicion of illicit relations between the two deceased, which has been admitted by the petitioner through his statement recorded under section 342 Cr.P.C. So far as the recovery of weapon of offence is concerned, the same is inconsequential simply for the reason that neither the crime empty nor the weapon was sent to the Forensic Science Laboratory. So far as the argument that no source of light was JAIL PETITION NO. 34 OF 2020 -: 5 :- proved by the prosecution is concerned, the learned High Court has rightly noted that point No. 8 in the scaled site plan stands for place of electric bulb which was on at the eventful time. In this view of the matter, it can safely be concluded that the prosecution has proved its case against the petitioner. 7. The only point which requires intervention of this Court is the quantum of sentence. Keeping in view the facts and circumstances surfaced during the course of arguments by both the learned counsel, there is no denial to this fact that the deceased Saqib Altaf was murdered when the petitioner had seen him with his sister in an objectionable position. The said question was also put to the eye-witnesses but they could not deny the same. This fact has also been mentioned in the crime report. The stance of the petitioner has been supported by the statement of Dr. Hussana (PW-9), who conducted postmortem examination of the deceased Mst. Safeeran Bibi. The lady doctor candidly stated that “hymen is totally absent” and she was of the view that “zina may be committed but not discharged”. Admittedly, the place where the deceased Saqib was done to death was a school where no activity was going on when the occurrence took place. The wall of the school from the northern side was common wall between the school and the house of the petitioner and the stairs were situated adjacent to the above said wall. During cross- examination, the Investigating Officer, who appeared as (PW-13) admitted that it was the first version of accused Sabtain that he took the life of the deceased under grave and sudden provocation as he had seen them in a compromising position. It is established principle of criminal jurisprudence that the defence is not under obligation to prove its version and the burden on it is not as heavy as on the prosecution rather the defence is only to show the glimpse that its version is true. The record clearly reveals that there was no conventional enmity between the parties and the only reason as to why the petitioner could have committed the murders was nothing but his having seen the two deceased together in an amorous pursuit. In such like cases, the analogy can be drawn from the statutory law prevalent in United Kingdom called Homicide Act, 1957 wherein if a JAIL PETITION NO. 34 OF 2020 -: 6 :- crime is committed due to mental or psychological compulsion, it squarely falls within the ambit of diminished liability. It is a legal doctrine that absolves an accused person of part of the liability for his criminal act if he suffers from such state of mind as to substantially impair his responsibility in committing or being a party to an alleged criminal act. In the present case as the murders were committed under the impulses of ghairat and grave and sudden provocation, the doctrine of diminished liability would be squarely attracted providing mitigation to the punishment awarded to the petitioner. In these circumstances, we are of the firm view that the case in hand is indeed a case of grave and sudden provocation which attracts the provisions of Section 302(c) PPC. So far as the argument of learned Law Officer that in terms of the first proviso to Section 302(c) PPC, the provision of Section 302(c) PPC is not attracted is concerned, this aspect of the matter has been elaborately dealt with by this Court in the case reported as Muhammad Qasim Vs. The State (PLD 2018 SC 840) wherein this court held as under:- “The learned Deputy Prosecutor-General, Punjab appearing for the State has, however, pointed out that in terms of the first proviso to section 302(c), P.P.C. the case in hand was a case of murders committed in the name or on the pretext of honour and, thus, it was to be treated as a case attracting the provisions of sections 302(a) or 302(b), P.P.C. and not those of section 302(c), P.P.C. We have attended to this aspect of the matter with care and have found that the words "in the name or on the pretext of honour" used in the first proviso to section 302(c), P.P.C. are not without any significance or meaning. The said words indicate that a murder committed "in the name or on the pretext of honour" has to be a calculated murder committed with premeditation in the background of honour whereas the words used in the context of grave and sudden provocation in Exception 1 to the erstwhile Section 300, P.P.C. were "deprived of the power of self-control". Such words used in Exception I to the erstwhile section 300, P.P.C. catered for a situation which was not premeditated and had developed suddenly leading to grave provocation depriving a person of the power of self-control. Such different phraseology used by the legislature in these distinct provisions clearly indicates catering for different situations and, therefore, the words "in the name or on the pretext of honour" ought not to be mixed or confused with grave and sudden provocation leading to depriving of the Power of self-control. This distinction between honour and grave and sudden provocation was clearly recognized by this Court in the case of Muhammad Ameer v. The State (PLD 2006 SC 283) and the same is manifestly attracted to the facts of the present case JAIL PETITION NO. 34 OF 2020 -: 7 :- as well. It has already been found by us above that the case in hand was a case of grave and sudden provocation and honour