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I - IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI (F (p5) JAIL PETITION NO. 403 OF 2018 (On appeal against the judgment dated 24.06,2010 passed by the Lahore High Court, Lahore in Criminal Appeal No. 280-J/2005 and Murder Reference No. 423/2005) Kashif Ali Kalu Petitioner VERSUS The State and another Respondents For the Petitioner: Mr. Dii Muhammad Khan Alizai, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Ahmed Raza Gillani, Addl. P.G. Date of Hearing: 06.06.2022 JUDGMENT SAYVED MAZAHAR ALl AKBAR NAOVI. J.- Petitioner was tried by the learned Additional Sessions Judge, Gujranwala, pursuant to a case registered vide FIR No. 403 dated 25.06.2004 under Sections 302/34 PPC at Police Station Model Town, Gujranwala, for committing murder of Mst. Sakeena Bibi, mother-in-law of the complainant. The learned Trial Court vide its judgment dated 30.04.2005 convicted the petitioner under Section 302(b) PPC and sentenced him to death. He was also directed to pay Compensation amounting to Rs.100,000/- to the legal heirs of the deceased or in default whereof to further undergo St for six months. He was also convicted under Section 394 PPC and was sentenced to seven years RI and to pay a fine of Rs.5000/- or in default whereof to further undergo six months SI. He was further convicted under Section 449 PPC and was sentenced to five years RI and to pay a fine of Rs.3000/- or in default whereof to further undergo six months SI. All sentences of Jail Petition No. 403/2018 imprisonment were ordered to run concurrently. In appeal, the learned High Court while maintaining the conviction of the petitioner under Section 302(b) PPC, altered the sentence of death into imprisonment for life. However, all other sentences including the order for the payment of compensation to the legal heirs of deceased was maintained on the same terms and conditions. 2. The prosecution story as given in the impugned judgment reads as under:- "In brief, the facts of the prosecution case as narrated in the FIR are that on 24.062004 at about 6.30 pm complainant Abdul Waheed (PW-1) received telephonic information that some occurrence had taken place in the house of his mother in law. When he reached at the place of occurrence, he found that his mother in law Mst. Sakina Bibi was lying in serious injured condition, who told him that at 6.30 pm when she was present in the house alone, a boy who told his name Ali called from outside the door and demanded ice. On opening the door, she saw that Ali alongwith one unknown person was present. Ali came inside the house and when she entered in the room, he caught hold her arm and snatched two karras. Jhumkas (ear rings), finger ring, locket and cash from her purse upon which she asked Ali that why he is doing so, he picked up Churri lying near and gave consecutive blows of churri and fled away after bolting the door from outside. On hue and cry of Mst. Sakina Bibi, people of the Mohalla opened the door and in the meanwhile complainant also reached at the spot. Mst. Sakina Bibi (deceased) was brought to the local hospital and after first aid she was referred to Mayo hospital, Lahore." 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 11 witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. At the very outset, learned counsel for the petitioner argued that there are material contradictions and discrepancies in the prosecution evidence, which have not been taken into consideration by the courts elow. Contends that there was an inordinate delay of about 18 hours in JaI Petition No. 403/2018 3 lodging the FIR, which has not been explained. Contends that it was an unseen occurrence and there is no eyewitness of the occurrence. Contends that the statement of the complainant is based upon hearsay and he did not disclose the name of the person who informed him through telephone about the occurrence. Contends that initially, brother of the petitioner namely Ali was nominated as an accused but later on the present petitioner was substituted as an accused, which speaks volume on the conduct of the complainant. Contends that the dying declaration was neither signed by the Investigating Officer nor the Investigating Officer was produced in evidence, therefore, the same cannot be used against the petitioner. Contends that recoveries of churri and golden ornaments are also inconsequential, therefore, the petitioner deserves to be acquitted of the charge. S. On our specific query as to whether he supports the impugned judgment, the learned Law Officer very frankly stated that on the basis of evidence available on the record he does not support the impugned judgment. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. The prosecution case mainly hinges upon (i) dying declaration of Mst. Sakina Bibi, and (ii) recovery of alleged snatched jewellery and churri at the instance of the petitioner. It is an admitted position that the complainant is neither an eyewitness nor a resident of the place of occurrence. As per the prosecution story, the complainant on receiving a call that a dacoity has been committed in his mother-in-law's house reached at the place of occurrence. However, he did not disclose the name of the person from whom he had received a call. The FIR was registered with an inordinate delay of about 18 hours for which no plausible explanation has been given. The same makes the whole prosecution story doubtful especially when initially brother of the petitioner namely Ali was nominated in the FIR but subsequently the present petitioner was substituted as an accused. At page 69 of the paper Jail Petition No. 403/2028 4 book, there is available a statement of the complainant which was exhibited in evidence as Ex-PI. In the said statement the complainant stated that the deceased was discharged from hospital on 08.07.2004 and thereafter she was being treated privately in her house and succumbed to the injuries at home but he did not mention the date on which she succumbed to the injuries. The rapat in this regard was registered on 23.072004, which shows that the deceased might have died on the said date. The record is also silent as to how and by whom she was being treated privately in her residence. So far as dying declaration of Mst. Sakeena Bibi is concerned, we have noticed that the alleged dying declaration as recorded by the investigating officer is without backing of law established by the superior Courts from time to time and such cannot be given any credence when the time and place where it was recorded are not disclosed which makes it highly improbable to rely upon. The Investigating Officer, who recorded the dying declaration, has also not been produced in court. The record also suggests that after the occurrence, Mst. Sakina Bibi was taken to hospital and police was also present there. The learned High Court has noted that the police had moved an application on 27.06.2004 regarding her condition and to record her statement but despite that it did not record the statement at the first instance i.e. on 24.06.2004 and then on 27.06.2004. The weapon of offence i.e. churri was not sent to the office of Chemical Examiner, therefore, the recovery is inconsequential and the same cannot be used against the petitioner. As far as the alleged recovery of golden ornaments on the pointation of the petitioner is concerned, the same were taken into possession by the police officials namely Muhammad Shafique, LHC (PW- 6) and Sultan Ahmed. However, the statement of said Sultan Ahmed could not be recorded as he was given up by the prosecution at the time of trial. Besides, no independent witness of the locality was associated in this process. In these circumstances, it would not be safe to rely upon the recovery of golden ornaments to sustain conviction of the petitioner. These are the dents, which are so grave and sensational that they create a doubt in the authenticity of the prosecution case, which cannot be Jail Petition No. 40312018 5 ignored. These dents are squarely hampering the very fabric of the prosecution case and ultimately the salient features of the case, therefore, it can safely be concluded that the prosecution has miserably failed to substantiate its case, which is basic requirement to sustain conviction of an accused in case of capital punishment. It is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence Any doubt arising in prosecution case is to be resolved in favour of the accused. 7, For what has been discussed above, this petition is converted into appeal, allowed and the impugned judgment is set aside. The petitioner is acquitted of the charge. He shall be released from jail forthwith unless detained/required in any other case. The above are the detailed reasons of our short order of e Islamabad, the 6th of June, 2022 Approved For Reporting -I' -,

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 (Against the judgment dated 31.03.2021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 453- J/2014) (i) Ansar, (ii) Maqsood Ahmed, (iii) Mumtaz Ahmed (In JP 405/2021) (iv) Nasir, and (v) Nisar Ahmed (In Cr.P. 946/2021) …Petitioners VERSUS The State etc (In both cases) …Respondent(s) For the Petitioner(s): Mrs. Tabinda Islam, ASC Syed Rifaqat Hussain Shah, AOR (In Cr.P. 946/2021) Mehnaz Bibi, sister of Ansar, in person (In JP 405/2021) For the Complainant: Mr. Rashad Javaid Lodhi, ASC For the State: Mirza Muhammad Usman, DPG Date of Hearing: 02.03.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners along with co- accused Naveed Ahmed were tried by the learned Additional Sessions Judge, Shakargarh, pursuant to a case registered vide FIR No. 578/2011 dated 24.10.2011 under Sections 302/324/396 PPC at Police Station Shakargarh, District Narowal for committing dacoity cum murder of Muhammad Javed Rafique and for attempting to take life of Sarfraz Rafiq. JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 2 :- The learned Trial Court vide its judgment dated 09.07.2014 while acquitting the co-accused Naveed Ahmed, convicted the petitioners as under:- i) Under Section 302 PPC read with Section 149 PPC Sentenced to undergo imprisonment for life alongwith compensation of Rs.200,000/- each as envisaged under Section 544-A Cr.P.C. to be defrayed to the legal heirs of the deceased Muhammad Javed Rafique and in default whereof to further undergo SI for six months. ii) Under Section 396 PPC Sentenced to undergo imprisonment for life along with fine of Rs.50,000/- and in default whereof to further undergo SI for six months. iii) Under Section 324 PPC read with Section 149 PPC Ten years RI along with fine of Rs.20,000/- and in default whereof to further undergo SI for one month. All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended to the petitioners. 2. In appeal, the learned High Court maintained the convictions and sentences recorded by the learned Trial Court. The prosecution story as given in the impugned judgment reads as under:- “2. The prosecution’s story as projected through FIR (Exh.PA) reflects that during the night of 23/24.10.2011 at about 1.30 AM, Fazal Mehmood alias Allah Ditta, the complainant (PW-1) alongwith his family members were sleeping in their house. The electric bulb was on, therefore, there was sufficient light in the courtyard. Meanwhile 9/10 persons, one of them was about six feet height whereas rest were of medium height with agile bodies, wearing Shalwar Kameez, armed with firearm weapons made a lurking tress in their house. The accused also gave beatings to inmates and on gun point conducted a search of the house. The accused after getting safe Almirah opened, took away three pairs of gold ear rings, six gold rings, four bangles/karreys, totally weighing ten tolas, cash Rs.20,000/-, 222 bore licensed rifle, & a pistol .30 bore. After hearing hue and cry, made by the complainant, Rasheed his brother, besides other neighbourers Zahid s/o Haneef, Muhammad Javed and Sarfraz son of Master Rafique reached at the spot. The accused alongwith robbed property were running away from the place of occurrence. They were being chased by the complainant party. They made straight firing on the complainant party hitting on the chest of Muhammad Javaid, who after receiving injury fell down and succumbed at the spot. One Sarfraz also received firearm injury on his left thigh at the hands of accused. The accused while making firing fled away from the place of occurrence. Besides the complainant, the occurrence was witnessed by Sarfraz Rafique, Rasheed Ahmad and Zahid and other family members of JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 3 :- complainant. The complainant had asserted that accused can be identified if brought before him and the PWs.” 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 23 witnesses. In their statements recorded under Section 342 Cr.P.C, the petitioners pleaded their innocence and refuted all the allegations leveled against them. However, they did not make statements on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against them. They also did not produce any defence evidence. 4. At the very outset, learned counsel for the petitioners argued that there are material contradictions and discrepancies in the statements of the prosecution witnesses, which have been overlooked by the courts below. Contends that the prosecution case is full of doubts and infirmities, as such, petitioners deserve benefit of doubt. Contends that the prosecution case is based upon conjectures and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the identification parade was conducted without observing the instructions/guidelines enunciated by the superior courts, therefore, it cannot be relied upon to sustain conviction of the petitioners. Contends that the recoveries are planted upon the petitioners, which creates a dent in the prosecution case. Contends that on the same set of evidence, co-accused Naveed has been acquitted, as such, the petitioners also deserve the same treatment to be meted out. Contends that nowhere in the evidence, it came out that as to which petitioner’s fire hit the deceased, therefore, all the petitioners cannot be saddled with the criminal liability of committing murder. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioners are speculative and artificial in nature, therefore, the impugned judgment may be set aside. 5. On the other hand, learned Law Officer assisted by the learned counsel for the complainant has defended the impugned JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 4 :- judgment. It was contended that the prosecution case is free from doubts and all PWs have supported the case of prosecution and there are no material contradictions in their evidence. It was further contended that the eyewitnesses were subjected to lengthy cross-examination but their evidence remained unshaken. Lastly contended that the prosecution has succeeded to prove its case beyond any shadow of doubt, therefore, the petitioners do not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at a considerable length and have perused the evidence available on record. 7. It is cardinal principle of criminal jurisprudence that each case has its own facts and circumstances and that is to be decided keeping in view the peculiar facts and circumstances spelled out from the facts surfaced on the record. The instant case is the glaring example of highhandedness shown by the accused persons, who trespassed in the house of the complainant in between the night of 23/24 October, 2011 at about 01:30 am. The complainant Fazal Mehmood (PW-1) along with his family members was asleep in his house. There was sufficient light in the shape of electric bulb, which was ‘on’ in the courtyard. In the meanwhile, 9/10 persons armed with firearms entered into the house. They forcibly woke up the inmates while giving beating to them. They also forcibly conducted search of the house on gun point and took away different gold ornaments weighing ten tolas, cash Rs. 20,000/-, 222 bore licensed rifle and a pistol .30 bore. After commission of the offence when the accused persons were leaving the premises of the complainant, on alarm raised by the complainant and the family, Rasheed, brother of the complainant, and other neighbourers Zahid, Muhammad Javed and Sarfraz reached at the spot. They started chasing the accused persons who had trespassed into the house of the complainant and had committed dacoity. While retreating when the accused persons were being chased by the complainant party, they started firing on them. As a consequence, a fire shot hit on the chest of Muhammad Javed, who succumbed to the injuries at the spot whereas one Sarfraz also sustained injuries on his left thigh. JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 5 :- The matter was reported to the Police and the formal FIR was registered on 04:15 am on the same day. In the crime report, the names of the accused were not mentioned obviously for the reason that they were not known to the complainant party. However, their features were specifically given in the crime report. The perusal of record shows that the petitioners were arrested in some other cases on 15.12.2011 and 01.03.2012 and then they were formally arrested in the present case. The prosecution advanced its case mainly upon (i) ocular account, (ii) identification parade, (iii) medical evidence, and (iv) recoveries. The ocular account has been furnished by Fazal Mehmood, complainant (PW-1), Zahid Hussain (PW-2), Sarfraz, injured (PW-3) and Mazhar Mehmood (PW-4). All these witnesses of the ocular account remained consistent on each and every material point qua the date, time, mode, manner of the occurrence and the locale of the injuries on the person of the deceased and the injured PW. Sarfraz (PW-3) had sustained injuries during the occurrence, which have fully been supported by the medical evidence given by Dr. Muhammad Tariq, who appeared as PW-8. The testimony of this injured PW as well as the stamp of injuries on his person clearly proves his presence at the place of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. These PWs were subjected to lengthy cross- examination but their testimonies could not be shattered. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye- witnesses but on our specific query she could not point out any major contradiction, which could shatter the case of the prosecution. In this regard, it must be kept in mind that the discrepancies have to be distinguished from contradictions. The contradiction in the statement of a witness may be fatal for the prosecution case but minor discrepancy in evidence will not make the prosecution case doubtful. Where discrepancies are of minor character and do not go to the root of the JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 6 :- prosecution story and do not shake the salient features of the prosecution version, they need not be given much importance. 8. The identification parade of the petitioners was held on 23.11.2011 and 06.03.2012 in District Jail Sialkot. The same was conducted by Muhammad Rashid Phularwan, Magistrate Section 30, Lahore, who appeared as PW-18. The said Judicial Magistrate categorically stated that the proceedings of the identification of each of the petitioner were conducted separately and the complainant and other PWs Zahid and Mazahar were separately summoned and they separately identified the petitioners. The petitioners were lined up with ten dummies of same stature and every time the witnesses were separately called for identification, the place of accused was changed. The said Judicial Magistrate further stated that the witnesses identified the accused in unambiguous terms and after completion of identification parade, he prepared the report and signed the same. The above-said witnesses and Muhammad Rashid Phularwan, Judicial Magistrate (PW-18) were subjected to lengthy cross-examination by the defence but they remained consistent on all material particulars of the prosecution case and their testimony could not be shattered. Nothing was suggested to PWs in their cross-examination that they deposed falsely on account of some enmity with the petitioners. The petitioners remained in the house of the complainant for a considerable length of time to complete their nefarious designs and the complainant had close proximity to remember them which enabled him to identify them later. So far as the argument of the learned counsel for the petitioners that the identification parade was conducted without observing the guidelines enunciated by the superior courts is concerned, suffice it is to state that the process of identification parade has to be carried out having regard to the exigencies of each case in a fair and non-collusive manner and such exercise is not an unchangeable ritual, inconsequential non-performance whereof, may result into failure of prosecution case, which otherwise is structured upon clean and probable evidence. Reliance is placed on Tasar Mehmood Vs. The State (2020 SCMR 1013). Even otherwise, it is settled law that holding JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 7 :- of identification parade is merely a corroborative piece of evidence. If a witness identifies the accused in court and his statement inspires confidence; he remains consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, then even the non-holding of identification parade would not be fatal for the prosecution case. Reliance is placed on Ghazanfar Ali Vs. The State (2012 SCMR 215) & Muhammad Ali Vs. The State (2022 SCMR 2024). The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Although, it is the case of the prosecution that after their arrest, the petitioners led to the recoveries of some of the looted articles but the sole witness of the recovery proceedings i.e. Muhammad Nadeem (PW-17) has stated that his signatures were obtained on blank papers and articles were shown to him in the police station. The petitioners also got recovered the weapons, which they were carrying while committing the crime, but as no empty was sent to the office of Forensic Science Laboratory, therefore, all these recoveries are inconsequential. However, this does not mean that the petitioners are absolved of their criminal liability. There is sufficient evidence in the shape of ocular account, identification parade and medical evidence to sustain the conviction of the petitioners. During Police investigation, the accusation leveled against the petitioners was also found to be true. 9. During the course of arguments, learned counsel for the petitioners had argued that nowhere in the evidence, it came out that as to which petitioner’s fire hit the deceased, therefore, all the petitioners cannot be saddled with the criminal liability. However, we do not tend to agree with the learned counsel. To appreciate the aforesaid submission, it would be in order to reproduce the relevant provisions of law, which read as under: “390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 8 :- to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. 391. Dacoity: When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". 395. Punishment for dacoity: Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. 396. Dacoity with murder: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which shall not be less than four years nor more than ten years, and shall also be liable to fine.” 10. On bare reading of the aforesaid provisions, it is manifestly clear that the 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment of imprisonment for life can be awarded. However, in the case of 'dacoity with murder' the punishment of death has also been provided in the statute. An immediate feature of Sections 391 & 396 PPC which strikes at first reading is that the word “conjointly” has been used in these provisions of law, which is not JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 9 :- used anywhere in Pakistan Penal Code except in the afore-said provisions. It appears that this word has been deliberately preferred over the word 'jointly'. 'Conjointly' indicates jointness of action and understanding. Everyone acts in aid of other. 'Conjointly' means to act in joint manner, together, unitedly by more than one person. According to Black’s Law Dictionary, ‘conjoint robbery’ means where the act is committed by two or more persons. 'Conjoin' means 'join together', as per the Oxford Large Print Dictionary. According to Corpus Juris Secundum, 'Conjointly is explained as 'together', the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or 'unitedly'. In the 'Words and Phrases' 'Vol. 8 A', published by 'West Publishing', same meaning is adopted as in Corpus Juris Secundum. It explains that conjoint robbery is where the act is committed by two or more persons. According to Webster's New International Dictionary 'conjoint' means 'united', 'connected', associated or to be in conjunction or carried on by two or more in combination. Similar meaning has been given in ‘Collins’ dictionary. Thus the use of word 'conjointly' in Sections 391/396 PPC indicates that five or more robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding, i.e., unitedly. No doubt in most of dacoities, the robbers would be acting with a common object to loot with use of violence. The joint reading of Sections 391 and 396 of PPC makes it abundantly clear that for the offence of dacoity, the essential pre-requisite is the joint participation of five or more persons in the commission of the offence. If in the course thereof any one of them commits murder, all members of the assembly would be guilty of dacoity with murder and would be liable to be punished as enjoin thereby. Thus, the essential pre-condition of an offence of dacoity with murder is a participating assembly of five or more persons for commission of the offence. It is not necessary that all the five persons must commit or attempt to commit robbery. If the total number of those who are committing or attempting to commit or are present and aiding such commission or attempt is at least five, all of them are guilty of dacoity. In other words, those who commit robbery and those who attempt to JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 10 :- commit the same, and those who are present and aiding such commission or attempt are all counted, and if their number is five or more all of them would be guilty of committing dacoity. Moreover, it is not necessary for their conviction that their attempt must succeed and even if the attempt fails even then the offence is dacoity. An immediate feature of Section 396 PPC is that it is a self-contained provision, which means that the contributory liability is independent and does not rely on any other provision of law. Section 396 PPC in its plain terms applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity, any one of the said persons, commits murder. All five persons, thereby become liable by statutory prescription, to the offence of dacoity with murder and expose themselves to the punishment stipulated in the said provision. The three essential ingredients for invoking Section 396 PPC are as under:- (i) One of the persons must commit murder i.e. his act must amount to murder within the meaning of Section 300 PPC. (ii) The said person must be one of the five or more persons who have joined together to commit dacoity. (iii) The murder must be committed in the course of commission of such dacoity. 11. If these conditions are fulfilled, then Section 396 of PPC would come into play and blight all other persons, involved in the act of dacoity even if one of them was aware that murder was about to be committed. In other words, so far as the remaining persons are concerned, the prosecution is required to prove in order for Section 396 PPC to apply is their intention to commit dacoity. The same was the view of this Court in Muhammad Ali Vs. The State (2022 SCMR 2024). 12. So far as the argument of learned counsel for the petitioners that on the same set of evidence co-accused Naveed has been acquitted is concerned, the same is misconceived. The case of the petitioners is distinguishable to that of the acquitted co-accused. The learned Trial Court while acquitting the said co-accused has held that the name of co-accused surfacd on 01.11.2012 through supplementary statement after more than JAIL PETITION NO. 405 OF 2021 AND CRIMINAL PETITION NO. 946 OF 2021 -: 11 :- one year of the occurrence wherein the complainant simply stated that he identified the accused in a court present at Shakargarh. However, he did not give the source of identification. Identification parade qua the said co- accused has no value in the eye of law as this accused had already been named by the complainant. It was the version of the said co-accused that he is relative of the present petitioners and used to pursue their case, therefore, he has been falsely roped in this case after one year of the occurrence. The said findings of the learned Trial Court are neither arbitrary nor capricious and the same are based upon correct appraisal of the evidence available on the record. 13. For what has been discussed above, we are of the view that the impugned judgment is well reasoned, proceeds on correct principles of law enunciated by this Court and the same does not call for any interference by this Court. Consequently, these petitions having no merit are accordingly dismissed and leave to appeal is refused. JUDGE JUDGE JUDGE Islamabad, the 2nd of March, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.40 of 2017 (Against the judgment dated 27.05.2014 passed by the Lahore High Court Bahawalpur Bench in Criminal Appeal No.97-J of 2010 with M.R. No.8 of 2010) Gulshan Shah …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Muhammad Tayyab Wattoo, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 30.11.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Safdar Shah, 30 and his brother Iqbal Shah, 35, were done to death at 8:00 a.m. on 15.4.2003 within the precincts of Police Station Qaim Pur of District Bahawalpur. The petitioner and his brother Zia Shah (since P.O.), no other than their paternal nephews, along with their father, were arrayed as accused in the crime report lodged by deceased’s brother Ayyaz Hussain Shah (PW-1) at 11:00 a.m. According to the complainant, his father had forsaken his son Ashiq Shah for being disobedient and, thus, also withheld his share in the property and in this backdrop, his sons assaulted the deceased with an hatchet and club on the fateful day. The accused absconded after the occurrence, Zia Shah, being still away from law till date, however, the petitioner was arrested on 24.1.2006 to contest indictment that resulted into his conviction vide judgment dated 25.02.2010; convicted on two counts under clause (b) of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to death and imprisonment for life respectively; the High Court maintained the conviction, however, altered penalty of death into imprisonment for life vide impugned judgment dated 27.05.2014, pre-trial period inclusive, vires whereof, are being assailed through captioned jail petition, argued by Mr. Muhammad Tayyab Watto, ASC; he contends that in a divided family, fraught with animosity, the courts erred in placing implicit reliance on the testimony of witnesses, Jail Petition No. 40 of 2017 2 manifestly interested without proper corroboration; that there is nothing on the record to demonstrate that Muhammad Shah had ever ostracized his son Ashiq Shah so as to deprive him of his share in the legacy; that acquittal of Ashiq Shah raised the entire edifice of the prosecution to the ground, leaving no space to sustain the conviction. Learned Law Officer has faithfully defended the impugned judgment by arguing that division in the family notwithstanding, the case is firmly structured upon ocular account furnished by the natural witnesses with no earthly reason to swap or substitute the actual offenders; he has further elaborated that the admitted division in the household, in fact, served as a strong motive that appears to have prompted the petitioner and his co-accused to take on the deceased in their prime youth and in a manner most brute and callous. 2. Heard. Record perused. 3. Acquittal of Ashiq Shah, assigned no role whatsoever, does not cast its shadows to possibly space an exit to the petitioner who armed with hatchet (P-1) fatally stabbed Iqbal Shah, a circumstance that convincingly conjoins medical evidence with ocular account furnished by witnesses, no less than three in number, unanimously pointing their finger upon the petitioner; the testimony does not suffer from any serious infirmity or flaw reflecting upon credibility of the deponents. The cross-examination has further highlighted the cleavage in the family and, thus, seemingly there was no occasion for the High Court to even discard the motive in order to mould the sentence of death into imprisonment for life, disregarding the magnitude of violence suffered by the deceased, however, a fait acompli too late in the day to be revisited in the absence of any motion by the complainant or the State. Petitioner’s long absence from law is yet another aspect that intriguingly reflects upon the hypothesis of his innocence. The courts below have rightly relied upon the prosecution evidence to return and uphold a guilty verdict that calls for no interference. However, given the role assigned to the petitioner qua Iqbal Shah deceased alone, sentences awarded to the petitioner shall run concurrently with the benefit already extended. Petition fails. Leave declined. Judge Judge Islamabad, the 30th November, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.415 of 2018 (Against judgment dated 20.11.2017 passed by Islamabad High Court Islamabad in Cr. Appeal No.23 of 2013) Muhammad Ali …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ms. Afshan Ghazanfar, ASC For the State: Mr. Tariq Mehmood Jahangiri, Advocate General Islamabad Date of hearing: 17.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Mst. Shakila Rafique (PW-3) was still asleep in her room alongside her daughter; it was a winter morning and at about 5/5:15 a.m, she was awakened by an entry in the room, assuming that of her husband; all of a sudden, she screamed after feeling some liquid spilling over her face, she sprang up to identify the appellant in the room; the family was attracted including her husband Muhammad Rafique (PW-1); her face was washed and thereafter rushed to Pakistan Institute of Medical Sciences. Dr. Farrukh Kamal (PW-5) attended the prosecutrix with burn injuries. According to the complainant, the petitioner resided in the neighbourhood with a questionable conduct to the annoyance of the residents, on whose behalf, he had moved an application to the Inspector General of Police. It is alleged that in the above backdrop, he selected complainant’s wife as a target to avenge the insult. Upon indictment, the petitioner claimed trial, culminating into his conviction on the counts of murderous Jail Petition No. 415 of 2018 2 assault as well as Itlaf-i-Salahiyyat-i-Udw, he was sentenced to 10-years rigorous imprisonment along with payment of fine as well as Arsh; he was additionally convicted for house trespass and sentenced to 7-years RI with fine; benefit under section 382-B of the Code of Criminal Procedure 1898 alongside concurrent commutation; his appeal failed in the High Court vide impugned judgment dated 20-11-2017, vires whereof are being assailed on the ground that the very genesis of the incident is shrouded into mystery and that it is far from being clear as to how the petitioner made his way into the bedchamber without being noticed by the inmates so as to conveniently carry out the assault; it is next argued that in a chilled winter morning much before the sun rise, it was simply not possible for the prosecutrix to keep her face out of the quilt or blanket in temperature, presumably subzero; according to the learned counsel, no blanket or quilt was taken into possession; question of identity of the assailant has also been argued at inordinate lengths with a reference to complainant’s large clan, comprising three wives with siblings, to insinuate behind the scene family fissures. Contrarily, the learned Law Officer has faithfully defended the impugned judgment. 2. Heard. Record perused. 3. Most of the questions, though raised ingeniously, find their answers in the cross-examination itself. It is a common ground that petitioner lived in the neighbourhood with a joint terrace; to a question asked by no other than the cross-examiner himself, prosecutrix explained, malady of hyper tension as a reason for not covering her face with the quilt. Petitioner, being a next- door resident, taking to the heels after surprising the family, that attempted to apprehend him, the question of his identity cannot be viewed with suspicion. Prosecutrix being in her prime youth, horrendously mutilated, is certainly not expected to swap the petitioner with the real offender; she has been straightforward and confidence inspiring in her deposition, joined by other family members to firmly stand in her support to rule out conspiracy theories. In the face of formidable evidence, exclusively revolving around his culpability, plea taken by the petitioner is beside the point; statements of the defence witnesses are equally inconsequential. Courts below have rightly appraised prosecution evidence while being inconsonance with the principles of safe administration of criminal justice and upon our own independent Jail Petition No. 415 of 2018 3 analysis, we have not been able to take a view different than concurrent conclusions, squarely structured within the remit of law. Jail Petition fails. Dismissed. Judge Judge Judge Islamabad 17th October, 2019 Azmat/- Jail Petition No. 415 of 2018 4

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMAD Jail Petition No.417 of 2019 (Against the judgment dated 14.05.2019 passed by the Lahore High Court Lahore in Cr.A No.1532/2016 & Cr. Rev. Noi.1646/2016) Jabar Ali …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Nemo For the State Ch. Muhammad Sarwar Sidhu, Addl. A.G. Punjab Date of Hearing: 29.09.2021 O R D E R Qazi Muhammad Amin Ahmed, J.- Indicted for committing Qatl-i-Amd of Muhammad Hussain deceased, 33/34, Jabar Ali, petitioner, was returned a guilty verdict by a learned Addl. Sessions Judge at Jhang vide judgment dated 22.06.2016; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to imprisonment for life along with compensation, vide judgment dated 22.6.2016, upheld by a learned Judge-in-Chamber of the Lahore High Court vide impugned judgment dated 14.05.2019, vires whereof, are being assailed through the captioned petition. Reported to the police by Arshad Mehmood (PW-8), the incident occurred at 8:30 p.m. on 9.10.2014 within the precincts of Police Station Ahmad Pur Sial, District Jhang, in a marriage ceremony, when petitioner’s presence amongst the women folk was objected by the deceased; the former retaliated, outside the house, with a fire shot on the left side of latter’s chest; the second shot went astray; autopsy confirmed receipt of fatal shot, within the preceding 24 hours, being the immediate cause of death. Spot inspection includes seizure of casings (Ex.P-4/5), forensically found wedded with a .30 caliber pistol (P-6), recovered pursuant to petitioner’s disclosure on 26.10.2014. As the petitioner claimed trial, the prosecution primarily relied upon ocular account, its mainstay, comprising statements of Arshad Jail Petition No.417/2019 Mehmood (PW-8) and Liaqat Ali (PW-9), concurrently received with approval by the Courts below. 2. We have independently gone through the statements of the witnesses with the assistance of learned Law Officer to find that on the fateful night, the petitioner, the deceased and the witnesses, related to one another, were present inside the house of Ghulam Shabbir in Rasm-e-Hina of his son Javed Akhtar; the invitees included a number of females, traditionally participating in the event and it is in this backdrop that petitioner’s stroll amongst the ladies was viewed as an act unbecoming by the deceased, suggesting recusal. It is shortly thereafter that the petitioner targeted the deceased in front of Ghulam Shabbir’s house, a point vividly depicted in the unrebutted site plan (Ex.PB/I); graphic details of the incident furnished by both the witnesses have been found by us straightforward and confidence inspiring; considerable distance between the venue and the respective abodes of the witnesses, highlighted in the cross-examination, given the occasion, satisfactorily explain their presence at the scene; both of them comfortably withstood an otherwise inconsequential cross-examination without embarrassment. Durations recorded by the medical officer are consistent with the prosecution case and so are confirmatory the forensic report as well as recovery of weapon (P-6). Defence plea that the deceased was done to death by unknown assailants in a dacoity is a position, belatedly introduced for the first time during the trial; substitution is a rare phenomena, antithetical to retributive human instinct; formidable prosecution evidence singularly pointed towards petitioner’s culpability, in the absence of any foundational basis, does not admit any space to entertain such an hypothesis. An unreported dacoity involving homicide, allegedly converted into petitioner’s nomination for the crime, in a small interregnum of time, that too, without any earthly reason, is a story too illusory to find a buyer. Finding of guilt recorded by the trial Court, rightly affirmed by the High Court, found by us on our own analysis, being in accord with the principle of safe administration of criminal justice, calls for no interference. Petition fails. Leave declined. JUDGE JUDGE JUDGE ISLAMABAD 29th September, 2021 Azmat/* “Not approved for Reporting” Jail Petition No.417/2019

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.430 of 2015 (Against judgment dated 10.03.2015 passed by the Peshawar High Court Bannu Bench in Crl. Appeal No.29-B of 2013) Islam Sharif …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Rizwan Ejaz, ASC For the State: Malik Akhtar, A.A.G. KPK Date of hearing: 03.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Islam Sharif, petitioner, indicted for committing Qatl-i-Amd of Dr. Sahib Jan on 3.9.1991 within the precincts of Police Station Ghoriwala, District Bannu was returned a guilty verdict by a learned Addl. Sessions Judge vide judgment 11.2.2013; convicted under clause (b) of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to imprisonment for life, upheld by a learned Judge in Chamber of Peshawar High Court vide impugned judgment dated 10.3.2015, vires whereof are being assailed on a variety of grounds that include improbability of presence of witnesses, issue of identification owing to darkness, absence of casing as well as prosecution’s failure to recover the weapon. 2. Prosecution case is structured upon ocular account furnished by deceased sons, namely, Saifullah (PW-4) and Inayatullah (PW-5); according to them, on the fateful morning, shortly before Fajjar prayer, they followed the deceased, en route to a nearby mosque; when the petitioner confronted the deceased with a fire shot. Dispute over a house is cited motive for the crime. Jail Petition No.430 of 2015 2 Autopsy conducted at 8:00 a.m. confirmed solitary fire shot as being the cause of death. The petitioner stayed away from law and was finally apprehended as late as on 24.3.2011 to face trial. 3. Heard. Record perused. 4. It is in evidence that the petitioner as well as the deceased lived in the same rural neighbourhood; dispute over the house has been raging since the year 1982 and, thus, it can be safely assumed that the both sides were well acquainted with each other. Fajjar prayer is held shortly before dawn with the recession of darkness; in such a situation, identification of the culprit by the witnesses, proceeding in close proximity with the deceased, in the month of September, particularly in view of long standing acquaintance, cannot be viewed with suspicion; their joint departure with the deceased to offer prayer in the nearby mosque is a usual pursuit, particularly in a rural neighbourhood of Khyber Pakhtun Khaw. There appears no earthly reason for the witnesses to swap the assassin of their elderly father with an innocent. Totality of circumstances that, inter-alia, includes an ongoing dispute as well as petitioner’s longstanding absconsion spreading over almost two decades unmistakably suggest petitioner’s culpability; there was no occasion for recovery of the weapon in the wake of petitioner’s long disappearance from the scene. Both the witnesses, inmates of the same premises, despite lapse of considerable time furnished graphic details of the occurrence, in a manner found by us consistent, straightforward and confidence inspiring; cross-examination remained inconsequential. Finding of guilt, concurred by both the courts below is not open to any legitimate exception. Petition fails. Leave declined. Judge Judge Islamabad, the 3rd March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.431 of 2019 (Against judgment dated 11.03.2019 passed by the High Court of Sindh, Circuit Court Hyderabad in Cr. Petition No. S-188 of 2017) Bashir Ahmed Leghari …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): N.R. For the State: Mr. Hussain Bux, Additional Prosecutor General Sindh Date of hearing: 25.2.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Bashir Ahmed Laghari, petitioner herein, alongside Muhammad Hussain and Waryam co-accused, since acquitted in a trial held earlier, had been arrayed in the Crime Report for murderous assault on Saleem Raza (PW-2) in the backdrop of a motive, arisen out of a brawl, settled in lieu of a compensation, partly paid to the injured. This happened in the view of the witnesses at 7:30 a.m. on 30-7-2008 within the precincts of Police Station Dadu. Multiple pallet injuries caused by a .12 caliber repeater wounded victim’s both legs, one subsequently amputated. Petitioner stayed away from law and it was during his absence that co-accused Muhammad Hussain and Waryam were acquitted on 31.1.2013; they were assigned no role qua the victim; the petitioner contested indictment in the year 2017; the trial culminated into his conviction on 10.8.2017 for murderous assault as well as Itlaf-i-Udw, he was sentenced to 10-years and 5-years rigorous imprisonment respectively, to run concurrently with pre- trial commutation, along with a direction to pay monetary compensation to the victim; his appeal in the High Court met with Jail Petition No.431 of 2019 2 no better fate vide judgment dated 11.3.2019, vires whereof are being assailed through the captioned Jail Petition. 2. Heard. 3. We have gone through the grounds taken by the convict in his petition and also the record with the assistance of the learned Law Officer to find that he absconded soon after the occurrence and remained away from law for a considerable span of time. In this backdrop, prosecution’s failure to recover the weapon, statedly used in the occurrence, fades into insignificance; he is certainly not expected to keep the gun for such a long period of time with him as a souvenir of his crime; pellets sprayed by him grievously covered both the thighs and it was in consequence thereof that the victim lost one of his legs, a permanent reminder of the violence he endured during the assault. Clinical observations noted by the Medical Officer regarding the injuries, multiple in number, are consistent with the weapon held and used by the petitioner; duration whereof, recorded in the medico legal certificate coincides with the time of occurrence related in the crime report. The injured entered the witness box with aftermaths of violence as a writ large on his body and furnished graphic details of the occurrence with the support of other witnesses, each in comfortable unison with him. A directionless and inconsequential cross-examination hopelessly failed to create a space to admit any hypothesis other than petitioner’s guilt. View concurrently taken by the Courts below has been found by us in accord with the principles of safe administration of criminal justice and thus, does not call for interference. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 25th February, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.450 of 2015 (Against judgment dated 21.09.2015 passed by the Lahore High Court Lahore in Crl. Appeal No.301-J of 2011 & M.R. No.195 of 2011) Sadiq Ali …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ms. Ayesha Tasnim, ASC For the State: Mirza. Usman, Deputy Prosecutor General Punjab Date of hearing: 04.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Kashif Ali, deceased, 25, along with his father Shoukat Ali (PW-5) managed a kiosk within the remit of Police Station City Arifwala District Pakpattan. On the fateful day i.e. 28.2.2010 at 11:00 a.m. Sadiq Ali, petitioner, complainant’s real brother/father-in-law of the deceased asked for a cup of tea, declined by the deceased; infuriated by refusal, he took a Churri from a nearby butcher shop and dealt repeated blows to the deceased on his chest; as the complainant attempted to intervene, he targeted him also on the belly and left hand; commotion attracted the witnesses whereupon the petitioner, while brandishing the weapon, took to the heels; casualties were shifted to the hospital; Kashif Ali succumbed to the injuries on way. The deceased was married with petitioner’s daughter Sajida Bibi; the marriage went on rocks and she was residing with her parents; it was in exchange of hand subsequently refused and this background of animosity with an event on the day of occurrence is Jail Petition No.450 of 2015 2 cited as combined motive for the crime. The injured was examined at 11:45 a.m. followed by deceased’s autopsy at 3:00 p.m. who was noted to have two injuries, both on right side of chest; injury No.1 “a sharp edged stab wound 3 x 3 cm x 1.4 cm into going deep on right side of upper chest. Just 1 cm away from right border of sternum in between 3rd and 4th rib”, ruptured the right lung and heart; it was blamed as cause of death. Shoukat Ali (PW-5) endured an incised stab wound on the upper part of abdomen in the epigastrium region accompanied by an abrasion on the left hand with corresponding cuts on the clothes. Pursuant to a disclosure, the petitioner led to the recovery of Churri (P-4), found stained with blood of human origin. Petitioner confronted prosecution evidence, comprising ocular account, recovery of weapon and forensic reports, with the following plea:- “All the PWs are related interse and inimical towards me. Actually the complainant forced his son Kashif Ali deceased to divorce his wife Mst. Sajida bibi as there was no son from her to his son but he refused to do so. Shaukat Ali complainant during scuffle with him gave chhuri blow on his chest due to which he died. During scuffle Shaukat Ali complainant also received injuries at the hands of the deceased. In fact Shaukat Ali complainant wanted to grab my share in the house inherited by us from our father and due to this reason he has falsely involved me in this case in order to grab my share in the house where the complainant lives. The PWs are inimical towards me and they have falsely deposed against me.” Unimpressed by the plea, the learned trial Judge vide judgment dated 28.2.2010 returned a guilty verdict for homicide as well as assault; for the former he was sentenced to death whereas for the latter to one year RI with monetary compensation; the High Court maintained the convictions, however, altered penalty of death into imprisonment for life vide impugned judgment dated 21.09.2015, vires whereof are being assailed through the captioned jail petition. 2. Learned counsel or the petitioner contends that the petitioner had no occasion to kill his real nephew who happened to Jail Petition No.450 of 2015 3 be his son-in-law as well, as he had no reason to destroy his daughter’s household; she has vehemently controverted the allegations of an abortive arrangement for exchange marriage to argue that the position taken by the petitioner being more plausible ought to have been preferred by the courts below. Seizure of Churri P-4 from an open and accessible place did not advance the prosecution case, concluded the learned counsel. Learned Law Officer has faithfully defended the impugned judgment. 3. Heard. Record perused. 4. Occurrence is a daylight affair; reported to the police with a remarkable promptitude; medico legal examination of Shoukat Ali (PW-5) conducted under a police docket at 11:45 a.m, followed by autopsy at 3:00 p.m. with durations coinciding with the point of time mentioned in the crime report confirmed registration of case in the stated manner with exclusion of possibility for deliberations and consultations. Shoukat Ali (PW-5) furnished graphic details of the occurrence; he himself sustained injuries that confirm his presence at the crime scene. Muhammad Iqbal (PW-6) is an independent witness; he has duly corroborated the complainant in his deposition; their evidence cannot be dislodged merely on the basis of bald suggestions, denied vehemently. Injuries suffered both by the deceased as well as the complainant are consistent with the weapon, recovered on petitioner’s disclosure, forensically found to have been stained with blood of human origin. Theory of substitution, inherently preposterous, merits outright rejection in the face of formidable evidence, inexorably pointed upon the petitioner. Both the courts below rightly appraised the evidence to concurrently arrive at conclusions which on our independent analysis have been found by us as unexceptionable. Petition fails. Leave declined. Judge Judge Islamabad, the 4th March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed JAIL PETITION NO.461/2013 AND CRIMINAL PETITION NO.1364-L/2013 (Against the judgment dated 7.10.2013 of the Lahore High Court, Lahore passed in Criminal Appeal No.1698/2009, Criminal Appeals No.,1918/2009 & Cr.R. No.981/2009 and Murder Reference No.437/2009) Munir Hussain (In Jail Petition No.461/2013) Malik Taj Muhammad (In Criminal Petition No.1364-L/2013) . . . Petitioner(s) Versus The State (In Jail Petition No.461/2013) The State and others (In Criminal Petition No.1364-L/2013) . . . Respondent(s) For the Petitioner(s) Mr. M. Mukhtar Talokar, ASC (In Jail Petition No.461/2013) Malik Mateeullah, ASC (In Criminal Petition No.1364-L/2013) For the State : Mr. Muhammad Jaffar, Additional Prosecutor General Punjab Date of hearing : 5.3.2020. O R D E R Qazi Muhammad Amin Ahmed, J.- Munir Hussain, petitioner was indicted alongside his brother Riaz Ahmed, since acquitted, for committing Qatl-i-Amd of Abdul Razzaq, deceased, 44, at 9:30 a.m. on 3.11.2008 within the precincts of Police Station City Mianwali; deceased was on a motorbike followed by the witnesses when the accused confronted him near saw machine of Haji Muhammad Din. Petitioner is attributed consecutive shots; autopsy report confirmed five entry wounds with their corresponding exits besides two lacerated wounds of substantial dimensions on deceased’s organ of generation. Prior to the occurrence, the local police had raided the accused and as per crime report the accused suspected the deceased behind the episode, cited as motive for the crime. Trial culminated into JAIL PETITION NO.461/2013 AND CRIMINAL PETITION NO.1364-L/2013 2 conviction with penalty of death. Complainant questioned co-accused’s acquittal while the convict disputed his conviction; the High Court dismissed appeal against acquittal while altered the penalty of death into imprisonment for life vide impugned judgment dated 7.10.2013, vires whereof are being assailed by the both sides. It is argued that given the deceased’s position, riding on a motorbike, confronted by the petitioner, as per prosecution’s own case, from his right flank, there was no occasion for the deceased to receive five shots on his back; injuries on organ of generation have been referred to canvass an hypothesis, incompatible with the crime report besides prosecution’s failure qua the co-accused. Learned counsel for the complainant contends that without active participation/support of Riaz Ahmed respondent/co-accused, it was simply not possible for the convict to gun down the deceased and, thus, there was no occasion for the courts below to issue him a clean chit; he further argued that both the accused equally shared the motive. Magnitude of violence has been highlighted to argue that penalty of death is an appropriate wage in circumstances. Leave is granted to the both sides to examine the above contentions. Judge Judge Lahore, the 5th March, 2020 Not approved for reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition Nos.467, 613 & Criminal Petition No. 693 of 2017 (Against judgment dated 16.03.2017 passed by Lahore High Court Multan Bench Multan in Criminal Appeal No.698 of 2015 as well as Nos. 6, 9, 10 & 12 of 2016 & Crl. Revision No.98 of 2016) Munir Ahmed (in J.P. No.613 of 2017) Sabir Hussain & another (in J.P. No.467 of 2017) Abid Hussain (in Cr. P. No.693 of 2017) …Petitioner(s) Versus The State (in both Jail Petitions) Nadir Hussain & others (in Cr. P. No.693 of 2017) …Respondent(s) For the Petitioner(s): Nemo (in J.P. No.613 of 2017) Mr. Dil Muhammad Khan Alizai, ASC (in J.P. No.467 of 2017) Mr. Shah Khawar, ASC (in Cr. P. No.693 of 2017) For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 08.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Muhammad Ajmal and his brother-in-law Nadir Hussain were fatally shot on 22.1.2011 at 7:00 p.m. within the precincts of Police Station Ali Pur, District Muzaffargar; Muhammad Imran PW survived the Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017 2 assault with gunshot; incident was reported at the spot by Abid Hussain, a real brother; he arrayed eighteen accused by name accompanied by eight unknown, each armed differently; the petitioners are amongst the accused assigned effective shots to the deceased as well as the injured. According to the crime report, in the backdrop of an abortive exchange marriage, the accused, under the barrage of indiscriminate firing, trespassed into complainant’s house; Nadir Hussain petitioner targeted Muhammad Ajmal deceased in his head followed by a fire shot by Munir Ahmed petitioner on left thigh of Muhammad Imran whereafter Muhammad Sabir petitioner fired upon Nadir Hussain deceased on his left shoulder; it is prosecution’s case that all the accused kept on firing continuously and upon arrival of the neighbourhood, decamped from the scene, leaving behind 56 casings and blood at various spots, secured vide inventories. Sabir Hussain and Nadir Hussain petitioners stayed away from law for a period exceeding two years; Munir Ahmed petitioner was, however, arrested alongside other accused, except those exonerated during investigation, on conclusion whereof, besides the petitioners, 13 others were indicted by a learned Additional Sessions Judge at Muzaffargarh who vide judgment dated 19.12.2015, let off Wazir, Latif, Abdul Rasheed and Ghulam Qadir while returning a guilty verdict qua the remainder; for homicide and murderous assault, Sabir Hussain and Nadir Hussain were sentenced to death whereas Munir Ahmed to 10-years R.I. along with conviction and sentences on coordinate charges. The High Court maintained convictions of the present petitioners albeit with alteration of death penalty into imprisonment for life and reduction of 10-years imprisonment into five years R.I. while acquitting the others from the charge vide judgment dated 16.3.2017, vires whereof have been challenged on a variety of grounds ranging from improbability of prosecution story to nomination of hugely exaggerated assailants in the crime report; contested by the State on the strength of analysis and findings consequent thereupon by the lower tribunals. 2. Heard. Record perused. Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017 3 3. Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution’s dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017 4 As a natural corollary, Criminal Petition No.693 of 2017 stands dismissed. Judge Judge Judge Islamabad 9th October, 2019 Not Approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition Nos.480 & 594 of 2018 (Against judgment dated 2.5.2018 passed by High Court of Sindh, Circuit Court Larkana in Cr. Appeal Nos.D-62 & D-63 of 2017) Abdul Wahab (in J.P. No.480 of 2018) Khan Muhammad (in J.P. No.594 of 2018) …Petitioner(s) Versus The State (in both cases) …Respondent(s) For the Petitioner(s): Mr. Siddique Baloch, ASC/AOR (in both cases) For the State: Mr. Khadim Hussain Khooharo, Additional Prosecutor General Sindh Date of hearing: 17.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Jail Petition No.594 of 2018, filed by Khan Muhammad is barred by 35 days, however, since the petitioner is in receipt of a guilty verdict with corporal consequences, we consider it expedient to attend his plea on merit alongside Jail Petition No.480 of 2018 filed by his co-convict Abdul Wahab. 2. The petitioners were surprised by a contingent of Police Station A-Section Thal, District Jacobabad, on patrol, and found in possession of Charas. According to the prosecution, Abdul Wahab was carrying 7.8 kilograms whereas Khan Muhammad 8.2 kilograms. Contraband was secured vide inventories. Separated samples were forensically examined with confirmatory results. Upon conclusion of trial, the petitioners were returned a guilty verdict by a learned Special Judge (CNSA) Jacobabad vide judgment dated 22-11-2017; convicted under Jail Petition Nos.480 & 594 of 2018 2 Section 9 (c) of the Control of Narcotic Substances Act, 1997, Abdul Wahab was sentenced to 10-years RI whereas Khan Muhammad to 11-years RI alongside fines and consequences in the event of default with benefit of section 382-B of the Code of Criminal Procedure, 1898; their appeals in the High Court met with no better fate vide impugned judgment dated 02-05-2018 and this brings them to this Court. 2. Heard. Record perused. 3. Prosecution case is, primarily, structured upon statements of Izhar Ali Shah, ASI (PW-1), Muhammad Ayub (PW-2) and Abdul Haq, Inspector (PW-4); we have gone through their statements and found them in a comfortable unison, despite flux of time, on all the salient aspects of the prosecution case, in terms of interception of the petitioners and recovery of contraband, they are consistent, straightforward and confidence inspiring and their statements cannot be discarded merely on account of absence of a witness from the public; people seldom come forward to perform their civic responsibilities and official witnesses are no less credible or trustworthy provided their statements rang true, as is the case in hand. Learned counsel for the petitioners, despite being at his best, has not been able to point out any serious flaw or infirmity that may be viewed as material or substantial in nature in the statements of the prosecution witnesses. Much stress laid by the learned counsel on a typographical error is not of much consequence, as the correct volume of contraband was put to the petitioners in the charge. Petitions fail. Dismissed. Judge Judge Judge Islamabad 17th October, 2019 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.488 of 2015 (Against judgment dated 21.01.2014 passed by Lahore High Court Lahore in Cr. Appeal No. 1286 of 2010) Aurangzeb …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Qamar Zaman Qureshi, ASC Syed Rafaqat Hussain Shah, AOR For the State: Mr. Muhammad Usman, Deputy Prosecutor General Punjab Date of hearing: 02.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted for homicide alongside six co-accused, since acquitted, Aurangzeb, petitioner herein, was returned a guilty verdict by a learned Additional Sessions Judge at Chiniot vide judgment dated 12.5.2010; convicted under clause (b) of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to death with a direction to pay compensation of Rs.200000, altered into imprisonment for life by the Lahore High Court Lahore vide impugned judgment dated 21.1.2014 vires whereof are being assailed, through Jail Superintendent. Financial incapacity appears to have impeded petitioner’s approach to this Court in time, in view whereof delay of 626 days in filing of the petition is condoned. 2. According to the prosecution, on the fateful day i.e. 6.8.2008 at about 4:00 p.m, the petitioner armed with a .30 caliber pistol, subsequently recovered albeit without forensic comparison, targeted Zulfiqar deceased; solitary shot on the abdomen with its Jail Petition No.488 of 2015 2 exit proved fatal. Previous blood feud is cited as motive for the crime. 3. Mr. Qamar Zaman Qureshi, ASC has assailed the impugned judgment on a variety of grounds; according to him, occurrence did not take place in the manner as alleged in the crime report, recorded at a point of time other than reflected therein; it is next argued that presence of the witnesses is highly improbable; he has particularly highlighted improvements made by the complainant through a supplementary statement by nominating unknown assailants, previously acquainted with him; acquittal of six co-accused, each armed lethally, though assigned no harm to the deceased has been pointed out to argue that same set of evidence cannot be pressed into service to sustain the charge qua the petitioner without independent corroboration, hopelessly missing, concluded the learned counsel. Learned Law Officer has faithfully defended the impugned judgment. 4. Heard. Record perused. 5. Prosecution case is primarily hinged upon ocular account furnished by Haqnawaz (PW-1) and Munir Hussain (PW-2); former is father of the deceased whereas the latter is former’s collateral; their close relationship notwithstanding, both of them have plausibly explained purpose of their presence at the crime scene; they had assembled to watch a Kabaddi match, annually held by tradition at a nearby mausoleum. To the extent of role assigned to the petitioner in the crime report, they remained consistent and straightforward; their failure qua the co-accused and complainant’s recourse to a supplementary statement in order to nominate unknown assailants, though an embarrassing failure for the prosecution, however, does not tremor its mainstay. Assembly of the accused in the stated numbers, in a festivity, is a possible scenario; they appear to have been let off by the learned trial Court out of abundant caution, an option found by us most expedient in circumstances; their departure does not cast away the case against the petitioner, singularly blamed for the crime. The incident was reported with a remarkable promptitude, followed by post mortem examination that cannot be viewed as delayed, factors excluding possibility of deliberations and consultations, in retrospect suggestive of witnesses’ presence at Jail Petition No.488 of 2015 3 the stated point of time, coinciding with the durations mentioned in the autopsy report. Though inconsequential for want of forensic verification, nonetheless, the weapon recovered on petitioner’s disclosure is consistent with the nature of fatal injury. Occurrence being a broad daylight affair before a large gathering, does not admit hypothesis of substitution. Appraisal of evidence carried out by both the Courts below, on our own independent analysis, is found by us in accord with the principles of safe administration of criminal justice and as such does not call for interference. Petition fails. Leave declined. Judge Judge Islamabad, the 2nd March, 2020 Not approved for reporting Azmat/-