only provided a backdrop to the same.” (Underlined to lay emphasis) 8. Even otherwise, it is human psychology that if someone comes across the situation like it, as is disclosed in the present case, the situation would be dealt with by individual depending upon his temperament, caste, race, creed, tribe, social status and the area from where the individual hails. This aspect also imprints a lasting impact regarding the response keeping in view the previous antecedents not only of the individual but the family/tribe he belongs. In the instant case, all these factors must have contributed towards the act of the petitioner, hence, as stated in the preceding paragraph, the case of the petitioner squarely falls within the ambit of Section 302(c) PPC. As a consequence of the above discussion, we convict the petitioner under Section 302(c) PPC and sentence him to imprisonment for the period which he has already undergone. Consequently, this petition is converted into appeal, partly allowed and the impugned judgment is modified as stated above. The petitioner shall be released from jail forthwith unless detained/required in any other case. JUDGE JUDGE Islamabad, the 21st of September, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 351 OF 2017 (Against the judgment dated 13.04.2017 passed by the Lahore High Court, Lahore in Capital Sentence Reference No. 38-T/2014 and Criminal Appeal No. 1747/2014) Muhammad Nasir …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Mr. Anis Muhammad Shahzad, ASC For the State: Mr. Muhammad Jaffer, Addl. P.G. Punjab For the Complainant: Mst. Razia Muzafar, In person Date of Hearing: 13.10.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Nasir was tried by the learned Judge Anti Terrorism, Court No. II, Lahore pursuant to a case registered vide FIR No. 93/2014 under Sections 302/324/336- B/109/337-A(I)/337-F(3) PPC read with Section 7 of the Anti Terrorism Act, 1997 at Police Station Ravi Road, Lahore, for committing murder of his wife Mst. Sakeena Bibi and for causing injuries to Mst. Rasheeda Bibi, Shaukat Ali and Ibrahim, minor. The learned Trial Court vide its judgment dated 25.09.2014 convicted and sentenced the petitioner as under:- 1) Under Section 302(b) PPC To death with a direction to pay Rs.500,000/- as compensation to legal heirs of deceased or in default whereof to further undergo six months SI. 2) Under Section 7(1)(a) of Anti Terrorism Act, 1997 To death with a fine of Rs.100,000/- or in default whereof to further undergo three months SI. JAIL PETITION NO. 351 OF 2017 -: 2 :- 3) Under Section 336-B PPC To imprisonment for 14 years on two counts alongwith fine of Rs.10,00,000/- for each count or in default whereof to further undergo SI for six months for each default. 4) Under Section 7(1)(c) of Anti Terrorism Act, 1997 To 10 years imprisonment on two counts with fine of Rs.50,000/- on two counts or in default whereof to further undergo SI for three months for each default. The property of the petitioner was also directed to be forfeited in favour of State under Section 7(2) of the ATA, 1997, in addition to the above-referred sentences. All the sentences were directed to run concurrently with benefit of Section 382-B Cr.P.C. 2. In appeal the learned High Court maintained the convictions and sentences recorded by the learned Trial Court. Being aggrieved by the impugned judgment, the petitioner/convict has filed the instant Jail Petition. 3. The prosecution story as given in the judgment of the learned Trial Court reads as under:- “2. The brief facts as came out from complaint Ex.PA/1 made by Sakeena Bibi alias Billo (now deceased) while in injured condition to Muhammad Hussain SI Police Post Sabzi Mandi Police Station, Ravi Road, Lahore on 09.02.2014 on the basis of which formal FIR Ex.PA was recorded are that she is housewife and dispute of divorce is pending between her and her husband Nasir and due to it 5/6 days earlier she alongwith her children came to house of her parents at Shams Pura. Today i.e. 09.02.2014 at about 1:30 pm she alongwith her son Ibrahim aged one year, her brother Shaukat Ali, her Bhabi Rashedan Bibi were taking meal at the roof top of the house when Nasir accused came and threw acid on them which fell on her face and other parts of the body and on right cheek and right arm of Rasheedan Bibi and on left arm of her brother Shaukat Ali and on face and on back side of belly and on right arm of Ibrahim and they became injured whereas, the accused fled away. This occurrence was also seen by Mazhar Ali and Mst. Razia Bibi. The injured were shifted to hospital by Rescue-1122. The motive of occurrence is that a dispute of divorce is pending in between her and her husband and due to that grudge he threw acid on them.” 4. During the course of proceedings before this Court, it transpired that the petitioner committed murder of his wife from whom he had a son namely Ibrahim, who was about one year of age at the time of incident. The said minor son is alive and in-fact direct descendant of the JAIL PETITION NO. 351 OF 2017 -: 3 :- petitioner and is his ‘wali’. Before proceeding further, it would be in order to reproduce Sections 306 & 308 PPC, which reads as under:- "306. Qatl-i-amd not liable to qisas.---Qatl-i-amd shall not be liable to qisas in the following cases, namely:- (a) when an offender is a minor or insane: Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas, with the intention of saving himself from qisas, he shall not be exempted from qisas; (b) when an offender causes death of his child or grand child, how low-so-ever; and (c) when any wali of the victim is a direct descendant, how low-so- ever, of the offender." 308. Punishment in qatl-i-amd not liable to qisas, etc.: (1) Where an offender guilty of qatl-i-amd is not liable to qisas under Section 306 or the Qisas is not enforceable under clause (c) of Section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court: Provided further that where at the time of committing qatl-i-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to twenty-five years as ta'zir. Provided further that, where the Qisas is not enforceable under clause (c) of Section 307, the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to twenty-five years as ta'zir. (2) Notwithstanding anything contained in sub-section (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to twenty-five years, as ta'zir.” 5. There are various judgments of this Court, which enunciate that the provisions of Sections 306 & 308 PPC would only be attracted in the JAIL PETITION NO. 351 OF 2017 -: 4 :- cases of qatl-i-amd liable to ‘qisas’ under Section 302(a) PPC. However, at the same time, the view persists that “in case we subscribe to the view that provisions contained in Sections 306 and 308 PPC apply to the cases of qisas only, it is apt to give rise to an anomaly. The anomaly is that if sentence in qatl-i-amd liable to qisas, despite stern and stringent forms of proof, can be lenient in view of the circumstances mentioned in sections 306 and 308 PPC why can't it be lenient in view of the same circumstances in the case of tazir notwithstanding the forms of proof and sentence provided thereunder are comparatively less stern and stringent.” Reliance is placed on Zahid Rehman Vs. The State (PLD 2015 SC 77). There is no direct judgment on the subject except Khalil-uz-Zaman Vs. Supreme Appellate Court (PLD 1994 SC 885) wherein while dealing with a similar case, this Court held that “language of Sections 306 and 308 PPC is plain enough to show that Qatl-i-Amd committed by the petitioner was not liable to Qisas and Qatl-i-Amd not liable to Qisas is specifically punishable under Section 308 PPC only. So, the petitioner could be convicted under Section 308 PPC and not under section 302 PPC to death as Qisas or Ta'zir.” Although review was filed in this case i.e. Faqirullah Vs. Khalil-uz-Zaman (1999 SCMR 2203), which was accepted, the conviction of the petitioner under Section 302(b) PPC as Ta’zir was maintained and he was ultimately executed but from perusal of the judgment, it is apparent that the Court itself observed that the provisions of Sections 306 to 308 PPC are not violative of any Quranic text or the Sunnah. The relevant portion of the judgment reads as under:- “Due to paucity of time we have not been able to make further research in the matter ourselves. The opposite side had also not assisted us on the subject. Nonetheless, the amendments were introduced in the year 1990 in the Pakistan Penal Code including the provisions of clause (c) of section 306 and clauses (a) and (b) of section 304 of the P.P.C. with a view to bringing those provisions in conformity with the Injunctions of Islam and Sunnah. The presumption, therefore, is that aforementioned provisions are not violative of any Qur'anic text or the Sunnah of the Prophet (p.b.u.h.). The second contention is, therefore, devoid of any force.” 6. For what has been discussed above, the questions as to (i) whether the case of the petitioner is covered under Section 306(c) PPC for which the maximum punishment provided under Section 308 PPC is 25 JAIL PETITION NO. 351 OF 2017 -: 5 :- years along with payment of diyat, and (ii) whether the conviction and sentence recorded against the petitioner under Section 302(b) PPC as Ta’zir was appropriate as per scheme of law squarely, requires consideration. We, therefore, grant leave to appeal in this petition. As the matter requires interpretation of the afore-referred provisions as per the intent of the Legislature, therefore, we deem it appropriate to send the matter to Hon’ble Chief Justice for constitution of a larger bench to adjudicate the matter for authoritative judgment, as the earlier matter was heard by a bench comprising five members. JUDGE JUDGE JUDGE Islamabad, the Announced on _______________ Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 355 OF 2018 (On appeal against the judgment dated 22.02.2018 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 481/2012) Muhammad Abbas, and Muhammad Ramzan … Petitioners VERSUS The State … Respondent For the Petitioners: Ms. Sabahat Rizvi, ASC (Via video link from Lahore) For the State: Mirza Muhammad Usman, DPG Punjab For the Complainant: Mr. Abdul Khaliq Safrani, ASC (Via video link from Lahore) Date of Hearing: 02.01.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners along with two co- accused were tried by the learned Additional Sessions Judge, Chichawatni in a private complaint under Sections 302/148/149 PPC for committing murder of Muhammad Sarfraz. The same was instituted being dissatisfied with the investigation conducted by the Police in case FIR No. 85 dated 10.04.2009 under Sections 302/148/149 PPC at Police Station Ghaziabad, District Sahiwal. The learned Trial Court vide its judgment dated 28.06.2012 while acquitting the two co-accused, convicted the petitioners under Section 302(b) PPC and sentenced them to imprisonment for life. They were also directed to pay compensation amounting to Rs.50,000/- to the legal heirs of the deceased or in default whereof to further suffer four Jail Petition No. 355/2018 2 months SI. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioners. In appeal the learned High Court maintained the conviction and sentences awarded to the petitioners by the learned Trial Court. 