TN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ ULAHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAIlED MAZAHAR ALl AKBAR NAQVI JAIL PETITION NO. 496 OF 2019 (On appeal against the judgment dated 27.04.2018 passed by the High Court of Sindh, Karachi in Cr. Jail Appeal No. 52/2015) Muhammad Usama The State For the Petitioner: For the State: For the Complainant: Date of Hearing: Petitioner VERSUS Respondent Mr. Anis Muhammad Shehzad, ASC Mr. Zafar Ahmed Khan, Addl. P.G. Mr. Haider Zaman, in person 20. 10.2022 JUDGMENT SAYVED MAZAHAR All AKBAR NAQVI. J.- Petitioner was tried by the learned Sessions Judge, Malir, Karachi, pursuant to a case registered vide FIR No. 699/2012 under Section 302 PPC at Police Station Shah Latif Town for committing murder of Noman Khan, brother of the complainant. The learned Trial Court vide its judgment dated 10.02.2015 convicted the petitioner under Section 302(b) PPC and sentenced him to imprisonment for life. Petitioner was also directed to pay compensation amounting to Rs.50,000/- to the legal heirs of the deceased or in default whereof to further undergo six months SI. Benefit of Section 382-B Cr.P.C. was also extended to him. In appeal, the learned High Court maintained the conviction and sentence recorded by the learned Trial Court. 2. The prosecution story as given in the impugned judgment reads as under:- "2. Precisely the facts of the prosecution case as disclosed by complainant, Qamar Zaman Khan in the FIR are that his younger brother namely Woman Khan aged about 18 years, who was a Jail Petition No. 496/2019 student of Intermediate Part-11, and after college time he used to come to his shop situated at Total Petrol Pump, near Chokandi Graveyard. On 03.12.2012, the complainant was present at his shop where on telephone Nasir Khan informed him that one Osama, resident of Green Park City, has inflicted Motorcycle's wire lock injury to his brother near milk shop and his brother was taken to Jinnah Hospital. On receiving such information the complainant alongwith other relatives reached at Jinnah Hospital, where he found dead body of his brother Noman Khan in mortuary. On inquiry, Nasir Khan disclosed that at about 0215 p.m. he and deceased Noman Khan were coming from Green Park City and upon reaching the gate No. 2 near Milk shop, Osama/appellant inflicted motorcycle's wire lock blow to the head of Noman Khan/deceased and fled away. Accordingly, statement of complainant under Section 154 Cr.P.C. was recorded by ASI Raza Mohammad of Police Post Khudabad of Police Station Shah Latif Town, Karachi at Jinnah Hospital on the basis whereof FIR was registered. 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as seven witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He also examined himself on oath under Section 340(2) Cr.P.C. However, he did not produce any evidence in his defence. 4. At the very outset, learned counsel for the petitioner submitted that he does not challenge the conviction of the petitioner. However, he submitted that the petitioner was 14 years of age at the time of commission of offence and there was no previous enmity, premeditation or preparation for commission of murder. Contends that the weapon allegedly used was not conventional rather it was picked up from the nearby place and the occurrence took place at the spur of the moment on account of trivial altercation, therefore, the petitioner deserves leniency in the sentence awarded to him. 5. On the other hand, learned Law Officer defended the impugned judgment. He contended that the petitioner was specifically nominated in the crime report with a specific role of taking life of brother of the complainant. Contends that the ocular account has been proved beyond shadow of doubt and the medical evidence supports the same. However, he Jail Petition No, 49612019 3 did not dispute the use of non-conventional weapon and the age of the petitioner at the time of occurrence. Lastly contends that the prosecution has proved its case through cogent and confidence inspiring evidence, therefore, the petitioner does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. In order to prove its case, the prosecution has mainly relied upon the statements of Muhammad lniran (PW-2) and Muhammad Nasir (PW-3), who were the eye-witnesses of the occurrence. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be produced on record. These PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record is in line with the ocular account so far as the nature, locale, time and impact of the injury on the person of the deceased is concerned. These witnesses have specifically explained their presence at the spot. No material contradiction in the statements of the PWs, which could shatter the case of the prosecution, could also be brought on record. On account of lapse of memory owing to the intervening period, some minor discrepancies are inevitable and they may occur naturally but the accused cannot claim benefit of such minor discrepancies. The eye-witnesses have given details of the occurrence in a natural manner, which prove that they have witnessed the occurrence. In these circumstances, it can safely be said that the prosecution has brought on record reliable evidence to sustain the conviction of the petitioner. The only question which requires determination by this Court is that in the given circumstances whether the conviction and sentence recorded by both the courts below commensurate with the act of the petitioner. We have noted certain material aspects of the case, which clearly reflect that the petitioner was minor at the time of occurrence; the occurrence has taken place at the spur of the moment and without any Jail Petition No. 49612019 4 preparation or premeditation; the weapon used by the petitioner is ordinarily attached to the motorcycle/cycle for safety and the same without any stretch of imagination cannot be termed as a weapon for committing such like crimes. All these aspects when read conjointly with the statement of the petitioner under Section 340(2) Cr.P.C., it further strengthens the view of this Court that the occurrence has taken place without premeditation and possibility cannot be ruled out that the same was result of some trivial altercation/use of filthy language as stated by the petitioner. These aspects when adjudicated, there is no second cavil to this proposition that the petitioner has made out a case, which squarely attracts the provision of Section 302(c) PPC. During the course of proceedings, it was argued by the learned defence counsel that the petitioner was aged about 14 years at the time of occurrence, which has not been rebutted by the learned Law Officer. Keeping in view the nature of the occurrence as stated above, we are of the view that the sentence of imprisonment for life would be too harsh for the petitioner. Consequently, we convict the petitioner under Section 302(c) PPC and sentence him to the period, which he has already undergone. The amount of fine and the sentence in default whereof shall remain intact. 7. For what has been discussed above, this petition is converted into appeal, partly allowed and the impugned judgment is modified as stated in the preceding paragraph. Islamabad, the 20" of October, 2022 Approved For Reporting EMtin'

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.497 of 2015 (Against judgment dated 18.11.2015 passed by the Lahore High Court at Rawalpindi Bench in Crl. Appeal No.602 of 2010) Mazhar Ellahi …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Kashif Ali Malik, ASC Syed Rafaqat Hussain Shah, AOR For the State: Mr. Ahmad Raza Gillani, Additional Prosecutor General, Punjab Date of hearing: 20.2.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Jan Muhammad alias Jani, 18, was done to death on 22.5.2007 at 7:30 p.m. within the remit of Police Station City Hassan Abdal District Attock; from amongst the witnesses Sajid Mehmood (PW-10) was also repeatedly shot when he beseeched the assailants to spare the deceased. Statedly accompanied by his son Imran Khan, since acquitted, Mazhar Ilahi, petitioner herein, is blamed for successive shots, both upon the deceased as well as the witness. Motive for the crime is a suspected liaison allegedly carried by deceased’s brother with petitioner’s daughter. Incident was reported same day at 9:15 p.m. in the Civil Hospital where the injured was examined and autopsy conducted at 8:30 and 9:30 p.m. respectively. Recoveries include seizure of blood and casings from the spot and a .30 caliber pistol (P-7), pursuant to a disclosure. Assailants Jail Petition No.497 of 2015 2 claimed trial; while extending benefit of the doubt to Imran Khan co-accused, the petitioner was convicted for homicide as well as murderous assault; vide judgment dated 28.5.2009, on both the charges, he was sentenced to death and imprisonment for 10 years, with direction to pay compensation as well as fine; a learned Division Bench of Lahore High Court at Rawalpindi maintained the convictions albeit with alteration of death penalty into imprisonment for life; the High Court additionally convicted the petitioner under Section 337 L(ii) of the Pakistan Penal Code, 1860 and sentenced him to rigorous imprisonment for one year with concurrent commutation, under-trial period inclusive, vide impugned judgment dated 18.11.2015, vires whereof were assailed through a jail petition, argued by Mr. Kashif Ali Malik, ASC on a variety of grounds, absence of motive qua the deceased being most prominent. It is next argued that notwithstanding, absence of a specific role, acquittal of Imran Khan co-accused raised the prosecution case to the ground, as fall out thereof, according to the learned counsel, casts away testimony of the injured witness as well; suppression of forensic report destroyed the entire edifice, concluded the learned counsel. 2. With the assistance of the learned counsel for the petitioner as well as the learned Law Officer, we examined the record to find out a remarkable promptitude in registration of the case, examination of the injured and autopsy of the deceased soon thereafter. Occurrence took place within the bounds of the locality where presence of the witnesses, particularly one having extensive injuries cannot be viewed with suspicion. We have otherwise found their statements in a complete unison with details of the salient aspects of the occurrence as well as events collateral therewith; they have been confronted with cross-examination, devoid of direction and hopelessly inconsequential. Though the High Court discarded recovery of .30 caliber pistol (P-7), nonetheless, the injuries endured both by the deceased as well as the injured are consistent with the weapon, singularly used with awful lethality by the petitioner. Totality of circumstances does not admit any hypothesis other than petitioner’s guilt. Non-assignment of effective shot to Imran Khan, acquitted co-accused, in the face of multiple fire shots and available wounds, in retrospect, lends Jail Petition No.497 of 2015 3 additional credence to the prosecution case, his acquittal notwithstanding. Benefit for absence of forensic report and a misdirected motive has already been extended to the petitioner despite shocking brutality inflicted by him upon the deceased, still a teenager, besides targeting Sajid Mehmood PW who unsuspectingly intervened to rescue the deceased in good faith. Scales are in balance. Petition fails; leave declined. Judge Judge Islamabad, the 20th February, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.501 of 2018 (Against the judgment dated 5.6.2018 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in Crl. Appeal No.90 of 2016) Muhammad Javed .…Petitioner(s) Versus The State ….Respondent(s) For the Petitioner(s): Syeda B.H. Shah, ASC For the Respondent(s): Mr. Ahmad Raza Gillani, Addl. Prosecutor General Punjab. Date of hearing: 07.08.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Elahi, 50, was murderously assaulted by Muhammad Javed, petitioner, on 23.7.2012 at 6:00 p.m. within the precincts of Police Station Attock Saddar in the backdrop of a default in payment of Rs.8500/- that he owed to the deceased, a grocery vendor in the neighbourhood. The casualty was attended by Naseer Ahmad, SI (PW-15) at 7:20 p.m. in the Civil Hospital Attock. After a brief struggle, the injured succumbed to the injury. According to Muhammad Iqbal (PW-13), the first informant, upon receipt of information that the deceased was being thrashed by the petitioner and his mother Raeesa Jan, he arrived at the spot to witness the deceased under assault when from amongst the assailants, the petitioner targeted the deceased with a straight fire shot on his back; Abdul Khaliq and Muhammad Shoaib PWs, amongst others, reached the spot for rescue when the accused took to the heels. Alongside the petitioner, his parents as well as one of his brothers Rafaqat were arrayed as accused, however, let off during the investigation and he was alone to contest the indictment that resulted into his conviction under clause (b) of Section 302 of the Pakistan Penal Code, 1860 with imprisonment for life, pre-trial period Jail Petition No.501 of 2018 2 inclusive vide trial Court’s judgment dated 19.2.2016, upheld by a learned Judge-in-Chamber vide impugned judgment dated 5.6.2018, vires whereof, are being assailed herein. 2. It is argued that occurrence did not take place in the manner as alleged in the crime report and that the prosecution suppressed the real facts leading to the incident wherein the petitioner besides his mother and sister sustained multiple extensive injuries, spelling out a scenario diametrically incompatible with the events alleged in the crime report Ex.PH; that petitioner’s even dated statement with the police, prima facie, supported by the witnesses was withheld and thus the evidence presented before the Court was not the whole truth. In the absence of complete tale, it would be unsafe to maintain the conviction, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment. 3. Heard. Record perused. 4. The deceased, in injured condition, was medically examined at 7:15 p.m. under a police docket carried by Aamir Mehmood 1112/C(PW-6); he was noted with an entry wound on the right buttock; he was fully conscious, well-oriented with stable vitals; it is somewhat surprising that despite capacity, he did not opt for a statement. Position taken by the Investigating Officer that “As per opinion of the doctor, the injured was not in a condition to give statement” stands contradicted by the observations recorded by Dr. Faheem Khan, (PW-1) in MLR (Ex.PA). Deceased’s traumatic condition notwithstanding, nonetheless, his inexplicable silence before the Investigating Officer standing next to him, despite capacity, has repercussions on the statement of Muhammad Iqbal (PW-13) who upon receipt of information regarding an ongoing brawl, reached the scene, located at some distance from his residence, exactly at a point of time when the deceased received solitary fire shot, a rare coincident. More intriguing is his ignorance about injuries suffered by the petitioner, his sister Yasmeen Bibi and mother Raeesa Jan; they were medically examined under police dockets and noted with a good number of injuries comprising bruises, abrasions and lacerated wounds, durations whereof, coincide with the time of occurrence; comparative triviality of the injuries notwithstanding, the injured family presented a picture incompatible with the events narrated in the crime report. Admission by the Investigating Officer Naseer Ahmad, SI (PW-15) is no less startling: “I proceeded to the place of occurrence. When I reached the place of occurrence, accused Muhammad Jail Petition No.501 of 2018 3 Javed and his mother were found confined in the house of the complainant and his sister not confined there alongwith them as suggested. When I examined bodies of accused Javed, his mother Raeesa Jan and sister Mst. Yasmeen Bibi, all the three were found injured. I do not remember as to whether their clothes were blood stained or not. There was bleeding from bodies of all the three said persons. I prepared injury statement of accused Javed, his mother Mst. Raeesa Jan and sister Mst. Yasmeen Bibi. Before preparing injury statement of the said three injured persons, I recorded statement of accused Javed, Ex.P-T. I read over statement of accused Javed Ex.PT to him, who put his signatures on the same as token of its correctness. It is correct that first version of accused Javed which came on the record was the said statement Ex.PT. Statement of accused Javed Ex.PT was made part of police file by me.”. In the face of unanimous suppression of injuries by the prosecution witnesses, despite possible exclusion of petitioner’s plea from consideration, the prosecution case lacks “proof beyond doubt” as it does not reconcile with the parallel story recorded by the Investigating Officer himself duly supported by the statements of medical officers who attended the trial as court witnesses. Statement made by Abdul Khaliq (PW-12) also depicts a different scenario, as according to him, Javed and his mother were confined inside the house of the deceased wherefrom they were rescued by the police and it is so mentioned in his examination-in-chief itself; positions taken by the prosecution witnesses are mutually destructive as we cannot possibly believe the complainant without first excluding the statements of Abdul Khaliq (PW-12) and Naseer Ahmad (PW-15) and vice versa. In view of the above discrepant positions, implicit reliance upon the statements of the witnesses cannot be placed without potential risk of error as the entire episode is shrouded into a mystery, further compounded by an entry wound without exit on the back of the deceased, fringing near the position taken by the petitioner on the day one in support whereof on the conclusion of prosecution evidence, he entered the witness-box and on solemn affirmation, braved the cross-examiner with the following stance: “At that juncture, other ladies of their family also reached there and they all took me, my mother and sister outside our house in the street where Shoaib son of the deceased fired a shot on me which hit his father Muhammad Elahi deceased on his back.” On an overall analysis, prosecution case is found fraught with doubts, deducible from the stated positions, benefit whereof, cannot be withheld, particularly after its failure qua the co-accused. Petition is converted into Jail Petition No.501 of 2018 4 appeal and allowed; impugned judgment is set aside and by extending benefit of doubt, the petitioner/appellant is acquitted of the charge; he shall be released forthwith, if not required to be detained in any other case. Judge Judge Islamabad, the 7th August, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No. 508 of 2016 (Against the judgment dated 30.08.2016 passed by the High Court of Sindh in Crl. Jail Appeal No.S-160 of 2011) Zubair Khan …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Qari Abdul Rasheed, ASC For the State: Mr. Zafar A. Khan, Addl. Prosecutor General Date of hearing: 21.01.2021. JUDGMENT Qazi Muhammad Amin Ahmed, J.- A contingent of Naushahro Feroze police, after a hot pursuit, intercepted a suspicious truck bearing registration No.E-5318, ostensibly transporting a cargo comprising 100 bags of potatoes with 80 packets of cannabis, surreptitiously concealed in the secret cavities thereof, at 4:00 p.m. on 21.4.2010; the petitioner was on the wheel; the vehicle and the contraband, weighed as 80 K.G, were secured vide inventories; forensic analysis of the samples, separated from the each packet, confirmed narcotic character thereof. As the investigation progressed, one Abdul Latif Gul, since P.O., was identified as the man behind the scene. The petitioner claimed trial, pursuant whereto, prosecution produced two witnesses as well as case property consisting the impounded vehicle and the contraband, confronted by the petitioner with denial; he was returned a guilty verdict with imprisonment for life vide judgment dated 02.04.2011, upheld by the High Court of Sindh vide impugned judgment dated 30.08.2016, vires whereof, are being assailed on the ground that in the face of prosecution’s failure to establish safe custody as well as transmission of the samples to the office of Jail Petition No. 508 of 2016 2 Chemical Examiner with a duplicate forensic report, in circumstances, there was no occasion for petitioner’s conviction. The learned Law Officer has defended the impugned judgment though without much enthusiasm. 2. Heard. Record perused. 3. Prosecution produced two witnesses, namely, Basharat Hussain, Inspector as (PW-1) and Abdul Ghani as (PW-2); the former furnished comprehensive details regarding interception of vehicle along with the contraband and investigative steps taken thereafter whereas the former corroborated his deposition, however, the prosecution unredeemedly failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity Abdul Hakeem, EC/B-131 who had delivered the samples failed to enter the witness box, leaving the entire case in the lurch. The last straw is prosecution’s reliance on a duplicate forensic report Ex.15 to confirm narcotic character of the contraband. Appalling inaptitude of the functionaries tasked to prosecute the crime, awfully heinous in nature, has occasioned the failure to establish a most vital link to drive home the charge, irreversibly vitiated by a duplicate forensic report, inadmissible in evidence, leaving no juridical possibility to maintain petitioner’s conviction. Petition is converted into appeal; same is allowed; the impugned judgment is set aside; the appellant is acquitted of the charge and has been ordered to be released if not required to be detained in any other case vide short order of even date. Findings recorded hereinabove shall cast no bearings on the trial of absconding co-accused, to be dealt with independently, after his arrest on the strength of available evidence. The impounded vehicle statedly owned by the absconding co-accused, with no rival claimant till date, shall be disposed of in the manner provided under section 88 of the Code of Criminal Procedure 1898. Judge Judge Judge Islamabad, the 21st January, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.521 of 2017 (Against the judgment dated 16.5.2017 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.799 of 2016). Muhammad Kamran …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s) : Malik Altaf Hussain, ASC For the State : Mirza Abid Majeed, DPG Date of Hearing : 11.06.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Surprised by a police contingent, the petitioner was found in possession of Charas Garda, weighing 1200-grams within the remit of Police Station Naseerabad Rawalpindi on 26-1-2016; upon conclusion of investigation, he was sent to face trial along with forensic report that confirmed the narcotic character of the substance; in the wake of a regular trial, he was returned a guilty verdict by a learned Additional Sessions Judge at Rawalpindi vide judgment dated 17-11-2016; convicted under Section 9 (c) of the Control of Narcotic Substances Act, 1997, he was sentenced to 4-years and 6-months RI along with fine of Rs.20,000/- or to suffer 2-months SI in default thereof with benefit of section 382-B of the Code of Criminal Procedure, 1898. Petitioner’s appeal in the High Court met with no better fate vide impugned judgment dated 16-5-2017 and this brings him to this Court. Jail Petition No.521 of 2017 2 2. Learned counsel for the petitioner despite being at his best has not been able to point out any serious flaw or infirmity that may be viewed as material or substantial in nature in the statements of the prosecution witnesses. An alleged discrepancy in the description of the contraband recovered, between the complaint and statements of the witnesses went unchallenged during the trial and as such the petitioner cannot claim any benefit thereof in the absence of confrontation within the contemplation of Article 140 of the Qanun-e-Shahadat Order, 1984. No case for interference is made out. Petition stands dismissed. JUDGE JUDGE Islamabad, the 11th of June, 2019 Azmat Ali/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH JAIL PETITION NO. 553 OF 2017 (On appeal against the judgment dated 06.06.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 106-J/2014 and Murder Reference No. 79/2014) Aqil …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Mr. Rizwan Ibrahim Satti, ASC For the State: Mirza Abid Majeed, DPG Date of Hearing: 16.02.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Aqil along with three co-accused was tried by the learned Additional Sessions Judge, Chiniot pursuant to a case registered vide FIR No. 356 dated 05.10.2011 under Sections 302/364-A/337-A(I)/337-L(ii)/109 PPC at Police Station Langrana, Chiniot for committing murder of Mst. Mukhtar Bibi and Mst. Allah Maufi, mother and sister of the complainant and for causing injuries to the complainant. The learned Trial Court vide its judgment dated 27.02.2014 while acquitting the co-accused, convicted the petitioner under Section 302(b) PPC and sentenced him to death on two counts. He was also directed to pay compensation amounting to Rs.50,000/- on each count to the legal heirs of both the deceased. In default he was to suffer six months SI on each count. In appeal the learned High Court while maintaining the conviction of the petitioner under Section 302(b) PPC, altered the sentence of death into imprisonment for life on two counts. The amount JAIL PETITION NO. 553 OF 2017 -: 2 :- of compensation and the sentence in default whereof was also maintained. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Prosecution case in brief un-folded in the F.I.R. (Ex.PA) by Mst. Farhat Bibi complainant (PW-2) is that she is resident of Chak No.211/J.B and was married to Azhar whereas her maternal uncle/appellant Aqil was married to Tasleem Bibi, sister of her husband as a result of exchange. However, because of strained family relations, complainant was divorced by her husband Azhar and due to this reason, wife of Aqil also went to her parents’ house. On 05.10.2011 at about 07:30 a.m. complainant alongwith her mother Mukhtar Bibi and two sisters Allah Muafi and Allah Shafi was going towards Chak Sarghana for picking cotton and when they reached near the land owned by Allah Yar Joota within the jurisdiction of Chak No.211/J.B, appellant Aqil alongwith his co-accused Ulfat and Umer Hayat came at the spot on a motorbike driven by accused Ulfat, who asked the appellant that the complainant’s family had collapsed his matrimonial life, therefore, they should not be spared, upon that appellant Aqil made four consecutive fires with his pistol hitting near right chest, belly, right shoulder and at the right flank of Mukhtar Bibi, who fell down, then, the appellant again made four consecutive fires hitting at the left arm, near left chest, left flank and right hand of Allah Muafi, who also fell down. When the complainant raised hue and cry, co- accused of the appellant Umer Hayat gave fist blows hitting at the lower part of left eye and he also snatched her minor daughter Samreen Bibi aged about 6 years. On hearing hue and cry, PWs Goga and Riaz reached at the spot and witnessed the occurrence and on seeing them, appellant alongwith his co-accused Ulfat and Umer Hayat while making aerial firing fled away from the spot on the motorbike and also took away daughter of the complainant Samreen Bibi. Complainant alongwith the PWs tried to rescue Mukhtar Bibi and Allah Muafi but they both succumbed to the injuries. Motive behind the occurrence as per FIR. (Ex.PA) is that appellant Aqil was married in exchange of the complainant Mst. Farhat Bibi and when she was divorced by her husband, the wife of appellant also left his house and went to her parent’s house, due to that grudge, appellant alongwith his co-accused Ulfat and Umar Hayat in furtherance of their common intention has committed murder of Mukhtar Bibi and Allah Muafi on the abetment of accused Atta and also snatched daughter of the complainant for the purpose of committing her murder.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced ten witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all JAIL PETITION NO. 553 OF 2017 -: 3 :- the allegations leveled against him. However, he neither appeared as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him nor produced any evidence in his defence. 4. At the very outset, learned counsel for the petitioner contended that there are material contradictions and discrepancies in the statements of the eye-witnesses, which have not been taken into consideration by the courts below. Contends that the PWs are interested and related to each other and their evidence has lost its sanctity. Contends that the prosecution case is based upon whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive and recoveries as alleged, which causes serious dent in the prosecution case. Contends that on the same set of evidence, three co-accused of the petitioner have been acquitted but the petitioner has been convicted, which is against the canons of justice. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer vehemently opposed this petition on the ground that the eye-witnesses had no enmity with the petitioner to falsely implicate him in this case. It has been contended that the eye-witnesses have reasonably explained their presence at the spot at the relevant time, which is quite natural and probable and the medical evidence is also in line with the ocular account, therefore, the petitioner does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. A bare perusal of the record shows that the unfortunate incident, wherein the mother and sister of the complainant lost their lives, JAIL PETITION NO. 553 OF 2017 -: 4 :- took place on 05.10.2011 at 07:30 am whereas the FIR was registered on 08:55 am i.e. just after one hour and 25 minutes of the occurrence. The distance between the place of occurrence and the Police Station was 25 kilometers. Thus, it can safely be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story. The occurrence took place in the broad daylight and the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Mst. Farhat Bibi, complainant (PW-2) and Mst. Allah Shafi (PW-3). These PWs were residents of the same locality where the occurrence took place and they along with the deceased were going towards fields to pick cotton. These prosecution witnesses were subjected to lengthy cross- examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be brought on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. Mst. Farhat Bibi had sustained injuries during the occurrence, which have fully been supported by the medical evidence given by Dr. Shagufta Zahoor, who appeared as PW-5. The testimony of this injured PW as well as the stamp of injuries on her person clearly proves her presence at the place of occurrence. In the circumstances of the case, both these witnesses were the only and most natural witnesses. There is no denial to this fact that these PWs were related with the deceased but merely for this reason they cannot be called "interested" witnesses. The term "related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit in seeing an accused person punished. A witness who is a natural one and is JAIL PETITION NO. 553 OF 2017 -: 5 :- the only possible eyewitness in the circumstances of a case cannot be said to be "interested"." In the present case, the eye witnesses, one of whom was an injured eye-witness have spoken consistently and cogently in describing the manner of commission of the crime in detail. The testimony of an injured eyewitness carries more evidentiary value. The Court is not persuaded that their evidence is to be discarded merely because they happen to be related witnesses. Learned counsel for the petitioner could not point out any plausible reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit, who has committed murder of her mother and sister. Substitution in such like cases is a rare phenomenon. The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reliance is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR 1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled principle of law that the value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain the conviction. Minor discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries. It becomes highly improbable to correctly mention the number and location of the injuries with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. We may point out that ‘discrepancy’ has to be JAIL PETITION NO. 553 OF 2017 -: 6 :- distinguished from ‘contradiction’. Contradiction in the statement of the witness is fatal for the prosecution case whereas minor discrepancy or variance in evidence will not make the prosecution case doubtful. It is normal course of the human conduct that while narrating a particular incident there may occur minor discrepancies. Parrot-like statements are always discredited by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounts to contradiction, regard is required to be made to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witnesses were making the statement. There are always normal discrepancies, howsoever, honest and truthful a witness may be. Such discrepancies are due to normal errors of observation, memory due to lapse of time and mental disposition such as shock and horror at the time of occurrence. Material discrepancies are those which are not normal and not expected of a normal person. The recovery of weapon of offence was inconsequential as admittedly no crime empty was recovered from the place of occurrence. The complainant had alleged a specific motive that the petitioner Aqil was married with her husband’s sister in exchange of the complainant Mst. Farhat Bibi. When she was divorced by her husband, the wife of the petitioner also left his house and went to her parent’s house and due to this grudge, the petitioner committed murder of complainant’s mother and sister. However, the learned High Court has rightly disbelieved the motive by holding that the incident of divorce took place two years prior to the occurrence, therefore, what happened immediately before the occurrence, which provoked the petitioner to take lives of two innocent persons, remained shrouded in mystery. Hence, the motive part of the prosecution case does not inspire confidence so as to term it is as a cause of the murder. So far as the acquittal of the three co- accused of the petitioner is concerned, the case of the petitioner is distinguishable to that of the acquitted co-accused simply for the reason that none of them had caused any injury to any of the deceased. Keeping in view the fact that motive has been disbelieved and the recovery is inconsequential, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life to meet JAIL PETITION NO. 553 OF 2017 -: 7 :- the ends of justice, hence, it leaves no room for us to further deliberate on this point. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 7. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. JUDGE JUDGE JUDGE Islamabad, the 16th of February, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ ULAHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI JAIL PETITION NO. 557 OF 2016 AND CRIMINAL PETITION NOs. 1391-I & 1392-I OF 2016 Against the judgment dated 03.10.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1638/2013, Criminal Appeal No. 1724/2013 and Murder Reference No. 400/2013) Muhammad Bashir (In JP 557/2016) Muhammad Essa (complainant) (In Cr.Ps 1391-1 & 1392-1J2016) ...Petitioner(s) VERSUS The State etc Muhammad Bashir etc Saeed Ahmed etc For the Petitioner(s): For the Complainant: *%A Pt For the State: Date of Hearing: (In JP 55712016) (In Cr.P. 1391-L/2016) (In Cr.P. 1392-1/2016) Respondent(s) Mr. Muhammad Var Khan Daha, ASC (In JP 557/2016) Malik Matee UlIah, ASC (In Cr.Ps 1391-1 & 1392-1/2016) (Via video link from Lahore) Mr. Ahmed Raza Gillani, Addl. P.G. 3 1. 10.2022 JUDGMENT SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner Muhammad Bashir along with two co-accused was tried by the learned Additional Sessions Judge, Arifwala in a private complaint under Sections 302/34 PPC for committing murder of Muhammad Amin, brother of the complainant. The same was instituted being dissatisfied with the investigation conducted by the Police in case FIR No. 487 dated 2309.2010 registered under Sections 302/34 PPC at Police Station Saddar Arifwala, District Pakpattan Sharif. The learned Trial Court vide its judgment dated 23.11.2013 convicted the petitioner and co-accused Saeed Ahmed under Section 302(b) PPC and JAIL PETITION NO. 557 OF 2016 AND -: 2 CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016 while sentencing the petitioner to death, awarded punishment of imprisonment for life to co-accused Saeed. They were also directed to pay compensation amounting to Rs.200,000/- each or in default whereof to further undergo SI for six months. However, the learned Trial Court acquitted co-accused Abdul Hameed. In appeal the learned High Court while maintaining the conviction of the petitioner/convict under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the petitioner/convict. However, the learned High Court acquitted co-accused Saeed Ahmed. Being aggrieved by the impugned judgment, the petitioner/convict filed Jail Petition No. 557/2016 whereas the complainant has filed Criminal Petition Nos. 1391-L & 1392-L/2016 before this Court against acquittal of co-accused Saeed Ahmed and for enhancement of the sentence of the petitioner/convict from imprisonment for life to death. 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- "2. Unnecessary detailed apart, brief facts, as unfurled from the private complaint are that on 23.9.2010 at about Sam, Muhammad Amin (deceased) proceeded on motorcycle to Chak No. 87/EB in order to meet one Hassan Bhatti; when he reached near the land of one Ghulam Rasool accused persons Muhammad Basheer, Saeed Ahmed and Abdul Hameed, all armed with pistols 30 bore came there. On hue and cry of Muhammad Esa complainant, Manzoor Ahmed and Muhammad Sharif PWs, who were watering the field near the place of occurrence attracted at the spot and saw the occurrence. Abdul Flameed accused raised lalkara that they would teach a lesson to Muhammad Amin for not giving 'Rishta' of his niece to Muhammad Basheer. Muhammad Basheer fired with his pistol 30 bore, which hit on the right side of head above the right ear of Muhammad Amin. Saeed Ahmed accused fired with his pistol 30 bore which hit below the right ear on the head of Muhammad Amin, who after receiving the fire shot fell down and succumbed to the injuries at the spot. The accused persons fled away from the spot alongwith their respective weapons. Alleged motive behind the occurrence was that about six months prior to the occurrence, Muhammad Bashir accused for himself demanded Rishta of niece of Muhammad Amin deceased; Muhammad Amin refused that Rishta to Muhammad Bashir who felt insult and due to JALPETITION NO. 557 OF 2016 AND -: 3 CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016 that grievance he alongwith his co-accused persons committed the murder of Muhammad Amin. 3. The conviction of the petitioner was recorded in a private complaint. The complainant produced cursory evidence whereafter the formal charge was framed against the petitioner and co-accused on 10.05.2011 under Sections 302/34 PPC to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced four PWs and thirteen CWs. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. However, he produced some documentary evidence in his defence. 4. Learned counsel for the petitioner/convict contended that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution case is based on whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that during investigation, the Investigating Officer AD Sher (CW-12) had found the petitioner not involved in the case and had declared him innocent. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the recovery of weapon of offence in presence of a negative FSL report is inconsequential. Contends that on the same set of evidence, the learned High Court has acquitted co-accused Saeed Ahmed ,who was ascribed the similar role but the petitioner has been convicted without there being any justification. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant submitted that to sustain conviction of an JAIL PETITION NO. 557 OF 2016 AND -: 4 CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016 accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the petitioner/convict does not deserve any leniency by this Court, rather his sentence of imprisonment for life may be enhanced to death. So far as the acquittal of co-accused Saeed Ahmed is concerned, learned counsel for the complainant argued that the learned High Court erred in law while extending benefit of doubt although the same was not available keeping in view the solid, sound and cogent evidence adduced by the prosecution. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. Undeniably, this occurrence has taken place at 05.00 am. in the morning whereas the matter was reported to the police at 09:15 am. on the same day while the inter se distance between the place of occurrence and the Police Station is six miles. This aspect of the case clearly reflects that the matter was reported to Police without any inordinate delay. As the occurrence has taken place in the broad daylight and it is not denied anywhere that the parties were not known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Muhammad Essa, complainant (PW-1) and Manzoor Ahmed (PW-2). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner/convict or adverse to the prosecution could be produced on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. Both these witnesses have reasonably explained their presence at the place of occurrence by stating that they were watering the fields at the distance of one kanal and saw that Bashir Ahmed petitioner made fire shot with his pistol, which hit on JAIL PETITION NO. 557 OF 2016 AND -: 5 CRIMINAL PETITION l'4Os. 1391-L& 1392-L OF 2016 the right side of head of the deceased. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased is concerned Learned counsel for the petitioner had argued that in site plan the distance between the deceased and the petitioner has been mentioned as five feet but there was blackening around the wound which suggests that the fire was made from a distance of less than three feet and the same contradicts the ocular version. However, this argument is of no help to the petitioner because there are various factors which affect blackening e.g. surface of target i.e. wet or dry and the body structure of the victim and the quality of gun powder. Probably, the accused would have extended his arm to shot fire at the deceased. The normal length of the arm of an average man is more than two feet. With this if we add the length of the weapon i.e. .30 bore pistol, the distance between the accused and the deceased remains less than three feet. The deceased was not a static object and he could have changed his position at the time of occurrence. Even otherwise it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where such fire shots appeared to have landed and it becomes highly improbable to mention the distance correctly and the location of the fire shots with exactitude. As far as the question that the witnesses of the ocular account are related to the deceased, therefore, their testimonies cannot be believed to sustain conviction of the petitioner/convict is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the petitioner/convict could not point out any reason as to why the complainant has falsely involved the petitioner/convict in the present case JAIL PETITION NO. 557 OF 2016 AND —: 6 CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016 and let off the real culprit. Such reasoning does not appeal to reason. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the petitioner without any rhyme and reason. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye- witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. It was argued by learned counsel for the petitioner that during initial investigation, the Investigating Officer, who appeared as CW-12 had found the petitioner not involved in the crime. However, this argument is also of no avail to the petitioner simply for the reason that All Sher (CW-12) was an ASI and under the law, he was not authorized to investigate the murder case falling within the ambit of Section 302 PPC. Even otherwise, the statement of the said AS! shows that his finding was based on hearsay evidence and the same was not concurred by the subsequent Investigating Officer, who took the charge later on i.e. Qazi Abdul Basit, Inspector/SHO (CW-13). The said Qazi Abdul Basit, SHO categorically stated that he investigated the case under the supervision of SE', Regional Investigation Branch and found the petitioner involved in the case. His finding was verified by Regional Investigation Branch. The learned High Court has rightly disbelieved the motive by holding that a specific motive had been attributed towards the petitioner JAIL PETITION NO. 557012016 AND -: 7 CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016 that he wanted the hand of niece of Muhammad Amin and on refusal he took his life. However, name and parentage of niece of Muhammad Amin deceased whose hand had allegedly been demanded by the petitioner has not been introduced in the investigation as well as before the trial court. No evidence could also be placed on record to prove the motive. So far as the recovery of weapon of offence i.e. .30 bore pistol is concerned, the same is inconsequential in presence of negative report of Punjab Forensic Science Agency. However, even if motive and recovery is discarded, there is sufficient evidence available to sustain the conviction of the petitioner/convict. So far as the quantum of punishment is concerned, keeping in view the fact that recovery is inconsequential and motive has not been proved, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life. No further leniency can be shown to the petitioner. 7. While adjudicating Criminal Petition Nos, 1391-L & 1392- L/2016 relating to the finding of High Court whereby co-accused of the petitioner namely Saeed Ahmed was acquitted of the charge while extending benefit of doubt, it is suffice to point out that the name of the said Saeed Ahmed was not mentioned in the crime report. However, his name was brought in through a private complaint, which was lodged after lapse of three months wherein his name was mentioned for the first time. The statement of the prosecution witness namely Manzoor Ahmed recorded on 23.09.2010 under Section 161 Cr,P.C. also does not disclose the name of the said co-accused. The learned High Court while adjudicating the matter and taking into consideration all the material placed on the record gave a finding of acquittal in favour of Saeed Ahmed, which seems to us to be well reasoned and the same does not invite any interference on judicial premises. The crux of the argument that there was a confessional statement on the part of all the co-accused is of no avail as the same was made jointly, which has no legal sanctity. Even otherwise, the same is inadmissible in evidence, hence, the order of acquittal is justified based upon sound judicial reasoning. As far as the question of enhancement of sentence awarded to petitioner Muhammad Bashir is JAIL PETITION NO. 557 OF 2016 AND -: CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016 concerned, the learned High Court has already taken note of it and passed an appropriate order while converting the sentence of death into imprisonment for life, which seems to be meeting all requirements of principles enunciated by this Court for the safe administration of criminal justice. 8. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave to appeal is refused. Islamabad. the 31st of October, 2022 Approved For Reporting Il.iuiitpiI

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Javed Iqbal Mr. Justice Raja Fayyaz Ahmed Mr. Justice Ch. Ijaz Ahmed Mr. Justice Sayed Zahid Hussain Mr. Justice Muhammad Sair Ali JAIL PETITION NO. 56 OF 2005 (On appeal against the judgment dated 11.9.2003 passed by the Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 61/2001) Shah Hussain …. PETITIONER VERSUS The State …. RESPONDENT For the petitioner: Mr. Zulfiqar Khalid Maluka, ASC For the State: Syed Tahaar Hussain, ASC (on behalf of A.G., NWFP) Amicus Curiae: Syed Iftikhar Hussain Gillani, Sr.ASC Mr. Muhammad Akram Sheikh, Sr.ASC (Assisted by Barrister M. R. Kamran Sheikh, Adv.) Sh. Zameer Hussain, Sr.ASC Ms. Naheeda Mehboob Elahi, DAG Qazi Muhammad Amin, Addl.AG Mr. Muhammad Naeem Sheikh, ASC (With permission of the Court) Dates of hearing: 7th & 11th May, 2009 ---- JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - This petition for leave to appeal has been filed through jail against the judgment dated J.P.56/2005 2 11.9.2003 passed by the Peshawar High Court at Abbottabad Bench in Cr. A. No. 61/2001. 2. The petitioner, his brother Akhtar Hussain and co-accused Muhammad Shaukat were tried by the Sessions Judge/Zila Qazi, Kohistan at Dassu for committing murder of one Farman Ali, causing injuries to Muhammad Siffat Khan (injured PW) and for the offence of Haraabah in respect of jeep bearing registration No.GLT-4406. They were convicted under section 392 read with section 34 PPC and section 20 of the Offences Against Property (Enforcement of Hadd) Ordinance, 1979 and were sentenced to 10 years’ R.I. and a fine of Rs.25,000/- each, or in default of payment thereof, to undergo one year R.I. They were also convicted under section 394 read with section 34 PPC and section 20 of the Offences Against Property (Enforcement of Hadd) Ordinance, 1979 and were sentenced to imprisonment for life with a fine of Rs.25,000/- each, or in default thereof, to undergo one year R.I. In case of recovery of fine, 3/4 of it was ordered to be paid to the injured PW Muhammad Siffat Khan as compensation. Under section 302(b)/34 PPC, accused Shaukat was convicted and sentenced to death while the petitioner and his brother Akhtar accused were convicted and sentenced to imprisonment for life each. All three convicts were also ordered to pay a sum of Rs.100,000/- each as compensation to the legal heirs of deceased Farman Ali, or in default thereof, to suffer S.I. for six months. Their sentences were ordered to run consecutively. On a reference under section 374, Cr.P.C. and appeal filed by the convicts, the Peshawar High Court, vide judgment dated 11.9.2003, allowed the appeal of Akhtar Hussain, set aside his conviction and sentence and acquitted him of the charges but dismissed the appeal of the petitioner and maintained his conviction and sentence. J.P.56/2005 3 Accused Shaukat died during the pendency of appeal and the murder reference against him stood abated. 3. The FIR of the case was registered on 6.9.1999 at the report of Hafiz Janas Khan, SHO, P.S. Dubair, who, during his usual patrolling, found jeep No.GLT-4406 at the Karakurram Highway, which appeared to have met an accident. On search of the vehicle, he found a .30 bore pistol bearing No.5901-B loaded with magazine containing four rounds, an empty cartridge of .30 bore and blood. Off the roadside nearby, he found a dead body of an unknown person. He noticed one entry wound on the right eyebrow on the scalp with an exit wound near it. There were other injuries on the head, which showed that the dead body had been thrown down from somewhere. He registered case under section 302/34 PPC, prepared the injury sheet and inquest report and sent the dead body to the RHC Pattan for autopsy. 4. Sole eyewitness of the occurrence was PW8 Muhammad Siffat Khan, driver of the jeep. In his deposition, he stated that on 6.9.1999 two boys, namely, Shaukat and Shah Hussain (petitioner and co-accused) came to him and hired the jeep for the journey from Gilgit to Basham. He took Farman Ali (deceased) with him as a companion for the aforesaid journey. The petitioner sat with him on the front seat while the other took the back seat with Farman Ali. When they reached near a hotel at a deserted Nallah, he heard a fire shot behind him. He parked the vehicle at the roadside and found that Farman Ali had been shot by Shaukat. Thereafter Shaukat came to him and fired a shot at him injuring him on the neck and right shoulder. Shaukat wanted to fire more shots, but his pistol did not work. The petitioner pushed the injured PW out of the vehicle and occupied the driving seat. The accused threw the dead body of Farman Ali J.P.56/2005 4 off the roadside and took away the vehicle towards Basham. He was lying there in an injured condition when a bus came and he was taken to Basham Hospital. At the identification parade held in the jail premises, petitioner and Muhammad Shaukat were identified. Recoveries included the aforesaid jeep, a pistol, two empty cartridges, five .30 bore live cartridges, a wrist watch and bloodstained clothes of the petitioner. The crime weapon and two empty cartridges were to the firearms expert, which were found to have been fired from the said pistol. The autopsy of Farman Ali deceased showed firearm injuries on his body while the medical examination report of injured PW Siffat Khan showed firearm injuries on his person. 5. The petitioner admitted, in his statement, the occurrence. With minor discrepancies, he narrated the prosecution story as given by Siffat Khan PW, noted above. He stated that Shaukat accused fired at Farman Ali deceased and Siffat Khan PW with a .30 bore pistol. He also stated that after the snatching of the vehicle from Siffat Khan PW and after throwing of the dead body of Farman Ali deceased off the jeep, he drove the vehicle towards Basham when it met an accident in which he and Shaukat accused got injured. They spent the night in a deserted place. In the morning they met an old man named Samandur whom Shaukat accused told that they (Shaukat and the petitioner) were searching their brother. On their way back from that place, they were arrested by the police. Clearly, petitioner’s statement is inculpatory in nature. Though at the trial, he retracted from his above statement, yet the same is corroborated on material particulars by the ocular account of the incident furnished by PW8 Siffat Khan, mentioned above. Likewise, the recovery of crime weapon coupled wi th the medical evidence also corroborated the prosecution case. J.P.56/2005 5 In law, the confessional statement of the petitioner was sufficient for his conviction and sentence. Hence, no case for interference with the impugned judgment of the Peshawar High Court is made out qua conviction and sentence of the petitioner. 6. During hearing of the petition on 6.5.2009, this Court noticed that the sentences of the petitioner, namely, 10 years’ R.I., and imprisonment for life on two counts, were ordered to run consecutively, the benefit of section 382-B, Cr.P.C., was not given to him and the remissions granted by the Federal and the Provincial Governments during his pre- sentence custody period were also not allowed to him. Thus, we considered it a question of public importance relating to the enforcement of Fundamental Right of a prisoner as guaranteed under Article 9 of the Constitution and passed the following order on the said date: - “2. Learned counsel for the petitioner contends that learned trial Court has convicted and sentenced the petitioner on various counts, which were ordered to run consecutively whereas the Courts, while awarding sentences on different counts, normally order the same to run concurrently. Secondly, in view of the law laid down in Haji Abdul Ali v. Haji Bismillah (PLD 2005 SC 163), the petitioner is not entitled to any remission granted by the President of Pakistan or the Provincial Government during the period he remained confined in jail as under-trial prisoner when he was neither convicted of any offence nor was undergoing any sentence. 3. It is to be noted that the petitioner has been in custody since 1999 and, prima facie, in the light of the law laid down in the case reported as Ghulam Murtaza v. State (PLD 1998 SC 152), the court is under an obligation to take into consideration the provisions of section 382-B, Cr.P.C. and in absence of special circumstances disentitling the accused, exercise its discretion in favour of the accused by ordering that such period shall be counted towards his sentence of imprisonment. 4. In the instant case, the petitioner has neither been extended the benefit of section 382-B Cr.P.C., nor is entitled to any remission in view of judgment of two Hon’ble Judges in Abdul Ali’s case (supra). Further, in the said case, the judgment of a three member Bench in case of Ghulam Murtaza (supra) was not considered. Another aspect of the matter is that in another judgment delivered by a Bench of four J.P.56/2005 6 Hon’ble Judges in the case reported as Human Rights Case No.4115 of 2007 (PLD 2008 SC 71), the view taken in the case of Haji Abdul Ali (supra) has been reaffirmed. It may be noted that if a prisoner/convict remains in custody, his right to life under Article 9 of the Constitution remains available to him, therefore, such convicts should be dealt with in a manner in which they enjoy their fundamental right to life. This is not the only one case in which great difficulties and hardships have arisen for the prisoner but there are so many other cases wherein the prisoners are suffering in jail on account of delay in the trial of their cases for which generally they are not responsible in any manner. Therefore, we consider it appropriate to re-visit the judgments in the cases of Haji Abdul Ali and the Human Rights Case No. 4115 of 2007 (supra). The office is directed to fix this matter before a Bench of more than five Hon’ble Judges. Adjourned to 7.5.2009. Copy of this order be sent to the learned counsel appearing on Court’s call.” 7. The learned counsel for the petitioner referred to the provisions of section 382-B, Cr.P.C., the corresponding provisions of section 428 of the Indian Code of Criminal Procedure, 1973 and section 67 of the U.K. Criminal Justice Act 1967, as amended by the Powers of the Criminal Courts (Sentencing Act), 2000 and particularly Ghulam Murtaza’s case (supra), wherein it was held that the trial Court was under an obligation to take into consideration the pre-sentence period spent by a convict in jail, and in absence of special circumstances disentitling the accused, exercise its discretion in favour of the accused by ordering that such period should be counted towards his sentence of imprisonment. However, the learned counsel contended that in the instant case neither the trial Court extended the benefit of section 382-B, Cr.P.C., to the petitioner nor he was held entitled to any remission. 8. The learned counsel for the petitioner cited judgments in the cases of Javed Iqbal v. State (1998 SCMR 1539), Muhammad Saleem v. State (1996 P.Cr.L.J. 1598), Ramzan v. State (PLD 1992 SC 11), Mukhtiar-ud-Din v. State (1997 SCMR 55), Muhammad Rafiq v. State (1995 SCMR 1525), Aamir Ali v. State (2002 YLR 1902) at 1912, R. Wust J.P.56/2005 7 (2001) 1 SCR 455 = 2000 SCC 18 to argue that the grant of benefit of section 382-B, Cr.P.C., was a rule while its denial an exception, therefore, the same could only be withheld if the trial Court concluded, on taking into consideration that the accused for strong reasons was not entitled to the said benefit. He also referred to an article “Pre-sentence custody and the determination of sentence: a framework for discussion” by Allan Manson of the Faculty of Law, Queen’s University, Kingston, Ontario. He further argued that section 382-B, Cr.P.C. had received beneficial interpretation from the Superior Courts, which was apparent from the following well- settled propositions: - (1) If the Court did not record reasons in declining the benefit of section 382-B, Cr.P.C., no presumption could be raised in favour of the Court; (2) The reduction of the sentence of a convict by the under-trial detention period exploded the myth that the pre-sentencing detention period and the post-sentencing period were different and the conviction and sentence could not be ante-dated because it blurred the line between the pre-sentencing and post-sentencing periods; (3) The period spent in jail prior to formal conviction and sentence was punishment; (4) Once the benefit of section 382-B, Cr.P.C. was extended to a convict, the remissions granted by any authority could not be withheld on any ground whatsoever; (5) The benefit of this provision could be extended to convicts even after the passing of judgment by the High Court or the Supreme Court of Pakistan; and (6) The Courts had held that the application seeking the said benefit would neither be review nor alteration of the main judgment. 