2. The prosecution story as given in the judgment of the Trial Court reads as under:- “The complainant, Ameer Hussain filed this complaint against the accused persons alleging that he is resident of Chak No.413/E.B. and cultivator by profession. The accused persons abducted Mst. Shakila Bibi, aged about 16/17 years, the daughter of complainant’s cousin, Muhammad Sarwar S/o Niamat. The accused persons promised to return her. On 09.04.2009 at 9.00 p.m. the complainant along with Muhammad Sarwar, Hassan Abad Ali, Muhammad Amin, Sarfraz and Muhammad Shabbir came to Chak No.53/12L and demanded for return of Mst. Shakila Bibi. Hot words were exchanged between the parties. Gahni accused raised Lalkara that teach Sarfraz a lesson for demanding the hand of Shakila Bibi, whereupon Muhammad Abbas made a dagger blow, which landed on the right wrist of Muhammad Sarfraz. Muhammad Ramzan accused also made a dagger blow on the right arm pit of Sarfraz. He fell down smeared in blood. Later on Muhammad Nawaz accused made a blow of his Chhuri, which landed on the right side of his back while Muhammad Boota accused beaten Sarfraz with kicks and fists. The witnesses Abbad Ali, Muhammad Amin witnessed the occurrence and saved the complainant party from the clutches of the accused persons. The victim Sarfraz succumbed to the injuries in the way to hospital. The motive was that the accused persons had abducted Mst. Shakila Bibi, daughter of Muhammad Sarwar. Sarfraz has been pursuing the said case. Due to that grudge, the accused persons have caused his murder. The complainant lodged FIR No.85/09 but the police in connivance with the accused persons declared Muhammad Nawaz accused as innocent while accused Muhammad Ashfaq died during the trial. Hence, this private complaint.” 3. The conviction of the petitioners was recorded in a private complaint. The complainant produced cursory evidence whereafter the formal charge was framed against the petitioners on 02.08.2011 under Sections 302/148/149 PPC to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced three witnesses and ten CWs. In their statements recorded under Section 342 Cr.P.C, the petitioners pleaded their innocence and refuted all the allegations leveled against them. However, they did not make statements on oath under Jail Petition No. 355/2018 3 Section 340(2) Cr.P.C in disproof of allegations leveled against them. They also did not produce any evidence in their defence. 4. At the very outset, learned counsel for the petitioners contended that there are material contradictions and discrepancies in the statements of the eye-witnesses, which have not been taken into consideration by the courts below. Contends that the PWs are interested and related to each other and their evidence has lost its sanctity. Contends that the prosecution case is based upon whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the reasons given by the learned High Court to sustain conviction of the petitioners are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. Lastly contends that even if the whole prosecution case is admitted, at the most it falls within the ambit of Section 302(c) PPC. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant defended the impugned judgment. It has been contended that the petitioners were specifically nominated in the crime report with a specific role of causing injuries to the deceased, which ultimately became his cause of death. Contends that the ocular account has been proved beyond shadow of doubt and the medical evidence supports the same. Contends that the prosecution has proved its case through cogent and confidence inspiring evidence, therefore, the petitioners do not deserve any leniency by this Court. However, it has not been denied that the occurrence had taken place at the spur of the moment, which is spelled out from the record. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. Jail Petition No. 355/2018 4 There is no denial to this fact that the unfortunate incident wherein brother of the complainant lost his life had taken place on 09.04.2009 at 9:00 p.m. whereas the matter was reported to the police at 01:20 a.m. on the same night while the inter se distance between the place of occurrence and the Police Station was 25 kilometers. This aspect of the case clearly reflects that the matter was reported to Police promptly without there being any delay. As the parties were related to each other, therefore, there is no chance of misidentification. In order to prove its case, the prosecution has mainly relied upon the statements of Ameer Hussain, complainant (PW-1) and Muhammad Amin (PW-2). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioners or adverse to the prosecution could be produced on record. These PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record is in line with the ocular account so far as the nature, locale, time and impact of the injuries on the person of the deceased is concerned. So far as the question that the PWs were closely related to the deceased, therefore, their testimony cannot be believed to sustain conviction of the petitioners is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the petitioners could not point out any reason as to why the complainant has falsely involved the petitioners in the present case and let off the real culprit. Substitution in such like cases is a rare phenomenon. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query she remained unsuccessful and could not point out any major contradiction, which could shatter the case of the prosecution. On account of lapse of memory owing to the intervening period, some minor Jail Petition No. 355/2018 5 discrepancies are inevitable and they may occur naturally. The accused cannot claim benefit of such minor discrepancies. The eye-witnesses have given details of the occurrence, which prove that they have witnessed the tragic death of Sarfraz. The motive had not been seriously disputed by the defence, therefore, it was rightly believed by the courts below. So far as the recovery of weapon of offence i.e. churries from the petitioners is concerned, the same has rightly been held inconsequential by the learned Trial Court by holding that the occurrence took place on 09.04.2009 while the weapons were recovered on pointation of the petitioners from their house on 20.02.2011 i.e. after about two years. Admittedly, the said house was a joint house wherein the other members of the petitioners’ family were also residing. During this period, the petitioners did not reside in their house. Furthermore, the churries were allegedly recovered on 20.02.2011 but the same were sent to office of Chemical Examiner on 29.09.2011 i.e. after elapse of seven months for which no explanation has been given. In these circumstances, it can safely be said that the prosecution has brought on record reliable evidence to sustain the conviction of the petitioners. However, so far as the quantum of punishment is concerned, we are of the view that the occurrence took place at the spur of the moment and there was no pre-meditation on the part of the petitioners. Admittedly, the occurrence took place in the house of the petitioners where the complainant party had brought a jirga for return of Mst. Shakeela, niece of the complainant, who was married with petitioner Muhammad Nawaz against the will of her parents. A bare perusal of the record reveals that something happened immediately before the occurrence, which provoked the petitioners and they caused churri blows on the person of the deceased. On our specific query, learned Law Officer and learned counsel for the complainant could not deny the fact that the occurrence took place at the spur of the moment. Admittedly, both the petitioners did not repeat their act. There was no deep rooted enmity between the parties. In these circumstances, the learned High Court ought to have taken a lenient view. Consequently, we convict the petitioners under Section 302(c) PPC and sentence them to Jail Petition No. 355/2018 6 fourteen years RI each. The amount of fine and the sentence in default whereof shall remain intact. 7. For what has been discussed above, this petition is converted into appeal and partly allowed and the impugned judgment is modified as stated in the preceding paragraph. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 2nd of January, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO.36 OF 2016 (Against the judgment of the Lahore High Court, Lahore dated 15.12.2015 passed in Criminal Appeal No. 772/2013) Muhammad Yaqoob … Petitioner Versus The State … Respondent For the Petitioner : Mr. Saeed Khurshid Ahmed, ASC Syed Rifaqat Hussain Shah, AOR For the State : Mr. Muhammad Jaffar, Addl.P.G. Punjab Date of Hearing : 21.04.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI,J:- The petitioner was convicted in a case bearing FIR No. 10/2013 dated 16.01.2013 registered with police station Kallur Kot, District Bhakkar. 2. As per allegations contained in the crime report, it was alleged that the petitioner had connection with a terrorist organization and he is in possession of ammunition which can be recovered. Consequently, raiding party was constituted which raided the premises of the petitioner who led to recovery of four Russian made hand grenades and four detonators which were kept Jail Petition No. 36 of 2016 -:2:- in a bag and the same was concealed in an oven adjacent to eastern wall of the house. The petitioner was taken into custody and during the course of proceedings, the accusation against the petitioner was found to be correct and as such report in terms of section 173 Cr.P.C. was submitted in the court of competent jurisdiction. The petitioner was charge sheeted by the learned trial court vide order dated 04.04.2013. The petitioner denied the same and claimed trial. Prosecution led five prosecution witnesses to substantiate the allegation against the petitioner. After recording of the statements of prosecution witnesses, the petitioner made a statement in terms of section 342 Cr.P.C. During the statement made by the petitioner he opted not to appear under section 340 Cr.P.C. in disproof of the allegation levelled against him, however he produced defence evidence of one Maqbool son of Ahmad Din, who appeared as DW.1. 3. The learned trial court after taking into consideration the statements of prosecution witnesses, statement of petitioner found the accusation coming through the source which is confidence inspiring and as such convicted the petitioner under section 4 of the Explosive Substance Act 1908, thereby sentenced him to imprisonment for life. The learned trial court further found that the petitioner has also committed an offence falling within the ambit of section 7(g) of the Anti-Terrorism Act, 1997, hence he was further convicted for five years Rigorous Imprisonment and fine to the tune of Rs.50,000/-, however, benefit of section 382-B Cr.P.C. was extended in favour of the petitioner. 4. The petitioner filed Criminal Appeal No. 772/2013 before the learned Lahore High Court Lahore which met the same Jail Petition No. 36 of 2016 -:3:- fate vide judgment dated 15.12.2015 while maintaining the sentences inflicted upon by the learned trial court. 