9. Syed Iftikhar Hussain Gillani, Senior ASC, appearing as amicus curiae, opened up his arguments with the submission that the J.P.56/2005 8 extension of benefit under section 382-B, Cr.P.C., and the grant of remission granted during the under-trial period of a prisoner were inter- twined and interlinked and could not be dealt with in isolation from each other under any principle of interpretation as was done in the judgment in Abdul Ali’s case (supra). To support his stance that the trial Court while taking into consideration provisions of section 382-B, Cr.P.C., was also under an obligation to grant the benefit of remissions granted by any authority under the Constitution or any statute during the pre-sentence period spent in jail, he dilated upon the terms ‘conviction’ and ‘sentence’ by quoting passages from the book titled “Access to Justice in Pakistan” by Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan. He also referred to the cases reported as Muhammad Rafiq v. State (1995 SCMR 1525), Qadir v. State (PLD 1991 SC 1065), Ramzan v. State (PLD 1992 SC 11), Liaqat Hussain v. State (PLD 1995 SC 485), Mukhtiar-ud-Din v. State (1997 SCMR 55), Ghulam Murtaza’s case (supra), Javed Iqbal v. State (1998 SCMR 1539) and Ehsan Ellahi v. Muhammad Arif (2001 SCMR 416). He further submitted that if a convict whose trial was prolonged was not treated at par with those convicts whose trials were concluded expeditiously, then four consequences would follow: - (1) It would be discriminatory and violative of the equal protection clause. Convicts could not be classified on the basis of early and delayed conclusion of trial. It would be violative of Article 9 and Article 25 of the Constitution as well. Fundamental rights are available to prisoners (AIR 1974 SC 2092); (2) It would militate against the rational treatment of pre-sentence detention period. Once a Court of competent jurisdiction under the provisions of section 382-B, Cr.P.C., declares and holds that the sentence begins from the date of arrest, this is a lawful order passed by a competent court and the sentence is to be treated as such for all purposes, not for certain purposes only; (3) As soon as the Court directed that the benefit of section 382- B, Cr.P.C., should be granted, which practically meant that the sentence was reckoned from the date of arrest, then the benefit of remissions granted during that period would be J.P.56/2005 9 admissible. However, where the benefit of section 382-B, Cr.P.C., was declined, remission would not be granted. (4) It would provide a tool in the hands of unscrupulous public functionaries to pick and choose amongst the prisoners. 10. Other submissions of Mr. Gillani were: - (1) Sentencing was the power of the Court and primarily was a matter of judicial discretion. If the Court, on the facts and circumstances of a particular case, came to the conclusion that the benefit of section 382-B, Cr.P.C. would be granted, no other authority had the power to negate it by any methodology; (2) Even in computing 2/3rd of the substantive sentence, if the Court had granted the benefit of section 382-B, Cr.P.C., it was the Court’s order that would prevail; (3) The ratio of Shahid Nabi Malik’s case (PLD 1997 SC 32) and Mahmood Khan Achakzai’s case (PLD 1997 SC 426) was that higher rights, e.g. independence of judiciary would prevail; (4) The Court alone had the power to sentence. When an order is passed by the judicial organ of the State in the matter of admissibility of any remission, the Government had no power to say that such remission would not be available. Anything flowing from the Court could only be rectified by the higher court; (5) For months the prisoners involved in petty cases were not produced before the Courts. The prisoners should not suffer for failure of the state machinery; (6) While interpreting certain provisions of law, legalistic approach should be blended with equity and compassion; (7) Interpretation was an art and not a science, therefore, the Court was not to follow a pre-determined path. Basic rule of interpretation applicable to this case was that the legislative intent to do more good and to do justice was to be ascertained through the interpretative process; and (8) The pardon granted to a prisoner serves God’s purpose – Islamic jurisprudence. J.P.56/2005 10 Mr. Gillani further stated that the Indian law was less beneficial. The Indian Courts were not required to consider anything at all. In Pakistan, the moment the benefit of section 382-B, Cr.P.C., was given, the Court was involved. Under the Indian law, it was not. Here, Muhammad Rafiq’s case (supra) was to be improved. The sentence would become operative from the date of arrest, and not from the date of conviction. He lastly submitted that the question of exclusion of certain categories of convicts involved in certain heinous offences from the benefit of remission (e.g. NAB, anti- terrorism cases, kidnapping, abduction for ransom, karo kari, etc.) should be considered in appropriate cases separately. 11. Mr. Muhammad Akram Sheikh, Sr. ASC appeared as amicus curiae. He submitted that once the pre-sentence period was taken into consideration, the grant of remissions from the date of arrest of the convict was peripheral issue and the same could not be withheld. Reduction of sentence by the amount of pre-sentence period in jail meant that a convict’s pre-sentence period was taken into consideration as a punishment towards his substantive sentence. Refusal to grant the remissions was discriminatory. He submitted that in pursuance of the judgment in Abdul Ali’s case (supra), all the remissions earned by the prisoners under different categories and recorded in their history ticket were confiscated. The said remissions could not be revoked under the principle of locus poenitentiae unless a prisoner was guilty of practicing fraud. According to him, it was a right, which should be available to all the convicts. He pleaded that the pathetic conditions prevalent in jails, the suffering and the miseries of jail inmates when juxtaposed with the ‘dignity of man’ called for a rational treatment of remissions being granted during incarceration of a person as an under-trial prisoner. He submitted that law J.P.56/2005 11 was a very tiny branch of logic. If the substantive sentence was being reduced, it meant that everything that happened during that period was also to be taken into consideration. If a remission was granted on the eve of Eid, or for that matter on any other similar occasion, the benefit of remission should be available to all the prisoners, who were confined in prison as under-trial prisoners, whether they were convicted on a day prior to Eid or a day after Eid. He submitted that as held by this Court in the case of Abdul Malik’s case (supra), the power of the President to grant pardon, remission, etc., under Article 45 of the Constitution could not be regulated by any sub-constitutional legislation, e.g., the Pakistan Prison Rules, or the Jail Manual. The restriction under the said rules to serve a specified minimum period would not be applicable to such cases. He pointed out that the system of grant of remissions in India was absolutely different from that of Pakistan. So far as the liberty element was concerned, both were supportive otherwise the system was different. If a person was considered to be incarcerated, he should be deemed to be a sentenced prisoner and should also be deemed to be entitled to remissions. He submitted that the aims and objects of punishment and the circumstances in which offences were committed were required to be kept in mind, as was done by Omar (RA), the Second Caliph, when he suspended the sentence of Qata-e-yad (cutting of hands in certain categories of theft cases) during the times of famine. Lastly, he submitted that the examination of the question of remission in NAB, ATC, etc., cases may be postponed to an appropriate time. He also filed written submissions. 12. Sh. Zamir Hussain, Sr. ASC also appeared as amicus curiae. He submitted that there was no ambiguity in the language employed in J.P.56/2005 12 section 382-B, Cr.P.C. The intent and purpose of the legislation was clear. Section 428 of the Indian law referred to ‘investigation’, ‘inquiry’ and ‘trial’ while the Pakistani law only referred to the trial period. He submitted that under the Indian law, the period was categorically set off, but under the Pakistani law the trial Court was required to consider it while passing the sentence. The benefit could be withheld in certain cases. Resultantly, the approach and treatment of the issue differed from Judge to Judge and from Court to Court. Here it was ‘consideration’, there it was clear ‘set off’. He submitted that section 382-B, Cr.P.C. may be interpreted in line with the Indian and the English law. In the interpretative process, the Court was justified to supply the omission, if any, in an enactment, but re-writing of the law was not permissible. He stated that on the strength of Muhammad Rafiq’s case, section 382-B, Cr.P.C., could be interpreted to include remissions granted during the pre-sentence period, but not, if the view in Abdul Ali’s case was not overruled. He stated that there were different categories of prisoners under the Prison Rules, e.g. criminal prisoners, convicted criminal prisoners. The word ‘remit’ indicated that it was a post sentence phenomenon, therefore, remissions were not covered under section 382-B, Cr.P.C. By way of hypothesis he elucidated that in a case, FIR was registered on 1.1.1990, the accused was arrested on 2.1.1990 and sent to judicial lock up on 20.1.1990. His trial concluded after seven years and he was sentenced to seven years. If the benefit of section 382- B, Cr.P.C., was allowed and the remissions granted in that period were also allowed, he would not suffer one day in prison. He stated that there was judicial consensus that judgment of sentence could not be antedated. Lastly, he submitted that given the language of Article 9 of the Constitution, the right to life was always subject to law. J.P.56/2005 13 13. Ms. Naheeda Mahboob Elahi, learned Deputy Attorney General submitted that the use of word ‘shall’ in place of the word ‘may’ by the legislature had made it obligatory upon the Court to address itself to the issue of pre-sentence period spent by a convict in jail. She submitted that as compared to section 428 of Indian law, section 382-B, Cr.P.C. was not happily worded. She stated that the remission granted by the President would prevail. 14. Qazi Muhammad Amin, Additional Advocate General submitted that the provisions of section 382-B, Cr.P.C., were never considered in the backdrop of Articles 9 and 25 of the Constitution. The issue was being examined from this angle for the first time in the present case under order dated 6.5.2009. He referred to the case of T.V. Vatheeswaran v. State of Tamil Nadu [AIR 1983 SC 361(2)] wherein it was held that the prison walls did not keep the fundamental rights out. He contended that an accused was taken into custody for a purpose, i.e. on a specific charge and if ultimately the prosecution was able to drive home the charge, then he would be convicted and sentenced. He stated that if any benefit was available under the law from the date of arrest, the same could not be denied, particularly the rights under the Constitution could not be withheld. However, he submitted that there was no distinction between pre-sentence or post sentence periods of detention. Detention was detention. According to him, the entire concept was based on the classification of punitive and non-punitive detention. The notional distinction between ‘punitive’ and ‘non-punitive’ had been abolished. To give excessive remissions would not be a balanced approach. It was for the Government to grant remissions or not. If the government was of the opinion that under the prevailing law and order situation it was not J.P.56/2005 14 advisable to do so, the government was not under compulsion to grant any remission. 15. Syed Tahaar Hussain, ASC appeared for the State (on behalf of the Province of NWFP). He submitted that the ‘wish’ of the Supreme Court, such as the one expressed in Muhammad Rafiq’s case (supra) was the highest piece of judicial verdict, which must be honoured. He submitted that section 382-B, Cr.P.C. was an important piece of legislation. Best word ‘consideration’ was used in it, which was the main issue. Not only the Court should not ignore the day and time spent by a person in jail, but the day and time when the convict committed the offence should also be kept in view. It was a rational provision. Its meaning was clear. The Court was bound to take into consideration the period spent by the accused in jail during trial and was to assign cogent reasons if it decided not to consider it. It was mandatory for the trial Court, but discretionary for the Supreme Court. If the benefit was not given by the trial Court or the High Court, the Supreme Court may direct that such benefit be given. In support of his submissions, he referred to the cases reported as Ghulam Sarwar v. State (PLD 1984 SC 218), Ahmed Yar v. State (1985 SCMR 1167), Liaqat Hussain v. State (PLD 1995 SC 485), Noor Muhammad v. State (1995 SCMR 671), Muhammad Rafiq (supra) and Mukhtiar-ud-Din (supra). 16. With the permission of the Court, Sh. Muhammad Naeem, ASC submitted that the provisions of section 382-B, Cr.P.C. should be interpreted liberally to include remissions so as to give relief to the prisoners as was done by this Court by expanding its jurisdiction in the case reported as Al-Jehad Trust v. Federation of Pakistan (1999 SCMR 1379) to secure the rights of the people of Northern Areas. J.P.56/2005 15 17. We have heard the learned counsel for the petitioner, the learned Senior Advocates appearing as amicus curiae and the learned Deputy Attorney General for Pakistan and have examined the case law cited at the bar. 18. The learned counsel for the petitioner vehemently contended that in absence of sound reasons the benefit of section 382-B, Cr.P.C., had been withheld illegally. He submitted that the petitioner in the instant case was sentenced to 10 years’ R.I. and imprisonment for life on two counts. His sentences were ordered to run consecutively. The benefit of section 382-B, Cr.P.C., was not given to him and the remissions of the pre- sentence custody period were also not allowed. He prayed that not only the petitioner may be granted the said benefit, but he may be allowed the remissions granted in the said period and the sentences awarded to him may also be ordered to run concurrently. 19. In this background, first question being considered by this Court is whether the petitioner is entitled to the benefit of section 382-B, Cr.P.C., and if so, whether he would be entitled to the remission granted by the President of Pakistan, or the Provincial Government or any other authority? As the issue pertains to the interpretation of section 382-B, Cr.P.C., the same is reproduced below: - “382-B. – Period of detention to be considered while awarding sentence of imprisonment. – Where a court decides to pass a sentence of imprisonment on an accused for an offence, it [shall]1 take into consideration the period, if any, during which such an accused was detained in custody for such offence.” 20. The provisions of section 382-B, Cr.P.C., have undergone scrutiny by the superior Courts and have been interpreted in a plethora of cases. In Qadir v. State (PLD 1991 SC 1065), this Court has held that 1 Section 382-B, Cr.P.C. was added by the Law Reforms Ordinance, 1972. The word “shall” was substituted for the word “may” by the Criminal Law Amendment Ordinance (Ordinance No. LXXI) of 1979. J.P.56/2005 16 section 382-B, Cr.P.C., is a beneficial provision and is to be construed liberally. Relevant observation reads as under: - “It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or released on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles.” 21. In Ramzan v. State (PLD 1992 SC 11), the Court adhered to the exposition of law made in Qadir’s case (supra). In Liaqat Hussain v. State (PLD 1995 SC 485), it was noted that the trial Court or the Federal Shariat Court had not pointed out any circumstance which would justify the denial of the extension of the benefit of section 382-B, Cr.P.C., to the appellant in the said case. Thus, while maintaining the conviction and sentences of the appellant awarded by the trial Court and affirmed by the Federal Shariat Court, the Court directed that the benefit of section 382-B, Cr.P.C. would be extended to the appellant. 22. In Muhammad Rafiq’s case (supra), this Court made a threadbare examination and discussion of the provisions of section 382-B, Cr.P.C. After considering the corresponding provisions in the English Act (section 67) and the Indian Act (section 428), the Court held as under: - “9. Section 67 of the English Act and section 428 of the Indian Act provide expressly that the sentence of imprisonment imposed by the Court shall stand reduced by the pre-sentence period spent in jail (the English Act) or which is the same thing, that the pre-sentence period shall be set off against the term of imprisonment imposed on him (the Indian Act). The English and the Indian Acts do not, therefore, leave, as regards the pre-sentence period spent in jail, anything to be done by the sentencing Court. Instead, they direct chat the period so spent in jail shall automatically count towards the J.P.56/2005 17 sentence of imprisonment imposed by the Court and the sentence of imprisonment shall stand reduced accordingly. 10. We wish that section 382-B of the Code were also couched in language as clear and unambiguous as the sections in the Indian and the English enactments are. If it were, then it would be right to say, as has become customary to do, that the convict should get the benefit' of that section. But unfortunately it does not. 23. In Mukhtiar-ud-Din v. State (1997 SCMR 55), Saiduzzaman, J., as he then was, speaking for the Court held as under: - “(i) That strictly speaking section 382-B, Cr.P.C. is attracted to, when a Court decides to pass a sentence either in the trial or appellate or revisional proceedings against an accused for the offence charged with. In other words, if the sentence has already been passed by a trial Court and the matter is brought before an Appellate Court, strictly speaking, section 382-B, Cr.P.C. is not applicable. However, there is no legal bar and that an Appellate Court is competent to grant the benefit of the above provision to a convict. Furthermore, a convict will be entitled to agitate before the Appellate Court the question, that the trial Court had failed to consider the above provisions while imposing the sentence on him or that he was wrongly denied the benefit of the same, in such a case, the Appellate Court would be bound to examine the above question and to rectify the error/mistake, if any, committed by the trial Court. (ii) That if an Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it is obligatory on its part to take into consideration above section 382-B, Cr.P.C., for example, if a High Court in a murder appeal/reference alters conviction from section 302, P.P.C. to that under section 304. Part 1, P.P.C. and substitutes death sentence to that of rigorous imprisonment of 7 or 10 years, it is mandatory for it to advert to the question of extending the benefit of the above provision to the convict while imposing above sentence. (iii) That though under section 382-B, Cr.P.C. the Court has discretion not to grant the benefit of the same to a convict, but this discretion is to be exercised judiciously on sound judicial principles inter alia as explained hereinabove in Para 9. (iv) That since the provision of section 382-B, Cr.P.C. is mandatory, in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provision at the time of imposing sentence on the convict concerned, no presumption can be raised in favour of the Court of having adverted to the same. J.P.56/2005 18 24. In the case reported as Ghulam Murtaza v. State (PLD 1998 SC 152), the question before the Court was whether benefit of section 382- B, Cr.P.C., could be extended to the appellant who was awarded life imprisonment by converting the sentence of death awarded by the trial Court. After a survey of the case law, the Court answered the question in the affirmative as under: - “Unless there are any exceptional circumstances in a case which the Court considers sufficient for the purpose of denying the benefit of section 382-B, Cr.P.C., to the accused, the Court in all other cases, while awarding sentence, will take into consideration the period during which the accused remained in detention during his trial, and this period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of section 382-B, Cr.P.C.” 25. In Javed Iqbal v. State (1998 SCMR 1539), this Court dealt with the issue from yet another angle. The judgment introduced a new concept when it held as under: - “It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or released on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only, fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles.” In Ehsan Ellahi v. Muhammad Arif (2001 SCMR 416) this Court approved earlier decisions on the admissibility of benefit of section 382-B, Cr.P.C. 26. Some of the propositions expounded in the above judgments are noted here so as to adequately highlight the implications of, and bring home the manner, in which the provisions of section 382-B, Cr.P.C., were to be applied. They are: - (1) While passing sentence, the Court, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the J.P.56/2005 19 trial, exercise its discretion in favour of the accused by ordering that such period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period; (2) The discretion has to be exercised with the intention to promote the policy and objects of the law; (3) Indeed, the Court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the Court must show that the pre-sentence period has been taken into consideration and if the Court thinks that the sentence should not be reduced by the period spent in prison during the trial, the Court must give reasons for so thinking; (4) The word ‘shall’ is intended to make the provision mandatory in the sense that it imposes a duty to do what is prescribed admits of no doubt whatever; (5) The provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally”. In any event, the fact that when the section was first enacted the word used was ‘may’ and later it was substituted by the word ‘shall’ provides the clearest possible evidence that the intention was that the Court must take the pre-sentence period of detention in jail “into consideration”. Section 382-B of the Code is, therefore, a statutory limitation upon the Court’s discretion to determine the length of imprisonment. It must ‘take into consideration’ the pre-sentence period spent in jail; (6) The benefit of section 382-B is also available to a person whose sentence of death under section 302 PPC has been subsequently altered to imprisonment for life; (7) As the accused is put in jail for the very offence for which he is convicted and sentenced to imprisonment, the pre-sentence period spent by him in jail is not in vain and must, therefore, be taken into account; (8) It explodes the notion that such period can be ignored because it is not spent in jail by way of ‘punishment’. Not to treat that period as punishment, will be a play on the meaning of the word ‘punishment’. Whether the detention in jail was punitive or non-punitive, the consequence, as regards the person detained was the same, namely, deprivation of liberty and that is certainly punishment. 27. Now we take up the judgment in Abdul Ali’s case. Abdul Ali, petitioner in the said case was arrested on 24.7.1997 in a case under section 302/34, etc., but was acquitted by the Sessions Judge, Pishin vide judgment dated 19.10.1998. However, the High Court, by judgment dated 5.10.1999, set aside his acquittal, convicted him under section 302(b), PPC and sentenced him to suffer imprisonment for life. The ‘benefit’, as it J.P.56/2005 20 is commonly referred to, of section 382-B, Cr.P.C., was extended to him. Remissions granted by various authorities from time to time including the remissions of the pre-sentence custody period of the petitioner were recorded in his history ticket, which were challenged by the respondent- complainant in a writ petition. Vide judgment dated 12.5.2003, the High Court, inter alia, declared that the petitioner was not entitled to the remissions of his sentences for the period prior to his conviction. The High Court, in view of section 402-C, Cr.P.C., also disallowed remission of 60 days granted by a general order dated 5.1.2000 of the Government of Balochistan under section 401 Cr.P.C., as well as the remission of one year granted by the President of Pakistan under Article 45 of the Constitution on 5.1.2000 on the eve of Eid-ul-Fitr to the prisoners undergoing sentence of life imprisonment. In a petition filed against the judgment of the High Court, this Court examined the question of entitlement of the petitioner to the remissions granted by the President under Article 45 of the Constitution or by the Provincial Government under section 401, Cr.P.C. during his pre-sentence period spent in jail in connection with the trial etc., of the case, i.e. prior to the date of his conviction and sentence by the High Court in the light of the provisions of sections 35, 383, 396 and 397, Cr.P.C., and took the view that “the conviction and sentence of an accused could not be made to run from the date prior to the date of conviction by a competent Court although in certain eventualities the execution of sentence of a convict could be postponed. Ordinarily, a conviction commences from the time it is passed. A criminal Court does not possess any power to make a sentence to precede the conviction. In other words, the conviction and sentence cannot be ante-dated.” Reliance was placed on the cases of Baghel Singh v. the J.P.56/2005 21 Emperor (1907 (5) Crl.L.J. Reports 217), Emperor v. Tha Hmun (1908) (7) Crl.L.J. 453), Dangar Khan v. Emperor (AIR 1923 Lahore 104), Emperor v. Naga Po Min (AIR 1933 Rangoon 28), Gulzar Muhammad v. Crown (1951) (52) Crl.L.J. 238 (Lahore), State v. Jernelsingh (AIR 1955 NUC Rajasthan 4613) and State v. Chandra Khandapani (1968 Crl.L.J. 1152). The definition of “convicted criminal prisoner” viz., “any criminal prisoner under sentence of a Court or Court Martial…….” given in section 3(3) of the Prisons Act, 1894, (Act IX of 1894) and that of “convict” viz., “a convicted criminal prisoner under sentence of a Court” given in rule 3 of the Prison Rules was also taken into account. As to the pre-sentence period spent by a convict in jail, it was observed that the Legislature in its wisdom enacted section 382-B, Cr.P.C., requiring the Court to take the same into consideration so as to give it “more rational treatment”. It was concluded that there was nothing in section 382-B, Cr.P.C., or any other law to indicate that such a person was to be treated as convict from the very inception. Finally, it was held that remissions granted by the President under Article 45 of the Constitution or the Provincial Government were not available to the petitioner for the period during which he had not been convicted of any offence nor was he undergoing any sentence. 28. At this stage, it is just and proper that a brief survey of the case law relied upon in Abdul Ali’s case (mentioned in the preceding paragraph) is undertaken. In Baghel Singh’s case (supra), the Chief Court of the Punjab held as under: - “The accused on conviction by Mr. Meredyth Young, exercising the powers of a Magistrate of the first class in the Montgomery District was sentenced, by order dated 11th September 1906, under section 411 of the Indian Penal Code, to the period of imprisonment has already passed in the lock-up……………. “Section 383, Criminal Procedure Code, requires that a warrant be issued but no such warrant was issued. …………….. J.P.56/2005 22 “The order of the Magistrate is obviously illegal. No sentence was passed. Had the Magistrate sentenced the prisoner to imprisonment until the rising of the Court, the requirements of the law would have been met. I see no reason for entering into the merits of the case. I set aside the order purporting to pass sentence and return the record to the Magistrate for disposal in accordance with law, either by passing sentence or by passing an order under section 562 of the Code of Criminal Procedure.” In Tha Hmun’s case (supra), the Chief Court of Lower Burma held as under: - “The accused, after he had been in custody for a week, was convicted of a petty theft of plantains. He was sentenced “to undergo the imprisonment he has already suffered.” The form of the sentence is bad. There is nothing in the Code of Criminal Procedure which authorizes a Magistrate to antedate the commencement of a sentence. As the Magistrate thought that the accused had been sufficiently punished by his detention while under trial, the proper course would have been to sentence him to one day’s imprisonment. He would then be released on the same day on which he was sentenced.” In Dangar Khan’s case (supra), the Lahore High Court held as under: - “The Magistrate has directed in the case of each appellant that half of the period during which he was detained in custody as an under-trial prisoner shall count as part of the sentence. This order is quite wrong. If the Magistrate considered that the appellants were entitled to lenience on account of their having remained a long time in custody he should have passed a smaller sentence. To set aside this order would have the effect of enhancing the sentences, unless the sentences are also reduced. The sentences passed under section 364, Indian Penal Code, are therefore, reduced in each case to six years’ rigorous imprisonment.” In Naga Po Min’s case (supra), the Rangoon High Court held as under: - “S. 383 says that an accused who is sentenced to imprisonment shall be forwarded to the jail in which he is to be confined, and contains no words which warrant the antedating of the sentence. S. 397 deals with the postponement of the commencement of the sentence of imprisonment, but nowhere does the Code provide for the antedating of a sentence of imprisonment, and the antedating of a sentence of imprisonment seems to be contrary to the spirit of Ss. 383 and 397.” In Gulzar Muhammad’s case (supra), the Lahore High Court held as under: - “A person is “undergoing” imprisonment within the meaning of S. 397 from the moment the sentence is passed. The fact that he is J.P.56/2005 23 on bail is immaterial. The accused need not actually pass into the portals of the jail. Consequently, when at the time of passing a second sentence, the accused is “undergoing imprisonment”, though on bail, and the order does not make the second sentence run concurrently, the sentence will be treated as consecutive. In Jernelsing’s case (supra), the Rajasthan High Court held as under: - “Although there is no direct provision in the Code which lays down that the sentence passed against an accused should commence from the date of the judgment convicting him, a sentence of imprisonment must be made to operate from the date of conviction and not from a date prior to the date on which the sentence is passed. (Sections 383, 35 and 397, referred). Where Magistrate has ordered that the period already undergone in custody be counted towards the sentence the order was illegal. In such a case two courses are open for the High Court in revision: one being that his sentence be reduced so as to synchronize with the date of his release or he should be made to serve the remainder of the sentence passed on him. Held, in the circumstances of the case that the only correct course open was to direct that the accused shall serve the unexpired period of his sentence to be counted from the date of his conviction.” In Chandra Khandapani’s case (supra), the Orissa High Court held as under: - “The sentence of imprisonment awarded ought to commence from the time the sentence is passed and its commencement cannot be antedated. The Criminal P.C. does not provide for antedating the sentence, which will amount to passing an unexecutable sentence. Therefore, no Magistrate can have any jurisdiction to convert, by his order, the jail custody of an undertrial prisoner into a period of punishment awarded in the judgment. The only proper course to which the Magistrate is entitled, if he wanted to take a sympathetic view having regard to the long period of his jail custody is to pass a lesser sentence taking the period of custody as an undertrial prisoner into consideration. Hence the Magistrate has no jurisdiction to direct that any portion of the period of detention as an undertrial prisoner should be counted as a part of the sentence.” The accused in the precedent case just cited was convicted under section 380/75 of the Indian Penal Code and sentenced to undergo R.I. for 3 months and 5 days. He was taken into jail custody on 1.2.1966 where he remained till the date of judgment. The Magistrate directed that the sentence be computed from the date when he was taken to the jail custody, which would expire on 6.5.1966. The Orissa High Court set aside J.P.56/2005 24 the order of the Magistrate and with a view to regularizing the matter, reduced the sentence to the post judgment period of 11 days already undergone. 29. With great deference, it may be stated that all the judgments referred to in Abdul Ali’s case (supra) were given in a different legal setting. They dated back to the pre-Law Reforms Ordinance, 1972 period when there existed no provision in the Code of Criminal Procedure as it did in the shape of section 382-B, Cr.P.C., in the post-promulgation period of the Law Reforms Ordinance. It is noticed that it was being pleaded successively on behalf of the convicts, and the Courts were also inclined to it in many cases, that the pre-sentence period of the convicts spent in jail in connection with the offence of which they were convicted, should not go unaccounted for and must be taken into consideration. The hue and cry of the convict-prisoners ultimately led to the enactment of section 382-B, Cr.P.C., which made a specific provision requiring the Court to take into consideration the pre-sentence period while passing the sentence. This was a new era in an area of the criminal law, which dealt with the liberty of a person. Prior to it, the time spent by the convicts in custody for the same offence would not be accounted for in any way. Having waited for the conclusion of their trials for months, and in many cases for years together, they would re-enter the jail to serve out the sentence imposed upon them. The enactment of section 382-B, Cr.P.C., brought a complete shift in the approach of the Court toward the issue of pre-sentence period of a convict. Hence, in our humble opinion, the case law preceding the enactment of the said provision had no relevance and bearing on the interpretation of that provision, which has been termed as a beneficial provision by all and sundry all along without exception. We would respectfully state that the J.P.56/2005 25 judgment in Abdul Ali’s case did not address the issue in the changed perspective, nor the Court addressed itself to certain celebrated judgments of the superior Courts on the subject matter handed down in the cases of Muhammad Bashir (1982), Muhammad Rafiq (1995), Mukhtiar-ud-Din (1997), Ghulam Murtaza (1998), Javed Iqbal (1998), etc., which had dwelt upon the subject exhaustively. Only one recent judgment delivered by a Single Judge of the Lahore High Court in the case of Inayat Bibi v. Amjad Ali (2001 P.Cr.L.J. 1453) was taken note of where a contrary was taken. But, the Court did not take into consideration even the judgment of a Division Bench of the same High Court in the case of Aamir Ali v. State (2002 YLR 1902), which dissented from the view taken in Inayat Bibi’s case. It is pertinent to reproduce the relevant paragraph from Aamir Ali’s case, which reads as under: - “Now we may advert to the question whether the appellant can avail of the benefit of jail remissions granted to a convict prior to the date of his conviction if he is given the benefit of section 382-B of the Criminal Procedure Code. The appellant’s actual date of conviction is 10.5.2001 and his date of arrest is 21.2.2001. He was given the benefit of section 382-B of the Criminal Procedure Code. Meaning thereby that the period of his sentence would be deemed to have commenced from the date of his arrest, i.e. 21.2.2000. This question came up before a learned Single Judge of this Court in the case of Inayat Bibi v. Amjad Ali and others (2001 P.Cr.L.J. 1453) in which it was held that question of granting remissions to a convict would arise only after the trial was over and judgment delivered by the Court. Thereafter, from the date of conviction onwards the convict could claim the remissions granted by the competent Authority. The argument that since the substantive period of imprisonment was to be counted from the date of arrest of the convict by virtue of the provisions of section 382-B of the Criminal Procedure Code, therefore, remissions granted by the competent Authority from the date of arrest are to be counted towards the appellant’s substantive sentence, was repelled. With due deference, we are not inclined to subscribe to the view expressed in the above referred case. It is true that the benefit of remissions is to be granted after announcement of judgment and passing of the sentence of imprisonment against a convict. However, the moment benefit of section 382-B of the Criminal Procedure Code is given to a convict, the period during which he remained in detention as under-trial prisoner, would be counted towards his substantive sentence. Legally he would be deemed to be in jail as a convict since the date of his arrest and J.P.56/2005 26 would certainly be entitled to the benefit of remissions granted by the competent Authorities to the convicts after the said date.” (Emphasis supplied) 30. Here, we may mention that the judgment in the Human Rights’ case (supra) just followed the dicta laid down in Abdul Ali’s case. Even otherwise, it being a human rights petition, only an Additional Advocate General from NWFP had appeared on Court’s notice. No other lawyer had appeared in the matter and the attention of the Court could not be drawn to any of the aforesaid judgments. In the above backdrop, we have intended to re-visit the judgments in Abdul Ali and the Human Rights cases so as to reach an appropriate conclusion. 31. Relevant to the concept of antedating of a judgment of sentence are the terms, “conviction” and “sentence”. To throw light on the connotations of these terms, Mr. Gillani, learned amicus curiae, took us through a passage from the book titled “Access to Justice in Pakistan” by Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan, which we quote hereunder: - “Conviction and sentence are two different things. Conviction means to find guilty of an offence. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. Only when a person has been found guilty of an offence can the question of sentencing him arise.” In Abdul Ali’s case, the Court, while making the observation that “the conviction and sentence of an accused cannot be made to run from the date prior to the date of conviction by a competent Court”, altogether overlooked the practical effect of the provisions of section 382-B, Cr.P.C. Sentence preceding conviction, in our view, means that the accused is sentenced first, but convicted later, which was not the situation in Abdul Ali’s case. There, the Court was called upon to just make the sentence J.P.56/2005 27 (pronounced certainly after conviction) effective from the date the convict was taken into custody in connection with such offence, and not from any date prior to the commission of the offence. Even otherwise, conviction follows proof of guilt of the convict, which is relatable to the time of the commission of the offence. Only its finding is reached on a subsequent date. On proof of guilt, the presumption of innocence is displaced and the convict is considered guilty of the offence from the very inception, i.e. from the date of commission of the offence. The Court also did not take into account the consequences of “consideration” in terms of section 382-B, Cr.P.C., which was a crucial aspect having material bearing on the determination of the moot point involved in the case regarding admissibility or otherwise of the remissions of the pre-sentence period. 32. The Courts, in the afore-noted cases from the Indian jurisdiction, referring to the provisions of sections 383, 35, 396 and 397 of the Code, took the view that a sentence could not be antedated. It may be seen that sections 383 and 396 Cr.P.C., respectively relate to execution of sentence of imprisonment in other cases and execution of sentence on escaped convicts, section 397 deals with sentence on offender already sentenced for another offence while section 35 deals with sentence in case of conviction of several offences at one trial. (Emphasis supplied). The Courts, taking note of the issuance of warrant for execution of sentence mentioned therein, by way of analogical deduction, concluded that there should be “executable sentence” because in their view, as noted in some of the above cases, where the convict was sentenced to imprisonment already passed in the lock up, or to undergo imprisonment he had already suffered, or half of the period during which the accused was detained in custody as an under-trial prisoner should count as part of the sentence, it J.P.56/2005 28 was tantamount to passing an unexecutable sentence. It may be noted that the issuance of warrant for execution of sentence of imprisonment “until rising of the Court” may be only a formality otherwise sentence in such a case is undergone by the convict in the presence of the Judge. Thus, the Courts in those cases never directly determined what actually was meant by the term “antedating of sentence”. Even the judgment in Abdul Ali’s case also did not address this issue, as noted earlier, any more other than saying that the conviction and sentence could not be antedated. 33. In the case of Muhammad Rafiq’s case it was held that the pre-sentence custody of a convict could be treated nothing else but punishment in all its ramifications. As a matter of fact, this very realization, which received judicial pronouncement in the year 1995 after much water had flown under the bridges since the promulgation of the Law Reforms Ordinance, 1972 had emanated from the sufferings and miseries of the prisoners (whether they were detained as under-trial prisoners or as convicts) due to scarcity of accommodation in the jails/lock-ups and the resultant overcrowding, lack of health facilities in terms of inadequate food and medical treatment and protracted trials and the hearing of appeals. Such realization paved the way for the enactment of section 382-B, Cr.P.C., with a view to providing relief to the prisoners. The pre-sentence custody period certainly called for a rational treatment, which it got in the shape of enactment of section 382-B, Cr.P.C. 34. At this juncture, we take note of a judgment delivered by the Court of Appeal of Botswana in the case of Thake v Attorney General (CACLB-033-07) [2008] BWCA 23 (25 April 2008). This appeal had originated in a claim for damages for unlawful detention and involved the question of a correct interpretation of the date of commencement of a J.P.56/2005 29 concurrent sentence within the meaning of sections 300 and 309 of the Criminal Procedure and Evidence Act (of Botswana). The appellant was sentenced to an effective period of 10 years imprisonment on 24 April 1997 and to another effective period of 10 years imprisonment 32 days later, namely, on 26 May 1997. It was ordered that the latter sentence would run concurrently with the sentence of 24 April 1997. The crisp question for determination in the appeal was what was the effective date of the commencement of the sentence of 26 May 1997? The appellant contended that the effective date was 24 April 1997. The respondent on the other hand contended for a contrary proposition, namely, that the effective date was 26 May 1997. The Court of Appeal examined the issue in the light of section 300 of the Criminal Procedure and Evidence Act. For facility of reference, the said provision is reproduced below: - “300. (1) When a person is convicted at one trial of two or more different offences, or when a person under sentence or undergoing punishment for one offence is convicted of another offence, the court may sentence him to such several punishments for such offences or for such last offence (as the case may be) as the court is competent to impose. (2) Such punishments, when consisting of imprisonments, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently.” For the purposes of the present case, more pertinent was the issue of date of commencement of sentence, concurrent or otherwise, involved in the precedent case, which was governed by section 309 of the aforesaid Act. This section provides as follows:- J.P.56/2005 30 “309. Subject to the provisions of section 308, a sentence of imprisonment shall take effect from and include the whole of the day on which it is pronounced unless the court, on the same day that sentence is passed, expressly orders that it shall take effect from some day prior to that on which it is pronounced.” The Court of Appeal relied upon its earlier judgment in the case of Kolojane v. State (1999 BLR 70 (CA) and held that the question of ante- dating a sentence was a matter which lay within the discretion of the trial Court. In exercising its judicial discretion, the trial Court takes into account all the relevant factors that have a bearing on the matter such as, for instance, the fact that the crimes under consideration are interrelated as in the instant case. After re-stating the above principles, the Court of Appeal held that since the learned trial Magistrate did not “expressly” order that the sentence of 26 May 1997 shall take effect from the date of the prior sentence, namely, 24 April 1997, that being the case, the provisions of section 309 came into play. The sentence of 26 May 1997 took effect from the same day, being the day on which the sentence was pronounced. It was held that the appellant’s submission to the contrary was misconceived as it was squarely hit by section 309 ibid. Further, the appellant in the precedent conceded that the learned trial Magistrate did not “expressly” order that the sentence of 26 May 1997 shall take effect from the earlier sentence of 24 April 1997, he nevertheless sought to persuade the Court of Appeal that, by necessary implication, this sentence commenced on the latter date because, so he argued, the two sentences in the matter were ordered to run concurrently. The Court of Appeal held that the fallacy of this submission lay in the fact that concurrent sentences did not necessarily have to commence or end on the same day. Nor do they J.P.56/2005 31 necessarily have to be of the same duration. Indeed there may sometimes be an element of overlapping in concurrent sentences. It all depended on the particular circumstances of each case. It was for that reason that the Legislature in its wisdom had enacted that a sentence of imprisonment shall commence on the day on which it was pronounced unless the trial court expressly ordered it to commence on a day prior to the pronouncement. This applied equally to concurrent sentences. 35. The legal position in the precedent case, to some extent, elucidates the concept of antedating of a sentence. In that case, the crimes under consideration were inter-related trial whereof and the conviction and sentence therein followed one another. None of the judgments relied upon in Abdul Ali’s case visualized such an eventuality nor addressed the issue from that angle. Such situations possibly would arise in trial of offences falling under the heading “Joinder of Charges” (sections 233-240, Cr.P.C.). 36. This brings us to the question as to how the provisions of section 382-B, Cr.P.C. have been applied ever since its enactment. On the language used in the section, particularly, prior to the amendment of 1979, which substituted the word “shall” with the word “may”, the trial Courts would apply the provision very casually, rather at their sweet will. Sometimes, they would advert to it, sometimes they would not. Consequently, a lot of litigation emanated from the non-application of the section in its letter and in spirit and the superior Courts were called upon to lay down the principles for the exercise of power and jurisdiction under the said provision. After the amendment, the trial Courts were mandatorily obliged to take into consideration the pre-sentence custody period at the time of passing of the sentence. J.P.56/2005 32 37. In view of above circumstances and the generality of the language employed in section 382-B, Cr.P.C., this Court in its celebrated judgment in Muhammad Rafiq’s case wished that the said provision was couched in language as clear and unambiguous as the sections in the Indian and the English enactments were. More than a decade having passed since passing of the above judgment, no step at all had been taken in this regard at the appropriate level. The learned Deputy Attorney General confirmed that the matter was never brought on the agenda. 38. The practical effect of reducing the sentence to the extent of pre-sentence custody period, particularly, the way it is done in Pakistan, is that the sentence takes effect from the date of arrest of the convict in connection with the offence. This is not prohibited by any specific provision of the Code of Criminal Procedure, rather this course, prima facie, appears to be permissible considering the provisions of section 382-B, Cr.P.C., read with sections 233 to 240, 383, 397 and 35, Cr.P.C. This position is also in line with the Botswana law as noticed in Thakes’s case (supra), which empowers the Court to make the sentence effective by a specific order from an earlier date. 39. The under-trial prisoners, or criminal prisoners, particularly those who are later convicted of the offence in connection with which they were incarcerated, sooner or later join the ranks of convicted criminal prisoners. It is discriminatory not to treat them at par with their co-prisoners living in the same or similar premises, may be under the same very roof. They are equal before law and are entitled to equal protection of law under Article 25 of the Constitution. If remissions of the pre-sentence period were to be denied to the convicts after they were granted the benefit of section 382-B, Cr.P.C., we would be confronted with a situation where remission J.P.56/2005 33 granted on the eve of Eid would be admissible to a prisoner who was convicted a day before Eid, but not to a person who was convicted a day after Eid, though the two prisoners were on an equal footing two days before Eid, i.e., till then both of them were confined as under-trial prisoners and both of them also got the benefit of section 382-B, Cr.P.C. The classification of ‘criminal prisoners’ and ‘convicted criminal prisoners’ qua the admissibility of remissions granted by any authority where the Court has passed an order granting the benefit of section 382-B, Cr.P.C., does not meet the test of ‘intelligible differentia’ laid down in the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041). The under-trial prisoners getting the benefit of section 382-B, Cr.P.C., cannot be deprived of remissions accruing during their pre-sentence custody period. Article 9 of the Constitution guarantees the right to life of a person and is very much available to a prisoner along with certain other fundamental rights, such as to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, though he is deprived of certain fundamental freedoms like the right to move freely throughout the country or the right to practice a profession, etc., as it was held in the case of D.B.M. Patnaik v. State of A.P. (AIR 1974 S.C. 2092). Therefore, the protection guaranteed under Article 9 remains available to the under-trial prisoners and they are entitled to the benefit of section 382-B, Cr.P.C., along with remissions if any, granted during their pre- sentence custody period, inasmuch as on account of denial thereof, they would be required to remain in prison for a longer time than warranted and deprived of their liberty. Article 9 has received interpretation by this Court in the case of Shehla Zia v. WAPDA (PLD 1994 SC 693). Relevant passage from the judgment reads as under: - J.P.56/2005 34 “Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. ……………. “The word ‘life’ in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it.” Keeping the ratio of the above cases in view, we are inclined to hold that refusal to allow remission of pre-sentence custody period to a convict whom the Court has granted the benefit of section 382-B, Cr.P.C., is tantamount to deprivation of his liberty within the contemplation of above Article of the Constitution. The cases of convict- prisoners who are expressly debarred under any law from the benefit of section 382-B, Cr.P.C., stand on a different footing. Thus, where section 382-B, Cr.P.C., itself is not applicable, no remission of the pre-sentence custody period can be allowed to the prisoner in question. 40. The petitioner in the instant case was sentenced to 10 years’ R.I. and imprisonment for life on two counts. His sentences were ordered to run consecutively. The aggregate sentence of the petitioner would thus come to sixty years, which is contrary to the provisions of section 35, Cr.P.C. Proviso (a) to section 35, Cr.P.C. prohibits the giving of consecutive sentence in one trial beyond the period of 14 years. This issue J.P.56/2005 35 came up for examination by this Court in the case of Javed Shaikh v. State (PLD 1985 SC 153) wherein it was held as under: - “Life imprisonment is, according to section 57 of the PPC to be reckoned as equivalent to 25 years’ R.I. This is one of the punishments which can be imposed on an offender, on account of the substitution of the punishment for transportation for life – which was one of the punishments that could be imposed on an offender under section 53 of the PPC and was reckoned as equivalent to fourteen years before its amendment by the Law Reforms Ordinance, 1972. No objection can, therefore, be taken to the imposition of the sentence of life imprisonment, after the promulgation of the Law Reforms Ordinance, 1972. However, the question is whether the appellant can also be sentenced to undergo a further sentence of seven years under section 307, PPC for his having attempted to murder Manzoor Hussain, PW5? A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C., indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence, which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The said provision (section 35, Cr.P.C.) appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years’ R.I., plus seven years’ R.I. under section 307 PPC would be inconsistent with the intendment of the provisions of proviso (a) to subsection (2) of section 35, Cr.P.C., inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded. The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of the two convictions under section 302, PPC and under section 307 PPC in one and the same trial are directed to run concurrently instead of running consecutively.” J.P.56/2005 36 41. In view of the above discussion, our conclusions and directions are as under: - (1) After the use of word “shall” for the word “may” in section 382-B, Cr.P.C., at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre-sentence custody period in the light of the principles discussed above; (2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if a Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre- sentence custody period, it would be punishing the convict- prisoner with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment; (3) The convict-prisoners who are granted the benefit of section 382-B, Cr.P.C., shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of karo kari, etc, where the law itself prohibits the same; (4) The law laid down in Abdul Malik’s case that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed; 41. Consequently, we convert this jail petition into appeal, and partly allow it. The sentences of the appellant shall run concurrently. He shall be entitled to the benefit of section 382-B, Cr.P.C. The remissions J.P.56/2005 37 granted by any authority in his post-conviction period or during his pre- sentence detention period in connection with such offence shall be available to him. His sentences shall be reduced accordingly. The impugned judgment is modified to the above extent. 42. Before parting with the judgment, we place on record our thanks for the learned amicus curiae who have rendered valuable assistance in the decision of this case. Chief Justice Judge Judge Judge Judge Judge ANNOUNCED TODAY AT ISLAMABAD, THE ---- DAY OF MAY 2009 Chief Justice APPROVED FOR REPORTING J.P.56/2005 38 JAIL PETITION NO. 56/2005 ORDER Copies of the judgment in the above jail petition, pronounced in Court today, i.e. 1st of June, 2009, shall be sent to the Federal Secretary Interior, Chief Secretaries, Home Secretaries, Inspectors General of Police, Inspectors General of Prisons and Registrars of the High Courts of the Provinces for information and onward transmission to the concerned quarters, including the prisoners, etc., for the purpose of its implementation in letter and in spirit. The concerned authorities shall submit report within a period of two weeks to the Registrar of this Court for our perusal in Chambers in respect of the implementation of the judgment, also giving the number of prisoners benefited from it. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE JUDGE Islamabad 1.6.2009