5. The crux of the arguments advanced by the learned counsel for the petitioner is that the petitioner cannot be saddled with the responsibility of keeping explosive substance in his possession as at the time of raid he was empty handed and perhaps he was not in a constructive knowledge regarding the possession of explosive substance which ultimately was taken into consideration by both the learned courts and the petitioner was convicted. Further contends that perusal of the definition provided under section 3 sub- section 1 (a)(iv) of the Arms Ordinance 1965, the “grenade’ is part of the Arms Ordinance and do not fall within the definition of Explosive Substance Act. Contends that the application of section 7(g) of Anti- Terrorism Act, 1997 is not substantiated from the facts and circumstances as it is not case of terrorism because for that it is mandatory that the petitioner must be having nexus with some proscribed religious organization. Learned counsel has further argued that in fact the prosecution has failed to substantiate the case against the petitioner as the witnesses of recovery are at variance regarding the place from where petitioner was arrested. 6. We have heard the learned counsel for the parties and gone through the record. 7. It is an admitted fact that the opening sentence of the crime report clearly reflects that the petitioner is active member of proscribed religious organization and as such in pursuance of information after constituting raiding party; the premises of Jail Petition No. 36 of 2016 -:4:- petitioner were raided. During course of proceedings of the raiding party, the petitioner led to recovery of not only four grenades but also four detonators which is spelled out from the record especially when the Bomb Disposal Officer came there for defusing the aforesaid ammunition which was recovered and was found explosive in nature. The detail mentioned by the Bomb Disposal Unit reflects a lot regarding the genuineness of the raid and recovery effected from the premises owned by the petitioner. The arguments of the learned counsel that in fact the recovered articles do not comes within the ambit of Explosive Substance Act, is not of any avail, rather the same seems to be absurd in nature. The learned counsel while arguing the matter has only advanced the case up to the extent of recovery of “grenades”. The other article in the shape of detonator was also recovered which ultimately if considered conjointly it comes within the definition of explosive substance. The definition of the same reflects that any material which if utilized results into explosion comes with the definition of explosive substance. Section 2 of Explosive Substance Act, 1908 is reproduced as under:- “2. Definition of “explosive substance”.--- In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.” Bare perusal of the definition reflects that explosive substance shall be deemed to be any material which is used or attended to be used for causing any explosion which could endanger the life. There is no Jail Petition No. 36 of 2016 -:5:- second cavil to this proposition that the recovery of four grenades and detonators are material which could explode and utilized for the explosion so it comes within the definition of explosive substance. Otherwise, the nature of the ammunition recovered from the petitioner bring in the mind of a person of ordinary prudence that the utilization of such like articles cannot be retained except for only one purpose which is clearly alleged against the petitioner and same has been taken into consideration by the learned trial court as well as learned High Court. It is strange enough to mention here that the petitioner opted to adduce defence evidence during the course of trial before learned trial court but he did not opt to appear himself as a witness under section 340 Cr.P.C to disproof the allegation against him. A person who do not opt to appear for his own defence to brush aside the prosecution evidence while availing legal recourse in the shape of statement under section 340 Cr.P.C. rather produce a witness in his defence, the statement of such witness has been taken into consideration by us and found to be nothing but an afterthought reason being that this witness had never appeared before the investigating officer during the course of investigation of this case in the defence of the petitioner. 8. In view of the facts and circumstances narrated above while analysing the evidence adduced by the prosecution witnesses and while evaluating the probative value of the same, if juxtaposed with the evidence adduced by the defence, we found that the evidence adduced by the prosecution is straight-forward, confidence inspiring and while satisfying all the legal requirements to prove the Jail Petition No. 36 of 2016 -:6:- case to the hilt, resulting into dismissal of petition before this Court. As a consequence, the same is dismissed. 9. Leave to appeal is refused. Judge Judge Islamabad, 21.04.2020 Approved for reporting. Athar

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO.382/2017 (Against the judgment of the Lahore High Court Lahore dated 02.02.2017 passed in Murder Reference No.208/2013 and Criminal Appeal No.310-J/2013). Munir Akhtar @ Munir Ahmad …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Miss Tehmina Mohibullah Kakakhel ASC, at State expenses For the State Mirza Muhammad Usman DPG Punjab Date of Hearing: 08.10.2020 … ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Crl. MA No.1165/17 in JP No.382/2017:- The instant miscellaneous application is filed for condonation of delay. The matter pertains to criminal appeal against conviction, therefore, delay of filing said petition is condoned in the interest of safe dispensation of justice. JAIL PETITION No.382/2017:- Criminal petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been sought calling in question impugned judgment dated 02.02.2017 passed by learned Division Bench of Lahore High Court, Lahore. 2. The facts culminated into filing of the instant petition are that the petitioner was booked in case bearing FIR No.365/06 dated 03.11.2006 offence u/s 302/34 PPC registered with Police Station Darya Khan, District Bhakkar. Jail Petition No.382/2017 Munir Akhtar @ Munir Ahmad vs, The State 2 As per contents of the crime report, it is alleged that the petitioner committed murder of Tariq Mehmood brother of complainant and Muhammad Abu Bakar son of Noor Muhammad. Motive behind the occurrence was that Mst. Tahira Parveen real sister of accused Muhammad Ilyas @ Lasha had contracted marriage with Tariq Mehmood deceased without consent of her brothers. The petitioner was taken into custody on 12.03.2012. During course of investigation, recovery of Kalashnikov was affected from him on 31.01.2010. During course of investigation, he was found fully involved in the case and as such, his name was placed in column No.3 of the report u/s 173 Cr.PC. The challan of the case was sent to court. The learned trial court vide judgment dated 27.06.2013 convicted the petitioner u/s 302(b) PPC and sentenced to death. He was also burdened with compensation of Rs.1,00,000/- u/s 544- A Cr.PC and in default thereof, he was to suffer six months S.I. Benefit of section 382-B Cr.P.C. was also extended. 3. The judgment of the learned trial court was challenged before learned High Court through Criminal Appeal No.310-J/2013 whereas the learned trial court sent the Murder Reference bearing No.208/2013 u/s 374 Cr.PC. The learned High Court while maintaining the compensation but altered the sentence from death to imprisonment for life. Hence, the instant petition for leave to appeal. 4. At the very outset, it is argued by the learned counsel for the petitioner that in fact, both the courts below had not taken into consideration the evidence available on record and the same has not been evaluated according to the principles of “appreciation of evidence” enunciated by the superior courts from time to time. Contends that due to vague motive, the petitioner has been roped against the actual facts and circumstances and even the same was alleged against co-accused Muhammad Ilyas alias Lasha. Contends that the presence of the Jail Petition No.382/2017 Munir Akhtar @ Munir Ahmad vs, The State 3 witnesses of ocular account at the place of occurrence at the relevant time is doubtful. Contends that there is no report of Forensic Science Agency regarding the Kalashnikov is available on the record. Finally, it has been prayed that the leave to appeal be granted on this aspect. 5. We have heard learned counsel for the petitioner at length and gone through the record. There is no denial to this fact that the instant occurrence has taken place in broad daylight in which two persons were done to death in a brutal manner. It is an admitted fact that the occurrence has taken place at 12.50 p.m. whereas the matter was reported to the police at 03.15 p.m. on the same day whereas the inter-se distance between the place of occurrence and police station is one kilometer. The facts and figures narrated above, rules out any possibility of deliberation and consultation. The petitioner was saddled with responsibility of causing firearm injury with Kalashnikov on the person of deceased Abu-Bakar which hit on his chest, back, backside of head and different parts of the body whereas the injuries sustained by other deceased Tariq Mehmood are attributed to co- accused Muhammad Ilyas alias Lasha, who was convicted by the learned trial court and later on, the offence was compounded to his extent. The ocular account in this case is supported by Muhammad Saeed (PW10) and Khalid Mehmood complainant (PW-11), the statements of the prosecution witnesses coincide with each other on salient features of prosecution version. The ocular account is corroborated by the medical evidence. The petitioner remained absconder for more than five years and four months and he was arrested on 12.03.2012 and during the course of investigation, the petitioner was found involved and his name was placed in column No.03 of the report u/s 173 Cr.PC. All these factors when evaluated conjointly it is abundantly clear that the prosecution has succeeded to establish case without any reasonable doubt. The learned Jail Petition No.382/2017 Munir Akhtar @ Munir Ahmad vs, The State 4 High Court while handing down the judgment impugned before us has already taken care of all established principles of law and converted the sentence of death into imprisonment for life which seems to us appropriate and in accordance with law. A very close scrutiny of evidence available on the record and while evaluating the same, we are of the considered view that there is no scope for interference into the judgment handed down by the learned trial court and modified by the High Court. As this petition is devoid of any legal justification hence, the same is dismissed. Leave to appeal is declined. JUDGE JUDGE Islamabad, the 08.10.2020 Approved for reporting *Athar*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO.385/2017 (Against the judgment of the Lahore High Court, Lahore dated 12.04.2017 passed in Murder Reference No.117/2015, Criminal Appeal No.1630/2013 and Criminal Appeal No. 1631/2013) Muhammad Afzal …Petitioner VERSUS The State …Respondent For the Petitioner Ms. Aisha Tasneem, ASC (at State expenses) For the State Mirza Muhammad Usman, DPG, Punjab Date of Hearing: 08.10.2020 … ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been assailed by the petitioner calling in question impugned judgment dated 12.04.2017 passed by Lahore High Court. 