N THE SUPRrMF- coIJRTfit1IAN Jurisdlctlofl (Appellat PRESENT: Mr. Justice Sarciar Tariq M asocid Mr. justice Mzllar Atam Khan MitUikhCl Mr. justice .n itn-ud-Din Khan JAIL PETIPION NO. 587 OF 2016 MW cRL &M.R.P N0.g4_0F 2Q29 ItirL al3Lll LLJTL%I jLC jvdRmcflI c!oIeJ 11.11201 4 of TIC Pc Chat ar LIIFO . CLL IsTTL4r passed fl .1 CIA So 43 P/20l2( Qasor (.Ji' No S7 0t10161 Mi iha, 'Ifirld Zarcef I3hatI i of S.4 .R I' IT, 447 oF 20221 petitioners Versus Thu Si ate (LIT ILOtIL pCLItILLOSI Respondents For L he })('l [tInner: N.' 0 LLLLLlOI Mr Arshad IlLissaiti Shah, AOP it Mr. zuihqar KhaI,d hialuka, ASU NL}. 447 of 202a): Not represented POP Lw Stale: n r. Shu ay1 Azle, MW .A. 0., NICK Date Li' Len,ig . (i2 Ub.2022 ORDER SARDAR 2JMPQP Cr!. tl.A, No 1767 of 2016 Fo reason mentioned in instant Clio li,, tion [or condonation of de !a' ,J:. e sarlic is allowed LOW LU Ucla', of b99 days in filin g of the It ,Jtil 1011 IS &ondonCd. jeff.p iI No. 587 of 2016 2 Pc Litlo nor Qaiser aiongwith NIIJITI Zarccf ifllatti was indicic ri in case FIR No.333 dated 19 .OS.2()I I rogistered under section Of 11w Control of Norcotic Substances Act, 19(37 Act , 1997) at Jon UniversitY Town. !'cshiwar After rorlclLLsioi l of rial, I. gore. It'anlLerl iria coup vid judgnlrfl t dated 21 Ot,.20 12 conivictrrd the petitioli r r anal co-ar.cL tcd MuanLinrd Zarec[ I3hatti. under SCOTT 9 tILC Act, 1997 mid :cr.tcticcd CULII 01 them to inlprlSorilflcflt for life wtb I Lc of its .25.000/- or del l[It of payment Of fine to iurtht'r tmdcr;'i Ux rilontlis siv,inIe UF LI isoiifltflTi Renefil of seclion 382-B I P 1. IS. uI6 Cr.P.C. was also extended to him. Being aggrieved, petitioner and Muhammad ZareefBhatti riled appeals before the Peshawar High Court, Peshawar which were dismissed the impugned judgment dated 11 11.2014 - Hence, this petition for leave to appeal by the petitioner Qaiser through jail. 3. We have heard the learned counsel for the petitioner as well as the learned Additional Advocate General. KPK and perused the available record alongwith the impugned judgment with their assistance and observed that in this ease the prosecution has failed to establish the safe custody and safe transmission of sample parcels to the concerned laboratory. This court had laid down in many judgments that the representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst. Non establishing the said facts would cost doubt and would impair and vitiate the concluseness and reliability of the report of the Government analyst. Thus rendering it incapable of sustaining conviction. 4. In the present case no police official was produced before the Trial Court to report about safe custody of samples if entrusted to him for being Rep' in the Malkhana in safe custody. Even the police official whose belt number (FC 4225) has been mentioned by the Government analyst in his report, was not produced by the prosecution to depose regarding the safe deposit IT the said sample parcels in the concerned laboratory . The record reveals that the recovery was allegedly affected on 19.08.2011 whereas, according i.e the report of chemical examiner, the sample parcels were received in I he said office on 26.08.2011. Nobody from the prosecution side was produced to claim that during this period the said sample parcels remained intact in his possession or under his control in the M&khanu in safe custody. Even the prosccuiion is silent as to where remained these sample parcels from 19.08.2011 to 26.08.2011. In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of reprcsriitative samples of the recovered narcotics, their dispatch to the MaIk-hana and further dispatch to the tesiing lahoratoiy The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 20011, rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner Any break in the chain of custody i.e. the safe custody or sale transmission of the reprcsentativc samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such laps on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examincr. Reliance can be made upon the judgments rendered by three members benches of this court I.e. Ikramuflah V. the State (2015 SCMR 1002), the State v. Imam B&ChSh (2018 S'CMR 2039), Abdul Ghani a the State (2019 SCMR 608), Kamran Shah is the State (2019 SCMR 1217), Mist. Russia Sultana v. the State (2019 SCMR 1300), Fainrt AU V. the State (2019 SCMR 1649), Zahir Shah alias Shat is State thn AG KPK (2019 SCMR 2004), Hall Nawaz V. the State 2020 SCMR 687), Qaiser Khan V. the State (2021 SCMR 3631, Mn. Sakfna Ram.zan v. the State (2021 SCMR 451), Zubair Khan is the State (2021 SCMR 492) and Guizar a the State 2021 SCMR 380). 5 Although the learned Additional Advocate General, KPK tried to persuade us for deviation from the earlier judgments but it is quite clear from the judgments of this Court that 3-Members Bench remained unanimous that the prosecution is required to prove the sale custody and safe transmission of the sample parcels. It is now established that the decision of a bench of certain member of judges is binding on the subsequent bench of the same strength and if a subsequent bench of the sam" strength wants to lake a different view the only possibility is to refer the matter to the Chief Justice of Pakistan for the constitution of a larger bench, even a decision of a bench of equal strength is not brought into the notice of a subsequent bench of same strength and it expresses 'a contrary view, then the later decision is a judgment per incuriam. 6. In We case of Mst. Sarnrana Nawaz p. M.CH. Hank Ltd. (PLD 021 SC 581) it was held that earlier judgment of a Bench of the Supreme Court was binding not only upon the Benches of smaller / 2&J numeric strength but also upon the Benches of co-equal strength a Bench of co-equal strength could not dcviate from the view held by an earlier Bench, and if a contrary view had to be taken, then the proper course was to request the Chief iustice of the Supreme Court for constitution of a larger Bench to reconsider the earlier view. Smaller Bench cannot request for the constitution of a larger Bench to revisit the opinion of a larger Bench or' any (location or principle of law. View expressed by a three member Bench of the Supreme Court could only he changed or deviated, from a Bench of equal number for which the forum provided by law was to request the Chief Justice for constitution of a larger Bench. In the cases of Multiline AssociateS a Ardeshir Cowasjcc (PLD 1995 SC 423) and Wak Limited Muttan Road, Lahore V. collector Central Excise and_ Saks Tax.Lahore (now CommissIoner Inland Revenue. LTU. Lahore) (2018 SCMR 1474) it was held that earlier judgment of equal Bench of the High Court on the same point was binding on the subsequent Bench and if the subsequent Bench tended to take a different view, it had to request for the conist! 'ation of larger Bench. In the case of Union of India & others p. S.K. hialloor 1(2011) 4 8CC 5391 it was held that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decisioi or a co-ordinate Bench is binding on the subsequent Bench of equal strength and if any subsequent judgment by deviating from the earlier judgment of equal number of bench, would be perincurium. Same was the view of this court In Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority KMCL Karachi and 4 others (1999 SCMR 2833). Thus tire judgments passed by the 3-Members Benches, mentioned above, have binding effect upon equal or less Member Benches of this Court, unlcss contrary is declared by a larger Bench of this Court. 7. It is also a circumstance that the Act 1997 provide sever punishment, therefore, their proof has to be seen strictly and the benefit of any doubt in the prosecution case must be extended to the accused because harder the sentence is, stricter the standard of proof should be. Because for convicting an accused person for such a severe punishrilcfli the bounded duty of the prosecution is to prove the case without an y breakage of chain, as discussed above. -I . - - ,i)fl) 8. For the forgoing reasons, this petition is converted into an appeal and the same is allowed. The conviction and sentence of petitioner Qaisar, passed by the trial court and upheld by the High Court, is hereby sc I aside and he is acquitted of the charge in the instant caseS He be released from jail forthwith if not required to be detained in any other case Cr!. S.M.R.P. No. 14of2022 9. Pci it ioner Muhammad Zareef Uhatti alongwith Qaisar was indicted in case FIR No 333 dated 19 08.20 TI regisiered under section 9 (c of the Control of Nat-colic Substances Act, 1997 ('Act, 19971 at police station University 'l'owri, Peshawar After conclusion of trial, learned trial court vide judgment dated 21.062012 convicted the petitioner and Qaisar under section 9 (c) of the Act, 1997 and sentenced them i t (Tiprisonnient for lire with a fine of Rs.25 ,000 / - or in default of paymeti t Of fine to further undergo six months simple imprisonment. Benefit of section 382-5. Cr.P C. was also extended to him. Being aggricvcrl, petitioner and co-convict flied appeals before the Peshawar High Court, Peshawar which were dismissed vide impugned judgment dated 11.l1.2014 Thereafter petitioner riled jail petition No. 447 of 2014 bclnrc this Court which was rbs'nisscd on 23.02.2016 and leave was ic Ilised but during the course of hearing of Jail Petition No. 587 of 201 5 coo conviction of Cotter, co-convict of the review petitioner, it was observed that safe custody and safe transmission of the sample parcels have not been established and this fact had been escaped notice from the 13c:tic} when Jail petition No 447 of 2014 riled by the petitioner Muhammad Zareef Bilotti was dismissed on 23.05.2016. The mater was reft2r'ed to the Hon'ble Chief Jusi ice and it was ordered by the Forcible Chief Justice that this Jail Petition No. 447 of 2014 be taken up as Suit Motor Review Petition and he heard alongvith Jail Petition No. 587 012015 (ready decided above) 10. As in this case neither the sale custody nor the safe transmission was established by the prosecution and we have extended the benefit of such defect in the prosecution case to co -convict Qaiser, so the same benefit is also extended to the petitioner Muhammad Zareel Bhatti, as mentioned above. Consequently, this Sue Moto Review Petition is allowed and the earlier order dated 23 0L20 IS, passed by this Court, is recalled at id the Jail Petition No 447 of 2014 is restored. For the reasons mentioned in the ordor in Jail Petition 1r0 587 of 2016, Jail .S ;• Mild Pctilion No. 447 of 2014 filed b y Muharrirnad Zareel Bhatti is also converted into an appeal and the same is allowed thc conviction and sentence of petitioner Muhammad Zarcef Uhatti, passed by the trial court and upheld by the High Court, is also hereby set aside and he is acquitted of the charge in the instant case He be released from jail forthwith iCnot required to be detained in a ny other I sIan i a be U 02 06.2022 n C—.- APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 614 OF 2016 (On appeal against the judgment dated 19.10.2016 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 46-P/2014) Ajab Khan … Petitioner VERSUS The State … Respondent For the Petitioner: Ms. Aisha Tasneem, ASC For the State: Raja Muhammad Rizwan Ibrahim Satti, State Counsel Date of Hearing: 28.10.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was proceeded against in terms of the case registered vide FIR No. 567 dated 29.05.2011 under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Muhammad Riaz Shaheed, District Kohat as charas weighing 19 kilograms was recovered from him. The learned Trial Court vide its judgment dated 07.01.2012 convicted the petitioner under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life. He was also directed to pay a fine of Rs.500,000/- or in default whereof to further undergo SI for five years. Benefit of Section 382-B Cr.P.C. was extended to him. In appeal the learned High Court maintained the conviction and sentences recorded against the petitioner by the learned Trial Court. 2. The prosecution story as given in the impugned judgment is as under:- “2. Brief and essential facts of the prosecution case according to the FIR are that Wali Bat Khan IHC along with Mubarik Hussain LHC, Tariq Ahmed LHC, Abrar No. 1369 and other police personnel were busy in checking of vehicles at Highway Check Post; that in the meanwhile a Suzuki motorcar of White colour bearing registration No. N-8704 coming from Darra Adam Khel side, was stopped for checking purpose; that Jail Petition No. 614/2016 2 on query the driver disclosed his name as Ajab Khan son of Aqal Khan, and on search of the motorcar 19 packets of charas gardha was recovered; that on weighment each packet came 1000 grams; that from each packet 4/4 grams were separated for FSL and sealed into separate parcels while the remaining was sealed into separate parcel. The recovered contrabands were taken into possession vide recovery memo (Exh.PC); that murasila (Exh.PW 5/1) was drafted and sent to the police station for registration of the case, upon which the case FIR was registered against the accused. 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as eight witnesses. When examined under Section 342 Cr.P.C., the petitioner stated that he is innocent and has been falsely implicated in the case. 4. Learned counsel for the petitioner contended that the petitioner has been falsely implicated in this case and the Police has planted a fake case upon him. Contends that the narcotic was allegedly recovered from the petitioner in the broad daylight in a busy thoroughfare but none from the public was associated in the case to depose against the petitioner. Contends that the confessional statement of the petitioner under Section 164 Cr.P.C. has no value as the same was recorded on a printed proforma and the certificate issued by the Magistrate clearly shows that the petitioner gave the statement in Pashto, which was translated into Urdu. Contends that Muhammad Iqbal (PW-3) who was supposed to send the parcels to KBI unit for its onward transmission to Forensic Science Laboratory did not mention the date as to when he transmitted the parcels to KBI unit whereas Samiullah (PW-8) stated that he had taken the samples to the FSL on 06.06.2011 i.e. after six days of the alleged occurrence, for which no plausible explanation has been given and the same shows that the safe chain of custody was compromised. She lastly contends that the petitioner is innocent and he may be acquitted of the charge. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the petitioner was caught red handed while transporting a huge quantity of narcotics and he also confessed his guilt after two days of the occurrence before the Judicial Magistrate and the fact that he gave his statement on a proforma or in Pashto is of no avail to him because it is on record that his statement was translated and read over to him. Contends that the Judicial Magistrate who had recorded petitioner’s confessional statement had Jail Petition No. 614/2016 3 appeared as PW-7 and has duly explained and verified the statement made by the petitioner. Contends that the defence counsel did not cross-examine PW-8 as to why he sent the samples to the FSL after six days, therefore, this ground cannot be taken at this stage. Lastly contends that the petitioner is guilty of the offence, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. The petitioner was caught red handed by the Police and 19 packets of charas garda, each packet weighing 1000 grams (total 19 kilogram), was recovered from beneath the rear seat of the car, which was being driven by the petitioner. From each packet, 4 grams of charas was separated in 19 separate parcels for the purpose of chemical examination and the remaining was sealed into separate parcel. The prosecution’s case hinges upon the statements of Tariq Ahmed, LHC, (PW-4) and Wali Bat, IHC (PW-5). Both these witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the petitioner to falsely implicate him in the present case as a huge quantity of 19 kilograms of charas cannot be foisted upon the petitioner to fabricate a fake case. This Court in a number of judgments has held that testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioner in this case. This Court in Salah-ud-Din Vs. State (2010 SCMR 1962) has held that “reluctance of general public to become witness in such like cases has become judicially recognized fact and there was no way out to consider statement of official witness, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remained un-shattered during cross-examination.” The police officials separated the samples from each packet in a prescribed manner and sent the same to the office of Forensic Science Laboratory. The report of the Forensic Science Laboratory shows that all the 19 samples were subjected to chemical and instrumental analysis and the same were found to be narcotic substance. So far as the argument of learned counsel for the petitioner that the samples were sent to the Forensic Jail Petition No. 614/2016 4 Science Laboratory after a period of six days, therefore, the safe transmission of the samples is not proved is concerned, we have noticed that Muhammad Iqbal (PW-3) and Samiullah (PW-8) who were responsible for transmission of the samples to FSL were never cross- examined on this point by the defence, therefore, this ground cannot be taken at this stage. We could not find anything from the record, which could suggest that the safe chain of custody of the samples was compromised. We have noticed that just after two days of the occurrence, the petitioner had made a confessional statement before the Judicial Magistrate-VI, Kohat in which he confessed his guilt and stated that because of poverty he has committed the crime. The printed proforma was only a memorandum of enquiry through which some basic questions were asked from the petitioner. The confessional statement of the petitioner was separately recorded and not on a printed proforma. The certificate issued by the Magistrate in this regard clearly shows that although the petitioner gave the statement in Pashto but the same was translated and read over to him. The petitioner was also given 30 minutes time to think over before recording his confessional statement. The learned Judicial Magistrate who had recorded the statement of the petitioner has also appeared before the Trial Court as PW-7 and has duly testified the same. He was cross-examined at length but nothing favourable to the petitioner could be brought on record. Even otherwise, the close analysis of the whole prosecution evidence coupled with the confessional statement, the recovery of huge quantity of narcotics and the happening of the occurrence in broad daylight when evaluated conjointly, there is no other option left with the Court except to rely on the statements of the prosecution witnesses for the purpose of conviction as recorded by the two courts below. Consequently, this petition being devoid of any force, the same is dismissed and leave to appeal is refused. JUDGE JUDGE Islamabad, the 28th of October, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT QEPAKISIAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 637 OF 2016 (On appeal against the judgment dated 16.11.2 016 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 19612015) Liaquat Ali and Shad Muhammad Petitioners VERSUS The State Respondent For the Petitioners: Mr. Liaquat All Tareen, ASC (For petitioner Liaqat All) Syed QaIb-e-Hassan, ASC Mr. Zahoor ul Haq Chishti, ASC (For petitioner Shod Muhammad) For the State: Dr. Faiz Shah, P. G. Sindh Mr. ZafarAhmed Khan, Addl. P.G. Mr. Khadim Rind, DIGP Mr. Abdul Qayyum Patafi, SSP Date of Hearing: 09.03.2022 JUDGMENT SAYYED MAZAHAR AL! AKBAR NAQVI, J.- Petitioners were tried by the learned Special Judge for CNS, Naushero Feroz in terms of the case registered vide FIR No. 145 dated 04.11.2013 under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Bhiria City, District Naushero Feroz as contraband charas weighing 59 kilograms was recovered from them. The learned Trial Court vide its judgment dated 04.08.2015 convicted the petitioners under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced them to imprisonment for life. They were also directed to pay a fine of Rs. 500,0001- each or in default whereof to further undergo SI for one year each. Benefit of Section 382-B Jail Petition No. 637/2016 2 Cr.P.C. was also extended to them. In appeal the learned High Court maintained the conviction and sentences recorded against the petitioners by the learned Trial Court. 2. The prosecution story as given in the impugned judgment reads as under:- "2. The brief facts of the prosecution case as disclosed in the FIR are that on 04.11.2013 SIP Khadim Hussain Buledi was posted as Incharge CIA Police Naushero Feroz, on the same date, he along with PCs Abdul Ghaffar Mashori, Khamiso Khan Mashori, Nisar Ahmed Kalhoro left CIA center in Police mobile vide Roznamcha Entry No. 07 at 1215 hours for patrolling duty. While patrolling at various places when the police party reached at National Highway, near Bhiria city, where it is alleged that incharge CIA received spy information that two persons were coming in a Parado, Silver Colour Vehicle bearing No. BD-4450 from Sukkur to Karachi. According to information, accused persons had charas in secret cavities of the vehicle. Police party held nakabandi near Grid Station Bhiria City. At 1600 hours vehicle appeared on the road from Sukkur side. It was stopped, two persons were sitting in it, one was driving the vehicle and another was sitting beside the driver seat. SIP inquired the name of the driver to which he disclosed his name as Liaquat Ali son of Gut Hassan Magsi, resident of Labour Colony, Hub Chowki, Balochistan. Another accused who was sitting beside the driver disclosed his name as Shad Muhammad son of Gut Nazar Gujjar Pathan, resident of Qalander Abad, Gulistan-e-Johar, Karachi. SIP made PCs Abdul Ghaffar and Khamiso Khan as mashirs and searched the vehicle. Under the seat of the vehicle there was secret cavity, it was opened and charas was found in such cavity in plastic bags. 16 bundles of the charas were in white, black and red plastic bags and words 'Fair Trade Espresso Dark Rost' were written. Two bundles of the chorus were in two red coloured polythine bags, on which 'candle' was written. Different words were written on different bundles. Total weight of charas was 59 Kgs. SIP conducted personal search of accused Liaquat All in presence of mashirs and recovered one original CNIC and cash Rs.15001-. From personal search of accused Shad Muhammad a CNIC and cash of Rs.20001- were recovered. Accused had no vehicle documents. Mashirnama of arrest and recovery was prepared by SIP in presence of the above named mashirs and choras was sealed in three different plastic bags. Thereafter accused, case property and vehicle were brought to the police station Bhiria city where SIP kept Entry No. 17 at 1830 hours. SIP Wali Muhammad, SHO PS Rhiria City lodged FIR bearing Crime No. 14512013 under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Bhiria City. Thereafter, investigation was handed over to SHO Wali Muhammad Chang." 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as four witnesses. When examined under Jail Petition No. 637/2015 3 Section 342 Cr.P.C., the petitioners stated that they are innocent and have been falsely implicated in the case. 4. Learned counsel for the petitioners contended that the petitioners have been falsely implicated in this case and the Police has planted a fake case upon them. Contend that the narcotic was allegedly recovered from the petitioners in the broad daylight in a busy thoroughfare but none from the public was associated in the case to depose against the petitioners. Contend that safe custody and safe transmission of the narcotic was compromised as Amjad Hussain (PW-3) who was supposed to send the parcels to Forensic Science Laboratory did not mention the dote and time as to when he transmitted the parcels to the Laboratory. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the petitioners were caught red handed while transporting a huge quantity of narcotics and the Police officials had no enmity to falsely involve them in the present case, therefore, they do not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. The petitioners were caught red handed by the Police and a huge quantity of 59 kilograms of contraband charas packed in 58 packets was recovered from secret cavities of the car, which was being driven by the petitioner Liaquat Ali whereas the petitioner Shad Muhammad was sitting on the rear seat. The prosecution's case hinges upon the statements of SIP Khadim Hussain Buledi (PW-1), Abdul Ghaffar (PW-2), PC Amjad Hussain (PW-3) and Wali Muhammad Chang, 1.0 (PW-4). All these witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the petitioners to falsely implicate them in the present case. Even otherwise a huge quantity of 59 kilograms of charas in no circumstances can be planted by the Investigating Officer of his own. This Court in a number of judgments has held that testimony of police Jail Petition No. 637/2016 4 officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioners in this case. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remains un-shattered during cross- examination. The police officials sent entire recovered contraband charas to the office of Chemical Examiner. The report of the Chemical Examiner shows that from all the 58 packets of recovered charas, 50 grams charas was separated from each packet and consumed in analysis and the same was found to be contraband charas. So for as the argument of the learned counsel for the petitioner that the contraband charas, its safe custody and safe transmission is not established is concerned, the learned High Court has very ably dealt with this issue in paragraphs 18 & 19 of the impugned judgment while holding that the Control of Narcotic Substances (Government Analysts) Rules, 2001 virtually place no bar on the Investigating Officer to send the samples beyond 72 hours of the seizure. These Rules are stricto sensu directory and not mandatory in any manner. It does not spell out that if there is any lapse and the time is consumed beyond 72 hours, it would automatically become instrumental to discard the prosecution case in all manners. The Control of Narcotic Substances (Government Analysts) Rules, 2001, cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997. These Rules cannot in any manner frustrate the salient features of the prosecution case which otherwise hinges upon (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses, (c) Investigating Officer and all other attending circumstances. If the series of acts which ultimately resulted into recovery of contraband narcotic are juxta poised with the violation of the Rules due to one reason or the other - JailPetition No. bJ7/201b 5 as alleged, it cannot by any stretch of imagination be considered reasonable in law to smash the prosecution case on its salient features. The transportation of drugs either inside the country or sending it abroad has become a menace against morality, decency, public order, law and order situation which indirectly intrudes upon the sovereignty of the country. If this practice is allowed to continue it will squarely hamper the very purpose of the law on the subject and would squarely bring bad name for the country in the eyes of international community. It is established beyond any doubt that the proceeds of narcotics are largely utilized in terrorist activities which this country is facing since decades, therefore, the activities of these elements need to be curbed with iron hands. Even otherwise, on merits we could not find anything from the record, which could suggest that the safe chain of custody of the narcotic was compromised. The close analysis of the whole prosecution evidence i.e. the recovery of huge quantity of narcotics, the happening of the occurrence in broad daylight, report of the Chemical Examiner and the statements of the prosecution witnesses when evaluated conjointly, there is no other option left with the Court except to rely on the statements of the prosecution witnesses for the purpose of conviction as recorded by the two courts below. Consequently, this petition being devoid of any force, the same is dismissed and leave to appeal is refused. Islamabad, the 9th of March, 2022 Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 657 OF 2016 (On appeal against judgment dated 29.09.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1628/2009) Zulfiqar @ Zulfa … Petitioner VERSUS The State … Respondents For the Petitioner: Nemo For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. Date of Hearing: 16.12.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The petitioner was proceeded against in terms of the case registered vide FIR No. 1372/2007 dated 20.10.2007 under Section 9 (c) of the Control of Narcotic Substances Act, 1997, at Police Station Saddar, Faisalabad. The learned Trial Court vide its judgment dated 28.08.2009 convicted the petitioner under Section 9 (c) of the CNSA, 1997, and sentenced him to imprisonment for life. He was also directed to pay fine of Rs.30,000/- or in default whereof to further suffer one year & four months SI. Benefit of Section 382- B Cr.P.C. was also extended to him. The learned High Court vide impugned judgment maintained the conviction and sentence recorded by the learned Trial Court. 2. Briefly stated the facts of the matter are that on a spy information, raid was conducted on the house of the petitioner and Jail Petition No. 657/2016 2 he was apprehended with a sack full of bhukki/poast. On search, it was found that there was 15 kilogram of bhukki/poast in the bag. Out of the 15 kilogram, 500 grams was separated for chemical analysis. The report of the Chemical Examiner came positive. The prosecution produced six witnesses in support of its case. In his statement recorded under Section 342 Cr.P.C., the petitioner denied the allegations leveled against him and pleaded that he is falsely involved in this case. 3. None was present on behalf of the petitioner in this case. However, in the interest of justice, instead of adjourning the case, we have decided to proceed with the case and decide it on merits. 4. Learned Additional Prosecutor General has inter alia contended that the petitioner was caught red handed with a huge quantity of narcotics; that the Police had no enmity with the petitioner to falsely implicate him in the present case and that the prosecution case has been fully proved beyond any reasonable doubt. He lastly contended that the petitioner deserves no leniency by this Court. 5. We have heard learned Law Officer and have perused the case record. 6. The petitioner was caught red handed by the Police while he was holding a sack, which contained 15 kilograms of bhukki/poast. To bring home the guilt of the petitioner, the prosecution produced six witnesses, out of which Ghazanfar Ali, constable (PW-4) and Khawaja Imran Manan, ASC (PW-6) were important. Both these PWs were cross-examined by the defence counsel at length but they remained consistent on all material Jail Petition No. 657/2016 3 particulars of the case. We have noted that FIR was registered in the year 2007 whereas the evidence was recorded in the year 2009, therefore, the possibility of minor discrepancies in the statements of PWs is natural. This Court in a number of cases has held that police officials are also competent witnesses and their testimony cannot be discarded merely for the reasons that they are employees of police force. This Court in Salah-ud-Din Vs. State (2010 SCMR 1962) has held that “reluctance of general public to become witness in such like cases has become judicially recognized fact and there was no way out to consider statement of official witness, as no legal bar or restriction had been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remained un-shattered during cross- examination.” The occurrence took place on 20.10.2007 whereas the sample was sent to Chemical Examiner on 02.11.2007 and according to the report of the Chemical Examiner the sample contained ‘poast’. Keeping in view the above position, it can safely be said that there is sufficient evidence available to connect the petitioner with the commission of crime. However, so far as quantum of punishment is concerned, we note that this is a case of lesser punishment and for this we will examine as to what actually is the ‘poast’/opium. In Section 2(t) of the Control of Narcotics Substances Act, 1997, ‘opium’ has been defined as under:- “(t)“opium” means:- (i) poppy straw, that is to say, all parts of the poppy plant (papaver somniferum or any other species of Papaver) after mowing, other than the seeds, (ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other Jail Petition No. 657/2016 4 than those necessary for packing and transport; and (iii) any mixture, with or without natural materials, of any of the above forms of opium, but does not includes any preparation containing not more than 0.2 per cent of morphine;” 7. As per definition clause of CNSA, after mowing, all parts of the poppy plant except seeds are considered to be poppy straw. However, this Court in the case reported as Taimoor Khan Vs. State (2016 SCMR 621) while referring to earlier judgment of this Court reported at Muhammad Imran v. The State (2011 SCMR 1954) has held that it is only the basket, sack or pouch (also known as ‘Doda’) excluding the seeds, which contains narcotic substance and that all poppy straw may not necessarily be ‘poast’/doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds. It would be advantageous to reproduce the relevant portion of the said judgment, which reads as under:- “What exactly is that which is called 'Poast'? It has been agreed before us by the learned counsel for all the parties and it is also borne out from the authoritative works referred to above that in the local parlance Poast is the name given to that part of a poppy plant which has the shape of a basket, sack or pouch and it contains the seeds of such plant. This natural pouch or bulb made of the skin of the plant is meant by the nature to hold and protect the seeds of the plant contained therein. In some parts of this country this natural pouch of the poppy plant is also known as Doda. The Control of Narcotic Substances Act, 1997 calls this part of a poppy plant as 'capsule' of poppy and this finds a specific mention in section 2(t) (ii) of the said Act. The authoritative works mentioned above as well as the learned counsel for all the parties before us are also in agreement that if an unripe capsule of a poppy plant is given an incision then a fluid oozes out of the same containing meconic acid and a number of alkaloids including narcotine and morphine which fluid thickens within a short time and becomes brown in colour and such substance is pure opium. It is also Jail Petition No. 657/2016 5 agreed at all hands that even ripe and dry capsules of poppy contain morphine and other alkaloids, i.e. opium, although less in quantity, which can be used for sedative and narcotic action. Most of the authoritative works produced by the learned counsel for the parties also confirm that alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form. However, the seeds contained in a capsule of a poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and, thus, every Post/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds. (Underlined to lay emphasis) 8. From the above, it is clear that ‘Poast’ is the name given to that part of a poppy plant which has the shape of a basket, sack or pouch and it contains the seeds of such plant. In some parts of this country this natural pouch of the poppy plant is also known as Doda. This led us to the question as to what actually was recovered from the petitioner. Was it only the doda/basket/pouch or it was the whole plant with stems and flowers? But unfortunately, there is nothing in evidence regarding this aspect of the matter. In common parlance, it has been seen that oftenly stems and leaves of the poppy plants are used as animal food. The plant can reach the height of about 1-5 meters (3-16 feet). Poppy straw is derived from the plant Papaver somniferum, which has been cultivated in many countries of Europe and Asia for centuries. This has medicinal impact as well, which is largely used as a tonic for wellness of nervous system. The purpose of its cultivation was actually the production of poppy seeds. The latter is used as a food stuff and as a raw material for manufacturing poppy-seed oil, which is used for making various varnishes, paints and soaps etc. We, therefore, find it a mitigating circumstance. The Jail Petition No. 657/2016 6 petitioner is behind the bars for the last more than 13 years and his remaining sentence is less than two years. 8. For what has been discussed above, we while maintaining the conviction of the petitioner, reduce the sentence of imprisonment for life awarded to him into what he has already undergone. The petitioner shall be released from jail forthwith, unless detained in any other case. This jail petition is accordingly converted into appeal and partly allowed. JUDGE JUDGE JUDGE Islamabad, the 16th of December, 2020 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Jail Petition No.684 of 2016 (Against the judgment dated 29.11.2016 passed by the Lahore High Court Lahore in Cr. A. No.168-J of 2013 with M.R. No.202 of 2013) Ashfaque alias Shaka …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mian Liaqat Ali, ASC For the State: Mirza Muhammad Usman Deputy Prosecutor General For the Complainant: In person. Date of Hearing: 04.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Indicted for homicide and murderous assault alongside co-accused, since acquitted, the petitioner was returned a guilty verdict by a learned Addl. Sessions Judge at Kasur; vide judgment dated 30.05.2013, convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death with a direction to pay compensation, altered into imprisonment for life by a Division Bench of the Lahore High Court Lahore vide impugned judgment dated 29.11.2016, vires whereof, are being assailed through jail petition, argued by Mian Liaqat Ali, ASC. 2. According to the prosecution, on the fateful day, i.e. 18.6.2010, at 5:30 p.m., the petitioner armed with a .12 caliber short- gun accompanied by acquitted co-accused, differently armed, fatally shot Khurshid Bibi, 50/55, in the backdrop of a minor altercation of even date; Ejaz co-accused, assigned a shot to Shahid Maseeh PW, was acquitted as the latter did not support the prosecution case. Incident Jail Petition No.684 of 2016 was reported at 7:00 p.m. same day; the injured were medically examined under a police docket 7:30 p.m; the deceased, after struggling for life, later succumbed to the injury; her autopsy was conducted following day at 3:00 p.m. Arrested on 11.7.2010, pursuant to a disclosure, the petitioner led to recovery of short gun (C-1), founded wedded with the casings, secured from the spot. Dissatisfied with police investigation, the complainant preferred to prosecute his case through a private complaint with the assistance of eye witnesses, namely, Hanif Mashi (PW-1) and Shoukat Maseeh (PW-2); Shahzad alias Shahid Maseeh (CW-1), injured defected from the scene. 3. Learned counsel for the petitioner contends that desertion of Shahzad alias Shahid Maseeh (CW-1) raised the entire edifice of prosecution case to the ground, inasmuch as, being an injured and close relative, he furnished details diametrically different than the case set up in the crime report and as such there was no occasion for the trial Court to return a guilty verdict on the strength of evidence inherently flawed, a circumstance that escaped High Court’s notice in concurrence of error. It is next argued that evidence disbelieved qua majority of the accused cannot be pressed into service to maintain petitioner’s conviction without independent corroboration, lacking hopelessly. A delayed autopsy heavily reflected upon the prosecution case, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment. 4. Heard. Record perused. 5. Despite setbacks, usual more often than not, prosecution case vis-à-vis the petitioner is firmly structured on the foundations un-trembled by the defection of an injured witness; he was medically examined under a police docket even before the autopsy was conducted; in those agonizing moments, he supported the prosecution case in his statement recorded by the Investigating Officer; it was much late in the day that he opted to part ways with the prosecution for reasons best known to him and, thus, his mysterious departure, though embarrassing to the prosecution, nonetheless, by itself, does not cast away its case in the presence of witnesses named in the crime report faithfully supporting their case. Learned counsel for the petitioner despite detailed survey of the evidence has not been able to point out any flaw or infirmity in the statements of the witnesses that may reflect upon their presence at the Jail Petition No.684 of 2016 spot having seen the solitary fatal shot singularly assigned to the petitioner costing the deceased her life in broad daylight. Investigation though somewhat controversial, nonetheless, is pointed towards petitioner’s culpability, further supported by recovery of weapon matched with the casing. The autopsy cannot be viewed as delayed as after initially gasping for life, the deceased breathed her last later and it is for this reason, autopsy was conducted the following day. The Courts below having rightly assessed the evidence, no interference is called for. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 4th January, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Jail Petition No.739 of 2018 and Criminal Petition No.1344 and 1351 of 2018 (Against the judgment dated 10.10.2018 of the Islamabad High Court Islamabad passed in Crl. Appeal No.62 of 2018) Haroon-ur-Rasheed (in J.P.739/2018) Shahzad (in Crl. P. 1344/2018) Meer Qabil (in Crl. P. 1351/2018) …Petitioner(s) Versus The State (in J.P.739/2018 & in Crl. P. 1344/2018) The State & 2 others (in Crl. P. 1351/2018) …Respondent(s) For the Petitioner(s): Mr. Mudassir Khalid Abbasi, ASC Ch. Akhtar Ali, AOR (in J.P.739/2018) Mr. M. Amjad Iqbal, ASC (in Crl. P.1344/2018) Maik Qamar Afzal, ASC (in Crl. P.1351/2018) For the State: Raja Inaam Ameen Minhas, Ch. Ehtisham-ul-Haq, Special Prosecutors, ANF Date of hearing: 13.04.2021 ORDER Qazi Muhammad Amin Ahmed, J.- On a tip off, the petitioners were intercepted by Anti-Narcotic Force contingent Jail Petition No.739 of 2018 and Criminal Petition No.1344 and 1351 of 2018 2 within the precincts of Police Station Rawat at 9/10:00 on 10.10.2016; they were transporting a heavy consignment of narcotics concealed in different portions of a car; the search led to discovery of ten packets of contraband, weighing 10-kg, surreptitiously placed in different cavities, forensically confirmed as cannabis; they were indicted by the learned Special Judge (CNS) Islamabad who returned them a guilty verdict under Section 9(c) of the Control of Narcotic Substances Act, 1997; sentenced to ten years rigorous imprisonment, they were directed to pay Rs.100,000/- each as fine or to undergo nine months simple imprisonment in lieu thereof, vide judgment dated 19.04.2018; their appeal failed before a learned Division Bench of the Islamabad High Court vide impugned judgment dated 10.10.2018, vires whereof, are being assailed on a variety of grounds ranging from false implication, discrepant statements of the witnesses, non-availability of support from the public and a forensic report with deficient protocols. The learned Law Officer faithfully defended the impugned judgment, according to him, the prosecution succeeded in proving the charge to the hilt beyond a shadow of doubt. 2. Heard. Record perused. 3. We have gone through the evidence to find the witnesses in a substantial unison on all the details of the episode; petitioners’ joint arrest with the vehicle they were travelling in and seizure of contraband therefrom are circumstances heavily looming over their culpability. Forensic report substantially details the procedure adopted by the analyst to undertake the analysis, unambiguously confirming the narcotic character of the contraband, a conclusion that went unrebutted/unchallenged during the trial. Petitioners’ different backgrounds, converging in their illicit pursuit, the only common ground, by itself confirms a collaboration in a purpose far from being usual or just. Inconsequential cross-examination and reticent denials, in retrospect, lend a mute support to the prosecution in its quest to drive home the charge. In the totality of circumstances, we are not persuaded to take a view other than the one concurrently taken by the Courts below. However, distinctly saddled with different quantities of the contraband by each convict, ranging from Jail Petition No.739 of 2018 and Criminal Petition No.1344 and 1351 of 2018 3 2 to 5 k.g., a case set up by the prosecution itself, spells out a makeshift union instead of a concerted joint detour, therefore, we are inclined to proportionately mould the sentence. Consequently, while maintaining their conviction, sentence awarded to them is reduced to a period of 5-years R.I. with a corresponding reduction in the fine to the tune of Rs.50,000/- each with 6-months S.I. in the event of default, a wage conscionable in the peculiar facts and circumstances of the case. With the aforesaid modification, the petitions are converted into appeal and partly allowed. Judge Judge Judge Islamabad 13th April, 2021 Not approved for reporting. Azmat/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI JAIL PETITION NO. 794 OF 2017 (On appeal against the judgment dated 06.10.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 340/2014 & Criminal Appeal No. 508- J/2014) Muhammad Sadiq … Petitioner VERSUS The State … Respondent For the Petitioner: Mr. Tariq Mehmood Butt, ASC For the State: Ch. Muhammad Sarwar Sandhu, Addl. P.G Date of Hearing: 09.11.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was proceeded against in terms of the case registered vide FIR No. 630 dated 13.11.2012 under Section 302 PPC at Police Station Bhowana, District Chinito for committing murder of Muhammad Tahir son of the complainant. The learned Trial Court vide its judgment dated 13.09.2014 convicted the petitioner under Section 302(b) PPC and sentenced him to death. He was also directed to pay an amount of Rs.500,000/- as compensation to the legal heirs of the deceased as provided under Section 544-A Cr.P.C. or in default whereof to further undergo six months SI. However, the learned High Court vide impugned judgment while maintaining the conviction of the petitioner altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the petitioner. 2. The prosecution story as given in the impugned judgment reads as under:- Jail Petition No. 794/2017 2 “2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the statement (Ex.PB) of Mst. Zubaida Bibi, complainant (PW-6) is that she (complainant) was resident of Mohammadi Sharif and had kept her cattle at the dhari of Mian Farooq Ahmad Mayana. In evening time, Muhammad Tahir son of the complainant used to bring back the goats to the house daily but on the fateful day when he did not return, the complainant alongwith Muhammad Nasir and Ahmad Nawaz started search and when they reached near the Dhari, Muhammad Sadiq (appellant) within their view, inflicted hatchet blows on the person of Muhammad Tahir which landed on his chin and head who fell down on the ground. On the hue and cry of complainant party numerous people gathered there who also witnessed the occurrence. When the complainant’s side tried to overpower Muhammad Sadiq (appellant) he threatened that if anybody came near he would not be left alive and fled away from the place of occurrence while brandishing his hatchet. The complainant and other PWs attended Muhammad Tahir but he had succumbed to the injuries. Motive behind the occurrence as that few days prior to the occurrence an altercation took place between Muhammad Tahir (deceased) and Muhammad Sadiq (appellant) and they abused each other and due to the said grudge the appellant has committed the murder of deceased.” 3. After completion of the investigation, report hallan under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced eight witnesses. In his statement recorded under Section 342 Cr.P.C the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not opt to appear under Section 340(2) Cr.P.C. to lead defence evidence. 4. Learned counsel for the petitioner contended that there are glaring contradictions in the statements of the eye-witnesses, which were ignored by the learned courts below. Contends that the complainant was mother of the deceased, therefore, her testimony cannot be believed to sustain the conviction of the petitioner. Contends that when the learned High Court disbelieved the motive part of the prosecution story and held recovery of weapon of offence to be inconsequential, there was no occasion for it to maintain the conviction and sentence recorded by the learned Trial Court. Lastly contends that the learned High Court while passing the impugned judgment has not appreciated the evidence in its true prospective, therefore, a great miscarriage of justice has been done. 5. On the other hand, learned Law Officer has defended the impugned judgment. He contended that the petitioner has Jail Petition No. 794/2017 3 committed murder of an innocent person and the evidence available on record is sufficient to prove the case against him, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record with their able assistance. The ocular account in this case has been furnished by Mst. Zubaida Bibi, complainant (PW-6) and Ahmad Nawaz (PW-7). These prosecution witnesses were subjected to lengthy cross- examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be produced on record. Both these PWs remained consistent on each and every material point inasmuch made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record fully corroborates the ocular account so far as the nature, locale, time and impact of the injuries on the person of the deceased is concerned. So far as the question that the complainant was mother of the deceased, therefore, her testimony cannot be believed to sustain conviction of the petitioner is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. In the present case, the petitioner committed the murder of his real son whereas his wife, who happened to be mother of the deceased, implicated him in the case. Learned counsel for the petitioner could not point out any reason as to why the wife of the petitioner i.e. the complainant has falsely involved him in the present case and let off the real culprit. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his son and falsely involve the petitioner, who happened to be her husband, without any rhyme and reason. Even otherwise, if we keep aside the testimony of Mst. Zubaida Bibi (PW-6) even then the petitioner can be convicted on the solitary statement of Ahmed Jail Petition No. 794/2017 4 Nawaz (PW-7) as it is an established principle of law that testimony of a solitary eye-witness is sufficient to sustain conviction of an accused if the same rings true and inspires confidence and it is the quality of the testimony of a witness that has to be weighed and not the quantity of witnesses. The witnesses were residents of the same locality where the occurrence took place and they have duly explained their presence at the scene of occurrence. The learned High Court has disbelieved the motive part of the prosecution story whereas the recovery of weapon of offence was also held inconsequential only on the ground that it was recovered after lapse of 19 days and was sent to the office of Chemical Examiner after 24 days and because it was possible that the blood would have disintegrated it does not advance the prosecution case. However, we are of the view that the conclusion arrived at by the learned High Court so far as the weapon of offence is concerned is based upon hypothetical approach. Normally the blood stains disintegrate after one month through a biological process but this process is not absolute rather it depends upon so many other factors such as nature of article stained with blood, severity of weather, level of humidity, place where it is found, blood group, race and physique of the body etc. In the instant case the hatchet was recovered at the instance of the petitioner after 19 days and the same was sent for chemical examination after 24 days. The Investigating Officer had also collected blood stained earth and sent the same along with the hatchet to the office of Chemical Examiner. As per the reports of Punjab Forensic Science Agency human blood was found on both these articles. The recovery was affected by the petitioner from the corn fields in the same vicinity where the occurrence took place in the presence of PWs, who remained consistent in their depositions. Even otherwise, when we have found the testimonies of the witnesses of the ocular account to be trustworthy, straightforward and confidence inspiring, which are duly supported by the medical evidence, mere the fact that motive has not been proved and recovery of weapon of offence has been held to be inconsequential, would not be of any benefit to the petitioner. The learned High Court has already taken a lenient view while converting the penalty of Jail Petition No. 794/2017 5 death into imprisonment for life. No further leniency can be shown to the petitioner. 7. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. JUDGE JUDGE Islamabad, the 9th of November, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.83 of 2021 (Against the judgment 01.02.2021 passed by the Lahore High Court Rawalpindi Bench in Crl. A. No.58/2020) Raja Ehtisham Kiyani …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Syed Hamid Ali Shah Bokhari, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor general Punjab Date of Hearing: 04.03.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Surprised by a police contingent within the precincts of Police Station Gujjar Khan, headed by Shabbir Hussain, SI (PW-3), the petitioner was found in possession of 1500 grams of heroin at 1:30 p.m. on 21.04.2019. Upon search, a cell phone handset alongwith some cash were also secured vide inventory. 75 grams sample forensically confirmed the contraband character of the contraband. Upon indictment, the petitioner claimed trial that resulted into his conviction under section 9(c) of the Control of Narcotic Substances Act, 1997; he was sentenced to 6-years RI with a direction to pay fine, pre-trial period inclusive, vide judgment dated 29.01.2020, upheld by the High Court vide impugned judgment dated 01.02.2021, being assailed on a variety of grounds, bias of Shabbir Hussain SI (PW-3), clamored most emphatically. 2. It is argued that Shabbir Hussain SI who allegedly headed the police contingent comprising of three constables carried out the entire exercise, right from inception to deposit of samples to the Punjab Forensic Science Agency himself, which in retrospect, lends credence to the defence plea that in the backdrop of an earlier animosity he cooked up a false case and was personally interested in its success. It is next argued that investigation of the case by the complainant himself, particularly in the face of his alleged Jail Petition No.83 of 2021 2 misconduct must be viewed with caution. The learned Law Officer, contrarily, defended the impugned judgment on the grounds that the petitioner was intercepted with a considerable cache of a narcotic substance, most lethal in nature, forensically so confirmed through an uninterrupted chain of various investigative steps, ranging from seizure, safe custody to transmission thereof. It is next argued that the witnesses are in a comfortable unison on all the salient details of the recovery as well as matters collateral thereto, leaving no space to entertain any hypothesis other than petitioner’s guilt. 3. Heard. Record perused. 4. We are not intrigued by Investigation Officer’s conduct on his having swiftly concluded various investigative steps/ requirements, himself to bring the prosecution to its logical end; attestation of inventories by other members of the contingent confirmed their presence in the episode, otherwise an official business protected by statutory presumption of being in order/genuine; on the contrary, efficient promptitude deserves acclaim. Insofar as allegation of previous animosity on account of alleged demand of bribe by one of the members of the police party, against whom, the petitioner claims to have moved some application is concerned, nothing is on the record to even obliquely suggest an ongoing previous rancor, prompting the police to impose a false recovery of a substance with a price tag rather huge in terms; the plea surfaced, surprisingly late in the day without any attempt to the departmental recourse and, thus, at best can be viewed as an afterthought and at worst a ploy to subvert the prosecution. Even during the trial, the petitioner did not pick courage to enter the witness box in disproof of charge or to drive home his plea with a view to discharge adverse statutory presumption provided in section 29 of the Act ibid. On our independent analysis of the record, we have not been able to take a view than the one concurrently taken by the Courts below. Petition fails. Leave declined. Judge Judge Islamabad, the 4th March, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.847 of 2018 (Against judgment dated 15.11.2018 of the Lahore High Court Rawalpindi Bench passed in Crl. Appeal No.539/2017) Shazia Bibi …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Malik Jawwad Khalid, ASC For the State Mr. Muhammad Jaffar, Additional Prosecutor General, Punjab. Date of hearing: 08.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J. Shazia Bibi, petitioner herein, was apprehended with 4-kilograms of cannabis during a random search on 28.12.2016 by a police contingent of Attock Khurd; she was on board a public vehicle hailing from Peshawar; forensic report established narcotic character of the contraband; upon conclusion of trial, convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997, she was sentenced to four years rigorous imprisonment with a direction to pay Rs.20,000/- as fine or to undergo four months simple imprisonment in lieu thereof, vide judgment dated 23.2.2017, upheld in appeal vide impugned judgment dated 15.11.2018, vires whereof, are being assailed on the grounds that she has been targeted as a scapegoat by the police to settle score with her husband, a driver by profession, on loggerheads with the police over illegal demands. It is next argued that the case was liable to be thrown out for prosecution’s failure to come up with complete details/protocol of forensic tests, carried out to establish the Jail Petition No.847 of 2018 2 nature of contraband allegedly recovered. Learned Law Officer faithfully defended the impugned judgment. 2. Heard. Record perused. 3. Quantity recovered, rather substantial in volume/ weight, cannot be possibly foisted upon a female to victimize her husband, himself a most suitable target, if at all the police had an axe to grind. All the prosecution witnesses including those of recovery have been found by us well within tune with one another; soon after her arrest, with the assistance of a female staffer, she was produced before a Magistrate who remitted her into judicial custody, a most opportune occasion to raise protest; her silence goes a long way to rebut the belatedly related story that otherwise may not find a buyer. Argument that the forensic report sans protocol is beside the mark as well inasmuch as tests carried out by the analyst are vividly mentioned therein, reproduced for the convenience of reference:- “Test Performed on Received Item(s) of Evidence 1. Top load balance was used for weighing. 2. Chemical Spot Tests were used for Presumptive Testing. 3. Gas Chromatography-Mass Spectrometry was used for confirmation. Results and Conclusions Item # 01 3982 gram(s) of dark brown resinous material in sealed parcel contains Charas.” Above details mentioned in the forensic report substantially/ sufficiently qualify to meet the statutory requirements. Findings concurrently arrived by the Courts below, being well within the remit of law, do not call for interference. Petition fails. Leave declined. Judge Judge Islamabad 8th January, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR JAIL PETITION NO. 865 OF 2017 (Against the judgment dated 17.11.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 10/2015 and Criminal Appeal No. 595-J/2014) Nasir Ahmed …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s): Syed Rifaqat Hussain Shah, ASC For the State: Mirza Abid Majeed, DPG Date of Hearing: 12.12.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Nasir Ahmed along with co-accused was tried by the learned Additional Sessions Judge, Sargodha pursuant to a case registered vide FIR No. 150 dated 29.07.2011 under Sections 302/324/34 PPC at Police Station Shah Nikdar, Sargodha for committing murder of Mst. Shehnaz Bibi and for causing injuries to Bushra Bibi, a minor. The learned Trial Court vide its judgment dated 31.10.2014 while acquitting the co-accused, convicted the petitioner under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for six months. In appeal the learned High Court maintained the conviction and sentence of death awarded to the petitioner by the learned Trial Court. The amount JAIL PETITION NO. 865 OF 2017 -: 2 :- of compensation and the sentence in default whereof was also maintained. 2. The prosecution story as given in the impugned judgment reads as under:- “Prosecution story, as set out in the FIR (Ex.PJ) registered on the statement of Sher Muhammad, complainant (PW.7) is that he was resident of Chak No.168/171 Shumali and a labourer. On 20.072011 the marriage of daughter of complainant namely Mst. Shahnaz Bibi aged about 18/19 years was fixed. The complainant along with his guests Abdul Majeed, and Abdul Hafeez, was busy in his house for marriage arrangements. At around 10.00 a.m. Nasir Ahmad (appellant), Muhammad Iqbal and Ahmad Sher came on a motorcycle. They parked motorcycle in the street and entered the house of complainant. Mst. Shahnaz Bibi daughter of complainant was sitting in the room on a chair, having Mst. Bushra Bibi daughter of elder daughter of complainant aged about 4 years in her lap. Nasir Ahmad, who was son-in-law (damad) and maternal nephew (bhanja) of complainant, while reaching near the door of room put out pistol from the folder of his shalwar and within the view of complainant party, fired three shots with pistol at Mst. Shahnaz Bibi. First fire landed behind left ear of Mst. Shahnaz Bibi and made its exit from right side of chin. Second fire hit on left thumb of Mst. Shahnaz Bibi and went through and through whereas third fire hit Bushra Bibi aged about 4 years on her right cheek near ear. Muhammad Iqbal and Ahmad Sher co-accused of the appellant kept on raising lalkaras. The accused persons went out of the house and fled away on motorcycle. The complainant along with Abdul Majeed and Abdul Hafeez witnessed the occurrence and attended both the injured. Mst. Shahnaz Bibi succumbed to injuries on the spot whereas Bushra Bibi immediately shifted to Sillanwali Hospital from where she was referred to Sargodha and thereafter referred to Lahore. Motive behind the occurrence as alleged in the FIR was that Nasir Ahmad (appellant) etc. were not willing over the marriage of Mst. Shahnaz Bibi arranged by the complainant and told the complainant not to get her married there but the complainant did not accede to.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced twelve witnesses. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not opt to appear as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him. He also did not produce any evidence in his defence. JAIL PETITION NO. 865 OF 2017 -: 3 :- 4. At the very outset, learned counsel for the petitioner contended that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution case is based on whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the recovery of weapon of offence is inconsequential as no crime empty was collected from the spot, as such, the same cannot be used against the petitioner. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer submitted that to sustain conviction of an accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the petitioner does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. There is no denial to this fact that the unfortunate incident wherein the daughter of the complainant lost her life had taken place on 29.07.2011 at 10.00 a.m. in the morning whereas the matter was reported to the police at 10:30 a.m. on the same day while the inter se distance between the place of occurrence and the Police Station was six kilometer. This aspect of the case clearly reflects that the matter was reported to Police promptly without there being any delay. As the occurrence has taken place in the broad daylight and the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Sher Muhammad, complainant JAIL PETITION NO. 865 OF 2017 -: 4 :- (PW-7) and Abdul Hafeez (PW-8). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be produced on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The complainant Sher Muhammad was inmate of the house where the occurrence took place, therefore, his presence was natural. So far as the presence of Abdul Hafeez (PW-8) is concerned, it is admitted position that at the relevant time, the wedding ceremony of the deceased Mst. Shahnaz Bibi was going on and he being a close relative had come to complainant’s house to attend the ceremony. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. In Muhammad Iqbal Vs. The State (1996 SCMR 908) this Court candidly held that “ocular testimony being wholly reliable, conviction could even be safely based on the same without further corroboration.” In Naeem Akhtar Vs. The State (PLD 2003 SC 396) this Court observed that “eye-witness who was a doctor and victim of the occurrence had narrated the incident in each detail without any omission and addition and his evidence being of unimpeachable character is alone sufficient to the charge.” In Faisal Mehmood Vs. The State (2010 SCMR 1025) it was held that “reliable ocular testimony did not need any corroboration to lose conviction”. Same was the view of this Court in Muhammad Ilyas Vs. The State (2011 SCMR 460) wherein it was held that “it is not medical evidence to determine question of guilt or innocence but it is ocular version which is required to be taken into consideration at first instance”. The value and status of medical evidence and recovery is always JAIL PETITION NO. 865 OF 2017 -: 5 :- corroborative in its nature, which alone is not sufficient to sustain the conviction. Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where such fire shots appeared to have landed and it becomes highly improbable to correctly mention the location of the fire shots with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account. Even otherwise, conflict of ocular account with medical evidence being not material imprinting any dent in prosecution version would have no adverse affect on prosecution case. Requirement of corroborative evidence is not of much significance and same is not a rule of law but is that of prudence. As far as the question that the witnesses of the ocular account are related to the deceased, therefore, their testimonies cannot be believed to sustain conviction of the petitioner is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses especially when the relationship with the assailant is so close and admittedly the marriage ceremony was going on in the house. Presence of PWs cannot be doubted. Learned counsel for the petitioner could not point out any reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his daughter and falsely involve the petitioner, who was his son-in-law and maternal nephew, without any rhyme and reason. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the JAIL PETITION NO. 865 OF 2017 -: 6 :- evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. To prove the motive part of the prosecution story, the witnesses of the ocular account appeared in the witness box and deposed against the petitioner. The perusal of the record reflects that neither the defence seriously disputed the motive part of the prosecution story nor the PWs were cross-examined on this aspect of the matter. On our specific query, learned counsel admitted that although the petitioner was represented by a counsel and an opportunity was given to cross-examine the witnesses but despite that the witnesses were not cross-examined on the issue of motive. In this view of the matter, we are constrained to hold that the prosecution has successfully proved the motive against the petitioner. So far as the recovery of weapon of offence i.e. .30 bore pistol is concerned, the same is inconsequential simply for the reason that no crime empty was recovered from the place of occurrence, which could be sent to Forensic Science Laboratory for chemical analysis. There seems to be something which was extended as obliging concession due to close relationship with the deceased family. Admittedly, the petitioner remained absconder for a period of about six months and the same is also a corroboratory piece of evidence against him. Keeping in view the facts and circumstances of the present case, even if the recovery of weapon of offence is excluded from consideration, still there is ample evidence in the form of unimpeachable and trustworthy ocular account, medical evidence and motive to sustain conviction of the petitioner on the capital charge. In Muhammad Aslam Vs. The State (2004 SCMR 872), this Court by holding that when ocular account is believed to be inspiring JAIL PETITION NO. 865 OF 2017 -: 7 :- confidence and trustworthy, mere the fact that recovery is inconsequential by itself could not be a ground for lesser penalty, maintained the penalty of death awarded to the accused by the lower courts. Reliance is also placed on Muhammad Afzal Vs. The State (2003 SCMR 1678). 7. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 12th of December, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH JAIL PETITION NO. 883 OF 2017 AND CRIMINAL PETITION NO. 1793-L OF 2017 (On appeal against the judgment dated 23.10.2017 passed by the Lahore High Court, Lahore in Criminal Appeal Nos. 1273 & 1125/2013, Criminal Revision No. 675/2013 and Murder Reference No. 209/2013) Aman Ullah (In JP 883/2017) Riaz Hussain (In Cr.P. 1793-L/2017) …Petitioner(s) VERSUS The State etc (In both cases) …Respondent(s) For the Petitioner(s): Rana Ghulam Sarwar, ASC (In JP 883/2017) Mr. Shahid Tabbassum, ASC (In Cr.P. 1793-L/2017. Through video link from Lahore) For the State: Mirza Muhammad Usman, DPG Date of Hearing: 07.02.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Aman Ullah along with co-accused was tried by the learned Sessions Judge, Bhakkar pursuant to a case registered vide FIR No. 658 dated 11.11.2010 under Sections 302/324/34 PPC at Police Station Saddar, Bhakkar for committing murder of Niaz Hussain and for causing injuries to Mst. Farzana Bibi, brother and sister-in-law of the complainant. The learned Trial Court vide its judgment dated 03.07.2013 while acquitting the co-accused, convicted the petitioner under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further suffer six CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 2 :- months SI. He was also convicted under Section 324 PPC and was sentenced to ten years RI with a direction to pay fine of Rs.50,000/- or in default thereof to further undergo six months SI. He was further convicted under Section 337-D PPC and was sentenced to ten years RI and to pay Arsh equivalent to one third of Diyat according to value fixed for the year of occurrence i.e. 2010-2011. Till payment of the same, the petitioner was ordered to be kept in jail. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. In appeal the learned High Court while maintaining the conviction of the petitioner under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The other conviction and sentences were maintained. The amount of compensation and the sentence in default whereof was also maintained. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Briefly stated the case of the prosecution as unveiled by Riaz Hussain complainant (PW.3) in FIR (Exh.PB/1) is to the effect that on 11.11.2010 at about 10:30 a.m. he along with his brother Niaz Hussain and his Bhabi Mst. Farzana Bibi was present in his house situated in Basti Lugran Wali; that Aman Ullah (petitioner) armed with pistol .30 bore along with an unknown person armed with rifle came there on motorcycle and parked the motorcycle outside his brother's house; that unknown accused kept standing as guard near motorcycle while Aman Ullah (petitioner) entered in the Haveli and raised lalkara for not sparing complainant's brother and fired successive shots from his pistol hitting at the chest and belly of Niaz Hussain; that when Mst. Farzana Bibi stepped forward to rescue Niaz Hussain, Aman Ullah (petitioner) made a fire shot from his pistol which landed on her abdomen; that on hearing their hue and cry as well as reports of firing, PW Kallu Khan (given up) and Ansar Abbas (PW.19) attracted to the scene and witnessed the occurrence. They tried to apprehend Aman Ullah etc, whereupon they aimed their weapons at them and warned not to come near and made good their escape from the spot. Niaz Hussain and Farzana Bibi, who were seriously injured, were taken to HQ Hospital, Bhakkar, where Niaz Hussain succumbed to the injuries. The motive behind the occurrence statedly was the love marriage of Niaz Hussain (deceased) and Mst. Farzana Bibi.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced twenty witnesses. In his statement recorded CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 3 :- under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he neither appeared as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him nor produced any evidence in his defence. 4. At the very outset, learned counsel for the petitioner contended that there are material contradictions and discrepancies in the statements of the eye-witnesses, which have not been taken into consideration by the courts below. Contends that the PWs are interested and related to each other and their evidence has lost its sanctity. Contends that the prosecution case is based upon whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive and recoveries as alleged, which causes serious dent in the prosecution case. Contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed this petition on the ground that the eye-witnesses had no enmity with the petitioner to falsely implicate him in this case. It has been contended that the eye-witnesses have reasonably explained their presence at the spot at the relevant time, which is quite natural and probable and the medical evidence is also in line with the ocular account, therefore, the petitioner does not deserve any leniency from this Court, rather his sentence of imprisonment for life may be enhanced to death. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 4 :- A bare perusal of the record shows that the unfortunate incident, wherein the brother of the complainant lost his life and his sister- in-law sustained injuries, took place on 11.11.2010 at 10:30 am. The deceased and injured PW were firstly taken to DHQ Hospital Bhakkar where the matter was reported to the Police. The FIR was lodged on the same day at 1:45 am. The distance between the place of occurrence and the Police Station was 32 kilometers whereas as per the record the place of occurrence was one hour away from the DHQ Hospital. Thus, it can be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story. The occurrence took place in the broad daylight and the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Riaz Hussain, complainant (PW- 3), Mst. Farzana Bibi, injured (PW-4) and Ansar Abbas (PW-19). Mst. Farzana Bibi was inmate of the house where the occurrence took place whereas complainant Riaz Hussain was residing in the adjacent house. Similarly, Ansar Abbas (PW-19) was resident of the same locality. Therefore, the presence of these PWs at the place of occurrence was natural. These prosecution witnesses were subjected to lengthy cross- examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be brought on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. Mst. Farzana had sustained injuries during the occurrence, which have fully been supported by the medical evidence given by Dr. Saira Batool, who appeared as PW-7. The testimony of this CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 5 :- injured PW as well as the stamp of injuries on her person clearly proves her presence at the place of occurrence. The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reliance is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR 1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled principle of law that the value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain the conviction. Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries. It becomes highly improbable to correctly mention the number and location of the injuries with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account. Even otherwise, conflict of ocular account with medical evidence being not material imprinting any dent in prosecution version would have no adverse affect on prosecution case. As far as the question that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity is concerned, it is now settled that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the petitioner could not point out any plausible reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is a rare phenomenon. During the course of proceedings, the learned counsel contended that there are CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 6 :- material discrepancies and contradictions in the statements of the eye- witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. The weapon of offence i.e. pistol .30 bore, recovered at the instance of the petitioner and the crime empties collected from the place of occurrence were separately sent to the Forensic Science Laboratory and the report is positive. The motive behind the occurrence was statedly the love marriage of Niaz Hussain, deceased, with Mst. Farzana Bibi. However, the learned High Court has rightly discarded the same by holding that the love marriage had taken place about two years back and the grievance of the family of Mst. Farzana Bibi had been redressed as pursuant to a compromise the daughter of the deceased Mst. Zarqa was given in the nikah of one Abdul Rehman, son of co-accused Ghulam Sarwar. Hence, the motive part of the prosecution case does not inspire confidence so as to term it is as a cause of the murder. Keeping in view the fact that motive was disbelieved, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life to meet the ends of justice, hence, it leaves no room for us to further deliberate on this point. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. Before parting with the judgment, we may observe that the petitioner was convicted under three provisions of law i.e. Sections 302(b), 324 and 337-D PPC. The impugned judgment is silent as to whether these sentences are to run concurrently or consecutively. Probably, the learned High Court inadvertently omitted to order running of the sentences of imprisonment concurrently. There is no denial to this fact that all the offences for which the petitioner was convicted had been committed in one and the same transaction, therefore, in the interest of justice, we direct that all the sentences of imprisonment shall run concurrently. CRIMINAL PETITION NO. 1397-L OF 2017 AND JAIL PETITION NO. 743 OF 2018 -: 7 :- 7. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave to appeal is refused. JUDGE JUDGE JUDGE Islamabad, the 7th of February, 2023 Approved For Reporting Khurram

I IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MLJF4IB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI JAIL PETITION NO. 943 OF 2017 (On appeal against the judgment dated 18.102017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 442-J/2013 & Criminal PSL.A No. 18/2014 & Murder Reference No. 15/2014) Muhammad Ashraf @ Nikka Petitioner VERSUS The State Respondent For the Petitioner: Mr. Aftab Hussain Bhatti, ASC For the State: Mr. Muhammad Jaffer. DPG Date of Hearing: 12.052022 JUDGMENT SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner along with seven other co-accused was tried by the learned Additional Sessions Judge, Jaranwala, pursuant to a private complaint under Sections 302/337F5/337F6/148/149 PPC arising out of FIR No. 397 dated 18.06,2009 under Sections 302/148/149 PPC at Police Station Landyanwala, District Faisalabad for committing murder of Salamat Ali, son of the complainant and for causing injury to Muhammad Latif, uncle of the complainant. The learned Trial Court vide its judgment dated 30.11.2013 while acquitting the co-accused, convicted the petitioner under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs. 100,000/- to the legal heirs of the deceased or in default whereof to further undergo imprisonment for six months. He was also convicted under Section 337F(vi) PPC and sentenced to rigorous imprisonment for five years with a Jail Petition Mc. 94312017 direction to pay daman amounting to Rs.50,000/- In appeal, the learned High Court while maintaining the conviction, altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default whereof was also maintained. Benefit of Section 382-B Cl was also extended to him. 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- "Niamat Ali complainant filed this private complaint against the respondents Muhammad Ashraf alias Nikkah etc (eight in numbers) u/s 302, 337F5, 33716, 148, 149 PPC alleging therein that on 18.06.2009 at about 7:00 P.M (evening) in the area of Chak No.655/6, the accused Ashraf son of Sardar armed with hatchet, Muhammad lshfaq alias Sajjad, Muhammad Mujahid alias Madu armed with hatchets, Abid alias Abi, Tariq alias Tan, Ali Muhammad alias Imam Din, Arif Hussain, Muhammad Mushtaq all armed with sotas with common intention to commit Qatl-e-Amd of Salamat Ali son of Niamat All while ambushed sitting at the chowk. Accusing Ali Ahmad raised lalkara while seeing Arif Hussain son of the complainant that caught hold Arif and taught him the lesson of the quarrel broke out 5/6 days ago. Consequently accused Muhammad Ashraf inflicted hatchet blow from its wrong side which hit Arif at his right arm and other accused persons also beaten Ant. Basharat Ali came home crying and told this fact to the complainant. The complainant along with Salamat (deceased) went at the spot and tried to save Ant. The accused Muhammad lshfaq inflicted hatchet blow which hit Salamat at his back thereafter accused Abid alias Abi inflicted Sota blow which hit Salamat at his head. Meanwhile, Muhammad Latif uncle of the complainant came at the spot after hearing hue and cry and tried to rescue Salamat Au. The accused Arif Hussain inflicted Sota blow which hit at left arm of Muhammad Latif, accused Muhammad Mushtaq inflicted Sota blow which hit on right shoulder of Arif accused, Mujahid inflicted hatchet blow which hit at the right hand of Ant, Muhammad Ashraf inflicted hatchet blow which hit Salamat at his head, Muhammad Ishfaq inflicted hatchet blow which hit at the head of Salamat (deceased), afterwards accused Muhammad Ashraf assaulted Muhammad Latif and hit on his right arm afterwards accused persons continuously assaulted and deviously injured Salamat Ali, Arif Hussain and Muhammad Latif. Muhammad Latif and Salamat Ali became unconscious at the spot. Muhammad Asif and Asghar AM rushed to the spot and attended the injured but Salamat Ali succumbed to the injuries while taking him to the hospital for his treatment and Arif Hussain and Muhammad Latif were taken to Civil Hospital iaranwala. 2. Motive behind the occurrence is that 5/6 days before the ccurrence there was quarrel between the children of the parties Jail Petition No. 943/2017 3 which was redressed afterwards but accused persons with this grudge and with their common object committed murder of Salamat All and injured the complainant party" 3. The conviction of the petitioner was recorded in a private complaint, which was lodged after eleven months of the occurrence. The complainant produced cursory evidence whereafter the formal charge was framed against the petitioner and the co-accused on 05.11.2010 under Sections 302/337F5/337F6/148/149 PPC to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced as many as five witnesses and six CWs. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. At the very outset, learned counsel for the petitioner argued that there are material contradictions and discrepancies in the prosecution evidence, which have not been dealt with by the courts below. Contends that the occurrence took place at the spur of the moment and there was no premeditation on the part of the petitioner. Contends that during the occurrence, the petitioner and the co-accused also sustained injuries, which have been suppressed by the prosecution. Contends that the injury ascribed to the petitioner on the head of the deceased was also ascribed to two co-accused but they have been acquitted whereas the petitioner has been sentenced to imprisonment for life. Contends that the prosecution has to prove its case without any shadow of doubt but it has miserably tailed to do so. Contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature and resulted into miscarriage of justice, therefore, the impugned judgment may be set aside. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the evidence led by the osecution in the shape of ocular account duly supported by medical Jail Petition No. 94312017 4 evidence is sufficient to sustain conviction of the petitioner. So far as the argument that the petitioner had received injuries during the occurrence is concerned, he contends that the petitioner did not place on record the medico legal reports in support of their assertion, therefore, the same cannot be taken into consideration. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. As per the prosecution story, the petitioner along with co- accused was alleged to give hatchet blow on the head of the deceased Salamat Ali, which proved fatal and the deceased succumbed to the injury later on. However, we have noted that in the very private complaint lodged by the complainant, the role of causing injury on the head of the deceased was enhanced while ascribing it to three accused. The other two co-accused namely Abid @ Aabi and Muhammad Ashfaq, who were ascribed the similar role, have been acquitted of the charge by the learned Trial Court, which judgment has been upheld by the learned High Court. According to medical evidence furnished by Dr. Khalid Javed, who appeared as CW-5, the deceased received only one injury on his head, which was an incised wound 4 x 1 c on left side top of head 8.2 cm from left ear 5 cm from mid skull line. The learned High Court did not discuss this aspect of the matter in the impugned judgment at all. The perusal of record also reveals that the occurrence took place all of a sudden; there was no pre-meditation on the part of the petitioner's side and during the occurrence the petitioner and co-accused Mujahid also received injuries at the hands of the complainant party, which aspect has been suppressed. Although, no medical report in this regard could be placed on record but there is no denial to this fact that during investigation it was found that the petitioner and the co-accused had received injuries during the occurrence, therefore, the stance of the petitioner cannot be denied merely for the reason that he did not place on record the medical certificate. A careful analysis of this aspect of case reflects that it is stablished principle of criminal jurisprudence that the defence is not I Jail Petition No. 943/2017 5 under obligation to prove its version and the burden on it is not as heavy as on the prosecution rather the defence is to only show the glimpse that its version is true. This aspect lends support from the finding of the Investigating Officer that during the occurrence the petitioner and his co- accused had sustained injuries but due to one reason or the other they could not establish the same by producing medico legal reports. The possibility cannot be ruled out that it was because the petitioner was nominated in murder case and according to learned counsel he was arrested soon after the incident, the police officials had not let them to be medically examined being in league with the complainant. This creates a doubt in veracity of prosecution version, as such doubt in the prosecution case can be resolved in favour of the petitioner because it is settled that any doubt arising in the prosecution case is to be resolved in favour of the defence. Even otherwise, we have noted that during the course of investigation co-accused Muhammad Ashfaq, Muhammad Arif, Muhammad Mushtaq, Tariq, Abid were not recommended for dial/an as they were declared innocent by the Police. It seems the prosecution exaggerated the contents of the private complaint and has made an attempt to involve all the male members of the family. In these circumstances, a dentin the prosecution case has been created, benefit of which must be given to the petitioner. It is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. Any doubt arising in prosecution case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, we have observed that the case advanced by the prosecution is based upon facts not properly brought forth, rather there are certain flaws in the narration of the same particularly manner of occurrence, number of accused persons and suppression of facts, hence as an abundant caution, we refrain to accept finding of both courts below rather consider it a case of sudden affair, coupled with the fact, material facts were suppressed, hence keeping in view the act of each individual, & Jail Petition No. 943/2017 we consider that the case of the petitioner is covered by Section 302(c) PPC. As he has already served out major portion of sentence which is more than 15 years, hence it seems adequate to meet the ends of justice. As a consequence, we convict the petitioner under Section 302(c) PPC and sentence him to imprisonment for the period which he has already undergone. 7. For what has been discussed above, this petition is converted into appeal, partly allowed and the impugned judgment is modified as stated in the preceding paragraph. The petitioner shall be released from jail forthwith unless detained/required in any other case. The above are the detailed reasons of our short order of even date. Islamabad, the 12th of May, 292 Approved For porting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL JAIL PETITION NO. 95 OF 2017 (On appeal against the judgment dated 15.12.2016 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 319/2014) Faisal Shahzad … Petitioner VERSUS The State … Respondent For the Petitioner: Sardar Muhammad Latif Khan Khosa, Sr. ASC Syed Iqbal Hussain Shah, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Muhammad Jaffer, Addl. P.G. Punjab Date of Hearing: 14.03.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the learned Additional Sessions Judge, Multan in terms of the case registered vide FIR No. 33/2012 under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Daulat Gate, Multan as contraband charas weighing 10 kilograms and opium weighing 5 kilograms was recovered from him. The learned Trial Court vide its judgment dated 30.06.2014 convicted the petitioner under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life. He was also directed to pay a fine of Rs.100,000/- or in default whereof to further undergo SI for one year. Benefit of Section 382-B Cr.P.C. was also extended to him. In appeal the learned High Court maintained the conviction and sentences recorded against the petitioner by the learned Trial Court. Jail Petition No. 95/2017 2 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- “2. Brief facts of the prosecution case as disclosed in the complaint Ex.PA lodged by Muhammad Saeed Akhtar Inspector are that on 27.02.2012 he was present at Chowk Aaam Khas Bagh alongwith Muhammad Hanif Tasi, Muhammad Khan Tasi, Muhammad Jamil, Jan Muhammad, Muhammad Khalid and Lal Khan constables and Muhammad Rashid driver where he received spy information that one person was coming from shrine of Hafiz Jamal with huge quantity of narcotic whereupon he constituted a raiding party and reached at Hafiz Jamal chowk. One person having a gatoo came from Hafiz Jamal Darbar. On the pointation of the informer, he was apprehended who disclosed his name as Faisal Shehzad. After search of the Gatoo of the accused Faisal Shahzad ten packets of charas and five packets of opium were recovered. On weigh of the charas it was found 10 kgs and each packet was of one kg of the charas. The opium was in the shape of pieces which weighed 05 kgs. Each packet was found one kg of opium. Ten grams of charas was separated out of recovered charas from each packet for chemical analysis. Likewise, ten grams of opium from each packet was separated out of the recovered opium for analysis. All the packets of charas and opium were taken into possession through recovery memo which is attested by the PWs. He then drafted the complaint and sent it to the P.S. through Muhammad Khalid constable for registration of the case whereupon the instant case was registered.” 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as six witnesses. When examined under Section 342 Cr.P.C., the petitioner stated that he is innocent and has been falsely implicated in the case. The petitioner firstly opted to appear as his own witness in terms of Section 340(2) Cr.P.C. in disproof of the allegations leveled against him but subsequently he refused to appear. Even he did not produce any evidence in his defence. 4. Learned counsel for the petitioner contended that the petitioner has been falsely implicated in this case and the Police has planted a fake case upon him. Contends that the narcotic was allegedly recovered from the petitioner in the broad daylight in a busy thoroughfare but none from the public was associated in the case to depose against him. Contends that the prosecution could not prove safe custody of the allegedly recovered narcotics and its safe transmission to the Police station and then to the Laboratory for chemical analysis, therefore, the same Jail Petition No. 95/2017 3 cannot be used against the petitioner to sustain his conviction. In support of his argument, learned counsel relied upon Qaiser Khan Vs. The State (2021 SCMR 363), Mst. Sakina Ramzan Vs. The State (2021 SCMR 451), Mst. Razia Sultana Vs. The State (2019 SCMR 1300) and Zahir Shah Vs. The State (2019 SCMR 2004). Further contends that the narcotic was allegedly recovered from a ‘gatoo’ but the same was not produced in evidence, therefore, the recovery loses its relevance. In support of his argument, he relied on Amjad Ali Vs. The State (2012 SCMR 577). In the alternative, he contended that it is a case of lesser penalty, as according to him, it is only the basket/sack/pouch/doda of the opium, which contains narcotic substance but nothing is available in evidence to show as to what actually was recovered from the possession of the petitioner, therefore, the same may be considered as a mitigating circumstance. In support of his argument, he relied upon Zulfiqar Vs. The State (2021 SCMR 531). 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the petitioner was caught red handed while transporting a huge quantity of narcotics, the Police officials had no enmity to falsely involve him in the present case and the safe custody of the narcotic and then its safe transmission to the Chemical Examiner has been proved to the hilt, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. It is a case which was lodged with promptitude on the basis of spy information, which was supplied to the law enforcing agency prior to conducting raid by the raiding party comprising of number of police officials and it had already established a picket at the particular place on the basis of the said information. The petitioner was caught red handed by the Police and a huge quantity of 10 kilograms of contraband charas and 5 kilograms of opium was recovered from him, which was contained in a sack/gatoo in 15 separate packets. The prosecution case hinges upon the statements of Falak Sher, H.C. (PW-1), Mumtaz Hussain, constable (PW-2), Jail Petition No. 95/2017 4 Muhammad Asghar Tasi (PW-3), Muhammad Hanif Tasi (PW-4), Shaukat Hussain, SI (PW-5) and Muhammad Saeed Akhtar, Inspector (PW-6). All these witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the petitioner to falsely implicate him in the present case. Even otherwise a huge quantity of 10 kilograms of contraband charas and 5 kilograms of opium in no circumstances can be planted by the Investigating Officer of his own. This Court in a number of judgments has held that testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioner in this case. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination. The police officials separated 10 grams of charas and 10 grams of opium from each packet in a prescribed manner and put the samples in 15 separate packets and then sent the same to the office of Chemical Examiner for its analysis. The reports of the Chemical Examiner show that all the 15 packets contain contraband charas and opium. 7. So far as the argument of the learned counsel for the petitioner that the safe custody of the allegedly recovered narcotic and its safe transmission to the Police Station and then to the Chemical Examiner is not established, therefore, the same cannot be used against the petitioner to sustain his conviction is concerned, we have noted that the learned High Court in paragraph 4 of the impugned judgment has dealt with this issue in detail. The learned High Court after perusal of evidence has rightly found that on the same day when the narcotic was recovered from the petitioner i.e. 27.02.2012, 10 sealed sample parcels of contraband charas and five sealed sample parcels of opium were received by Falak Jail Petition No. 95/2017 5 Sher, HC (PW-1) for safe custody. The said PW handed over the said samples to Mumtaz Hussain (PW-2) on 02.03.2012 alongwith road certificate for their onward transmission to the office of Chemical Examiner Multan. This fact was confirmed and testified by the said Mumtaz Hussain, who took the samples to the office of Chemical Examiner on the same day. The reports of the Chemical Examiner also testify this fact, therefore, it can safely be said that the safe chain of custody of the recovered narcotics was not compromised at all. The case law relied upon by the learned counsel for the petitioner in this regard is distinguishable as in the cases referred by him either the safe custody and transmission from the ‘maalkhana’ to the chemical examiner was not proved, the police constable who delivered the sealed samples to the Chemical Examiner was not produced in evidence or his statement could not be recorded or the officer of the Anti Narcotics Force through whom the sample was dispatched to the Chemical Examiner was not produced in evidence but as discussed above the same is not the case here. This Court in a recent judgment passed in Jail Petition No. 637/2016 has held that the Control of Narcotic Substances (Government Analysts) Rules, 2001 virtually place no bar on the Investigating Officer to send the samples within a certain/specified period of time. These Rules are stricto sensu directory and not mandatory in any manner. It does not spell out that if there is any lapse, it would automatically become instrumental to discard the whole prosecution case. The Control of Narcotic Substances (Government Analysts) Rules, 2001, cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997 and cannot in any manner frustrate the salient features of the prosecution case, which otherwise hinges upon (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses, (c) Investigating Officer and all other attending circumstances. If the series of acts which ultimately resulted into recovery of contraband narcotic are kept in juxtaposition with the alleged violation of the Rules, it cannot by any stretch of imagination be considered reasonable in law to smash the Jail Petition No. 95/2017 6 whole prosecution case on its salient features. Even otherwise, in terms of Section 29 of the Control of Narcotic Substances Act, 1997, manner and standard of proof in cases registered under the Act is slightly different as in terms of the said Act the accused is presumed to have committed the offence unless the contrary is proved. 8. The learned counsel argued that the narcotics was allegedly recovered from a ‘gatoo’/sack but the same was not produced in evidence, therefore, in view of the law laid down by this Court in Amjad Ali Vs. The State (2012 SCMR 577) the recovery loses its relevance. However, this argument of the learned counsel is misconceived because in Amjad Ali supra case 20 kilograms charas was recovered from a spare wheel of the car, which was not produced in evidence and this Court considered its production in evidence necessary only to verify as to whether could it contain such a huge quantity of narcotics in question. In the present case the petitioner was carrying narcotics in a sack/’gatoo’, which is usually made of polythene/cloth/plastic and is commonly used by the people in our society to carry heavy things and the same can easily carry a weight of 15 kilograms. The ‘gatoo’ is just a cloth or plastic bag, so the real thing to look at is that the petitioner was carrying a huge quantity of narcotics in it, therefore, the non-production of the gatoo is of no avail to the petitioner. In the alternative, learned counsel had prayed that it’s a case of lesser punishment and in support of his argument, he has placed reliance on Zulfiqar Vs. State (2021 SCMR 531). However, we have noted that in the said Zulfiqar supra case, 15 kilograms of poast/opium was recovered from the accused and nothing was brought on record as to whether was it only the doda/basket/pouch or was it the whole poppy plant. This Court while holding that it is only the basket/sack/pouch also known as ‘doda’ excluding the seed, which contains narcotics, considered it as a mitigating circumstance and reduced the quantum of punishment. However, in the present case a huge quantity of 10 kilograms of contraband charas and 5 kilograms of opium was recovered in pure form from the possession of the petitioner. Even if we keep aside the recovery of 5 kilograms of opium for the reason that it is unknown as to in which shape the opium was Jail Petition No. 95/2017 7 recovered, even then the recovery of 10 kilograms of contraband charas alone is sufficient to sustain the conviction of the petitioner. 9. This Court has time and again held that the menace of drugs is increasing day by day due to various reasons. It is very disheartening to observe that every day there are many reports of drug peddlers being caught with drugs. This menace is a great threat to a peaceful society and is affecting many lives especially the youngsters, therefore, immediate steps are required to be taken to curb these nefarious activities. The proceeds of narcotics are largely utilized in anti-state/terrorist activities, which this country is facing since decades. When the prosecution is able to prove its case on its salient features then un-necessary technicalities should not be allowed to hamper the very purpose of the law on the subject. The close analysis of the whole prosecution evidence i.e. the recovery of huge quantity of narcotics, the happening of the occurrence in broad daylight, separating the samples from each packet in a prescribed manner and sending them to the Chemical Examiner, report of the Chemical Examiner and the statements of the prosecution witnesses when evaluated conjointly leaves no room to come to a different conclusion than what has been arrived at by the learned courts below. 10. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. JUDGE JUDGE JUDGE Islamabad, the 14th of March, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Jail Petition No.960 of 2017 (Against the judgment dated 10.11.2017 passed by the High Court of Sindh Circuit Court at Hyderabad in Criminal Appeal No.S-314 of 2006) Abbas Ali Hajji Umar alias Ghulam Hussain …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Qari Abdul Rasheed, ASC Syed Rifaqat Hussain Shah, AOR For the State: Ms. Rahat Ahsan, Addl. Prosecutor General Sindh Date of hearing: 22.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted alongside Mehar Ali, since acquitted, for homicide as well as murderous assault, the petitioners were returned a guilty verdict by a learned Additional Sessions Judge at Kotri; convicted on multiple counts, they were sentenced to imprisonment for life with10-years as well as 3-years rigorous imprisonment with a direction for payment of compensation, fine and Daman on coordinate charges with concurrent commutation, pre-trial period inclusive, vide judgment dated 05.12.2006, upheld by the High Court vide impugned judgment dated 10.11.2017. 2. According to the prosecution, on the fateful day i.e. 15.6.1998 at about 7:15 a.m. Rab Rakhio, 45, hereinafter referred to as the deceased, along with Khamiso Behlani (PW-4) was on way towards the Campus of Sindh University Jamshoro when the petitioners armed with guns accompanied by Mehar Ali, acquitted co-accused, carrying an hatchet, suddenly emerged from the bushes and soon after exhortation targeted the deceased and Khamiso Khan PW within the view of Haji Muhammad Siddique (PW-1) and Ali Sher (PW-2) who followed them at some distance. Deceased’s daughter Mst. Zareena was married with Ghulam Mustafa, who lived with his in-laws, disapproved by his father Jail Petition No.960 of 2017 2 Haji Umar petitioner; the rancor is cited as a motive for the crime. Spot inspection included seizure of blood and four casings albeit without recovery of weapons. The casualties were shifted to the hospital; Khamiso Khan PW survived the assault. Abbas Ali petitioner was arrested on 7.7.1998 shortly followed by Mehar Ali acquitted co-accused, however, Haji Umar, petitioner stayed away from law to be finally apprehended on 3.5.2004; they claimed trial in a unison. Autopsy report of the deceased as well as medico legal certificate of the injured were proved through secondary evidence furnished by Dr. Anwar Hussain (PW-12) as Dr. Abdul Hanan Sheikh had expired before his appearance in the Court; nature of injuries endured both by the deceased as well as the injured being consistent with firearm is not disputed by the defence. 3. Learned counsel for the petitioners contends that occurrence does not appear to have taken place in the manner as alleged in the crime report particularly in the backdrop of alleged motive impliedly discarded by the courts below. While referring to injured Khamiso Khan (PW-4), the learned counsel contends that he shared animus/malice in a divided household to falsely implicate the petitioners in order to settle an ongoing dispute in the family; he has emphatically highlighted absence of recovery of weapons allegedly used during the occurrence to argue that actual culprits have been substituted with the scapegoats. Acquittal of co-accused on the same set of evidence left no option for the Court except to reject the prosecution case in its entirety concluded the learned counsel. The learned Law Officer, however, has faithfully defended the impugned judgment; he argued that given the close relationship, there was no earthly reason for the family to swap the petitioners with the actual offenders. 4. Heard. Record perused. 5. Prosecution case is primarily structured upon ocular account furnished by Haji Muhammad Siddique (PW-1), Ali Sher (PW-2) and Khamiso Khan (PW-4); the last being injured during the episode; they have furnished graphic details of the occurrence without being trapped into any serious narrative conflict. Both sides, being part of the same household, questions of mistaken identity or substitution are the possibilities beyond comprehension. There is a remarkable promptitude in recourse to law by the witnesses that included an injured, medically examined under a police docket. Though the Investigating Officer failed Jail Petition No.960 of 2017 3 to recover the weapons used during the occurrence, nonetheless, the failure does not tremor the prosecution case otherwise firmly founded on ocular account furnished by the witnesses who plausibly explained their presence at the crime scene. Inconsequential and directionless cross-examination mainly comprising bald suggestions vehemently denied fails to undermine the preponderance of prosecution case. Acquittal of co-accused with a role vastly distinguishable as well as inconsequential appears to be inspired by a judicial caution and as such does not adversely impact upon the integrity of the charge. View taken by the courts below being well within the remit of law calls for no interference. Petition fails. Leave declined. However, the petitioners shall benefit from the modification in impugned judgment recorded in the short order of even date, reproduced below: “For reasons to follow, jail petition filed by both the convicts, argued by Qari Abdul Rasheed, ASC, fails. Leave is declined. Convictions recorded and sentences awarded consequent thereupon are maintained with benefits already extended, however, the amount of Daman imposed upon the convicts, in the peculiar facts and circumstances of the case and having regard to the extreme advance age of the convicts, is reduced to Rs.1000/-.” Judge Judge Judge Islamabad, the 22nd October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam, Chairman Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Dr. Muhammad Al-Ghazali, Ad-hoc Member-I Dr. Muhammad Khalid Masud, Ad-hoc Member-II Jail Shariat Petition No.03(s)/2020 (Against the judgment dated 08.02.2009 of the Federal Shariat Court passed in Appeal No.7-I of 2018) Muhammad Yaqoob …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Nemo. For the Respondent(s): Mr. Salim Akhter Buriro, Additional Prosecutor General. Date of hearing: 02.12.2020. ORDER Qazi Muhammad Amin Ahmed:- Petitioner is amongst the accused in a crime that occurred way back on 20.3.1992 within the precincts of Police Station Ahmed Pur of District Khairpur, wherein two members of a police contingent, detached at Jamea Mosque Mehaisar Wadda Taluka Kingri to guard the Taravih prayers, were martyred in the line of duty. According to the crime report, on the fateful night, 12 assailants, differently armed, were resisted by the contingent in their attempt to abduct some of the worshipers; two of them, namely, Ibrahim Sandelu and Laloo Sher, opened fire with automatic weapons, followed by the remainders; the contingent returned fire whereupon the assailants took to the heels into a nearby jungle. As the guns went silent, Mukhtar Hussain, PC/12586, aged 25 and Abdul Razzaq, PC/11302, aged 28, were found to have succumbed to multiple bullet injuries. The assailants took away official weapons with them and it is Jail Shariat Appeal No.3(s) of 2020 2 in this backdrop that they were indicted on the coordinate charge of Haraba as well. Specifically named in the crime report, the petitioner was arrested after almost quarter of a century to claim trial that culminated into his conviction on the charge of homicide; he was sentenced to imprisonment for life vide judgment dated 30.01.2017, upheld by the Federal Shariat Court vide impugned judgment dated 08.02.2019 under section 302 (b) of the Pakistan Penal Code, 1860, vires whereof are being assailed on a variety of grounds ranging from the question of identity during dark hours to the absence of evidence to connect the petitioner with any specific shot as well as prosecution’s failure to effect recovery either of weapon of offence or official weapons snatched during the occurrence. The learned Law Officer has faithfully defended the judgment by referring to various parts of evidence produced by the prosecution that, according to him, successfully drove home the charge by excluding every hypothesis of petitioner’s innocence; his absence from law for an exasperating length of time, heavily reflected upon his culpability, concluded the learned Law Officer. 3. Heard. Record perused. 4. We have gone through the evidence furnished, amongst others, by Abdul Hadi (PW-1), Ali Mardan (PW-2) and Iqbal Hussain (PW-3) with extra care and caution to explore any possibility of finding an exit for the petitioner, however, found the witnesses unanimously pointing their fingers for his having participated in the occurrence, being an active member of the unlawful assembly, constituted in prosecution of a common object, a pursuit that resulted into the death of two police constables in their prime youth; they laid their lives to protect unsuspecting worshipers. Despite flux of considerable time, the witnesses confidently recollected the incident and faced the cross- examination without embarrassment though Iqbal Hussain (PW-3) somehow omitted to name the petitioner in his examination-in-chief, however, the defence rectified the error through an indiscreet suggestion, vehemently denied by the faltering witness. Prosecution’s failure to effect recovery after almost 25 years of the incident does not surprise us nor adversely reflects upon its case otherwise firmly structured on the statements of the witnesses whose presence at the crime scene cannot be suspected. Argument that it cannot be assumed with any degree of certainty that the shots allegedly fired by the Jail Shariat Appeal No.3(s) of 2020 3 petitioner had trapped any of the deceased is entirely beside the mark; community of intention is a valid concept to entail corporeal consequences, if in the circumstances of a particular case, like one in hand, participation of an offender is reasonably established through credible evidence; the deceased certainly died of the bullets conjointly fired upon them as is evident from the seizure of as many as 90 casings from the spot and, thus, petitioner alongside the co-accused is equally culpable to share the cumulative impact of the assault. Presence of electric lights at the mosque presented ample opportunity for the identification of assailants, each named in the crime report. Darkness by itself does not provide immunity to an offender if the witnesses otherwise succeed to capture/ascertain his identity through available means, conspicuously mentioned in the crime report. On our independent analysis, the totality of circumstances does not space any hypothesis other than petitioner’s guilt and, thus, do not find ourselves in a position to take a view different than concurrently taken by the courts below. Petition fails. Leave declined. Chairman Member Member Member Member Islamabad, the 2nd December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU ACTION TAKEN UP IN COURT Date of Hearing: 01.02.2018 ORDER It has been common knowledge for years that a large number of Pakistani citizens, who are residents of Pakistan and are maintaining accounts in foreign countries without disclosing the same to the authorities competent under the Laws of Pakistan or paying taxes on the same in accordance with law. Prima facie, it appears that such money is siphoned off without the payment of taxes through illegal channels and represents either ill-gotten gains or kickbacks from public contracts. Such money creates gross disproportion, inequality and disparity in the society, which warps economic activity and growth, and constitutes plunder and theft of national wealth. 2. Recently, the names of a large number of Pakistani citizens were disclosed in the Panama Papers and Paradise Papers. The Chairman, Federal Board of Revenue (FBR) had appeared before the Court and made a statement that appropriate action was being initiated against the citizens whose names had appeared in above said papers. However, no appreciable progress appears to have been made in this regard. The society and economy of the country is being bled by illegal and surreptitious theft of national SMC -: 2 :- wealth, which is stashed in foreign countries, the same could otherwise be utilized for the welfare of the people in projects such as education, health and public welfare. Such delinquency constitutes violation of the fundamental rights of the citizens of Pakistan and is a matter of great public importance. 3. Therefore, in exercise of powers under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, we direct as follows: i) The State Bank of Pakistan shall before the next date of hearing submit a comprehensive report regarding steps which have been taken under the International agreements/treaties/protocols to identify the citizens who hold accounts in foreign jurisdictions, including UAE, Switzerland, Luxemburg, Spain, UK, etc. and other tax haven jurisdictions, including, British Virgin Islands, Cayman Islands, Channel Islands, etc. ii) The State Bank of Pakistan, the FBR, the Security & Exchange Commission of Pakistan and the Ministry of Finance shall submit report about the steps taken, in collaboration with other State institutions, for retrieval of the said money. iii) The Federal Board of Revenue shall also submit a report providing details of the steps taken on the basis of information available, inter alia, through Panama Papers and Paradise Papers and the action taken against citizens holding properties and banks accounts in foreign countries. SMC -: 3 :- iv) All State agencies including IB, ISI, MI and FIA are directed to share all requisite information available with them with this Court. v) The State Bank of Pakistan, FBR, the Ministry of Finance and Ministry of Foreign Affairs shall collaborate with each other, collect and share information and approach the afore-noted foreign jurisdictions to obtain such/other further information, as may be necessary, through legal and diplomatic channels. 4. Let responsible officers, conversant with the necessary facts appear before this Court on 15.02.2018. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 1st February, 2018. Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ Civil Review Petitions Nos.46 & 47 of 2011 in Constitution Petitions Nos.10 & 18 of 2011. (Against the judgment dated 4.3.2011 passed by this Court In Const. Ps. Nos. 10 & 18 of 2011). Federation of Pakistan, thr. Secy. M/o Law … Petitioner in CRPs 46-47/11 VERSUS Munir Hussain Bhatti & others … Respondents in CRP-46/11 Sindh High Court Bar Association & others … Respondents in CRP-47/11 In C.R.Ps.46 & 47 of 2011: For the petitioners: Mr. K.K. Agha, Additional Attorney General for Pakistan Mr. M.S. Khattak, AOR. For the respondent: Mr. Makhdoom Ali Khan, Sr.ASC. (In CRP 46/11) Mr. Faisal H.Naqvi, ASC Mr. Arshad Ali Ch., AOR. Assisted by Mr. Saad Hashmi Advocate (In CRP 47/11) Mr. Abid S. Zuberi, ASC. Mr. Arshad Ali Ch., AOR Assisted by Mr. M. Munir Khan Advocate Date of hearing: 20.04.2011. J U D G M E N T Jawwad S. Khawaja, J. We have heard these petitions at length and find no grounds to review our judgment whereby Constitution Petitions Nos. 10 of 2011 and 18 of 2011 were allowed. We would, however, like to take this opportunity to address the arguments advanced by the learned Additional Attorney General, Mr. K. K. Agha, in support of these Review Petitions. To facilitate this task we have, for convenience, dealt with the submissions of Mr. Agha under distinct headings. CRP 46 & 47 of 2011 2 JUDICIAL REVIEW 2. Mr. K. K. Agha agreed that our Constitution was based on a system of checks and balances as set out in the judgment under review. He also agreed, therefore, that the Committee created under Article 175A of the Constitution had to have some checks on it consistent with the Constitutional scheme. He gracefully acknowledged in the context, that review of the decisions of the Committee by the Court would provide such check and will create the requisite balance. He had some hesitation making this submission, but only on the score that while arguing the Constitution Petitions challenging the 18th Amendment before a seventeen-Member Bench of the Court, he had adopted the plea that judicial review in those petitions was barred. He felt that accepting this Court’s power of judicial review in these cases would be inconsistent with his argument advanced before the seventeen-Member Bench challenging the Court’s power of judicial review in the said petitions. 3. This is an unfounded concern. The challenge to the Court’s power of judicial review in the petitions being heard by the seventeen-Member Bench is based on the premise that a Constitutional amendment properly passed by Parliament under Article 239 of the Constitution cannot be judicially reviewed. Needless to say this aspect of the petitions before the said Bench will be addressed in the petitions being heard by it. The present cases, we repeat, assume the validity of the 18th and 19th amendments. Judicial review in these cases relates to decisions which have been made by the Parliamentary Committee purporting to be decisions under Article 175A of the Constitution. No challenge has been presented by the petitioners to the Article itself. This distinction between judicial review of a constitutional amendment and judicial review of an act purported to have been done under the Constitution should provide reassurance to Mr. Agha that by acknowledging the Court’s power of judicial review in these cases, he is not being inconsistent with his argument before the seventeen-Member Bench. CRP 46 & 47 of 2011 3 THE COMMITTEE AS AN INDEPENDENT CONSTITUTIONAL BODY 4. We can now take up the submissions of Mr. Agha in relation to our finding that the Committee cannot be equated with Parliament nor can it be treated as a sub-set of Parliament in the manner in which a Parliamentary Committee elected and answerable to Parliament can be considered to be part of Parliament. There is ambivalence in the thinking of the Federation. This seems to be a result of the appellation of ‘Parliamentary Committee’ used in Article 175A and discussed in the judgment under review. The mistaken notion apparently has resulted from ignoring the wisdom of the Master al-Ghazzali of old and the contemporary thinker S. Idries Shah that the container or outward label is not and must not be confused with the content if we are to avoid the pitfalls of superficiality and muddled thinking. The Bard revered by the English spoke in similar vein a few hundred years after al-Ghazzali. With a slight twist to his words we can say, that the gainda, a beautiful flower in itself, will not become a rose or acquire its attributes and smell as sweet, if called a rose. Thus, while it may be possible for a layman or an uninformed commentator to be misled by an outward label, as Judges we would fall into serious error if we were to be inveigled by a title alone. In the judgment under review we have given reasons for our view that the Committee’s name is irrelevant; it is independent of Parliament and cannot be considered its part or be accorded the same status as Parliament. No reason has been given by the learned Additional Attorney General which can persuade us to depart from this opinion. 5. In this regard, it is also worth noting that Mr. K. K. Agha’s argument was that though Article 175A, as originally framed in the 18th Amendment, created a misleading impression that the Committee is an independent body, the changes brought about in Article 175A by the 19th amendment, had the effect of clarifying that the Committee was meant to be part of Parliament. This submission is disingenuous and is also in conflict with the Federation’s own stance as will be shown shortly. When Mr. Agha was specifically asked CRP 46 & 47 of 2011 4 to refer to such changes which, according to him, addressed the lacuna overlooked in the original Article 175A, he drew our attention to clause (16) thereof. This provision reads as under:- “175A … (16) The provisions of Article 68 shall not apply to the proceedings of the Committee” Despite our best efforts, we must admit, we have been unable to understand how the above clause can counter the reasoning in our judgment or how this provision can be taken to mean that the Committee is a body elected by Parliament or is accountable to it or is part of it. 6. However, since the learned Additional Attorney General did make an attempt to argue this point, it will be appropriate to advert to some extracts from the review petition itself which, in our view, correctly state the constitutional status of the Committee and go against the position now canvassed before us. The Federation, in any event, cannot be allowed to argue against its own pleadings. Here it may be noted that the review petitions were filed much after the passing of the 19th Amendment and were also submitted subsequent to the judgment under review. The Federation has averred therein that “this new system of judicial appointments envisaged two new independent constitutional bodies being a part of the process” of judicial appointments. As specifically pleaded in paragraphs 2 and 3 of the review petitions, the first independent constitutional body was the Commission while the “other independent constitutional body was the Parliamentary Committee” comprised under Article 175A (9) of the Constitution. It is quite obvious from these categorical averments in the review petitions, that the Parliamentary Committee is acknowledged even by the Federation, as an “independent constitutional body”. It should also be self-evident that a Constitutional body which is independent in this way cannot at the same time be part of Parliament. CRP 46 & 47 of 2011 5 7. There is also ambivalence on the part of the Federation in respect of the nature of the Committee and its place in the constitutional order. In this regard we can refer to the synopsis of oral submissions which has kindly been supplied to us in these cases, by the learned Additional Attorney General. These submissions were made by him before the seventeen-Member Bench hearing the petitions challenging the 18th Amendment. While defining the status of the Committee the position taken by the Federation was that it is a ‘constitutional Committee, distinct from an ordinary Parliamentary Committee established under the Parliamentary Rules of Business, the special Constitutional Committee is not subject to the same rules as a Parliamentary Committee and instead is subject to its own rules, which it is entitled to make for itself under Article 175A’. This position was re-emphasized by the submission that “the Parliamentary Committee is generally a stage in the legislative process whereas [the Committee] under Article 175A is not concerned with Parliament’s legislative process. It is a distinct Committee dealing with a distinct area of the Constitution namely the appointment of superior Court Judges”. 8. Clearly, therefore, it is impossible, for the aforesaid reasons, to see the Committee as being part of Parliament or to accord to it equivalence with Parliament. RULE RELATING TO PRECEDENT 9. We may now address the Federation’s contention that our judgment, by virtue of Article 189, will have the effect of rendering the Committee redundant, for all future cases. While the respective domains/roles of the Committee and the Commission will be addressed in a later part of this opinion, for the present we can briefly deal with the fundamental rule relating to the use of precedent in a common law jurisdiction such as ours, as this will show that the Federation’s argument is misconceived. The rule which infuses discipline in the working of a common law Court and which we have scrupulously adhered to, can be seen from our judgment and in CRP 46 & 47 of 2011 6 particular paragraph 74 of the concurring opinion where we have consciously avoided giving ‘overly broad and sweeping statements on Article 175 as amended’ and have, with full awareness of the nature and effect of precedent, noted that our ‘job here is to determine the fate of [these] petitions before us. And the outcome of these petitions is determined, ultimately, by their own facts and circumstances’. This fundamental principle of legal reasoning in common law jurisdictions, with which students are familiarised in law school, is often overlooked by lawyers and Judges, to the peril of incremental and organic growth of the law. It is in this jurisprudential context that certain paragraphs in the judgment under review, cited by Mr. K. K. Agha in support of his argument and considered later, have to be examined. 10. Mr. Agha rightly referred to Article 189 of the Constitution as providing constitutional recognition of the common law principle of binding precedent. It will be seen that a decision of the Supreme Court under the said Article “shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding …” Mr. K. K. Agha’s reading of the judgment under review based on his understanding of Article 189 ibid, and his conclusion that the Committee has been rendered redundant, is not in accord with settled principles applicable to precedent. The error in his reasoning can easily be illustrated by adverting to the circumstances of the present case. 11. Firstly, it is through reliance on precedent that we have accepted as “a principle of law” that the Constitution has to be read as an organic whole and that its Articles and separate clauses cannot be seen in decontextualised isolation. There appears to be no dispute on this as Mr. Agha himself became a forceful votary of this legal principle despite his earlier objection against judicial review of the decisions of the Committee, based on the insular reading of Article 175A alone. Then, inter alia, by applying the said principle of law to Article 175A, we have enunciated a new principle of law, which is that the decisions of the Committee are subject to judicial review. This can CRP 46 & 47 of 2011 7 rightly be termed a principle of law enunciated by us in terms of Article 189 of the Constitution. While doing so we have carefully remained within the ambit which constrains a Court when laying down precedent. The learned Additional Attorney General, as noted earlier, has also now acknowledged the Court’s power to review the decisions of the Committee. By virtue of Article 189 this new principle will remain the law until it is revisited. Yet another ‘principle of law’ which has been enunciated in the judgment under review is the delineation of the respective roles of the Commission and the Committee under Article 175A. It is here that the Federation appears to have fallen in error. The principle that the Commission and the Committee have defined roles is precedent. Whether the Committee has performed its role or has remained within its domain while making the impugned decisions in the circumstances of these cases is not precedent except to the extent a future case may arise which is indistinguishable on facts, from these cases. 12. The misconception in Mr. Agha’s reasoning arises when the factual determination, based on the specific circumstances of this case, is treated as a principle of law in terms of Article 189 ibid. He reads our judgment as enunciating a principle of law which renders the Committee redundant. No such legal principle, we say with respect to Mr. Agha, has been enunciated by us, as is clear from the extract of the judgment under review reproduced above and from a number of other passages in the said judgment which highlight the factual aspects of this case. Whatever is peculiar and specific to the facts and circumstances of this case, by definition cannot be a principle of law enunciated by us. 13. What has been stated in this section of our opinion is neither original nor is it a product of any creative exercise on our part. These principles can be found in any textbook on precedent and legal reasoning in a common law jurisdiction. The dynamic of the judicial process which drives evolution of the law based on precedent appears to have been overlooked in the Federation’s submissions before us. CRP 46 & 47 of 2011 8 DOMAIN OF THE COMMITTEE - REDUNDANCY 14. The above discussion should to a large degree address the arguments of the Federation. But, considering the importance of this case, we may take this opportunity to directly deal with the Federation’s stance that through the judgment under review, the Committee had been made redundant. This argument is not correct as it ignores important parts of the judgment and also appears to be based upon a misconception as to the nature and effect of precedent as explained above. The learned Additional Attorney General adverted to paragraphs 21, 22 and 32 of the lead judgment and paragraphs 55 and 56 of the concurring opinion to support his argument. According to him when these parts of the judgment under review are examined together the conclusion is that no meaningful role has been left for the Committee and that it has been rendered redundant. I have gone through the cited paragraphs of the judgment and find the argument of the Federation to be without merit. 15. Let me say at once that the Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. We have specifically held that “[t]he role which they [the Prime Minister and President] were performing in the previous legal set up … is now logically to be performed by the Committee”. Therefore, if the Prime Minister’s role in the previous appointment mechanism was not considered to be meaningless, we fail to see how the Committee, charged with performing the same role, can be considered redundant. That the Committee is only an “institutionalized forum” for performing the functions which were previously the domain and province of the Prime Minister is made clear in our judgment more than once. This can be further buttressed if one considers the speeches of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th Amendment bill was being debated. On 6.4.2010, for instance, with the object of convincing the members of the National Assembly to approve Article CRP 46 & 47 of 2011 9 175A, Mr Rabbani said, “in actual fact what is happening is that the functions that were being performed by the Prime Minister in terms of the present [pre amendment] system of appointment of Judges would be taken over by this Parliamentary Committee”. The very same intention was repeated six days later on the floor of the Senate on 12.4.2010 when Mr. Rabbani, with the same clarity of expression and intent stated that “what in actual fact has been done here [in Article 175A] is, that the role that was assigned to the Prime Minister in terms of appointment of Judges … has now been assigned to this Parliamentary Committee”. 16. It may be noted here that Mr. Raza Rabbani was not just any member of Parliament making any odd speech on the floor of the Houses of Parliament to put forward his own point of view. He was the Chairman of the PCCR. It was he who was steering the Constitutional amendments through Parliament. We can presume that within the PCCR, comprised of 27 members, there would have been discussion and divergent points of view on Article 175A before it was given the shape it finally took in the 18th Amendment. These divergent views were sorted out which resulted in the view expressed by Mr. Rabbani while explaining the function of the Committee. It has not been suggested and, in any event, there would be no warrant for the premise that the intent of Parliament was anything different from what was stated by Mr. Rabbani in Parliament, in the solemn proceedings effecting important provisions of the Constitution. It would, therefore, be reasonable to rely on Mr. Raza Rabbani, as providing evidence of Parliamentary intent. It is such intent after all, which we are engaged in ascertaining and in this effort we are immeasurably benefited by what Mr. Rabbani said. We have already commented on the relevance of Parliamentary proceedings as an aid to interpretation of statutory text. While considering the domain and functions of the Committee we should also note that Mr. Rabbani was unambiguous in informing Parliament that the members of the PCCR “were also mindful of the fact that the manner in which the trichotomy of power has been defined in that [Sindh High Court Bar Association] judgment, CRP 46 & 47 of 2011 10 the balance of that should not be upset”. Our judgment under review has ensured that this balance is maintained. 