2. As per allegation contained in the crime report bearing FIR No.292/2011, dated 30.07.2011, under section 302, 324 PPC registered with police station Kalurkot District Bhakkar, it is alleged that petitioner alongwith Mushtaq and Imam Bakhash while armed with gun .12 bore trespassed into the land belonging to the complainant. Mushtaq raised “Lalkara” as a consequent, Muhammad Afzal made a fire with his gun .12 bore which landed on the left side of the chest of Iltaf Hussain; the second fire made by Muhammad Afzal had hit on the right side of neck. Iltaf Hussain fell on the ground; Imam Bakhash made a fire with his gun which landed on the left shoulder of Iltaf Hussain whereas Mushtaq made a fire which landed on the index finger of left hand. The occurrence was seen by the prosecution witnesses. As a consequent of the injuries, Iltaf Hussain JAIL PETITION NO. 385 OF 2017 -: 2 :- succumbed to the injuries at the spot. The motive behind the occurrence was dispute over land. 3. The complainant being aggrieved of the investigation conducted by the local police wherein they have declared Mushtaq innocent while placing his name in column No.2 of the report u/s 173 Cr.P.C., filed a private complaint. The accused persons were summoned in response to the proceedings of the said complaint. The learned trial court amalgamated State as well as private complaint and the same was disposed of with consolidated judgment dated 05.11.2013. The learned trial court convicted Muhammad Afzal u/s 302(b) PPC and sentenced to death and to pay the compensation of Rs.500,000/- under section 544-A Cr.P.C. to the legal heirs of the deceased recoverable as arrears of land revenue. The learned trial court also convicted Imam Bakhash under section 302(b) PPC and sentenced to imprisonment for life and to pay compensation of Rs.500,000/- under section 544-A Cr.P.C. to the legal heirs of deceased recoverable as arrears of land revenue whereas the learned trial court acquitted Mushtaq by giving him benefit of doubt. 4. Being aggrieved by the judgment, reference was sent u/s 374 Cr.P.C. whereas the convicts filed their appeals before the learned Lahore High Court and the learned Division Bench of Lahore High Court vide judgment dated 12.04.2017, acquitted Imam Bakhash while extending benefit of doubt whereas the death sentence inflicted upon petitioner Muhammad Afzal was converted into imprisonment for life, hence, the instant petition before us for leave to appeal. 5. At the very outset, it has been argued by learned counsel for the petitioner that both the learned courts below have not taken into consideration the evidence available on the record and the same has not been appreciated according to the dictates of law. Further contends that JAIL PETITION NO. 385 OF 2017 -: 3 :- the complainant being aggrieved by the investigation filed private complaint just after four months of the occurrence on the ground that Mushtaq one of the accused was declared innocent. Contends that in the private complaint, a different version qua the motive has been given which itself create doubt in the genuineness of the prosecution version. Contends that one of the accused Mushtaq was acquitted by the learned trial court whereas Imam Bakhash was given benefit of doubt by the High Court. Contends that as the bulk of prosecution case has already been found false, therefore, the petitioner is also entitled for the extension of benefit of doubt in the interest of safe administration of justice. 6. We have heard the learned counsel for the petitioner at length and gone through the record. It is an admitted fact that the occurrence has taken place at 3.30 p.m. whereas the matter was reported to the police at 4.45 p.m. on the same day whereas the inter-se distance between the place of occurrence and police station is 28/29 kilometers. Perusal of the crime report clearly reflects that there is definite overt-act ascribed to the petitioner who fired twice with his gun on the vital part of the body of deceased Iltaf Hussain. The ocular account in this case is furnished by complainant Tariq Mehmood (PW-10) and Riaz Hussain (PW-11). The statements of both the prosecution witnesses qua the time, date, mode and manner of occurrence are identical. Although they were cross examined at length but nothing detrimental to the salient features of the prosecution case was detected from cross examination conducted by defence counsel. Otherwise it is an admitted fact that the occurrence has taken place in the open field whereas the parties are known to each other since long. The occurrence has taken place in the broad daylight and there is no chance of any misidentification. All these factors when JAIL PETITION NO. 385 OF 2017 -: 4 :- evaluated conjointly it is abundantly clear that the prosecution has succeeded to establish case without any reasonable doubt. The contention of the learned counsel qua recovery as well as the motive, we have also taken into consideration these aspects of the case. As far as the motive is concerned, while filing private complaint, the motive which mentioned in the crime report was explained, so the same cannot be said in any manner that altogether another version was introduced by the prosecution. None recovery of crime weapon and absence of report of Forensic Science Agency, the benefit of the same has already been extended to the petitioner and sentence of death was converted into imprisonment for life being alternative sentence. As far as the acquittal of Imam Bakhash is concerned, we are afraid that the learned Division Bench of Lahore High Court has not assigned any legal justification to extent the benefit of doubt. Mere mentioning of rule of caution is not sufficient to discard the prosecution version rather the learned court is supposed to extend the dictum of rule of caution which should be supported by substantial material which is lacking in this case. We are showing restrain because there is no petition filed by the complainant in this regard. The accumulative affect of the facts and circumstances when discussed in this case is that prosecution has established case against the petitioner to the hilt, hence, leaving no room for interference. As a consequence, this petition is dismissed.Leave to appeal is declined. JUDGE JUDGE Islamabad 08.10.2020 Approved for reporting *Athar*