17. The above noted Parliamentary record provides the most clear and unequivocal explanation of what role the Committee was meant to perform. And since there was no debate on Article 175A in either House when Article 175A was passed without comment or amendment, we can take comfort in the fact that our interpretation of Article 175A matches the intention of Parliament as we have held in the judgment under review that, “Parliament intended to preserve the delineation of powers in the previous dispensation, but vest the role in more diffused bodies than was previously the case”. If we have enunciated this general principle of law, it is difficult to see how it can be said we have rendered the Committee redundant. 18. Regardless of the above discussion, it must be stressed here that though the Commission and the Committee perform essentially the same functions as the Chief Justice and the Prime minister in the previous dispensation, it would be a mistake to imagine these constitutional bodies as simply substitutes for the Chief Justice of Pakistan and the Prime Minister respectively. The base of decision-making has been substantially broadened. Thus, we now have in the Commission, members of the Bar and the governing Executive involved in the decision-making process along with seven members of the Judiciary who did not have a Constitutional role in the previous dispensation. This provides capacity to the Commission which enables it to have information about, and consider what in our jurisprudence are referred to as ‘antecedents’, of a potential nominee for judicial office. This should not be taken to mean that the Committee’s role in considering the antecedents of such nominee stands eliminated. The Committee may also examine the antecedents of a nominee and form an opinion as to his suitability for judicial office. Such opinion, howeve r, must conform to standards which pass judicial scrutiny because the decisions of the Committee are subject to judicial review. CRP 46 & 47 of 2011 11 19. There may, therefore, be an overlap of functions of the Commission and the Committee in, for instance, assessing and evaluating the antecedents of a nominee for judicial office. But this overlap does not eliminate the role of the Committee or make it redundant. It simply requires the Committee to engage in a conscious and rigorous exercise of its own which will ensure that a person who has dubious antecedents is filtered out in the selection and appointment process. It is precisely this function which has been emphasised on behalf of the Federation in the synopsis of arguments referred to above wherein it has been said, inter alia, that the Committee may “be concerned in calling for intelligence reports which was the function of the Governor under the old system …”. 20. However, if the Committee, as in the present cases, does not engage in any exercise at all other than picking up an observation of one member of the Commission and chooses to base its decision on it without more, it will have fallen in error. The Committee has to perform its role in a meaningful way and with the application of mind which will withstand judicial scrutiny in accordance with recognized standards. The Federation nevertheless, wants us to hold that this verdict of the Committee is sacrosanct despite these shortcomings. To give such extraordinary precedence to the verdict of the Committee, based on nothing more than tentative observations (subsequently reconsidered) of one member of the Commission is not warranted. The appointment of Judges is too serious a matter to be dealt with in such casual fashion. The requirement of Article 175A is that the Committee shall give “its decision with reasons” in the event it does not confirm a nomination made by the Commission. Unfortunately, this has not been done. Instead the Committee’s decision making function, entrusted to it by Article 175A, has in effect, been outsourced. It is the unquestioning subservience of the Committee to the observations of the Chief Justices of Punjab and Sindh, without examining the basis of such observations, which we have guarded against in our judgment under review. The reasons for this CRP 46 & 47 of 2011 12 view have been stated in the judgment under review, but can now be further elaborated. 21. It is clear that the observations which form the sole basis of the Committee’s decision represent at best the pre-deliberation views of the Chief Justices of the two High Courts. These views may or may not have an empirical basis. It would be for the Commission, assembled as a collegium to examine the same and to decide whether or not these views adhere to the objective standards considered appropriate or relevant by the collegium. This is the essential function of a collegium responsible for making a collective decision. Our jurisprudence is familiar with instances of collective decision making, be these in University Syndicates, Boards of Trustees/directors or statutory authorities etc. The hallmark of such decision-making is that each member of the collegium brings his own views – informed or uninformed, subjective or reasoned – to the collegiate body. It is there that all views are either synthesised into an objective decision, or a member of the collegiate body, who disagrees with the collective view, records his dissent. 22. In the facts of this case, the relevant collegiate body, the Commission, unanimously agreed to recommend the contentious names after discussion. The Committee, therefore, could not rely on the pre-discussion views of the one member of the Commission respectively in each case, without providing any independent reasoning. The Committee did not have any information before it for treating the tentative views of the two Hon’ble Chief Justices as empirical fact nor did it consider the objective standards which informed the unanimous opinion of the Commission. It is this aspect of the petitions which has been of concern to us and has justifiably been given importance. The Committee could still have disagreed with the Commission within the ambit previously reserved for the Prime Minister, if it had any reasons of its own to justify a different opinion. This process, if adhered to, would have been consistent with the role which was earlier envisaged for the Prime Minister. The outcome of the Constitution Petitions decided by us is a result CRP 46 & 47 of 2011 13 of these specific circumstances. It follows, therefore, that if the facts are different in any subsequent case the outcome of such case may also be different. This is precisely what we have said in para 74 of the concurring opinion, which in relevant part is reproduced as under:- “74. … We are not here engaged in an academic exercise or in a discourse to expound general constitutional principles of political philosophy. Our job here is to determine the fate of the petitions before us. And the outcome of these petitions is determined, ultimately, by their own facts and circumstances.” (emphasis is ours). The same view has been repeatedly emphasised in the judgment under review where we have underscored this by noting that “we have consciously confined our consideration of the petitions and arguments advanced, to the specific facts and circumstances of [these] cases”. 23. Therefore, if in future the Committee decides to subordinate itself to the opinion of one member of the Commission, it must, under accepted norms of judicial scrutiny, give its own reasons for making this choice. Without such reasons which are capable of withstanding judicial scrutiny, the opinion of the Committee can only be termed as unreasoned and arbitrary. Our jurisprudence as a rule strikes down arbitrary and unreasoned exercise of discretionary power, particularly when the law requires that reasons be given by the decision maker for such exercise of power. Reference can be made to the case titled Chief Justice of Pakistan Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary and others (PLD 2010 SC 61) if authority is required for this established principle of law. Thus, if at all, a legal principle is to be deduced from our judgment in the light of Article 189, it would be that the Committee does not have untrammelled powers to choose, without sound reasons, the unconsidered views of one member of the Commission out of thirteen, while discarding the considered views of all thirteen members together or of the CRP 46 & 47 of 2011 14 remaining twelve members. The decisions of the Committee must meet the usual and well recognized standards of objectivity and application of mind, amongst other standards. 24. It must also be noted here that even Mr. Agha rightly acknowledged that allowing the Committee to pick and choose between the views of members of the Commission would amount to unwarranted slippage into the territory, which Article 175A has endeavoured to avoid. He nevertheless advanced the argument that some extra weight should be given to the opinion of the Chief Justices of the two High Courts because they would be in a better position to make an evaluation of the capabilities and potential of a nominee. This is not necessarily a correct premise because it would be equally arguable that the five senior most Judges of this Court would have a better ability to assess such potential, having had the occasion to sit in appeal over decisions of the nominees. Giving weightage to the views of one member of the Commission, apart from being questionable on the said ground, will also have the effect of negating the principle of collegiate decision-making introduced in the Constitution by Article 175A. As Mr. Makhdoom Ali Khan said with some justification, this would emasculate the Commission, reducing its power to selection of nominees only, but otherwise, in matters of actual appointment, it would be rendered subordinate to the Committee. 25. Mr. K. K. Agha then prayed that we should identify areas left open for the Committee for cases which may arise in the future. Consistent with our views expressed in paragraph 74 ibid, we will not speculate or play clairvoyant or gaze into crystal balls. We, therefore, will not make an attempt to provide for all possibilities or future eventualities. As was aptly put by Benjamin Cardozo, an American jurist and judge in the last century in his lecture on “Adherence to Precedent”, “we have to pay in countless ways for the absence of prophetic vision. No doubt the ideal system, if it were attainable, would … supply for every conceivable situation, the just and fitting CRP 46 & 47 of 2011 15 rule. But life is too complex to bring the attainment of this ideal within the compass of human powers”. (Cardozo, B. J. Adherence to Precedent (1921) New Haven: Yale University Press) We have already stated that the Committee has the powers indicated above. It only has to adhere to established standards in arriving at its decisions to ensure that such decisions withstand judicial scrutiny. The learned Additional Attorney General then advanced the argument that the decisions of the Commission must also state reasons and be subject to judicial review. This question does not arise in these petitions. We need not, therefore, speculate on an issue not before us. 26. The above discussion, we expect, will have demonstrated that rather than the tenor and context of our judgment, it is the mistaken reading of the same and the flawed understanding of Article 189 of the Constitution which has resulted in the unwarranted impression, that as a legal principle we have rendered the Committee redundant. PREJUDICE IN THE 18th AMENDMENT CASE 27. The next contention of the learned Additional Attorney General was that the various parties, including the four Advocates General, in the petitions challenging the 18th Amendment, pending before a seventeen- Member Bench, stand prejudiced by the judgment under review as no notice was given to them before deciding the Constitution Petitions. This argument is based on the premise that certain issues, which were argued before the larger bench in the said case, had yet to be finally determined; therefore, instead of deciding those issues in the instant case, this bench should have either clubbed these proceedings for adjudication with the 18th amendment cases or waited for the final decision in that case. 28. In this regard, Mr. K. K. Agha’s submissions focused on the justiciability of the decisions of the Parliamentary Committee. We have considered this argument and find it to be without force. Firstly, the justiciability of the decisions of the Committee was not a central issue in the CRP 46 & 47 of 2011 16 18th amendment cases; any submission thus made by the Federation regarding the justiciability of the Committee’s decisions was only ancillary to the argument which concerned this Court’s power to judicially review a constitutional amendment. It must be stated clearly that this issue has not been touched by the judgment under review and so is a matter which remains to be settled by the larger Bench in the 18th amendment cases. 29. Moreso, it cannot be imagined that pending the decision in the said cases, any matter relating to the countless submissions made before the larger Bench cannot be adjudicated by this Court. The Constitution (18th Amendment) Act, 2010 introduced amendments in 97 Articles of the Constitution. Many of these provisions have been challenged before the other Bench. The challenged provisions concern important subjects. It would, therefore, be inappropriate to suspend the application and interpretation of the same for as long as the 18th Amendment cases remain pending. 30. Similarly, Mr. K. K. Agha’s submission that the impugned judgment has prejudiced the Federation because it has made observations relating to the scope of ouster clauses, independence of the judiciary, judicial review, etc. does not carry much weight. Our observations regarding these matters are based on the limited context and issues arising in these cases. The existing legal corpus has been used while rendering our judgment. This treasure trove is available to all Courts within our jurisdiction at all times. We, therefore, do not see any prejudice being caused to the Federation as a result of our adjudication. As to prejudice to the other parties, none of them has approached us with any grievance that they have been prejudiced by our judgment. 10-A MAINTAINABILITY 31. Mr. Agha then referred to the case of Wukala Mahaz Barai Tahafaz Dastoor and another versus Federation of Pakistan and others (PLD 1998 SC 1263) and argued that Article 199 of the Constitution was available to the petitioners and, therefore, Article 184 (3) should not have been used because CRP 46 & 47 of 2011 17 the power thereunder has to be sparingly used. He also added that Article 10-A which has been inserted in the Constitution through the 18th Amendment has provided for fair trial and due process. According to him, due process includes a right of at least one appeal. As such if this Court exercises power under Article 184 (3) of the Constitution, this will result in denial of a right of appeal to the Federation. He also pointed out that in the case of Sindh High Court Bar Association versus Federation of Pakistan (PLD 2009 SC 879), the petitioner Association had first approached the Sindh High Court and thereafter the appellate jurisdiction of this Court had been invoked since the Association was aggrieved of the High Court judgment. 32. Mr. Agha’s submission was that the failure of the Court to consider Article 10A and the consequent denial of the implied right of at least one appeal and the implications of this omission have not been examined in the judgment under review. This is a new argument which was never raised during arguments in the Constitution Petitions. In principle, this is reason enough to dismiss this argument, since it has long been settled that new issues are not to be entertained at the Review stage. However, even if we were to consider this argument, it would have made no difference to the outcome of the review since it is misconceived because it ignores the express provisions of Article 184 (3) of the Constitution. 33. It is clear from Article 184 (3) that the Constitution has expressly empowered this Court to exercise the powers vested in a High Court under Article 199, subject to the two-fold rider that the matter should be one of public importance and should relate to the enforcement of fundamental rights. In the present cases, we have already exercised our jurisdiction under Article 184 (3) ibid and find no justification for recalling the judgment under review, solely for the purpose of directing the respondents Nos. 1 and 2 (petitioners in the Constitution Petitions) to approach the High Court and then to approach this Court again if aggrieved by the decision of the High Court. CRP 46 & 47 of 2011 18 34. In view of the foregoing discussion, we find no justification for reviewing our judgment. These Review Petitions are, therefore, dismissed. 35. Keeping in mind the requirements of Articles 28 and 251 of the Constitution, and the fact that a gist of the judgment under review was also issued in Urdu, we propose to issue a gist of this opinion in Urdu which will be an appendix hereof. This will be done shortly. Judge Judge Judge Judge ISLAMABAD 20th April, 2011. A. Rehman /� APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Advisory Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Muhammad Sair Ali Mr. Justice Ghulam Rabbani REFERENCE NO. 1 OF 2011 [REFERENCE BY THE PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN UNDER ARTICLE 186 OF THE CONSTITUTION TO REVISIT THE CASE OF ZULFIQAR ALI BHUTTO REPORTED AS PLD 1979 SC 38] -.-.- On behalf of President: Dr. Babar Awan Minister for Law & Justice Government of Pakistan Mr. M. Masood Chishti Secretary, Ministry of Law & Justice Date of hearing: 13.04.2011 -.-.- ORDER Dr. Babar Awan has stated that he would appear in this matter. But we have told him that as a lawyer he must be aware that he has to get his licence revived, though we know that there are examples where during the era when there was no constitutional dispensation in the country, Ministers had been appearing before the Courts as lawyers, but now as there is constitutional dispensation and institutions are functioning under Reference 1 of 2011 Order dt. 13.04.2011 2 the Constitution, therefore, such exercise should not be repeated. On this, he stated that he has prepared his resignation, which was placed before us for our perusal along with another document whereby he has been authorized by the President to appear in Court. However, resignation has to be tendered to the President, who is the competent authority to accept the same. We appreciate that realizing importance of the case, Dr. Babar Awan, Minister for Law has tendered his resignation and his licence is likely to be revived during the course of the day. In view of the importance of the Reference, we adjourn it to 14.04.2011 at 11.30 a.m. IFTIKHAR MUHAMMAD CHAUDHRY, CJ MUHAMMAD SAIR ALI, J GHULAM RABBANI, J Islamabad, the 13th April, 2011

IN THE SUPREME COURT OF PAKISTAN (Advisory Jurisdiction) PRESENT: MR. JUSTICE KHILJI ARIF HUSSAIN. MR. JUSTICE TARIQ PARVEZ. MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE GULZAR AHMED. MR. JUSTICE SH. AZMAT SAEED. REFERENCE NO.01 OF 2012. [Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973] For the President: Mr. Wasim Sajjad, Sr. ASC. Mr. Abdul Latif Yousafzai, Sr. ASC. Mr. Idrees Ashraf, Advocate Mr. Mehr Khan Malik, AOR. For Federation: Mr. Irfan Qadir, A. G. for Pakistan Mr. Dil Muhammad Alizai, DAG Barrister Shehryar Riaz Sh. Advocate Mrs. Shafaq Mohsin, Advocate Ch. Faisal Hussain, Advocate Amicus Curie: Mr. Makhdoom Ali Khan, Sr. ASC. Mr. Khurram M. Hashmi, Advocate. Mr. Umair Majeed Malik, Advocate. Mr. Hyder Ali Khan, Advocate. Mr. Saad M. Hashmi, Advocate. Mrs. Asma Hamid, Advocate. Khawaja Haris Ahmed, Sr. ASC, Assisted by: i. Kh. Zaheer Ahmed, Advocate ii. Syed Ali Shah Gilani, Advocate. Date of Hearing: 14.12.2012. (Reserved) OPINION Khilji Arif Hussain, J-. Briefly stating the facts, relevant to give opinion on the questions referred to by the President of Pakistan, through Reference No.1 of 2012, under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred Reference No.1 of 2012 & Const.P.No.126 of 2012 2 to as ‘the Constitution’], are that in a meeting of the Judicial Commission of Pakistan [hereinafter referred to as ‘the Commission’], held on 27.09.2012 to fill a vacancy, the Chief Justice of Pakistan initiated the names of Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, as a Judge of this Court. After deliberations, the Commission nominated Mr. Justice Iqbal Hameed-ur-Rahman as a Judge of this Court. 2. In another meeting of the Commission, on the same day, which was attended by Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, the Chief Justice of Pakistan initiated the name of Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad, who after deliberations and with majority of 7 to 2, was nominated. 3. When the tenure of Mr. Shaukat Aziz Siddiqui; Mr. Noor-ul-Haq N. Qureshi; and Mr. Muhammad Azeem Khan Afridi, who were initially appointed as Additional Judges of Islamabad High Court, Islamabad, for a period of one year with effect from the date they took oath of their offices was nearing expiry, their cases were referred to the Commission and after deliberations it nominated the names of Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad with a vote of 8 to 2 and unanimously nominated Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for further Reference No.1 of 2012 & Const.P.No.126 of 2012 3 period of six months from the date of expiry of his present term, whereas the name of Mr. Muhammad Azeem Khan Afridi was dropped he was not nominated. 4. The meeting of the Commission was attended by Mr. Justice Muhammad Anwar Khan Kasi, as most senior Judge of Islamabad High Court, Islamabad. 5. On receipt of nominations, in respect of Mr. Justice Iqbal Hameed-ur-Rahman, as a Judge of this Court; Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad; Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad; and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for a period of six months from the date of expiry of his tenure, the Parliamentary Committee [hereinafter referred to as ‘the Committee’], after due consideration unanimously endorsed the nominations made by the Commission and sent the same to the Prime Minister of Pakistan to forward them to the President of Pakistan for issuance of requisite notifications. The President of Pakistan, after receipt of the aforesaid nominations, instead of issuing the notifications, by way of filing a Reference (Reference No.1 of 2012) under Article 186 of the Constitution, sought opinion of this Court on the following questions of law, considering them to be of public importance:- “(i). Whether in view of the decision by the Chief Justice of the IHC that Mr. Justice Riaz was the senior most judge of the IHC, which decision of the Chief Justice was also confirmed by the Reference No.1 of 2012 & Const.P.No.126 of 2012 4 President of Pakistan, Mr. Justice Kasi could be treated as most senior Judge of the IHC? (ii) Whether Mr. Justice Riaz had a legitimate expectancy to be appointed as Chief Justice of the IHC on the ground that he was the most senior Judge of that Court in the light of the judgment of the Supreme Court in the Al-Jehad case referred to above? (iii) Whether the JCP acted in accordance with the Constitution and conventions thereof in recommending a junior Judge as Chief Justice of the IHC? (iv) Whether JCP was properly constituted as per provision of Article 175-A of the Constitution as Mr. Justice Kasi who participated in the meeting was not a Member thereof and was a stranger to the proceedings? (v) Whether the President who is bound by oath of office to preserve, protect and defend the Constitution is obliged to make the appointments which are not in accordance with the provisions of the Constitution? (vi) What should be the manner, mode and criteria before the Judicial Commission with respect to the nomination of a person as a Judge of High Court, Supreme Court and Federal Shariat Court in terms of Clause (8) of Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973? (vii) What is the proper role of the Judicial Commission and Parliamentary Committee under the Constitution of Pakistan with respect to appointment of Judges of Supreme Court, High Court and Federal Shariat Court? (viii) What should be the parameters before the Parliamentary Committee for the confirmation of the nominee of the Judicial Commission in terms of Clause (12) of Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973? (ix) Whether the Constitution prohibits reconsideration of the nominations by JCP and confirmed by the Parliamentary Committee in the light of the observations made by the President? (x) What should be the criteria for elevating a Judge/Chief Justice of the High Court to the Supreme Court? Is it, their seniority inter- se as Judge of the High Court or their seniority inter-se as Chief Justice of respective High Court be the consideration for elevation to the Supreme Court? (xi) Whether the Constitution of Pakistan prohibits individual Members of the JCP to initiate names for appointments of Judges to the Supreme Court, the High Courts and the Federal Shariat Court? (xii) The Parliamentary Committee under Article 175-A of the Constitution may confirm or may not confirm a nomination in accordance with the provisions stated therein. What is the true import and meaning of the word “confirm” and what is the effect of the proviso to Clause 12 of Article 175-A which reads as follows: Reference No.1 of 2012 & Const.P.No.126 of 2012 5 “Provided further that if nomination is not confirmed, the Commission shall send another nomination” (xiii) Whether by not providing in camera proceeding for JCP in Article 175-A of Constitution of Pakistan, the intention of the legislature is to ensure complete transparency and open scrutiny?” 6. As the subject matter of the Reference is of utmost importance with regard to the independence of the Judiciary and the principle of trichotomy of powers, this Court decided to seek the assistance of some senior Lawyers and thus appointed Mr. Makhdoom Ali Khan, learned Sr.ASC and Khawaja Haris Ahmed, learned ASC, as amicus. 7. Mr. Waseem Sajjad, learned Sr. ASC while appearing on behalf of the Referring Authority contended that the principle underlying the determination of seniority of Judges, elevated on the same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being senior in age is the most Senior Judge and thus is to be nominated as Chief Justice, Islamabad High Court. This practice, the learned counsel added, being more than a century old has been consistently followed in the Indian sub-continent and even after its partition. The learned counsel, to substantiate his argument, referred to the letter No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division). The learned counsel by elaborating his argument contended that when according to the dictum laid down in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324), the most senior Judge of a High Court has a legitimate expectancy to be appointed as Chief Justice, in the absence of any concrete reason, Mr. Reference No.1 of 2012 & Const.P.No.126 of 2012 6 Justice Riaz Ahmed Khan being the most senior Judge was entitled to be nominated for appointment as Chief Justice and that the nomination of Mr. Justice Muhammad Anwar Khan Kasi was not only an out right departure from the century old practice but also against the law of the land, therefore, the President is not bound to appoint such person as Chief Justice. The learned counsel next contended that even the Judicial Commission, nominating Mr. Justice Shaukat Aziz Siddique for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as Judges of the High Court, cannot be said to have been properly constituted in the absence of the most senior Judge, therefore, their nominations will not have any legal or constitutional sanctity, notwithstanding it having been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded to the President. It would be all the more without any legal and Constitutional sanctity, argued the learned counsel, when it does not conform to the manner prescribed by the Constitution. The learned counsel to support his contention referred to the cases of Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759), and Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 Supreme Court 723). The fact, maintained the learned counsel, that a non-entity, sat, voted and took part in the proceedings would also call for its annulment on this score alone. The learned counsel to support his contention placed reliance on the case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and others, Ex- Reference No.1 of 2012 & Const.P.No.126 of 2012 7 parte Pinochet Ugarte (No.2). Even otherwise, the learned counsel submitted, that the President being appointing authority is duty bound to ensure obedience to the Constitution and the law cannot appoint a person who has not been nominated in accordance with the provisions of the Constitution. 8. The learned counsel further contended that if the principle of seniority and that of legitimate expectancy linked therewith, are ignored without reasons to record, it would give rise to the whim and caprice of the person sitting at the peak which is not conducive for independence of judiciary. The learned counsel also waxed eloquent by asking this Court to redefine the mode and manner of appointing Judges but when we observed that all these questions have been elaborately dealt with in the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court 407), the learned counsel submitted that since they have been dealt with collaterally the judgment so rendered being obiter dicta will not have binding force. We would have agreed with the learned counsel for the President but he could not point out anything striking or significant in the judgment which went un-noticed or unattended. It is, therefore, not obiter dicta by any attribute. This judgment could have been treated as sub-silentio a precedent not fully argued, but again the learned counsel could not advert to any legal or Constitutional aspect of the case which escaped the notice of the Bench, rendering the judgment, so as to relegate it, to the status of sub-silentio. The learned counsel after taking us through various Reference No.1 of 2012 & Const.P.No.126 of 2012 8 parts of the judgment rendered in the case of Federation of Pakistan v. Sindh High Court Bar Association (PLD 2012 Supreme Court 1067), contended that its reference in the minutes of the meeting of the Judicial Commission, to justify the inference that Mr. Justice Muhammad Anwar Khan Kansi is the most Senior Judge of the High Court, is absolutely uncalled for, as it, when read carefully, does not support any such inference. How could the proceeding in the Judicial Commission be held in camera, asked the learned counsel, when the legislature in its wisdom purposely provided otherwise so as to ensure complete transparency and open scrutiny. What would be the criterion asked the learned counsel, for elevating Judges or a Chief Justice of a High Court to the Supreme Court and whether it is inter se seniority of the Judges or the Chief Justices of the High Courts which constitutes a determining factor? 9. Learned Attorney General appearing on the notice of the Court contended that the Judicial Commission was not properly constituted, as persona designata did not attend the meeting and the person who attended the meeting was just a non-entity, therefore, the whole process shall stand vitiated. The President, the learned Attorney General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding nomination so made was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney General next contended that where in the judgment rendered in the case of Sindh High Court Bar Association v. Federation of Pakistan Reference No.1 of 2012 & Const.P.No.126 of 2012 9 (PLD 2009 Supreme Court 879), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President’s House. Instead, the learned Attorney General submitted, he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such an angle, the learned Attorney General concluded, the President cannot be kept out of the affairs regulating the appointment of Judges. 10. Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as Amicus Curie on notice of the Court. The learned counsel in the first instance addressed the Court as to the binding nature of an advice rendered by this Court in the exercise of its advisory jurisdiction. The learned counsel by referring to the relevant paragraph of the judgment rendered in Reference No. 02 of 2005 by the President of Pakistan (PLD 2005 Supreme Court 873), submitted that though an opinion given by the Court on a reference filed by the President is not a decision between the parties but since it is handed down after Reference No.1 of 2012 & Const.P.No.126 of 2012 10 undertaking an extensive judicial exercise and hearing of Advocates it has a binding force. Such advice, the learned counsel submitted has to be esteemed and accepted with utmost respect. The learned counsel then by referring to various Articles of the Constitution in general and Article 175-A in particular contended that the mode and manner of appointing Judges of the superior Courts has under gone a change and that the whole process from the inception to the end is now regulated by the latter. The learned counsel submitted that after a person has been nominated by the Judicial Commission, his name has been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded by the latter to the President for appointment, the President will have no choice but to appoint him. While commenting on the mode and manner of appointment of Judges and things ancillary thereto, the learned counsel submitted that an exhaustive exercise has been taken in the cases of Al-Jehad Trust (supra) and Munir Hussain Bhatti (supra), therefore, yet another exercise is hardly called for. The learned counsel, however, submitted that the principle and practice of appointing the most Senior Judge as Chief Justice is not open to any dispute and thus cannot be departed from without reasons to be recorded as held in the case of Al-Jehad Trust (supra). The President or for that matter any other person performing the affairs of Federation, the learned counsel submitted, is duty bound to protect the Constitution and that the instant reference appears to be an effort in this behalf. Reference No.1 of 2012 & Const.P.No.126 of 2012 11 11. Khawaja Haris Ahmed, Sr. ASC who was also asked to assist the Court as Amicus Curie, highlighted the salient features of his written submissions. He by referring to Article 175-A of the Constitution of Pakistan submitted that the role of the President in the appointment of Judges is more-or-less ministerial, once a nomination originating from the Judicial Commission and confirmed by the Parliamentary Committee has been sent to the Prime Minister and then forwarded to the President. He by referring to the judgment rendered in the case of Munir Hussain Bhatti (supra), submitted that where almost all of the questions raised in the reference have been answered in the judgment it would be futile to reiterate the same. 12. With regard to the question relating to seniority, the learned counsel submitted that the same being person specific is not one of law, therefore, this Court cannot afford to decide such question in its advisory jurisdiction. The learned counsel next contended that the omission to mention the expression most senior Judge in the provision relating to appointment of the Chief Justice of a High Court is significant and that in the absence of any express provision even the most senior Judge cannot have legitimate expectancy, as the Constitution on this score has remained the same even after the dictum laid down in the case of Al-Jehad Trust (supra). 13. In order to give an opinion on the questions referred to by the President of Pakistan and reproduced hereinabove, we would Reference No.1 of 2012 & Const.P.No.126 of 2012 12 like to discuss the legislative history of various Articles of the Constitution. 14. The first document that served as the Constitution of Pakistan was the Government of India Act, 1935. The constituent assembly, elected in the year 1946, after nine years adopted the first Constitution of 1956, which was abrogated in October, 1958 by Gen.(R) Ayub Khan. The 1962 Constitution was abrogated on 25.03.1969 by second Martial Law Administrator Gen.(R) Muhammad Yahya Khan. In December, 1970, elections were held, however, due to various reasons, which we would not like to comment upon, the National Assembly did not meet due to widespread disturbance in East Pakistan and Mr. Zulfiqar Ali Bhutto was sworn in on 20.12.1971 as President of Pakistan. After gaining power, Mr. Zulfiqar Ali Bhutto invited the leaders of political parties to meet on 19.07.1972, which after intensive discussions resulted in an agreement. A Committee of 25 Members was appointed to prepare a draft for a permanent Constitution of Pakistan and after deliberations; the Assembly passed a bill unanimously on 19.04.1973. The Constitution of Pakistan, 1973 came into effect on 14.08.1973, providing Parliamentary Form of Government, based on the trichotomy of power. 15. Prior to Constitution (Eighteenth) Amendment, the procedures for appointment of a Judge of the superior Courts mentioned in the Constitutions of Islamic Republic of Pakistan, 1962 Reference No.1 of 2012 & Const.P.No.126 of 2012 13 and 1973 were identical to some extent. Before Constitution (Eighteenth) Amendment, the Articles 177 and 193 of the Constitution empowered the President of Pakistan to appoint the Chief Justice of Pakistan; the Chief Justices of the High Courts; and the Judges of the superior Courts. From perusal of the said Articles, it appears that though appointment of a Judge of the superior Courts was to be made by the President, but after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the concerned High Court (except where the appointment is that of a Chief Justice). The appointment of a Judge of the superior Courts is a constitutional appointment and mode thereof is provided by the Constitution itself. The “consultation”, as envisaged prior to the Constitution (Eighteenth and Nineteenth) Amendments, required by the President of Pakistan from the consultees was not a formality, but was mandatory and no appointment or confirmation of a Judge of the superior Courts could be made without resorting to the consultative process. 16. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324), it was held that if the Chief Justice of the High Court and the Chief Justice of Pakistan give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives a negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion Reference No.1 of 2012 & Const.P.No.126 of 2012 14 about a candidate on the basis of their expert opinion that the candidate cannot be appointed, then the opinion of the Chief Justice cannot be ignored and due weight is to be given to his opinion. It was further held that the President/Executive does not have a final say in the matter of appointment of the Judges of the superior Courts and if the opinion of the Chief Justice is ignored, the President/Executive should give reasons which could be juxtaposed with the reasons of the Chief Justice to find out as to what reasons are in the public interest. 17. Immediately, after the pronouncement of judgment in the case of Al-Jehad Trust (supra), the President of Pakistan filed a Reference (Reference No.2 of 1996) under Article 186 of the Constitution seeking opinion of this Court whether the President’s powers to make the appointment of Judges of the superior Courts, such appointment is subject to the provisions of Article 48(1), which prescribed that in the exercise of his functions, the President shall act in accordance with the advice of the Prime Minister. This Court, vide judgment reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1997 Supreme Court 84), after discussing all aspects of the matter, in detail, came to the conclusion that in respect of appointment of the Judges as contemplated under Articles 177 and 193 of the Constitution, the advice of the Cabinet/Prime Minister under Article 48 (1) is attracted. In the said case at page 141, it was held as under:- “74. After considering the arguments advanced for and against the proposition on the point whether for making Reference No.1 of 2012 & Const.P.No.126 of 2012 15 appointments of Judges under Articles 177 and 193, which are special provisions, advice of the Prime Minister to the President under general provision of Article 48 is attracted or not, we are of the considered opinion that there is no apparent conflict in Articles 48 on one side and 177 and 193 on the other side because Articles 177 and 193 are to be read in conjunction with Article 48 (1) which is omni potent provision being special characteristic of Constitution of 1973 which envisages Parliamentary Form of Government. If the Constitution-makers intended even after promulgation of Eighth Amendment to exclude Article 48(1) from application to Articles 177 and 193, then they could have expressly mentioned in Articles 177 and 193 that the President while performing his functions under these Articles is allowed to act in his discretion excluding advice of the Prime Minister and would be deemed to be acting under Article 48(2). For such reasons we are of the view that there is no conflict as appointments under Articles 177 and 193 of the Constitution are made in conjunction with Article 48(1) of the Constitution always attracting and applying advice of the Prime Minister to the President.” 18. After the pronouncement of the authoritative decision by this Court in the case of Al-Jehad Trust (ibid) by Constitution (Eighteenth) Amendment Act, 2010 (Act 10 of 2010), the appointment procedures of the Judges of the superior Courts were radically changed. “175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.- (1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as herein after provided. (2) For appointment of Judges of the Supreme Court, the Commission shall consist of-- (i) Chief Justice of Pakistan; Chairman (ii) two most senior Judges of the Supreme Court; Members (iii) a former Chief Justice or a Member former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the two member Judges, for a term of two years; (iv) Federal Minister for Law and Member Justice; (v) Attorney-General for Member Pakistan; and (vi) a Senior Advocate of the Member Supreme Court of Pakistan Reference No.1 of 2012 & Const.P.No.126 of 2012 16 to be nominated by the Pakistan Bar Council for a term of two years. (3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan. (4) The Commission may make rules regulating its procedure. (5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely: --- (i) Chief Justice of the High Court Member to which the appointment is being made; (ii) the most senior Judge of that Member High Court; (iii) Provincial Minister for Law; Member and (iv) a senior advocate to be Member nominated by the Provincial Bar Council for a term of two years: Provided that for appointment of the Chief Justice of a High Court, the most senior Judge of the Court shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the two member Judges of the Commission mentioned in clause (2): Provided further that if for any reason the Chief Justice of High Court is not available, he shall also be substituted in the manner as provided in the foregoing proviso. (6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:--- (i) Chief Justice of the Islamabad Member High Court; and (ii) the most senior Judge of that High Court: Member Provided that for initial appointment of the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission: Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. Reference No.1 of 2012 & Const.P.No.126 of 2012 17 (7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members: Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply. (8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be; (9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely: --- (i) four members from the Senate, and (ii) four members from the National Assembly. (10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. (11) Secretary, Senate shall act as the Secretary of the Committee. (12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: Provided that the committee may not confirm that nomination by three-fourth majority of its total membership within the said period, in which case the Commission shall send another nomination. (13) The Committee shall forward the name of the nominee confirmed by it or deemed to have been confirmed to the President for appointment. (14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. (15) The Committee shall make rules for regulating its procedure.” The Constitution (Eighteenth) Amendment was called in question through various petitions in this Court and after hearing, an interim Reference No.1 of 2012 & Const.P.No.126 of 2012 18 short order was passed; for convenience sake relevant portion therefrom, reads as under:- “While doing so we take note of the fair stand taken by Mian Raza Rabbani, Chairman of the Special Committee of the Parliament for Constitutional Reforms and the Attorney General for Pakistan to which reference has been made in Para-12 above and hold that Article 175A shall be given effect to in the manner as under:- (i) In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices. (ii) The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may deem proper. (iii) The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the President for necessary orders. If the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the Committee to the Chief Justice of Pakistan and the same shall be justicable by the Supreme Court. 19. In the light of the interim order, the Constitution (Nineteenth) Amendment Act of 2011 was passed and to some extent, the observations made by this Court were accepted and Article 175A was amended, which reads as under:- 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.- (1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided. (2) For appointment of Judges of the Supreme Court, the Commission shall consist of-- (i) Chairman Chief Justice of Pakistan; (ii) Members four most senior Judges of the Supreme Court; (iii) Member a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be Reference No.1 of 2012 & Const.P.No.126 of 2012 19 nominated by the Chief Justice of Pakistan, in consultation with the four member Judges, for a term of two years; (iv) Member Federal Minister for Law and Justice; (v) Member Attorney-General for Pakistan; and (vi) Member a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years. (3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan. (4) The Commission may make rules regulating its procedure. (5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:- (i) Member Chief Justice of the High Court to which the appointment is being made; (ii) Member the most senior Judge of that High Court; (iii) Member Provincial Minister for Law; and (iv) Member An advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years: Provided that for appointment of Chief Justice of a High Court, the most senior Judge mentioned in paragraph (ii) shall not be Member of the Commission: Provided further that if for any reason the Chief Justice of High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission in paragraph (ii) of clause (2): (6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:- (i) Member Chief Justice of the Islamabad High Court; and (ii) Member the most senior Judge of that High Court Provided that for initial appointment of the Chief Justice and the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission: Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. (7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members: Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) Reference No.1 of 2012 & Const.P.No.126 of 2012 20 shall, mutatis mutandis, apply. (8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be. (9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:- (i) Four members from the Senate; and (ii) Four members from the National Assembly. Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this article, shall, mutatis mutandis, apply. (10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. (11) Secretary, Senate shall act as the Secretary of the Committee. (12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period. Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister. Provided further that if a nomination is not confirmed, the Commission shall send another nomination. (13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment. (14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. (15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained. (16) The provisions of Article 68 shall not apply to the proceedings of the Committee. (17) The Committee may make rules for regulating its procedure. Reference No.1 of 2012 & Const.P.No.126 of 2012 21 It is in this background that thirteen questions have been framed and are placed before this Court seeking opinion under Article 186 of the Constitution. 20. We are recording this opinion without touching the vires of Article 175A which is subject matter of various petitions pending before this Court. 21. First of all, we would like to give our opinion on questions No.(v) & (ix) although framed separately but are interconnected. These are as under:- (v) Whether the President who is bound by oath of office to preserve, protect and defend the Constitution is obliged to make the appointments which are not in accordance with the provisions of the Constitution? and (ix) Whether the Constitution prohibits reconsideration of the nominations by JCP and confirmed by the Parliamentary Committee in the light of the observations made by the President? 22. The suitability of a candidate about his ability, legal competency and integrity, which was to be determined by the Chief Justice of Pakistan and the Chief Justice of the concerned High Court prior to the Constitution (Eighteenth and Nineteenth) Amendments now is to be determined by the Commission, a body consisting of experts from all stakeholders i.e. the Judiciary, the Executive and Bars, created by Article 175A of the Constitution. Although each Member of the Commission is equal, including the Chief Justice of Pakistan/Chief Justice of the concerned High Court having one vote each, yet the Constitution Framers in their wisdom gave decisive vote to the Judiciary, as out of 11 Members of the Commission 08 Reference No.1 of 2012 & Const.P.No.126 of 2012 22 Members are from the Judiciary alongwith one retired Judge of the Supreme Court, nominated by the Chief Justice of the Pakistan. 23. To discharge the duty put on their shoulders by the Constitution Makers, to select the best person as a Judge of the superior Courts, the most senior Judges of the Supreme Court and the High Courts, being Members of the Commission, having one vote each, are supposed to form their opinions independently about the ability, legal competency, integrity and administrative skill of the person, whose name is initiated by the Chief Justice of Pakistan or the Chief Justice of the High Court, without which, the fundamental rights of the Citizens cannot be secured. 24. The President of Pakistan makes appointment to various (non-elective) constitutional offices besides appointing the High Court and Supreme Court Judges like the Auditor General of Pakistan; the Chief Election Commissioner and its Members; the Chairman, Federal Public Service Commission; Care Taker Prime Minister, Members of Islamic Council and the Chiefs of Armed Forces. We would like to reproduce hereinbelow the relevant Articles of the Constitution to appreciate the questions involved:- “Audit and Accounts 168. (1) There shall be an Auditor-General of Pakistan, who shall be appointed by the President. (2) Before entering upon office, the Auditor-General shall make before the Chief Justice of Pakistan oath in the form set out in the Third Schedule. (3) The Auditor-General shall, unless he sooner resigns or is removed from office in accordance with clause (5), hold office for a term of four years from the date on which he assumes such office or attains the age of sixty-five years, whichever is earlier. (3A) The other terms and conditions of service of the Auditor- General shall be determined by Act of Majlis-e- Reference No.1 of 2012 & Const.P.No.126 of 2012 23 Shoora (Parliament); and, until so determined, by Order of the President.] (4) A person who has held office as Auditor-General shall not be eligible for further appointment in the service of Pakistan before the expiration of two years after he has ceased to hold that office. (5) The Auditor-General shall not be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court. (6) At any time when the office of the Auditor-General is vacant or the Auditor-General is absent or is unable to perform the functions of his office due to any cause, [the President may appoint the most senior officer in the Office of the Auditor-General to] act as Auditor- General and perform the functions of that office. 177 Appointment of Supreme Court Judges. 177. (1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A. (2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and— (a) has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day). Appointment of High Court Judges. 193. [(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article 175A.] (2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than [forty-five] years of age, and— (a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or (c) he has, for a period of not less than ten years, held a judicial office in Pakistan. [Explanation.—In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.] (3) In this Article, "District Judge" means Judge of a principal civil court of original jurisdiction. Chief Election Commissioner and Election Commissions 213. (1) There shall be a Chief Election Commissioner (in this Part referred to as the Commissioner), who shall be appointed by the President. (2) No person shall be appointed to be Commissioner unless he is, or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under Reference No.1 of 2012 & Const.P.No.126 of 2012 24 paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court. (2A) The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person. (2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders: Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name: [Provided further that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate: Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the [total membership of the Parliamentary Committee shall consist of] the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply.] (3) The Commissioner shall have such powers and functions as are conferred on him by the Constitution and law. Time of Election and bye-election 224(1)(1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care-taker Cabinet: Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: “224A. Resolution by Committee or Election Commission.- (1) In case the Prime Minister and the “Leader of the Opposition in the outgoing National Assembly do not agree on any person to be appointed as the care-taker Prime Minister, within three days of the dissolution of the National Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the National Assembly, comprising eight members of the outgoing National Assembly or the Senate, or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition respectively. (2) In case a Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly do not agree on any person to be appointed as the care-taker Chief Minister, within three days of the dissolution of that Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the Provincial Assembly, comprising six members of the outgoing Provincial Assembly having equal representation from the Treasury and the Opposition, to be nominated by the Chief Minister and the Leader of the Opposition respectively. (3) The Committee constituted under clause (1) or (2) shall finalize the name of the care-taker Prime Minister or care- Reference No.1 of 2012 & Const.P.No.126 of 2012 25 taker Chief Minister, as the case may be, within three days of the referral of the matter to it: Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days. 228. Composition, etc., of Islamic Council. 228. (1) There shall be, constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this part referred to as the Islamic Council. (2) The Islamic Council shall consist of such members, being not less than eight and not more than 3[twenty] as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan. (3) While appointing members of the Islamic Council, the President shall ensure that— (a) so far as practicable various schools of thought are represented in the Council; (b) not less than two of the members are persons each of whom is, or has been a Judge of the Supreme Court or of a High Court; (c) not less than 1[one third] of the members are persons each of whom has been engaged, for a period of not less than fifteen years, in Islamic research or instruction; and (d) at least one member is a woman. 2[(4) The President shall appoint one of the members of the Islamic Council to be the Chairman thereof.] (5) Subject to clause (6), a member of the Islamic Council shall hold office for a period of three years. (6) A member may, by writing under his hand addressed to the President, resign his office or may be removed by the President upon the passing of a resolution for his removal by a majority of the total membership of the Islamic Council. Public Service Commission 242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law provide for the establishment and constitution of a Public Service Commission. (1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President on the advice of the Prime Minister. (1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.] (2) A Public Service Commission shall perform such functions as may be prescribed by law. Armed Forces 243. (1) The Federal Government shall have control and command of the Armed Forces. (2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. (3) The President shall subject to law, have power— (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and (b) to grant Commissions in such Forces. (4) The President shall, on advice of the Prime Minister, appoint— Reference No.1 of 2012 & Const.P.No.126 of 2012 26 (a) the Chairman, Joint Chiefs of Staff Committee ; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salaries and allowances]” 25. A bare reading of the Article 168 prior to Constitution (Eighteenth and Nineteenth) Amendments, reveals that Clause 3 of Article 168 was substituted by Sub Clause 3 of Article 168 (1) of the Constitution, as adopted in 1973 Constitution by providing a term of office of the Auditor General of Pakistan. 26. Articles 177(1) and 193(1) were amended by Constitution (Eighteenth and Nineteenth) Amendments by providing that the Chief Justice of Pakistan and Chief Justices of the Provincial High Courts and Judges of superior Courts will be appointed by the President of Pakistan, in accordance with Article 175A of the Constitution, which Article gives a complete process and mechanism for the appointment of Judges of the superior Courts. 27. Article 213 for appointment of Chief Election Commissioner and its Members was amended by inserting new Clauses 2A & 2B by Constitution (Eighteenth) Amendment and proviso to clause 2B by Constitution (Nineteenth) Amendment. By Clause 2B of Article 213 of the Constitution, a Parliamentary Committee (to some extent identical to Parliamentary Committee in the matter relating to appointment of Judges of the superior Courts) has been constituted to confirm one person out of three names each proposed by the Prime Minister and the Leader of the Opposition, if there is no consensus between them on three names. The ‘discretion’ Reference No.1 of 2012 & Const.P.No.126 of 2012 27 of the President to appoint the Chief Election Commissioner, as provided in the 1973 Constitution was omitted from sub clause 1 of Article 213 of the Constitution, which means that though the President of Pakistan has to appoint the Chief Election Commissioner and its Members, he now has no discretion except to appoint the “person” whose name is confirmed by the Parliamentary Committee, as provided by Article 175A(13) of the Constitution for appointment of Judges of the superior Courts. He is completely ousted from the process of nomination of name and the only role left for him is to “appoint” the nominee of the Committee and or of Prime Minister & Leader of Opposition as the case may be. 28. Article 224(1A) is inserted by Constitution (Eighteenth) Amendment, whereas Article 224A is inserted by Constitution (Twentieth) Amendment providing for appointment of care-taker Cabinet/Prime Minister. On dissolution of the Assembly on completion of its term or in case it is dissolved under Article 58 or Article 112, the President or the Governor, as the case may be, shall appoint a care-taker Prime Minister in consultation with the Prime Minister and the Leader of Opposition in the outgoing National Assembly. The proviso of Article 224(1A) inserted by Constitution (Eighteenth) Amendment made it mandatory to appoint the person as care-taker Prime Minister, nominated by the Prime Minister and the Leader of the Opposition. In case, the Prime Minister and the Leader of the Opposition in the outgoing National Assembly do not agree on any person, they shall forward two nominees each to a Reference No.1 of 2012 & Const.P.No.126 of 2012 28 committee comprising 8 members of the outgoing National Assembly or the Senate or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition, respectively. The Committee shall finalize the name of the care-taker Prime Minister within 3 days of the referral of the matter to it. If committee is unable to finalize the name of care-taker Prime Minister within 3 days of the referral, the name of the nominee shall be referred to the Election Commission for final decision within two days. 29. Although, the President of Pakistan has to appoint the care-taker Prime Minister but by Constitution (Eighteenth & Twentieth) Amendments, now he is only a symbolic appointing authority with no discretion, but to appoint the person nominated by the outgoing Prime Minister and the Leader of the Opposition as care-taker Prime Minister within 3 days of the dissolution of National Assembly and if they do not agree then by the Committee comprising 8 Members of the outgoing National Assembly or the Senate or by the Election Commission, as the case may be, as in the matter of appointment of Judges of the Superior Courts. 30. The Chairman of Public Service Commission and Chiefs of Armed Forces now by Constitution (Seventeenth) Amendment are to be appointed by the President on the advice of the Prime Minister instead of “in his discretion”. Reference No.1 of 2012 & Const.P.No.126 of 2012 29 31. From the perusal of different Articles referred to above for appointments of various constitutional offices, by the President in the matter of appointment of Chairman, Public Service Commission, Chiefs of Armed Forces, it appears that the President has to act on the advice of Prime Minister and he may require the Prime Minister to re-consider such advice whereas, in the matter of appointment of Judges in the Superior Courts; Chief Election Commissioner and Members of the Commission; and care-taker Prime Minister, the advice of Prime Minister is not required and after the nomination of name for appointment, by the Committee, the President has no discretion except to appoint the nominee. 32. We would like to mention here that the Azam Jammu & Kashmir Interim Constitution Act, 1974 provides that a Judge of the Supreme Court or High Court shall be appointed by the President on the advice of a Council after consultation with the Chief Justice of the Azad Jammu & Kashmir. The Prime Minister or the person nominated by him is one of the members of the council alongwith six members to be elected by the Assembly, including five members nominated by the Prime Minister of Pakistan and others. In the case of Muhammad Younas Tahir and another vs. Shaukat Aziz, Advocate, Muzaffarabad and others (PLD 2010 SC AJK 42) while dealing with question whether advice of Prime Minister is required while appointing Judges of superior courts it was held that since a Judge in the Supreme Court is appointed by the President on the advice of the “Council” and after consultation with the Chief Justice Reference No.1 of 2012 & Const.P.No.126 of 2012 30 of Azad Jammu & Kashmir and the Chief Justice of the High Court the advice of Prime Minister is not relevant for the purpose of appointment of judges. 33. The Constitution, being a living organ for all times is to be interpreted dynamically, as a whole, to give harmonious meaning to every Article of the Constitution. 34. The function of the Court, while interpreting the statute, is to discover the true legislative intent. Having ascertained the intention, the Court must strive to interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rules that plain words should be interpreted according to their plain meaning. The Constitution was framed by its Framers, keeping in view the situations and conditions prevailing at the time of its making, but being an organic document it has been conceived in a manner so as to apply to the situations and conditions which might arise in the future. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution. 35. The general principle of interpretation of statutes is equally applicable while interpreting any provision of the Constitution. However, while interpreting a provision of the Constitution, great caution has to be taken by the Court, as the Reference No.1 of 2012 & Const.P.No.126 of 2012 31 Constitution is supreme law, which creates the Legislature itself which makes ordinary law and statutes with respect to which canons of statutory interpretation have been formulated by the Courts. The task of expounding a Constitution is crucially different from that of construing a statute. An ordinary statute can easily be enacted or repealed by a simple majority of the Members of the Parliament, whereas any provision of the Constitution can be amended only by 2/3rd majority of both the Houses. 36. In the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court 407), this Court held that the Parliamentary Committee under Article 175A of the Constitution cannot be equated with the Parliament nor can it be treated as a sub- set of the Parliament in the manner in which a Parliamentary Committee elected and answerable to the Parliament can be considered to be part of the Parliament. The role of the Parliamentary Committee has been dealt with in detail in the said judgment and the Review Petition filed there-against by the Federation of Pakistan. We would like to reproduce hereinbelow paras 15 and 16 of the judgment, under review, dated 24.04.2011:- “15. Let me say at once that the Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. We have specifically held that “[t]he role which they [the Prime Minister and President] were performing in the previous legal set up … is now logically to be performed by the Committee”. Therefore, if the Prime Minister’s role in the previous appointment mechanism was not considered to be meaningless, we fail to see how the Committee, charged with performing the same role, can be considered redundant. That the Committee is only an “institutionalized forum” for performing the functions which were previously the domain and province of the Prime Minister is made clear in our judgment more than once. This can be further buttressed if one considers the speeches of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on Reference No.1 of 2012 & Const.P.No.126 of 2012 32 Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th Amendment bill was being debated. On 6.4.2010, for instance, with the object of convincing the members of the National Assembly to approve Article 175A, Mr. Rabbani said, “in actual fact what is happening is that the functions that were being performed by the Prime Minister in terms of the present [pre amendment] system of appointment of Judges would be taken over by this Parliamentary Committee”. The very same intention was repeated six days later on the floor of the Senate on 12.4.2010 when Mr. Rabbani, with the same clarity of expression and intent stated that “what in actual fact has been done here [in Article 175A] is, that the role that was assigned to the Prime Minister in terms of appointment of Judges … has now been assigned to this Parliamentary Committee”. 16. It may be noted here that Mr. Raza Rabbani was not just any member of Parliament making any odd speech on the floor of the Houses of Parliament to put forward his own point of view. He was the Chairman of the PCCR. It was he who was steering the Constitutional amendments through Parliament. We can presume that within the PCCR, comprised of 27 members, there would have been discussion and divergent points of view on Article 175A before it was given the shape it finally took in the 18th Amendment. These divergent views were sorted out which resulted in the view expressed by Mr. Rabbani while explaining the function of the Committee. It has not been suggested and, in any event, there would be no warrant for the premise that the intent of Parliament was anything different from what was stated by Mr. Rabbani in Parliament, in the solemn proceedings effecting important provisions of the Constitution. It would, therefore, be reasonable to rely on Mr. Raza Rabbani, as providing evidence of Parliamentary intent. It is such intent after all, which we are engaged in ascertaining and in this effort we are immeasurably benefited by what Mr. Rabbani said. We have already commented on the relevance of Parliamentary proceedings as an aid to interpretation of statutory text. While considering the domain and functions of the Committee we should also note that Mr. Rabbani was unambiguous in informing Parliament that the members of the PCCR “were also mindful of the fact that the manner in which the trichotomy of power has been defined in that [Sindh High Court Bar Association] judgment, the balance of that should not be upset”. Our judgment under review has ensured that this balance is maintained.” 37. The President of India under Article 143 of Constitution of India, sought the opinion of the Indian Supreme Court as to whether the expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said Articles. It gave its opinion as under:- Reference No.1 of 2012 & Const.P.No.126 of 2012 33 “19. It is, we think, reasonable to expect that the collegiums would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegiums disfavor the appointment of a particular person? The majority judgment in the second Judges case has said that if "the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This if the majority of the collegiums is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualize a contingency of this nature; we have little doubt that if even two of the Judges forming the collegiums express strong views, for good reasons, that are adverse to the appointment of a particular person the Chief Justice of India would not press for such appointment. 20. The majority judgment in the second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability. It says that such non- appointment "must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest.......... However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made". It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief Justice of India for the non-appointment of that person. In such a situation the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation (AIR 1999 Supreme Court 1). 38. The Parliament, keeping in view the principle laid down by this Court in Al-Jehad Trust case (i.e. the opinion of the Reference No.1 of 2012 & Const.P.No.126 of 2012 34 Chief Justice of Pakistan, being pater-familias about suitability of a candidate’s ability, legal competency and integrity deserves due deference and that the President/Executive should give justicable reasons, which could be juxtaposed with the reasons of the Chief Justice, if the opinion of the Chief Justice of Pakistan is ignored) and the principle laid down by Supreme Court of India that instead of nomination by Chief Justice of India, the nomination will be made by the collegiums of Judges with majority, amended the process of appointment, by constituting a Commission having members from the Judiciary, Bars and the Executive to nominate one person each for each vacancy of a Judge in the Supreme Court, High Courts or the Federal Shariat Court, as the case may be, by majority of its members. Now instead of the President/Executive, under the old dispensation, the Parliamentary Committee either confirm the nomination by a majority of its total membership within fourteen days on receipt of a nomination from the Commission, failing which the nomination shall be deemed to have been confirmed or for justifiable reasons, to be recorded, may not confirm the nomination by a three-fourth majority of its total membership within fourteen days. 39. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1997 Supreme Court 84) [Reference No.2 of 1996, filed by the President of Pakistan], it was held that if the Prime Minister within the time-frame fixed in the judgment of this Court fails to tender his advice, he or she, shall be deemed to have agreed to the Reference No.1 of 2012 & Const.P.No.126 of 2012 35 recommendations of the Chief Justice of Pakistan and the Chief Justice of Provincial High Court, as the case may be, and the President may proceed to make the final appointment on that basis. Keeping in view the authoritative decision given by this Court in the said case, the Constitution Framers by Clause 12 of Article 175A of the Constitution provided that if the Parliamentary Committee on receipt of a nomination from the Commission fails to confirm the nominee or to record reasons for not confirming the same by three- fourth majority of its total membership within said period, the nomination shall be deemed to have been confirmed. Clause 12 of Article 175A of the Constitution read with the law laid down in the cases of Munir Hussain Bhatti and Al-Jehad Trust leaves no room of doubt that the advice of the Prime Minister for the appointment of Judges of the superior Courts, which was binding upon the President under Article 48(1) of the Constitution, is now conferred upon the Committee and it is for this reason that Clause 13 of Article 175A of the Constitution provided that the Prime Minister shall forward the nominee confirmed by the Committee to the President of Pakistan for appointment. It does not require that the Prime Minister shall then advice the President for appointment. 40. To appreciate the proposition, it would be advantageous to reproduce hereinbelow the definition of the word “forward” as defined in ‘The Concise Oxford Dictionary (Ninth Edition), which is the foremost authority on current English Language:- Reference No.1 of 2012 & Const.P.No.126 of 2012 36 Onward so as to make progress (not getting any further forward); send (letter etc.) on to a further destination. 41. From a bare reading of Clause 13 of Article 175A of the Constitution, it appears that the Committee, if confirms the name of a nominee of the Commission or the same is deemed to have been confirmed by it, the Prime Minister is left with no discretion but to forward the same to the President of Pakistan for appointment. The Prime Minister after confirmation of the name of the nominee by the Committee is not required to advice the President, under Article 48 of the Constitution or vice versa since no advice is given by the Prime Minister to return the same for reconsideration. 42. The role of the Prime Minister and the President of Pakistan in the appointment of Judges of the superior Courts is nothing but ministerial, and after receiving the nominations from the Committee the Prime Minister and the President have no discretion but to forward/appoint the nominees. 43. If Article 175A alongwith the Scheme of the Constitution, keeping in view its Preamble, which refers to an independent judiciary as well as Article 175(3) of the Constitution, which aims to separate the Judiciary from the Executive, is examined, it will lead to an irresistible conclusion that the role of the Executive in the appointment process of the Judges of the Superior Courts has become more-or-less ministerial and the entire process of appointment revolves around two bodies, created by/under the Constitution i.e. the Judicial Commission and the Parliamentary Committee. Reference No.1 of 2012 & Const.P.No.126 of 2012 37 44. Neither the learned Sr.ASC for the Referring Authority nor the learned Attorney General for Pakistan pointed out that the method of selecting Judges by the Commission in its meetings dated 27.09.2012 & 22.10.2012 and by the Committee thereafter was violative of Articles 177(2) or 193(2) of the Constitution or any provision of the Constitution. The questions are answered in above terms. 45. Now we would revert to question No.(i), to give my opinion on the same, which for convenience sake is reproduced hereinbelow:- (i). Whether in view of the decision by the Chief Justice of the IHC that Mr. Justice Riaz was the senior most judge of the IHC, which decision of the Chief Justice was also confirmed by the President of Pakistan, Mr. Justice Kasi could be treated as most senior Judge of the IHC? 46. Mr. Justice Riaz Ahmad Khan was born on 15.05.1952. He qualified C.S.S. Examination in the year 1977 and joined Civil Services Academy Lahore. At the time, when he was posted at Peshawar, the PCS (Judiciary) Exam was announced in Khyber Pakhtunkhwa (the then NWFP) and he participated in the said examination and qualified the same. On his request, his services were transferred from Federal Government to the Provincial Government of Khyber Pakhtunkhwa and was posted as Civil Judge at Kohat, Haripur, and Peshawar and lastly as Senior Civil Judge at D.I. Khan. He resigned from the said post and started practicing law. He was elevated to the Bench on 04.1.2011 as an Additional Judge of Reference No.1 of 2012 & Const.P.No.126 of 2012 38 Islamabad High Court, Islamabad and was confirmed on 21.11.2011 as a Judge of the said High Court. 47. Conversely, Mr. Justice Muhammad Anwar Khan Kasi was born on 28.11.1956. He was enrolled as an Advocate in 1982 and joined the Judicial Service of Balochistan as a Civil Judge in May, 1986. He was appointed as an Additional District and Sessions Judge in 1991 and as a District and Sessions Judge in 1997. He was elevated as an Additional Judge of Islamabad High Court, Islamabad on 04.01.2011 and was confirmed as a Judge of the said High Court on 21.11.2011. 48. Both the learned Judges were appointed through the same Notification, issued by the Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad, wherein the name of Mr. Justice Muhammad Anwar Khan Kasi appeared at Sr.No.1, whereas the name of Mr. Justice Riaz Ahmed Khan appeared at Sr.No.2. The Hon’ble Chief Justice of Islamabad High Court, Islamabad, while fixing their seniority, vide his order dated 22.12.2011 treated Mr. Justice Riaz Ahmad Khan, being elder in age, as senior to Mr. Justice Muhammad Anwar Khan Kasi. Mr. Justice Muhammad Anwar Khan Kasi made a representation to the Chief Justice of Islamabad High Court, Islamabad, against the determination of his seniority, which was forwarded to the Secretary Ministry of Law, because the appointment notification issued by the said Ministry had placed the name of Mr. Justice Muhammad Reference No.1 of 2012 & Const.P.No.126 of 2012 39 Anwar Khan Kasi at a senior serial number of the notification, to resolve the dispute of inter se seniority at the earliest. The President of Pakistan decided the representation and declared Mr. Justice Riaz Ahmad Khan senior to Mr. Justice Muhammad Anwar Khan Kasi in the seniority of the Judges of Islamabad High Court, Islamabad. 49. The letter No.F.12(5)/86-Add, dated 30.04.1987, issued by the Ministry of Law for the purpose of laying down the principle for inter se seniority of the Judges appointed on the same day, is nothing more than an equitable principle consistently adopted but is not backed by any provision of the Constitution or law. However, the convention of inter se seniority of a Judge is on the basis of ‘senior in age’, which by passage of time has become convention and ought to have been respected. We would like to reproduce hereinbelow the letter dated 30.04.1087:- “No.F.12(5)/87-AII Dated 30.04.1987. GOVERNMENT OF PAKISTAN MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS (JUSTICE DIVISION) Subject:- SENIORITY LIST OF HIGH COURT JUDGES My dear Chief Justice, Please refer to the correspondence resting with High Court of Sindh letter No.Gaz-IV, Z, 14(i) dated the 30th March, 1987, on the subject noted above. 2. An equitable principle consistently adopted in this regard is that Judges whose appointments are made by a single order take seniority according to age. If the appointment of two or more service candidates is also simultaneously made with that of candidate from the Bar, the service Judges will retain their existing seniority in the department regardless of their age which of course would be the determining factor in respect of their seniority vis-à-vis candidates from the Bar. This principle has the approval of the President. 3. I am to request you to please confirm whether the seniority list of Sindh High Court Judges has been prepared in the light of the above principle. Reference No.1 of 2012 & Const.P.No.126 of 2012 40 With kind regards. Yours sincerely, Sd/- (Irshad Hussain Khan)” 50. We have gone through various seniority lists of the Judges of the superior Courts and notifications of their appointments which leave no room for doubt that the recognized principle for determining seniority amongst the Judges of High Courts appointed on the same day irrespective of their appointments from Subordinate Judiciary or Bars, is the seniority in age, and the Law Secretary who issues the notifications of appointment has no lawful authority to determine the same nor does the serial-wise appearance of names in the notification have any nexus with the determination of seniority. We would like to reproduce hereinbelow, as illustration, some of the notifications, issued by Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad and seniorities as determined by the High Courts:- “As shown in the Notification, dated 14.09.2009, issued by Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad:- As placed in the seniority list, prepared by the Lahore High Court, according to their dates of birth:- Mr. Justice Sagheer Ahmed Qadri. 02.12.1951 Mr. Justice Nasir Saeed Sheikh. 12.12.1951 Mr. Justice Sh. Najam ul Hassan 15.03.1952 Mr. Justice Kh. Imtiaz Ahmed. 30.03.1953 Mr. Justice Manzoor Ahmed Malik 01.05.1956 Mr. Justice Sardar Tariq Masood 11.03.1959 Mr. Justice Ijaz ul Ahsan 05.08.1960 1. Syed Mansoor Ali Shah. 2. Sh. Najam ul Hassan. 3. Mr. Manzoor Ahmad Malik. 4. Mr. Asad Munir. 5. Mr. Ijaz ul Ahsan. 6. Hafiz Abdul Rehman Ansari. 7. Sardar Tariq Masood. 8. Mr. Tariq Javaid. 9. Mr. Nasir Saeed Sheikh. 10. Mr. Mansoor Akbar Kokab. 11. Khawaja Imtiaz Ahmad. 12. Mr. Sagheer Ahmad Qadri. Mr. Justice Syed Mansoor Ali Shah 28.11.1962 As shown in the Notification, dated 11.05.2011, issued by Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad:- As placed in the seniority list, prepared by the Lahore High Court, according to their dates of birth:- Mr. Justice Altaf Ibrahim Qureshi 06.03.1953 Mr. Justice Abdus Sattar Asghar 20.03.1953 Mr. Justice Mehmood Maqbool Bajwa 27.09.1954 1. Syed Kazim Raza Shamsi. 2. Mr. Abdul Waheed Khan. 3. Syed Iftikhar Hussain Shah. 4. Mr. Abdus Sattar Asghar. Mr. Justice Amin-ud-Din Khan 01.12.1960 Reference No.1 of 2012 & Const.P.No.126 of 2012 41 Mr. Justice Muhammad Ameer Bhatti 08.03.1962 Mr. Justice Ch. Muhammad Younas 16.09.1951 Mr. Justice Iftikhar Hussain Shah 01.04.1953 Mr. Justice Syed Muhammad Kazim Raza Shamsi 06.09.1956 5. Ch. Muhammad Younas. 6. Mr. Mehmood Maqbool Bajwa. 7. Syed Ijaz Hussain Shah. 8. Mr. Ameen-ud-Din Khan. 9. Mr. Muhammad Ameer Bhatti. 10. Mr. Altaf Ibrahim Qureshi. 11. Malik Shahzad Ahmad Khan. Mr. Justice Malik Shahzad Ahmed Khan 15.03.1963 As shown in the Notification, dated 24.10.2005, issued by Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad:- As placed in the seniority list, prepared by the High Court of Sindh, according to their dates of birth:- Mr. Justice Shamsuddin Hisbani 01.12.1946 Mr. Justice Munib Ahmed Khan 08.05.1949 Mr. Justice Muhammad Athar Saeed 29.09.1949 Justice Mrs. Yasmeen Abbasey 05.01.1950 Justice Mrs. Qaiser Iqbal 13.12.1949 Mr. Justice Ali Sain Dino Metlo 01.03.1950 Mr. Justice Faisal Arab 05.11.1955 Mr. Justice Sajjad Ali Shah 14.08.1957 1. Mr. Justice Munib Ahmed Khan 2. Mr. Justice Muhammad Athar Saeed 3. Mr. Justice Faisal Arab 4. Mr. Justice Sajjad Ali Shah 5. Mr. Justice Nadeem Azhar Siddiqui 6. Mr. Justice Shamsuddin Hisbani 7. Justice Mrs. Yasmeen Abbasey 8. Justice Mrs. Qaiser Iqbal 9. Mr. Justice Ali Sain Dino Metlo Mr. Justice Nadeem Azhar Siddiqui 22.01.1959 As shown in the Notification, dated 24.09.2009, issued by Ministry of Law, Justice & Parliamentary Affairs, Government of Pakistan, Islamabad:- As placed in the seniority list, prepared by the High Court of Sindh, according to their dates of birth:- Mr. Justice Bhajandas Tejwani 01.01.1950 Mr. Justice Shahid Anwar Bajwa 05.10.1950 Mr. Justice Ali Bin Adam Jaffery 14.01.1952 Mr. Justice Ghulam Sarwar Kurai 05.04.1952 Justice Ms. Rukhsana Ahmed Malik 15.04.1957 Mr. Justice Tufail H. Ibraim 10.05.1958 Mr. Justice Ahmed Ali Sheikh 03.10.1961 Mr. Justice Irfan Saadat Khan 07.02.1963 Mr. Justice Aqeel Ahmed Abbasi 16.06.1963 1. Mr. Justice Shahid Anwar Bajwa 2. Justice Ms. Rukhsana Ahmed Malik 3. Mr. Justice Ghulam Sarwar Kurai 4. Mr. Justice Ahmed Ali Sheikh 5. Mr. Justice Ali Bin Adam Jaffery 6. Mr. Justice Bhajandas Tejwani 7. Mr. Justice Irfan Saadat Khan 8. Mr. Justice Aqeel Ahmed Abbasi 9. Mr. Justice Muneeb Akhtar 10. Mr. Justice Tufail H. Ibrahim Mr. Justice Muneeb Akhtar 14.12.1963” 51. Likewise neither the Constitution nor any law authorizes the President of Pakistan, who is a symbolic appointing authority, to decide the inter se seniority of Judges, which even otherwise is not only against the principles of Independence of Judiciary but also violative of Article 175(3) of the Constitution, which provides for separation of the Judiciary from the Executive. Reference No.1 of 2012 & Const.P.No.126 of 2012 42 52. Like the Supreme Judicial Council, a forum created by the Constitution, as held “not a Court” in case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 Supreme Court 61), the Judicial Commission is also created by the Constitution and cannot be given the status of a Court to decide the issue of inter se seniority between two persons. The Commission, which is assigned the function of nominating the names of the candidates for appointment of Chief Justices of High Courts and the Judges of superior Courts by taking in consideration their legal competency etc, who meet the minimum qualification provided by Articles 177(2) and 193(2) of the Constitution has no mandate to decide the inter se seniority of Judges. Anyone, if aggrieved, by the determination of his seniority by the Chief Justice of the High Court and or by the Chief Justice of Pakistan being paterfamilias in the absence of rules, can seek remedy from the Court of competent jurisdiction. However, in the absence of specific guideline it is expected from the constitutional functionaries to regulate the exercise of their discretionary power in the matter as per norms emerging from the actual practice and convention, and legitimate expectancies. 53. Since no rules have been framed for determining the inter se seniority of Judges in superior Courts appointed on same day, we endeavor to draw out a criterion of inter se seniority from the example of a neighboring country. Reference No.1 of 2012 & Const.P.No.126 of 2012 43 54. According to the seniority norm in India, a judge (X) is considered to be senior to another judge (Y) if X was appointed to the court prior in time to Y. The presumption here is that both X and Y are appointed to the same court. If, say, X is appointed to the Bombay High Court, and then Y is appointed to the Calcutta High Court, it's not entirely clear if X is senior to Y. So let's assume that X and Y are both appointed to the Bombay High Court. What if they are appointed on the same date? If one of them is a lawyer being appointed to the court, and another is a subordinate court judge, the lawyer is considered senior to the subordinate judge, though they're appointed on the same date. This is entirely based on convention, however, at one point it was not - the Indian High Courts Act, 1861, said that "Judges of each High Court shall have Rank and Precedence according to the Seniority of their appointments". This provision was also seen in the Government of India Act, 1915, and in the Government of India Act, 1935. 55. Interestingly, in the U.S. Supreme Court as well as in Pakistan, associate justices have "precedence according to the seniority of their commissions", and then according to age if they're appointed on the same date; the same rule applies to US federal circuit court Judges. 56. Though it is not relevant for the purposes of giving opinion on the questions referred to, but time has come to avoid such an unpleasant situation in the future, instead of relying upon Reference No.1 of 2012 & Const.P.No.126 of 2012 44 the opinion of Law Secretary given in the year 1987 rules should be framed by the superior Courts as to what should be the criteria for inter se seniority between (a) Judges appointed on the same day?; (b) A lawyer and a Judge from the District Service? Should it be date of appointment, age or date of registration as an advocate. 57. To record our opinion on question Nos.(ii); (iii); and (x), the same are reproduced hereinbelow:- (ii) Whether Mr. Justice Riaz had a legitimate expectancy to be appointed as Chief Justice of the IHC on the ground that he was the most senior Judge of that Court in the light of the judgment of the Supreme Court in the Al-Jehad case referred to above; (iii) Whether the JCP acted in accordance with the Constitution and conventions thereof in recommending a junior Judge as Chief Justice of the IHC; and (x) What should be the criteria for elevating a Judge/Chief Justice of the High Court to the Supreme Court? Is it, their seniority inter-se as Judge of the High Court or their seniority inter-se as Chief Justice of respective High Court be the consideration for elevation to the Supreme Court? 58. The Hon’ble Chief Justice of Pakistan initiated the name of Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, for appointment as a Judge of this Court, in terms of Rule 3(1) of the Judicial Commission of Pakistan Rules, 2010 framed in exercise of powers conferred on the Commission by Clause 4 of Article 175A of the Constitution. After deliberation and taking into consideration various aspects of the matter including the criteria for elevation of a Judge in Supreme Court, he was nominated as a Judge of this Court. In another meeting, held on the same day, which was attended by Chief Justice of Islamabad High Court, Islamabad, the name of Mr. Justice Reference No.1 of 2012 & Const.P.No.126 of 2012 45 Muhammad Anwar Khan Kasi was initiated for appointment as Chief Justice of the Islamabad High Court, Islamabad and after deliberation he was nominated for Chief Justice of Islamabad High Court, Islamabad and send the same to the Parliamentary Committee. 59. The names of Mr. Justice Iqbal Hameed-ur-Rahman, as a Judge of this Court and Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad, were confirmed by the Committee. 60. As regards the legitimate expectancy of the most senior Judge to be appointed as Chief Justice of the High Court, in the case of Al-Jehad Trust (supra) it was held as under:- “Article 193 of the Constitution empowers the President of Pakistan to appoint the Chief Justice of the High Court. Apparently there is no constitutional requirement to appoint senior most Judge as Chief Justice of the High Court whenever permanent vacancy occurs in the High Court, but to secure the independence of Judiciary from the Executive, it is necessary to advert to the Constitutional convention which has developed by the continuous usage and practice over a long period of time. The Constitutional convention to appoint most Senior Judge of the High Court as a Chief Justice, had been consistently followed in the High Courts since before partition of the sub-continent. The senior most Judge has an edge over rest of the Judges of the High Court on the basis of his seniority and entertains a legitimate expectancy to be considered for appointment as Chief Justice against permanent vacancy of the office of the Chief Justice. Apparently there is wisdom in following the Constitutional convention of appointing most senior Judge of the High Court as permanent Chief Justice, otherwise a junior most Judge in the High Court may aspire to become Chief Justice of the High Court by bypassing his seniors and to achieve this object resort to undesirable conduct by going out of his way to oblige the Government in power. It he succeeds in securing his appointment as Chief Justice by superseding his seniors, by resorting to such measures he will endanger the independence of Judiciary and destroy the public confidence in the Judiciary. If a departure to follow the established convention of appointing the senior most Judge is to be made, the appointing authority should record reasons for not appointing most senior Judge as Chief Justice of the High Court. The complexion of the Institution is likely to be impaired by so doing.” Reference No.1 of 2012 & Const.P.No.126 of 2012 46 61. Having notice of the principles laid down by this Court in the case of Al-Jehad Trust (ibid) that the most senior Judge has the legitimate expectancy to be appointed as Chief Justice of the High Court, the Parliament in its wisdom, while making it mandatory that the most senior Judge of the Supreme Court will be appointed as the Chief Justice of Pakistan under Article 175A(3) of the Constitution, left the question of suitability for appointment of the Chief Justice of the High Court to be decided by the Judicial Commission, a forum created by the Constitution, having four most senior Judges of this Court alongwith the Chief Justice of Pakistan and Chief Justice of the concerned High Court with one vote each. The contention of the learned counsel that if the principles of seniority and legitimate expectancy linked therewith are ignored, it would give rise to the whim and caprice of the person initiating the name, which will affect the independence of the judiciary and its working. At first sight, it seems to have force, but on a careful perusal of Clause 5 of Article 175A of the Constitution, it appears that the process of nomination by one person, prior to Constitution (Nineteenth) Amendment now vests in a body consisting of all stakeholders i.e. the Judiciary, the Representatives of Bars and the Executive. The four most senior Judges of this Court, the Chief Justice of the High Court, a retired Judge of Supreme Court, persons of integrity, who have first hand information about the administrative skill and other related matters, decide who is the most suitable person to be appointed as Chief Justice of the High Court. Knowing well the principles laid down by Reference No.1 of 2012 & Const.P.No.126 of 2012 47 this Court in Al-Jehad Trust case, if the Commission decides to nominate someone other than the most senior Judge as Chief Justice, it may give cause to question before an adjudicatory forum, and the issue may be decided there, but not in this (Reference) jurisdiction. 62. In the Budget Reference (PLD 1989 Supreme Court 85), this Court said “it cannot in this (reference) jurisdiction decide the matter as a lis between the parties, wherein exercise of other powers is available to the Court including discretionary and taking other consequential actions”. But on this count nomination cannot be termed as violative of the Constitution. 63. We may mention here that after Al-Jehad Trust case and even after Constitution (Nineteenth) Amendment, the President of Pakistan appointed the Chief Justices of Lahore and Peshawar High Court, who were not the most senior Judges of that Courts. 64. The Constitution is an organic law which creates the very Legislature which makes ordinary statutes. 65. Prior to the Constitution (Nineteenth) Amendment, the Chief Justice of Pakistan being the head of the judiciary nominates a candidate for the post of Chief Justice of the High Court or Judges of the Superior Courts. The “ability, competency, knowledge and suitability” of the nominee were held to be determined by the Chief Justice of Pakistan being pater familias, his view deserved due deference, which power now is exercised by the Judicial Reference No.1 of 2012 & Const.P.No.126 of 2012 48 Commission consisting of Senior Judges, including Chief Justice of the High Court, Representative of Bar, Attorney General for Pakistan and the Law Minister. The power to appoint a Judge of the superior Courts was initially vested in the Chief Justice of Pakistan prior to Constitution (Nineteenth) Amendment, which then devolved upon the Judicial Commission. As held in the case of Munir Hussain Bhatti, (supra) that the principle laid down in the authoritative decision of Al-Jehad Trust case is still applicable. In the said case, it was held that in the matter of Judges the “satisfaction” of the Chief Justice of Pakistan (now Judicial Commission of Pakistan) is “subjective” and that such satisfaction is not subject to judicial review. In the case of Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 Supreme Court 179), it was held that satisfaction of the Chief Justice of Pakistan is “subjective” and was not justifiable. This view was again reaffirmed in the case of Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 Supreme Court 939). 66. Although minutes of meeting of Judicial Commission have been placed on record by referring authority. We are not taking note of it nor making any comments on it for the reason that satisfaction of the Chief Justice of Pakistan prior to 19th Constitutional Amendment and of Judicial Commission now is “subjective” as held in the cases of Al-Jehad Trust, Ghulam Hyder Lakho and Munir Ahmed Bhatti and not open to judicial review. Reference No.1 of 2012 & Const.P.No.126 of 2012 49 67. In this view of the matter, when this Court, time and again, by authoritative decisions held that the “satisfaction” in the appointment of Judges of the superior Courts including the Chief Justice of the High Court is “subjective” and not open to Judicial Review, the question of nomination by the Commission and confirmation by the Committee of a Judge who is not the most senior Judge of that Court as Chief Justice of High Court, cannot be answered in advisory jurisdiction and may be adjudicated upon in other jurisdiction. Although the practice of appointment of a Judge other than most senior Judge is against the convention and may not be in the interest of the judiciary, however, the appointment of a Judge not most senior as Chief Justice of the High Court cannot be termed as violative of the Constitution. 68. Proviso to Sub clause 5 (iv) of Article 175A provided that for the appointment of a Chief Justice of the High Court the most senior Judge mentioned in paragraph (ii) shall not be a member of the Commission have wisdom in it. If it is supposed that the Judicial Commission decided to nominate most senior Judge of the High Court as a Chief Justice, it is not desirable that he should be a part of such nomination process being one of the interested parties and in case the Judicial Commission decided not to nominate the most senior Judge as the Chief Justice to avoid embarrassment to him because of his presence in the Commission, as various issues may be related to him come under discussion. Reference No.1 of 2012 & Const.P.No.126 of 2012 50 69. In this view of the matter, the Advisory Jurisdiction of the Court is not suitable for such a determination, as the person whose rights are likely to be affected is not before us. 70. When we analyze Clauses 3 and 5 of Article 175A alongwith Article 180 and 96 of the Constitution, it appears that the Constitution Framers made it mandatory under Clause 3 of Article 175A that the most senior Judge of the Supreme Court shall be appointed as Chief Justice of Pakistan and during the absence of the Chief Justice of Pakistan, the most senior Judge of the Supreme Court shall be appointed as Acting Chief Justice of Pakistan, whereas in the case of Chief Justice of the High Court neither Clause 5 of Article 175A nor Article 196 of the Constitution make it mandatory that in the case of a vacancy, the most senior Judge of the High Court will be appointed as Chief Justice of the High Court and in case of absence of the Chief Justice of the High Court, the most senior Judge of the High Court shall be appointed as Acting Chief Justice. 71. It is a principle of legal policy that law should be altered deliberately rather than causally. When the Legislature provided two different modes of appointment of the Chief Justice of Supreme Court and the Chief Justice of the High Court, then so long as the Article of the Constitution is not amended or in adjudicatory jurisdiction, the Court has to follow the same criteria as in the case of the Chief Justice of Pakistan, the appointment of a Judge other than Reference No.1 of 2012 & Const.P.No.126 of 2012 51 most senior Judge cannot be held, in Advisory Jurisdiction, against the Constitution. 72. As regards the criteria for the appointment of a Judge of the Supreme Court, the Chief Justice of Pakistan, pater familias of the Judiciary, in terms of Rule 3 of the Judicial Commission of Pakistan Rules, 2010, initiates nomination of a Judge in the Supreme Court, keeping in view the number of sitting Judges from different High Courts and in this Court, work load of High Courts, their administrative difficulties and other related issues. The Supreme Court is the highest Court of Pakistan and its Judges should reflect the geographic diversity of Pakistan i.e. Judges are appointed to the Supreme Court by taking into account all the Provincial High Courts and Islamabad High Court. Justice Ahmadi while disagreeing with the majority view in second Judge case (AIR 1994 Supreme Court 268) held that the seniority norm ought to be deviated from while appointing Judges to the Supreme Court of India in order to achieve a more representative course. 73. The Judicial Commission consisting of four most senior Judges of this Court; a retired Judge of Supreme Court; a senior Advocate nominated by the Pakistan Bar Council; the Law Minister; and the Attorney General for Pakistan, after deliberations, in terms of Clause 8 of Article 175A, by majority decides whether to nominate or not to nominate the candidate whose name was initiated by the Chief Justice of Pakistan. Reference No.1 of 2012 & Const.P.No.126 of 2012 52 74. Generally, in interpreting statutes, it is presumed that the Legislature chooses its words carefully. Therefore, if a word or phrase has been added somewhere, such addition is not to be deemed redundant; conversely, if a word or phrase has been left out somewhere, such omission is not be deemed inconsequential. Instead, a change in language implies a change in intent. Maxwell, an authority on statutory interpretation remarks: “When precision is required, no safer rule can be followed than always to call the same thing by the same name.” (P.311, Maxwell on the Interpretation of Statures, Eleventh Edition, 1962) 75 In any case, we work on the understanding that the Parliament and its draftsmen are not so careless that they would, within the space of a single article, make such a fatal error. We owe the Legislature more deference that the Legislature is presumed to have chosen its words even more carefully in this case, since we are not talking of some obscure procedural statute over here; we are dealing with a document no less sacred than the Constitution itself. 76 Although due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness therefore, it is expected that this norm to be observed, while initiating the name in term of Rule 3 of Judicial Commission Rules, 2010 and then by the Judicial Commission. A three Member Bench of this Court in the case of Tariq Aziz-ud-Din: in re (2010 SCMR 1301) held as under:- Reference No.1 of 2012 & Const.P.No.126 of 2012 53 “Suffice to observe as is pointed out hereinabove, as well, that posting a junior officer to hold the charge of a senior post, ignoring seniors who are eligible for promotion, does not advance the object of achieving good governance because the rules framed on the subject, noted hereinabove, are not redundant in any manner, therefore, same need to be respected and followed accordingly. It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country, no room is left to allow any authority to make departure from any of its provisions or the law and the rules made thereunder. By virtue of Articles 4 and 5 (2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide the issues after application of mind with reasons as per law laid down by this Court in various pronouncements [Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada (1999 SCMR 2744)]. It is also a settled law that even Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383)]. It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxtaposition to find out the meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is the command of the Constitution. Expression ‘merit’ includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power [Director Food, NWFP v. M/s Madina Flour and General Mills (Pvt) Ltd. (PLD 2001 SC 1)]. Equally, discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions, required for exercise of such power within the scope of law. All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and seven instruments which have already been referred to above regarding exercise of discretion. The obligation to act fairly on H.R.C. No. 8340-G/2009 35 the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of justice Mansukhlal Vithaldas Chauhan v. State of Gujrat [1997 (7) SCC 622].” However, a perusal of Clause 3 of the Article 175A read in juxtaposition with Clause 5 of Article 175A alongwith its proviso indicates that instead of making it mandatory to appoint the most senior Judge as Chief Justice of the High Court, as provided in Clause 3 of Article 175A read with Rule 3 of the Judicial Commission Reference No.1 of 2012 & Const.P.No.126 of 2012 54 of Pakistan Rules, 2010, the matter is left to the discretion of the Chief Justice of Pakistan to initiate the name for Chief Justice of the High Court and the Commission by majority of its total membership to nominate one person for said post. When the Constitution Framers in the case of the appointment of the Chief Justice of Pakistan made it mandatory that only the most senior Judge of Supreme Court shall be appointed as Chief Justice of Pakistan, it left room to appoint a person, who may not be the senior most Judge as Chief Justice of the High Court. Appointment of a Judge other than most senior Judge though may be violative of the convention and is not desirable, but cannot be termed as violative of the Constitution. However, it may give cause to the aggrieved person to seek remedy before the adjudicatory forum, and question can be answered in said jurisdiction. 77. As regards question No.(iv) “Whether JCP was properly constituted as per provision of Article 175-A of the Constitution as Mr. Justice Kasi who participated in the meeting was not a Member thereof and was a stranger to the proceedings”. Mr. Justice Muhammad Anwar Khan Kasi attended the meeting of the Commission, dated 22.10.2012. The Chief Justice of Islamabad High Court, Islamabad, initiated the names of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge [for a period of six months] of Islamabad High Court, Islamabad. For this reason, the notifications in respect of these learned Judges were not issued. The Commission after deliberations nominated the above named learned Reference No.1 of 2012 & Const.P.No.126 of 2012 55 Judges by majority of 7 to 2. Even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi was not the most senior Judge of Islamabad High Court, Islamabad, and attended the meeting of the Commission, it is established from the record that on the date when the meeting of the Commission was called for the purpose of considering the appointment of three Additional Judges of the High Court, Mr. Justice Riaz Ahmad Khan was on ex-Pakistan Leave and the former (Mr. Justice Muhammad Anwar Khan Kasi) was the most senior Judge available of the said High Court. The terms “Chief Justice” and “Acting Chief Justice” have been defined by the Constitution, whereas the term “most senior Judge” has not been defined. However, even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi, was not eligible to sit in the meeting of the Commission, Clause 8 of Article 175A stipulates that the decision of the nomination of a person for any vacancy of a Judge of the superior Court is to be taken by the Commission, by majority of its total members and as such, his attending the said meeting does not vitiate the entire proceedings or makes the nomination invalid. 78 In the case of Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 Supreme Court 724), it was held that:- “Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that “minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman,” meaning thereby that while conducting hearing, the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the Members. Clause (b) of section 3-A (2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In Reference No.1 of 2012 & Const.P.No.126 of 2012 56 this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench comprising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal. In addition to above legal position, the impugned judgment can be treated to have been delivered validly under de facto doctrine. ……………………………………………………………………… Thus endorsing the principles discussed in above paras, the impugned judgment is declared to have been passed validly because Mr. Aftab Ahmed immediately before his retirement had been performing same functions, therefore, it would be deemed that in exercise of same powers in good faith he associated himself in the proceedings. Besides above conclusion, the inclusion of Mr. Aftab Ahmed as a Member of the Bench, had also not caused prejudice to any of the parties because he has not authored the judgment nor there is any likelihood of his having influenced the judgment in any manner as it was authored by the Chairman and remaining two Members of the Bench had concurred with him. No useful purpose as such would be served by remanding the case to the Service Tribunal for fresh decision because dispute is lingering on between the parties for the last so many years, therefore, justice demands that now cases should be decided finally unless remand of the cases is inevitable under the circumstances of each case.” 79. In the case of Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab, Lahore and another (2010 PLC (CS) 1), a three member Bench of the Lahore High Court, while dealing with the question that the committee which conducted the interviews of the petitioners did not comprise all the four members, appointed by the Chief Minister of Punjab vis-à-vis the persons (strangers), who have participated in the interview process, applied the rule of severance, excluded the marks given by the stranger and held that whatever result emerges on account of the exclusion of the stranger’s marks, shall be taken to be the result of the committee, as quorum of the selection committee was complete. Reference No.1 of 2012 & Const.P.No.126 of 2012 57 80. In the case of Anderson v. City of Persons (496, P.2d 1333-Kan: Supreme Court 1972), the Supreme Court of Kansas while dealing with a question, “The appellants' first point involves an alleged conflict of interest arising from the fact that City Commissioners Myer S. Freshman and Barton Dean and all of the five urban renewal commissioners owned property within the general urban renewal area at the time they voted on various resolutions during the progress of the urban renewal program. The legislature provided in the urban renewal law for a special conflict of interest section to disqualify any officer or employee of the city or of the urban renewal board who owned property included or planned to be included in an urban renewal project.” noted as under:- “It is undisputed in the evidence that on May 16, 1966, at the time the resolutions were passed by the city commission declaring certain areas of Parsons to be "slum and blight areas" and creating and appointing the urban renewal agency, two of the three Parsons city commissioners owned real estate in the slum or blight areas. The same two commissioners continued to own their properties at the time the urban renewal plan was adopted. The two commissioners mentioned were Myer S. Freshman and Barton Dean. On January 22, 1969, the city commission by resolution approved the urban renewal project. At that time commissioners Freshman and Dean owned property within the urban renewal area but did not own any land within the area covered by the urban renewal project. As pointed out heretofore, at all stages in the development of the urban renewal program, all of the five urban renewal commissioners had an interest in property located within the general urban renewal area. The first issue to be determined is whether or not the various actions of the urban renewal board in establishing and developing the urban renewal program and the various actions of the Parsons city commissioners in approving the urban renewal plan and in approving the urban renewal project were so tainted with conflict of interest within the meaning of K.S.A. 17-4758 as to completely invalidate ab initio all of the actions and steps taken by the urban renewal board and by the city commissioners in developing the Parsons urban renewal program. It should be emphasized that each of the commissioners made a full disclosure of his property interest in the urban renewal area before participating in any action of his board. We, of course, recognize the common law principle that a public officer owes an undivided duty to the public whom he serves and is not permitted to place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public. If he acquires any interest adverse to those of the public, without a full disclosure it is a betrayal of his trust and a breach of confidence. (United States v. Carter, 217 U.S. 286, 54 L.Ed. 769, 30 S.Ct. 515.) Reference No.1 of 2012 & Const.P.No.126 of 2012 58 The law, however, does not forbid the holding of an office and exercising powers thereunder because of a possibility of a future conflict of interest. (Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89 A.L.R.2d 612.) It has generally been held that the vote of a council or board member who is disqualified because of interest or bias in regard to the subject matter being considered may not be counted in determining the necessary majority for valid action. There are many cases cited in the annotation in 42 A.L.R. 698 in support of this principle. It is also the rule that where the required majority exists without the vote of the disqualified member, his presence and vote will not invalidate the result and further that a majority vote need not be invalidated where the interest of a member is general or of a minor character. (Beale v. City of Santa Barbara, 32 Cal.App. 235, 162 P. 657; Corliss v. Village of Highland Park, 132 Mich. 152, 93 N.W. 254, adhered to on rehearing 132 Mich. 159, 95 N.W. 416; 56 Am.Jur.2d, Municipal Corporations, Etc. Section 172.) 81. As regards Pinochet case (R v Bow Street Metropolitan Stipendiary Magistrate (1999) UK (H.L.52), the House of Lords on allegation that one of the Law Lords member of majority decision had links with Amnesty International complaining of the extradition of Gen. Pinochet, set aside his earlier majority decision by 3 to 2. 82. Consequently, in our opinion, in view of the principle laid down in the cases of Ghulam Abbas and Muhammad Saleem (supra), the proceedings of the Judicial Commission, thereby nominating the names of two, mentioned above, as Judges of Islamabad High Court, Islamabad, are not vitiated because of the attendance of Mr. Justice Muhammad Anwar Khan Kasi in the meeting. 83. Attending to questions No.(vi), (vii), (viii) & (xii) reproduced hereinbelow, which are interconnected and require to be answered together:- (vi) What should be the manner, mode and criteria before the Judicial Commission with respect to the nomination of a person as a Judge of High Court, Supreme Court and Federal Shariat Court in terms of Clause (8) of Article 175- A of the Constitution of Islamic Republic of Pakistan, 1973; Reference No.1 of 2012 & Const.P.No.126 of 2012 59 (vii) What is the proper role of the Judicial Commission and Parliamentary Committee under the Constitution of Pakistan with respect to appointment of Judges of Supreme Court, High Court and Federal Shariat Court; (viii) What should be the parameters before the Parliamentary Committee for the confirmation of the nominee of the Judicial Commission in terms of Clause (12) of Article 175- A of the Constitution of Islamic Republic of Pakistan, 1973; and (xii) The Parliamentary Committee under Article 175-A of the Constitution may confirm or may not confirm a nomination in accordance with the provisions stated therein. What is the true import and meaning of the word “confirm” and what is the effect of the proviso to Clause 12 of Article 175-A which reads as follows: “Provided further that if nomination is not confirmed, the Commission shall send another nomination; Clause 9 of Article 175A of the Constitution provides for the constitution of a Parliamentary Committee and Clause 10 thereof provides for quorum of the Committee, whereas Clause 12 of the said Article provides that the Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed. Proviso to Clause 12 of Article 175A of the Constitution provides that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period and shall forward its decision with reasons so recorded to the Commission through the Prime Minister. The role of the Committee after receipt of nominations from the Commission has been discussed in depth by a four Member Bench of this Court in the case of Munir Hussain Bhatti (supra) and it was held as under:- Reference No.1 of 2012 & Const.P.No.126 of 2012 60 “The nominations made by the Judicial Commission and the refusal of the Parliamentary Committee to confirm the same appear to have generated considerable public interest, providing a great deal of material for debate in the public, the media and the legal fraternity. The Bar Associations of the High Courts in the country have also debated the impugned decisions of the Committee. The Sindh High Court Bar Association, which is itself a petitioner in Constitution Petition No.18 of 2011, has placed on record its resolution dated 23.2.2011 “condemning” the action of the Committee. The proceedings in these petitions and the short order of 4.3.2011 have also made headlines in the print and the electronic media. More so, critical comments on our order dated 4.3.2011 have been carried prominently in the media. We, therefore, find little substance in the factual assertion advanced by Mr. K. K. Agha. “26. The repeatedly emphasized imperative of maintaining a record both of the proceedings of the Committee and of the “reasons” behind its decisions, very strongly suggests that the Committee’s decisions were intended to be subject to judicial review. Otherwise, if the Committee’s decisions were meant to be non-justiciable, and beyond judicial scrutiny, the insistence on recording reasons would not make much sense. It is an established rule of interpretation that Parliament does not waste words and redundancy should not be imputed to it. This principle would apply with even greater force to the Constitution - the supreme law of the land. On this point Mr. K. K. Agha was hard pressed to respond. It will be seen that even an insular reading of this Article, leaves the impression that the decisions of the Committee are subject to review. He, however, argued that even though the 19th amendment had required the Committee to give reasons for its decisions, it did not make any provision for these decisions to be challenged in a court of law. 27. The above submission was augmented by Mr. K. K. Agha, by adverting to the Order of the seventeen-member Bench dated 21.10.2010 wherein it had, inter alia, been said that “in case of rejection of nomination by the Parliamentary Committee … [it] shall have to state reasons which shall be justiciable”. The gist of this argument appears to be that in view of the order of the larger Bench, this Court should infer that through the 19th amendment, it was intended by Parliament that decisions taken by the Parliamentary Committee should not be subject to judicial review. Such inference was sought on the basis that the suggestion in the aforesaid Order as to justiciability was not incorporated in the amended Article. The argument of the learned Additional Attorney General, based on implication and not on the wording of Article 175A as amended, is contrary to the jurisprudence that has evolved in our jurisdiction. Furthermore, the argument ignores the legal precept explained above that the Constitution has to be construed as an organic whole.” 34. On the other hand, Article 175A has set up an independent constitutional body having a specific role assigned to it relating to the appointment of Judges of this Court and of the High Courts. This constitutional body, as adverted to above, has been referred to as a Parliamentary Committee but it is neither part of Parliament when acting under Article 175A nor is it elected by or answerable to Parliament. An examination of the Constitution and established Parliamentary practice will further demonstrate this distinction between the Committee set up under Article Reference No.1 of 2012 & Const.P.No.126 of 2012 61 175A and a parliamentary committee. By virtue of Article 67 of the Constitution, each House of Parliament may “make rules for regulating its procedure and the conduct of its business”. This authority has been exercised by both Houses of Parliament and as a result, rules have been framed. The upper House has framed the “Rules of Procedure and Conduct of Business in the Senate 1988” (the ‘Senate Rules’) while the National Assembly has adopted its own rules known as the “Rules of Procedure and Conduct of Business in the National Assembly, 2007” (the ‘Assembly Rules’). From the Senate Rules and the Assembly Rules, it is very clear that a parliamentary committee is a body elected by the respective houses of Parliament and answerable to such houses. For instance, the Assembly Rules in Rule 200, state that “[e]xcept as otherwise provided in these rules, each Committee shall consist of not more than seventeen members to be elected by the Assembly within thirty days after the ascertainment of the Leader of the House.” Likewise, the Senate Rules in Rule 145(1) provide that “[e]ach Committee shall consist of not less than six members and not more than twelve members to be elected by the Senate… 38. It would be obvious from a plain reading of the above provisions that the limited ouster of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of business of the Parliament. The decisions of the Committee (even if comprised of persons who are honorable members of Parliament) cannot be considered immune from judicial scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is independent of and separate from Parliament notwithstanding its composition. It performs, as noted above, an executive function relating to the Judiciary and, therefore, has been placed in the Chapter relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing with Parliament. 39. The justiciability of the decisions of the Parliamentary Committee can also be approached from another angle, which would be manifest from a holistic examination of the Constitution. The governance of state organs in Pakistan is based on checks and balances where the powers of each organ are counter-balanced by some other organ of the State. Thus, executive action taken by the various administrative and executive functionaries of the State can be called in question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action may additionally be subject to Parliamentary review and over-sight in our parliamentary system of governance. Legislative action can also be called in question in Court, inter alia, on the touchstone that it is violative of the Constitution. Likewise, decisions rendered by this Court can be modified or reversed by legislation (in recognized circumstances) and such legislation may also be retrospective. Thus we see that each organ of the State, be it the Judiciary, the Executive or the Legislature, operates under constitutional constraints which effectively make these organs of State limited in their actions. 84. The principles laid down in the said case were reiterated by another four Members Bench of this Court in the case Reference No.1 of 2012 & Const.P.No.126 of 2012 62 of Federation of Pakistan v. Sindh High Court Bar Association (PLD 2012 Supreme Court 1067). 85. The roles of the Committee and the Commission as well as the parameters before the Committee for confirmation of a nomination by the Commission in terms of Clause 12 of Article 175A of the Constitution are well settled by the reading of the Constitution itself and also by the principles laid down by this Court in the afore-referred two judgments and in Advisory Jurisdiction the same cannot be reviewed. 86. In the matter of Cauvery Water Disputes Tribunal (AIR 1992 Supreme Court 522), the Supreme Court of India declined to answer the question of law under Article 148 of the Indian Constitution, which is parallel to Article 186 of the Constitution and held that:- “when the Supreme Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is. The decision of the Supreme Court on a question of law is binding on all Courts and authorities and under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by the Supreme Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, the Supreme Court overrules the view of the law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. Under the Constitution such appellate jurisdiction does not vest in the Supreme Court, nor can it be vested in it by the President under Article 148 of the Indian Constitution”. Reference No.1 of 2012 & Const.P.No.126 of 2012 63 87. For the foregoing reasons, it is not necessary to answer questions No.(vi), (vii) & (viii) & (xii), as the same have already been answered in the above referred cases. 88. Now coming to questions No.(xi) & (xiii),which read as under:- (xi) Whether the Constitution of Pakistan prohibits individual Members of the JCP to initiate names for appointments of Judges to the Supreme Court, the High Courts and the Federal Shariat Court; and (xiii) Whether by not providing in camera proceeding for JCP in Article 175-A of Constitution of Pakistan, the intention of the legislature is to ensure complete transparency and open scrutiny? Clause 1 of Article 175A of the Constitution provides that there shall be a Judicial Commission of Pakistan for the appointment of the Judges of the Supreme Court, High Courts and the Federal Shariat Court. The composition of the Commission is provided in Clauses 2 and 5 of Article 175A of the Constitution for appointment of Judges of the Supreme Court and of the High Courts, respectively, and Clause 6 thereof relates to the composition of the Commission for appointment of Judges of the Islamabad High Court, whereas Clause 7 of the Article deals with the appointments of Judges of the Federal Shariat Court. The Constitution itself has not provided a mechanism by which the name of the proposed Judge for appointment in the Supreme Court, High Courts or Federal Shariat Court can be placed before the Commission except providing qualification in terms of Articles 177(2) and 193(2). However, Clause 4 of Article 175A of the Constitution confers Reference No.1 of 2012 & Const.P.No.126 of 2012 64 powers upon the Commission to make rules regulating its procedure and Clause 15 thereof empowers the Committee to make rules to regulate its proceeding. 89. The Commission, in exercise of the powers conferred on it by Clause 4 of Article 175A (1), framed the Judicial Commission of Pakistan Rules, 2010, which were duly published in the Gazette of Pakistan, dated 08.11.201. Rule 3 of the said Rules reads as under:- “3. Nominations for Appointments.(1) For each anticipated or actual vacancy of a Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the Commission for appointment against such vacancy. (2). For each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send nomination for appointment against such vacancy to the Chairman for convening meeting of the Commission. 5(4). The proceedings of the Commission shall be held in camera. A record of the proceedings shall be prepared and maintained by the Secretary duly certified by the Chairman under his hand.” Till date, the said Rules are not amended. No Member of the Commission, in terms of the Rules duly framed and not in conflict with any provision of Article 175A, except the Chief Justice of Pakistan or the Chief Justice of the Federal Shariat Court or of a High Court, can initiate the nomination for appointment against anticipated or actual vacancy therein. 90. In terms of the said Rules, the Commission itself in its wisdom decided and rightly so that for each anticipated or actual Reference No.1 of 2012 & Const.P.No.126 of 2012 65 vacancy of a Judge in the Supreme Court, High Courts and Federal Shariat Court, the Chief Justices of the said Courts shall initiate nomination in the Commission for appointment against such vacancy of a person duly qualified in terms of Articles 177(2) and 193(2) of the Constitution and sent to the Chairman of the Commission. The Chairman of the Commission shall then call a meeting of the Commission where such nomination shall be discussed and deliberated upon and then either it will be approved or rejected. The wisdom behind the Rules framed by the Commission is that the Chief Justice of Pakistan or the Chief Justice of the concerned High Court is the best person to practically/technically evaluate a person’s caliber to be nominated as a Judge, including his legal competence and integrity. The Chief Justice of the High Court holding the highest office in the judicial hierarchy of the Province is the best person to know about all the Judicial Officers working in the Province and Advocates appearing before the High Court and on the basis of such personal knowledge, information and material before him, he recommends a person to be appointed as a Judge of the superior Courts. 91. Except initiating the nomination of a person, the Chief Justice of Pakistan or the Chief Justice of the High Court has no other special role in the appointment process and is just like any other member of the Commission and merely because he initiates the nomination, the same itself cannot be recommended, but to be considered as an act of mere procedure. The name initiated by the Reference No.1 of 2012 & Const.P.No.126 of 2012 66 Chief Justice of Pakistan or the Chief Justice of the Provincial High Court is discussed in the Commission comprising all members from different spheres including the Executive, Representatives of Bars and Senior Judges of the Supreme Court and the High Courts. After deliberations and technical/professional evaluation of person’s caliber as a Judge, the Commission nominates the name of such person to be appointed as a Judge of the superior Courts by majority of its total membership of the Commission. 92. In the case of Sindh High Court Bar Association, Sukkur through President versus Pakistan through Secretary, Ministry of Law, Parliamentary Affairs & Justice, Islamabad and another (PLD 2012 Sindh 531), the learned High Court of Sindh while dealing with the question of nominating a person as a Judge or an Additional Judge, in the meeting of the Commission held as under:- “We had the benefit of going through the judgment proposed to be delivered by our learned brother Maqbool Baqar J. We are in agreement with the conclusion drawn by him. However we intend to append our own reasoning in order to clarify that initial nomination for appointment as Additional Judge or a Judge in the High Court is to be made exclusively by the Chief Justice of the concerned High Court and after receiving the initial nomination, the Chairman, convenes meeting of the Judicial Commission of Pakistan where the nomination is considered. Judicial Commission then either recommends or rejects such nomination but on its own does not initiate the process of nomination. The reasons for stating so are as follows. Appointment of Judges of the superior courts are made under the provisions of Article 175-A of the Constitution. The said Article provides the procedure that is to be followed by the Parliamentary Committee but is does not provide the procedure that is to be followed by the Judicial Commission. Under sub- Article (4) of Article 175-A of the Constitution it was left to the Judicial Commission to devise its procedure by framing its own rules. Such rules were framed by the Judicial Commission described as Judicial Commission of Pakistan Rules, 2010. Rule 3 (2) of the said Rules provide that for each vacancy of a Judge in a High Court, nomination for appointment is to be initiated by the Chief Justice of the concerned High Court. Hence under the new dispensation also it is the Chief Justice of the concerned High Court who initially proposes a name against an anticipated or actual vacancy in his Court and sends it to the Chairman of the Judicial Commission. The Chairman then convenes meeting of Reference No.1 of 2012 & Const.P.No.126 of 2012 67 the Judicial Commission. The nomination is discussed and deliberated and then either it is approved or rejected. We may add here that in case it is interpreted in a way that initial nomination of the person as a Judge or Additional Judge can also be made by other members of the Judicial Commission then it might lead to a bizarre situation. The Judicial Commission for appointment in the High Courts comprises of thirteen members. Apart from five sitting judges of the Supreme Court and two of the concerned High Court, the other six members of the Judicial Commission comprise of a retired judge, Federal Law Minister, Provincial Law Minister, Attorney General and one representative each from Pakistan Bar Council and Provincial Bar council. If they as members of Judicial Commission also become entitle to nominate persons for the consideration of the Judicial Commission in addition to the nominations sent by the Chief Justice of the concerned High Court then each of such members would be coming up with his own list of nominees whom he might consider suitable for appointment. There is strong possibility that at a time scores of nominations would be before the Judicial Commission for consideration. Pressure groups might also emerge lobbying with certain members of Judicial Commission to initiate nomination of persons of their choice. The entire process of appointment might get confused and become unworkable. It is to avoid all this that Rule 3(2) of Judicial Commission of Pakistan Rules, 2010 provides that initial nomination for appointment, be it for a Judge or Additional Judge of a High Court, is to be sent to the Judicial Commission by the chief Justice of the concerned High Court. This has always been the procedure in the previous dispensation and has also been recognized under the present dispensation under Rule 3(2) of Judicial Commission of Pakistan, Rules, 2010. The only change that has been brought about after the 18th amendment to the Constitution is that determination of capability of a nominee of the Chief Justice of the High Court is not left to be decided by the Chief Justice of the concerned High Court and the Chief Justice of Pakistan only but to a thirteen member body called Judicial Commission of Pakistan.” 93. Rules being delegated Legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the Legislature delegates because it cannot directly exert its will in every detail. 94. The Judicial Commission of Pakistan Rules, 2010 are not in contravention with or inconsistent or repugnant to any provision of the Constitution, and have been made and promulgated in exercise of the authority conferred on it by the Constitution. Reference No.1 of 2012 & Const.P.No.126 of 2012 68 95. On having dilated upon the questions referred to by the President of Pakistan and opinion recorded hereinabove, we are of the opinion that Mr. Justice Riaz Ahmad Khan is senior most Judge of the Islamabad High Court. 96. Though it is desirable that the most senior Judge of the High Court should be appointed as Chief Justice of that Court, however, in view of Clauses 2 and 3 of Article 175A read with Clause 5, appointment of a Judge not most senior Judge as a Chief Justice of the High Court is not violative of any provision of Constitution. 97. The recommendations made by the Judicial Commission in its meeting dated 22.10.2012 are not vitiated merely because Mr. Justice Muhammad Anwar Khan Kasi attended the said meeting. 98. In terms of Article 175A of the Constitution, the President of Pakistan has no discretion to send the name of nominee of the Judicial Commission and confirmed by the Parliamentary Committee for reconsideration. 99. The Judicial Commission in exercise of powers conferred by Clause 4 of Article 175A framed rules who can initiate .the name of a person as a Judge of the High Court, Federal Shariat Court and the Supreme Court and the Chief Justice of the High Courts and Federal Shariat Court, as the case may be. Reference No.1 of 2012 & Const.P.No.126 of 2012 69 100. The roles of the Parliamentary Committee and the Judicial Commission and parameters for the confirmation of the nominee of the Judicial Commission, have been dealt with, in detail, by this Court in the case of Munir Hussain Bhatti (supra). Judge Judge Judge Judge Judge EJAZ AFZAL KHAN, J. – I have gone through the judgment authored by my brother Mr. Justice Khilji Arif Hussain. I have also gone through the answers to the questions and the reasons recorded therefor. I am not inclined to agree with some of them and thus answer the questions in my note recorded as under. 2. Brief facts leading to the institution of the reference and the Constitution Petition are that a vacancy occurred in this Court on the retirement of Mr. Justice Mian Shakirullah Jan. In order to fill the said vacancy, the Judicial Commission of Pakistan in its meeting held on 27.09.2012 nominated Mr. Justice Iqbal Hameed-ur-Rehman as a Judge of this Court. His nomination as such necessitated the nomination of a Judge of the said High Court for appointment as Chief Justice. Mr. Justice Muhammad Anwar Khan Kansi was nominated for appointment as Chief Justice of the High Court on the ground that he was the most Senior Judge of the said Court. His nomination was confirmed by the Parliamentary Committee and sent to the Prime Minister, who forwarded it to the President for appointment. The President having serious reservations to the status of Mr. Justice Muhammad Anwar Khan Kansi as the most Senior Judge declined to appoint him and thus filed the reference raising the questions recounted above. Constitution Petition mentioned above is also a corollary of the same episode. 3. Mr. Waseem Sajjad, learned Sr. ASC while appearing on behalf of the President contended that when the principle underlying determination of seniority of the Judges elevated on the same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being senior in age is the most Senior Judge to be nominated as Chief Justice, Islamabad High Court. This practice, the learned counsel added, being more than a century old has been consistently followed in the Indian sub-continent and even after its partition. The learned counsel to substantiate his argument referred to the letter No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division). The learned counsel by elaborating his argument contended that when according to the dictum laid down by this Court in the case of “Al- Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (PLD 1996 S.C. 324), the most senior Judge of a High Court has a legitimate expectancy to be appointed as Chief Justice, Mr. Justice Riaz Ahmed Khan being the most senior Judge of the High Court, would be entitled to be nominated for appointment as Chief Justice in the absence of any valid reason and that the nomination of Mr. Justice Muhammad Anwar Khan Kasi is not only an out right departure from the century’s old practice but also against the law of the land, therefore, the President is not bound to appoint such person as Chief Justice. The learned counsel next contended that the Judicial Commission, nominating Mr. Justice Shaukat Aziz Siddique for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as Judges of the High Court, cannot be said to have been properly constituted in the absence of most senior Judge, therefore, their nomination will not have any legal or constitutional sanctity notwithstanding it having been confirmed by the Parliamentary Committee was sent to the Prime Minister and then forwarded to the President. This nomination would be all the more without any legal and Constitutional sanctity, argued the learned counsel, when the proceedings before the Commission have not been conducted in the manner prescribed by the Constitution. The learned counsel to support his contention referred to the cases of “Human Rights Cases No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010, (Action taken on news clippings regarding Fast Food Outlet in F-9 Park, Islamabad). (PLD 2010 Supreme Court 759), and “Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others. Vs. Aftab Ahmad Khan Sherpao and others” (PLD 1992 S.C. 757(K). The fact, maintained the learned counsel, that a non-entity, sat, voted and took part in the proceedings of the Judicial Commission would alone call for their annulment. The learned counsel to support his contention placed reliance on the case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2). Even otherwise, the learned counsel submitted, the President being appointing authority is duty bound to ensure obedience to the Constitution and the law cannot appoint a person who has not been nominated in accordance with the provisions of the Constitution. 4. During the course of arguments I asked the learned counsel for the President that when the proceedings in the house in view of the provision contained in Article 67 of the Constitution do not become invalid on the ground that some persons who were not entitled to sit, vote or otherwise take part in the proceedings, sat, voted and took part therein, how a proceedings of the Commission can become invalid on this score, the reply of the learned counsel was that the proceedings in the former case do not become invalid because it has been so provided in the aforesaid article but there is nothing of that sort in Article 175-A of the Constitution. The learned counsel by referring to Article 48 of the Constitution contended that despite insertion of Article 175-A in the Constitution, the President still has the power to send back a nomination to the Judicial Commission for reconsideration. But when asked whether a nomination originating from the Judicial Commission, confirmed by the Parliamentary Committee, and forwarded by the Prime Minister to the President could be treated as an advice and returned as such for reconsideration in terms of Article 48 of the Constitution when it does not provide for any such eventuality, the learned counsel did not give any satisfactory answer. The fact is that his own reply to our query with reference to Article 67 of the Constitution barricaded his way to take a U-turn. Though he swang to yet another argument by submitting that the Constitutional provisions have to be interpreted as a whole and not in isolation but that would not be of any help to him. The learned counsel further contended that if the principle of seniority and that of legitimate expectancy linked therewith, are ignored without reasons to be recorded, it would give rise to the whim and caprice of the person sitting at the peak which is not conducive for independence of judiciary. The learned counsel also waxed eloquent by asking this Court to redefine the mode and manner of appointing judges but when I observed that all these questions have been elaborately dealt with in the case of “Munir Hussain Bhatti, Advocate and others. Vs. Federation of Pakistan and another” (PLD 2011 S.C. 407), the learned counsel submitted that they have been, but since they have been dealt with collaterally, the judgment so rendered being obiter dicta will not have a binding force. I would have agreed with the learned counsel for the President but he could not point out anything striking or significant in the judgment which went un- noticed and unattended. It is, therefore, not obiter dicta by any attribute. This judgment could have been treated as sub-silentio: a precedent not fully argued, but again the learned counsel could not advert to any legal or Constitutional aspect of the case which escaped the notice of the Bench rendering the judgment, so as to relegate it to the status of sub-silentio. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi could not be held as most senior Judge on the strength of the judgment rendered in the case of “Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad. Vs. Sindh High Court Bar Association through President and another”. (PLD 2012 Supreme Court 1067), as it does not provide any premises for such conclusion. How the proceedings in the Judicial Commission could be held in camera, asked the learned counsel, when the legislature in its wisdom purposely provided otherwise, so as to ensure complete transparency and open scrutiny. What would be the criterion, asked the learned counsel, for elevating a Judge or a Chief Justice of a High Court to the Supreme Court and how far the inter se seniority of the Judges or the Chief Justices of the High Courts would be relevant in this behalf?. 5. Mr. Muhammad Akram Sheikh, learned Sr. ASC appearing on behalf of the petitioner contended that once the Judicial Commission nominated Mr. Justice Shaukat Aziz Siddique for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension for a period six months as Judges of the Islamabad High Court, the Parliamentary Committee after having confirmed their nomination sent it to the Prime Minister and the Prime Minister forwarded it to the President for appointment, the President has no other option but to do the needful. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi being the most Senior Judge rightly participated in the meeting of the Judicial Commission nominating the Judges mentioned above, therefore, the President has no power whatsoever to delay or decline the appointment on any pretext if it is seen in the light of Eighteenth and Nineteenth Amendment. Even if it is assumed, added the learned counsel, that the Judge participating in the meeting was a non- entity, it would not materially affect the result if the doctrine of severance is applied. The learned counsel to support his contention placed reliance on the case “Managing Director, Sui Southern Gas Company Ltd., Karachi. Vs. Ghulam Abbas and others” (PLD 2003 S.C. 724). The learned counsel next contended that had the decision been made by a margin of one, the argument of the learned counsel for the President and the judgment rendered in the case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2) would have had some relevance but where the decision is by the majority of 7 against 2, absence of the persona designata or participation of a non-entity would be of little consequence. When I asked what course of action would be open before the President if a person nominated for appointment of a Judge of the Supreme Court does not fulfill the requirements laid down by Article 177(2) or a person nominated for appointment of a Judge of the High Court does not fulfill the requirements laid down by Article 193 (2) of the Constitution, the learned counsel except referring to the stance taken by the Government in C.M.A. No. 1602 of 2010 in Constitution Petition No. 11 of 2010 could not state anything more. 6. Learned Attorney General appearing on the Court’s notice contended that the Judicial Commission was not properly constituted, as the persona designata did not attend the meeting and the person who attended the meeting was just a non-entity therefore, the whole process shall stand vitiated. The President, the learned Attorney General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding his nomination was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney General next contended that when in the judgment rendered in the case of “Sindh High Court Bar Association through its Secretary and another. Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others” (PLD 2009 S.C. 379), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President’s House. Instead, the learned Attorney General submitted, he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such angle, the learned Attorney General concluded, the President cannot be kept off the affairs regulating the appointment of Judges. 7. Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as Amicus Curie on Court’s notice. The learned counsel in the first instance addressed the Court as to the binding nature of an advice rendered by this Court in the exercise of its advisory jurisdiction. The learned counsel by referring to the relevant paragraph of the judgment rendered in “Reference No. 02 of 2005 by the President of Pakistan” (PLD 2005 Supreme Court 873) submitted that though an opinion given by the Court on a reference filed by the President is not a decision between the parties but since it is handed down after undertaking an extensive judicial exercise and hearing of Advocates it has a binding force. Such advice, the learned counsel submitted has to be accepted and acted upon with utmost respect. The learned counsel then by referring to various Articles of the Constitution in general and Article 175-A in particular contended that mode and manner of appointing Judges of the superior Courts has under gone a change and that the whole process from the inception to the last is now regulated by the latter. The learned counsel argued that once Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment, the President will have no choice but to appoint him. While commenting on the mode and manner of appointment of Judges and things ancillary thereto, the learned counsel submitted that an exhaustive exercise has been taken in the cases of “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (supra), and “Munir Hussain Bhatti, Advocate and others. Vs. Federation of Pakistan and another” (supra), therefore, yet another exercise is hardly called for. The learned counsel, however, submitted that the principle and practice of appointing most Senior Judge as Chief Justice is not open to any dispute and thus cannot be departed from without reasons to be recorded as held in the case “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (supra). The President or for that matter any other person performing in the affairs of Federation, the learned counsel submitted, is duty bound to protect the Constitution and that the instant reference appears to be an effort in this behalf. When asked, whether the President shall appoint a person a Jude of the Supreme Court, if he does not fulfill the requirements laid down by Article 177(2) or a Judge of a High Court if he does not fulfill the requirements laid down by Article 193 of the Constitution, notwithstanding Clause 13 of Article 175-A of the Constitution, the learned counsel readily replied in no. But when asked, how a deadlock occasioning due to refusal of the President to appoint a person nominated, who does not fulfill the requirements laid down by the Articles mentioned above, would be brought to an end especially when the President in view of the provision contained in Article 175-A cannot send the nomination back to the Commission for reconsideration, the learned counsel could not give any satisfactory reply. 8. Khawaja Haris Ahmed, Sr. ASC who was also asked to assist the Court as Amicus Curie, highlighted the salient features of his written submissions. He by referring to Article 175-A of the Constitution submitted that the role of the President in appointment of Judges, is more or less ministerial when the Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment. He by referring to the judgment rendered in the case of “Munir Hussain Bhatti, Advocate and others. Vs. Federation of Pakistan and another” (supra), submitted that where almost all of the questions raised in the reference have been answered in the judgment, it would be just futile to rehearse the same. 9. With regard to the question relating to seniority, the learned counsel submitted that the same being person specific is not one of law, therefore, this Court cannot afford to decide such question in its advisory jurisdiction. The learned counsel next contended that omission to mention the expression most senior Judge in the provision relating to appointment of Chief Justice of a High Court is significant and that in the absence of any express provision even the most senior Judge cannot have legitimate expectancy, as the Constitution on this score has remained the same even after the dictum laid down in the case of “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (supra). 10. I have gone through the relevant record carefully and considered the submissions made by the learned counsel for the parties as well as amicus curie. 11. Before I discuss the arguments addressed at the bar by the learned counsel and answer the questions raised in the reference and the petition, it is worthwhile to mention that the mode and manner of appointing Judges underwent a radical change after Eighteenth and Nineteenth Amendments of the Constitution. Almost all the process of appointing Judges, Chief Justices of the High Courts, the Federal Shariat Court and Judges of the Supreme Court has been capsuled in Article 175-A of the Constitution. A reference to the said Article would, therefore, be relevant which reads as under :- “175-A, (1). There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided. (2) For appointment of Judges of the Supreme Court, the Commission shall consist of --- i) Chief Justice of Pakistan. ii) (four) most senior Judges of the Supreme Court; iii) a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the (four) member Judges, for a term of two years; iv) Federal Minister for Law and Justice; v) Attorney-General for Pakistan; and vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years. 3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan. 4) The Commission may make rules regulating its procedure. 5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely :---- i) Chief Justice of the High Court to which the appointment is being made; ii) the most senior Judge of that High Court; iii) Provincial Minister for Law; and iv) an advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years; [Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission: Provided further that if for any reason the Chief Justice of High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2)]. 6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely :----- i) Chief Justice of the Islamabad High Court; Member and ii) the most senior Judge of that High Court; Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission: Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. 7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its member: Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos, to clause (5) shall, mutatis mutandis, apply. 8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be. 9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely :------- i) four members from the Senate; and ii) four members from the National Assembly [:] [Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this article shall, mutatis mutandis, apply.]. 10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. 11) Secretary, Senate shall act as the Secretary of the Committee. 12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: [Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period:] [Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister: [Provided further that if a nomination is not confirmed, the Commission shall send another nomination.] [13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment] 14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absenee of any member from any meeting thereof. [15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained. 16) The provisions of Article 68 shall not apply to the proceedings of the Committee.] [(17)] The Committee may make rules for regulating its procedure.]” 12. A look at the above quoted provision would reveal that it prescribed the mode and manner as to how the judicial Commission shall proceed to nominate a person for appointment as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and how the Parliamentary Committee would look at such nomination while confirming or refusing to confirm it. Who is eligible to be appointed as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and whether the person sought to be nominated possesses the caliber, capacity and conduct befitting the slot, are the questions to be considered by the tiers listed in the provision mentioned above. Once a person is nominated by the Judicial Commission his name will go to the Parliamentary Committee. The Parliamentary Committee may confirm such nomination by majority of its total membership within fourteen days. If it fails to confirm a nomination within fourteen days it shall be deemed to have been confirmed. It may refuse to confirm a nomination by 3/4th and send it back to the Commission through the Prime Minister for reconsideration but after recording reasons therefor. The Commission shall, then, send another nomination. The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment. 13. Now the questions arise what is nomination in its pith and substance; whether it can be treated as an advice to the President and if so whether it can be returned for reconsideration to the source it has originated from or processed through. Before I answer these questions, a careful look at Article 48 of the Constitution would be quite advantageous. It, thus, reads as under :- “President to act on advice, etc. [48. (1) In the exercise of his functions, the President shall act [on and] in accordance with the advice of the Cabinet [or the Prime Minister]: [Provided that [within fifteen days] the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall [, within ten days,] act in accordance with the advice tendered after such reconsideration.] (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever]. (3) Clause (3) omitted. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority. (5) Where the President dissolves the National Assembly, notwithstanding anything contained in clause (1), he shall,--- (a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to a Assembly; and (b) appoint a care-taker Cabinet [in accordance with the provisions of Article 224 or, as the case may be, Article 224A]] [(6) If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either --- Yes” or --- Not”.] (7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.] 14. A bare reading of this Article would reveal that the President in the exercise of his functions shall act in accordance with the advice of the Cabinet or the Prime Minister. The President in view of the proviso to Article 48(1) has the power to require the Cabinet or the Prime Minister as the case may be, to reconsider such advice generally or otherwise. Similarly, the President, in view of the provision contained in Article 75 of the Constitution, has the power to return a bill, other than a money bill, presented to him for his assent, for reconsideration. A nomination originating from the Commission, confirmed by the Committee is also an advice in its pith and substance inasmuch as it is forwarded by the Prime Minister to the President for being acted upon. But since it originates from the Commission in terms of Article 175-A of the Constitution, it is not an advice in terms of Article 48 of the Constitution. Nor is it open to the incidence of return for reconsideration because Article 175-A of the Constitution does envision any such thing. This omission appears to be deliberate and purposeful. For whatever power the President had before Eighteenth and Nineteenth Amendments, including the power to return a nomination for reconsideration to the source it has originated from, has now been conferred on the Parliamentary Committee. If a power requiring the Prime Minister or the Cabinet to reconsider an advice, under Article 48, or a power requiring the Parliament to reconsider a bill, under Article 75 of the Constitution, has been conferred on the President, a power requiring the Commission or the Parliamentary Committee, to reconsider a nomination, too, could have been conferred on him, but it has not been conferred. When it has not been conferred, I am bound to take the Constitutional provisions as they are. A Causus Omissus can, in no case, be supplied by the Court of law as that would amount to altering the provision. “It is not our function, as was held by Mr. Justice Walsh, in the case of “Attorney General. Vs. Bihari, re Australia Factors Limited (1966) 67 S.R. (N. S. W) 150; to repair the blunders that are to be found in the legislation”. They must be corrected by the legislator”. A Court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them. Yes, the President can act in the exercise of his discretionary powers under Article 48 (2) of the Constitution but the areas of such powers are well defined and well marked. He cannot return a nomination for reconsideration even under the garb of his discretionary power when it in its origin and specie is not an advice in terms of Article 48(1) of the Constitution. I, therefore, hold that the President has no power to return a nomination to any of the tiers it has passed from, even if it is violative of the Constitution or the law. But at any rate the President shall not appoint a person a Judge of the Supreme Court or a Judge or Chief Justice of a High Court as the case may be, whose nomination, in his opinion, is against the Constitution and the law. For the Constitution which makes obedience to the Constitution and the law the inviolable obligation of every citizen would never ever require a person no less than the President to do something against the Constitution and the law. Nor would his oath of office, which requires him to discharge his duties and perform his functions in accordance with the Constitution and the law, permit him to do any such thing. Reference may well be made to Article 177 and 193 of the Constitution and Oath of the President which read as under :- “Article 177: Appointment of Supreme Court Judges. [(1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A.] (2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and- (a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day)”. “Article: 193: Appointment of High Court Judges [(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article I75A.] (2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than [forty-five] years of age, and – (a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or (c) he has, for a period of not less than ten years, held a judicial office in Pakistan. [Explanation.— In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.]” And “OATHS OF OFFICE President [Article 42] (In the name of Allah, the most Beneficent, the most Merciful.) I, ____________, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah: That I will bear true faith and allegiance to Pakistan: That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well- being and prosperity of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: That, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill- will: And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President. [ay Allah Almighty help and guide me (A'meen)]” 15. The above quoted provisions of the Constitution as well as the oath of his office would show that the President before appointing a person, a Judge or a Chief Justice of a High Court or a Judge of the Supreme Court shall ensure that his nomination is in accordance with the Constitution and the law. He shall not appoint a person, a Judge or a Chief Justice of a High Court or a Judge of Supreme Court, if his nomination does not conform to the Constitution and the law. Especially when there is no provision in Article 175-A of the Constitution, in paramateria with that of Article 48 requiring the President to do the needful within ten days, or a deeming provision in paramateria with that of Article 75 of the Constitution requiring the President to do the needful within ten days failing which the needful shall be deemed to have been done. A deadlock, would inevitably be the consequence as the President can neither return the nomination to the source it has originated from or processed through nor can he appoint the person, thus nominated. As the deadlock revolves around the constitutionality, legality or otherwise of the nomination recourse to an advisory or adjudicatory jurisdiction of this Court would be the only way out. If the Court upholds the opinion of the President, the Commission shall initiate proceedings denovo in accordance with the opinion of the Court. If it does not, the President shall appoint the person nominated accordingly. 16. Who is senior, what is the criterion for determining seniority amongst the Judges elevated on the same day and what is the way of deciding about the most senior Judge for appointment as Chief Justice? Answers to these questions have been provided in the letter of Law Department dated 30.04.1987 which reads as under :- “No.F.12(5)/86-AII. Dated . 30.04.1987. GOVERNMENT OF PAKISTAN MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS (JUSTICE DIVISION) SUBJECT: SENIORITY LIST OF HIGH COURT JUDGES. My dear Chief Justice, Please refer to the correspondence resting with High Court of Sindh letter No. Gaz-IV,Z,14(i) dated the 30th March, 1987, on the subject noted above. 2. An equitable principle consistently adopted in this regard is that Judges whose appointments are made by a single order, take seniority according to age. If the appointment of two or more service candidates is also simultaneously made with that of candidate from the Bar, the service Judges will retain their existing seniority in the department regardless of their age which of course would be the determining factor in respect of their seniority viz-a-viz candidates from the Bar. This principle has the approval of the President. 3. I am to request you to please confirm whether the seniority list of Sindh High Court Judges has been prepared in the light of the above principle. With kind regards. Yours sincerely, Sd/- (Irshad Hassan Khan)” 17. A perusal of the letter reproduced above leaves no doubt that the established practice and the time honoured yardstick for determining seniority amongst the Judges of a High Court, elevated on the same day, is seniority in age except in the case of Judges from service whose inter se seniority remains intact even on their elevation irrespective of their age. This principle has been consistently followed hitherto without exception ever since the establishment of the High Courts in the Indian Subcontinent and also after its partition. This principle even otherwise merits respect and reverence because it not only rules out personal whim and caprice of the person at one peak or another and shuts doors and windows for manipulation at ministerial level but also creates an environment which is conducive for the rule of law, supremacy of the Constitution and independence of Judiciary. This principle being too clear and conspicuous cannot be disputed. At times it has been departed from but that was only when there was something concrete against the Judge. This is what was laid down in the case of “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (supra). The relevant paragraph would be germane to the case in hand which reads as under:- “It is true that in Article 193 of the Constitution which relates to inter alia to the appointment of a Chief Justice in a High Court, it has not been provided that most of the senior of Judges shall be made as the Chief Justice. The reason seems to be obvious, namely, it is possible that the senior most Judge, at the relevant time, may not be physically capable to take over the burden of the office or that he may not be willing to take upon himself the above responsibility. The Chief Justice of Pakistan, who is one of the consultees under Article 193 will be having expertise knowledge about the senior most Judges of a High Court. If the senior most Judge is bypassed for any of the above reasons, he cannot have any grievance but if he is superseded for extraneous considerations, the exercise of power under Article 193 of the Constitution will not be in accordance therewith and will be questionable. I am, therefore, of the view that keeping in view the provisions of the Constitution as a whole and the well-established convention as to the appointment of the senior most Judges in the High Court as the Chief Justice followed consistently in conjunction with the Islamic concept of 'Urf'. The most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned. Before parting with the discussion on the above question, I may observe that there seems to be wisdom in following the convention of seniority. If every Judge in a High Court aspires to become Chief Justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of judiciary. The junior most Judges may feel that by having good terms with the Government in power he can become the Chief Justice. This will destroy the institution and public confidence in it. The Chief Justices of the High -Courts have the power to fix the roster i.e. to decide when a case is to be fixed and before whom it is to be fixed. In other words, they regulate the working of the forum It is, therefore, very important that the Chief Justices should not be pliable and they should act independently”. The word “Urf” used in the above quoted paragraph is of tremendous significance which means commonly known, commonly received and commonly approved of. This principle was reiterated in the case of “Malik Asad Ali and others vs. Federation of Pakistan and others”( PLD 1998 SC 33), the relevant paragraph for the facility of reference is reproduced as under:- “6. This Court in case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 while interpreting the provisions of Article 193 of the Constitution, relating to the appointment of Chief Justice of a Provincial High Court, on the basis of convention followed in this behalf held, that the senior most Judge of the High Court, in the absence of any concrete and valid reason has to be appointed as the Chief Justice of the High Court. We are of the view that the above rationale laid down by this Court for appointment of the Chief Justice of High Court applied with greater force in the case of appointment of Chief Justice of Pakistan under Article 177 of the Constitution, in view of the more consistent practice and convention followed in this regard for appointment of Chief Justice of Pakistan in the past and especially in view of the provisions contained in Article 180 of the Constitution which recognizes the principle of seniority as the sole criteria for appointment of Acting Chief Justice of Pakistan.” This Court in the case of “Munir Hussain Bhatti, Advocate and others. Vs. Federation of Pakistan and another” (supra) while reaffirming the dicta laid down in the cases of “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others”(supra) and “Malik Asad Ali and others vs. Federation of Pakistan and others” (supra) held as under:- “31. At this stage, it would also be appropriate for us to note that the contention of the AAG that earlier judgments on the issue of appointment of Judges are irrelevant is a bit misconceived. The change in the appointment process has merely diversified decision making amongst the many members of the two new collegiate bodies, but essentially the roles of these bodies, looked at collectively, remains the same. So as such the principles of law enunciated in earlier judgments such as Al-Jehad Trust case, Malik Asad Ali and several others would continue to apply to the new mechanism with full force. In face, these principles can be said to be applicable even more strongly after the introduction of the newly constituted bodies under Article 175-A.” It, irresistibly, follows that this principle, practice or convention, whatever one may like to call it, besides being esteemed, honoured and upheld throughout has also been blessed with the approval of this Court in the judgments cited above. It is now a declared law of the land to all intents and purposes. I, therefore, do not see any reason much less tenable warranting any deviation therefrom. 18. Yet another provision contained in the first proviso to Clause 5(iv) of Article 175-A of the Constitution, which provides that for appointment of the Chief Justice of a High Court the most senior Judge mentioned in Clause 5(ii) of the Article shall not be member of the Commission, unmistakably indicates that it has all along been taken for granted that it is the most senior Judge of the High Court who shall be nominated as Chief Justice in the absence of any valid reason. Otherwise, it would have been provided in the aforesaid clause that the Judge whose nomination for appointment as Chief Justice is in the offing shall not be member of the Commission. Therefore, the argument advanced by Kh. Haris Ahmed, learned Sr. ASC that the Constitutional provisions on this score have remained the same even after the dictum laid down in the case of “Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of Pakistan and others” (supra) is without force. I am, therefore of the opinion, that Mr. Justice Riaz Ahmed Khan, being the most senior Judge of the High Court has a legitimate expectancy to be appointed as Chief Justice and that subject to any valid reason which is yet to be recorded by the Commission, he would be entitled to be appointed as such. 19. Next question in the sequence is as to who determines seniority amongst the Judges appointed on the same day? Again the answer can be found in the long standing practice. It is the Chief Justice of the respective High Court who determines inter se seniority of the Judges in the light of the principle mentioned above. It is, then, the Judicial Commission nominating the most Senior Judge for appointment as Chief Justice, which determines inter se seniority of the Judges so elevated. The President in this scheme does not figure anywhere. It is, however, a fact well worth remarking that seniority in this case has been determined by the Chief Justice of the Islamabad High Court and that Mr. Justice Riaz Ahmed Khan being senior in age has already been declared the most senior Judge of the High Court. Needless to say that settling the principle underlying the determination of a question can never become person specific. 20. Then comes the question as to whether the well established principle underlying the determination of inter se seniority amongst the Judges has been departed from by the Commission on correct premises. Reference has been made to a paragraph from the judgment rendered in the case of “Federation of Pakistan. Vs. Sindh High Court Bar Association through its President” (CPLA No. 1390 of 2012) (supra) which runs as under :- “…………… It is for this reason that in number of judgments of the Apex Court, out of which two have been referred to above, in service matters, concept of reinstatement into service with original seniority and back benefits has been developed and followed on case to case basis to give complete relief to an aggrieved party. Following the same equitable principle, while passing our short order, we have specifically mentioned that the issuance of notification for permanent appointment of the two Judges shall have its effect from 17.9.2011 when four other recommendees of the Commission in the same batch were notified after clearance by the Committee, so that they shall have their respective seniority and all other benefits as permanent judges of the High Court”. But a careful reading of the above quoted paragraph would reveal that it has not judicially laid down any criterion for determining, inter se seniority among the Judges appointed on the same day. Nor has it justified a deviation from the recognized course. It, when read with reference to the context, deals with a situation different altogether. No such question was involved in that to draw a parallel between this case and that case or to treat them alike. I, therefore, have no hesitation to hold that the premises recorded by the Commission for departing from the well established principle of determining seniority are not correct. 21. The next question emerging for the consideration of this Court on its advisory as well as adjudicatory side is whether the Judicial Commission in this case was properly constituted in the absence of a persona designata and whether the presence or participation of a person, who was a non-entity in the Commission, case, nor has it been decided as such. It would thus be ominous could vitiate the nomination for the appointment of Mr. Justice Shukat Aziz Siddique and extension of Mr. Justice Noor-ul-Haq Qureshi ? Answers to these questions are simple and straightforward. Accepting that Mr. Justice Riaz Ahmed Khan being the most Senior Judge was required to attend the meeting of the Commission but his failure to do so for any reason, would not vitiate the proceedings of the Commission. For clause 14 of Article 175-A of the Constitution clearly provides that no action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. Accepting that Mr. Justice Muhammad Anwar Khan Kasi being a non-entity sat, voted and took part in the proceedings culminating in the nomination of the Judges mentioned above, yet it would not vitiate the proceedings when the Judicial Commission, in view of Clause 8 of Article 175-A of the Constitution, has nominated the Judges by majority of its total membership. It would have vitiated or materially affected the proceedings of the Commission if it had nominated the Judges for appointment and extension with a margin of one. But where the Commission nominated the Judges by majority of 7 against 2, the presence or participation of Mr. Justice Muhammad Anwar Khan Kasi in the meeting would not be of any consequence. The case of “Managing Director, Sui Southern Gas Company Ltd., Karachi. Vs. Ghulam Abbas and others” (supra) may well be referred to in this behalf wherein it was held as under: - “Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that “minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman,’ meaning thereby that while conducting hearing the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the Members. Clause (b) of section 3-A(2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench compromising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal.” 22. The principle enunciated in the aforesaid judgment is not alien or extraneous, on any account, to our jurisprudence. It has also been recognized by Article 67 of the Constitution, which does not allow a proceedings of the House to become invalid simply because a person who was not entitled to sit, vote or otherwise take part in the proceedings, sat, voted or took part therein. The case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2), therefore, has no relevance to the case in hand. 23. Mr. Muhammad Akram Sheikh, learned Sr. ASC also referred to Establishment Manual but could not cite any clear and definite provision of law, rule or convention as could justify a deviation from the course which has been consistently followed till date. He failed to refer to any precedent much less relevant to support his stance. He also failed to bring anything exceptional, extraordinary or outstanding in our notice as could dilute, diminish or discount the binding force of the said principle. Even otherwise, I would not approve substitution or replacement of a principle which has unquestionably been accepted and acted upon throughout. 24. The argument addressed by the learned Attorney General on the strength of “Sindh High Court Bar Association through its Secretary and another. Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others” (supra) that if this Court annulled the appointment of many Judges for want of recommendation of the consultee, the nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment is wholly misconceived inasmuch as the status of the Chief Justice of Pakistan before the amendments has been brought at par with the status of a member after the amendments without appreciating that the Chief Justice of Pakistan before such amendments was the chief consultee. Even after the amendments he being the Chairman of the Commission is not only the chief consultee but no meeting of the Commission can be held in his absence. Whereas absence of any other member or vacancy in view of clause 14 of Article 175-A of the Constitution is of no consequence whatever. 25. The argument of the learned counsel for the President that such nomination would be all the more without any legal or constitutional sanctity when the proceedings before the Commission were not conducted in the manner prescribed by the Constitution is also devoid of force as this provision for want of envisaging the consequence of failure or neglect to comply therewith cannot be treated as mandatory. 26. The argument that the proceedings in the Judicial Commission could not be held in camera when the legislature purposely provided otherwise so as to ensure complete transparency and open scrutiny appears to be ornamental as its members not only represent all the essential segments of the Bar and Bench but also those of the Federation and the Province through Attorney General for Pakistan, Minister for Law and Justice of the Federation and Minister for Law of the Province. The scrutiny is open in the truest sense of the word when each member is at liberty to present his point of view one way or the other. Transparency in the proceedings cannot be affected by holding it in camera if every member consciously and conscientiously gives his input in the nomination, keeping in view its overall impact on the Institution on the one hand and society at large on the other. I do not understand what does the learned counsel for the President want to project by using the expressions “complete transparency and open scrutiny”. If he by using these expressions wants the inclusion and intrusion of all and sundry, I am afraid, he is far off the lines drawn by the Constitution. It was in view of this backdrop, that the Judicial Commission while framing the rules in exercise of the powers conferred on it under clause 4 of Article 175-A of the Constitution provided for holding the proceedings in camera. 27. Question relating to criterion for elevating a Judge or Chief Justice of a High Court to the Supreme Court has been fully answered by Article 177 of the Constitution reproduced above. I, therefore, would not like to add anything thereto. The more so when the convention followed thus far is also in conformity with the letter and spirit of the Article mentioned above. 28. Having thus considered, I answer the questions raised in the reference accordingly. The detailed reasons for the Short Order dated 21.12.2012 in the Constitution Petition No. 126 of 2012 are also included in the Judgment. 29. While parting of the judgment, we would appreciate the enlightened assistance rendered by Mr. Makhdoom Ali Khan and Khawaja Haris Ahmed, learned Senior Advocates Supreme Court. (Ejaz Afzal Khan) Judge                         2012   1        186                                                                                           1                            .i        .ii 2012  14                                                                         186                     27-09-2012                                                                  07:02                                    2                                          08:02                                                                                                                                                          186                       i                                ii                                    iii                3   175(a)     iv                 v                     175(a)(8)   vi                             vii                       12  175(a)   viii                       ix                             x                                      xi         4                       175(a)    xii 12  175(a)                                                      175(a)    xiii                  13                                                                                                                                           5                                                                                        PLD 2005 SC 873                                                                                                    175(a)                                                                                                 13          (vires)    175(a)      186           6                    10  5                                  175(a)                                                                                                                               213                                             224(1)(a)               224(a)         58                                              7                                                                                              PLD 2011                      175(a)           SC 407                                                               175(A)                         12                                                            175(a)               175(3)                                          8             i        15-05-1952                  21-11-2011          04-01-2011    28-11-1956                        0 4 - 0 1 - 2 0 1 1                21-11-2011                                                                                                                                      175(3)                                                                                          9                                                                                        2010                           3                                                                                                   iv       22-10-2012                               (Ex Pakistan                              Leave)  175(a)                           8         10                                                                                 xii  viii, vii, vi             12  175(a)                                                                      12  175(a)                                         xii  viii,vii,vi                    xiii  xi                             1  175(a)                        175(a)       193(2)  177(2)      15                4         11                                     175(a)                                                                                                                                2010                                      5  3  2  175(a)                             22-10-2012                    175(a)            12                         4  175(a)                                                                                                                                                                                                                                                                                            13

SUPREME COURT OF PAKISTAN (Advisory Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Mushir Alam Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan Mr. Justice Yahya Afridi REFERENCE NO.1 OF 2020 [Reference by the President of the Islamic Republic of Pakistan, under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973] For the Federation [in Reference No.1/2020] [in CMA.127-128, 170, 989,1293/2021] : Mr. Khalid Jawed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, Addl. AGP Mr. Ayaz Shaukat, DAG [Assisted by Ms. Maryum Rasheed, Advocate] For the National Assembly [in CMA.278/2021] : Mr. Abdul Latif Yousafzai, Sr. ASC Mr. Muhammad Mushtaq, Addl. Secretary (Legislation) Mr. Muhammad Waqar, DPO (Lit.) For the Senate of Pakistan [in CMA.296/2021] : Senator Muhammad Ali Khan Saif Mr. Muhammad Javed Iqbal, DD For the Election Commission [in CMA.210, 808, 880, 983, 1010/2021] : Mr. Sikandar Sultan Raja, Chief Election Commissioner Mr. Justice (R) Muhammad Iltaf Ibrahim Qureshi, Member (Punjab) Mrs. Justice (R) Irshad Qaiser, Member (KP) Mr. Shah Mehmood Jatoi, Member (Balochistan) Mr. Nisar Ahmed Durrani, Member (Sindh) Mr. Sajeel Shehryar Swati, ASC Mr. Sana Ullah Zahid, ASC, L.A. Dr. Akhtar Nazir, Secretary Mr. Muhammad Arshad, DG (Law) For Government of Punjab [in CMA.95/2021] : Mr. Ahmed Awais, AG Barrister Qasim Ali Chohan, Addl.AG Ms. Imrana Baloch, AOR For Government of Sindh [in CMA.386/2021] : Mr. Salman Talib ud Din, AG Mr. Sibtain Mahmud, Addl.AG (via video link from Karachi) For Government of KP [in CMA.104/2021] : Mr. Shumail Ahmad Butt, AG Mr. Atif Ali Khan, Addl.AG For Government of Balochistan : Mr. Arbab M. Tahir, AG Reference No.1 of 2020 - 2 - [in CMA.185/2021] Mr. Muhammad Ayaz Khan Swati, Addl.AG Mr. Muhammad Fareed Dogar, AAG For ICT [in CMA.149/2021] : Mr. Niazullah Khan Niazi, AG For JUI [in CMA.129, 541/2021] : Mr. Kamran Murtaza, Sr. ASC Mr. Jehangir Khan Jadoon, ASC For SHCBA [in CMA.297, 1119/2021] : Mr. Salahuddin Ahmed, ASC Barrister Omer Soomro, ASC Syed Riffaqat Hussain Shah, AOR [Assisted by Ravi Pinjani, ASC] [in CMA.130, 1201, 1292/2021] : Mr. Hassan Irfan Khan, ASC For PPP [in CMA.131, 704, 1217/2021] : Mian Raza Rabbani, Sr. ASC Mr. Mehmood A. Sheikh, AOR [in CMA.154,1295/2021] : Malik Qamar Afzal, ASC For JI [in CMA.211/2021] : Mr. Ishtiaq Ahmed Raja, ASC [in CMA.231/2021] : Syed Iqbal Hashmi, ASC For PML (N) [in CMA.784, 1231/2021] : Barrister Zafar Ullah, ASC For Pakistan Bar Council [in CMA.807, 1200/2021] : Mr. Mansoor Usman Awan, ASC For PPP (P) [in CMA.872,1218/2021] : Mr. Farooq H. Naek, Sr. ASC [in CMA.908, 1008, 1026-1030/2021] : Mr. Khurram Shehzad Chughtai, Advocate High Court, in person [in CMA.1115/2021] : Mr. Azhar Iqbal, ASC [in CMA.1233/2021] : Mr. Waheed Ahmed Kamal, in person Dates of Hearing : 04.01.2021, 11.01.2021, 13.01.2021, 14.01.2021, 02.02.2021, 03.02.2021, 04.02.2021, 08.02.2021, 10.02.2021, 11.02.2021, 15.02.2021, 16.02.2021, 17.02.2021, 18.02.2021, 19.02.2021, 22.02.2021, 23.02.2021, 24.02.2021; and 25.02.2021 O P I N I O N The President of the Islamic Republic of Pakistan has sent a REFERENCE under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred to as “the Reference No.1 of 2020 - 3 - Constitution”), for opinion of this Court. The question asked in the REFERENCE is as follows: “Whether the condition of ‘secret ballot’ referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held ‘under’ the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.?” 2. We have heard learned Attorney General for Pakistan, learned Advocate Generals of all four Provinces and ICT, learned counsel appearing for the National Assembly, the Senate of Pakistan, the Election Commission, Political Parties, Pakistan Bar Council, Sindh High Court Bar Association and the individuals, who have appeared in person. 3. For the detailed opinion to be recorded later, the REFERENCE is answered as follows: (i) The Elections to the Senate of Pakistan are held “under the Constitution” and the law; (ii) It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v. Federation of Pakistan & 2 others (PLD 2012 SC 681); Reference No.1 of 2020 - 4 - (iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, “no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission” under Part VIII, Chapter 1 of the Constitution; (iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution; (v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin & others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that “the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election”; (vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is “conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against”. Reference No.1 of 2020 - 5 - The REFERENCE is answered accordingly. CHIEF JUSTICE JUDGE JUDGE JUDGE With utmost respect the opinion sought being not a question of law within the contemplation of Article 186 of the Constitution is returned unanswered. JUDGE Reference No.1 of 2020 - 6 - YAHYA AFRIDI, J.- For the reasons to be recorded later, with utmost respect, the opinion sought by the Worthy President, Islamic Republic of Pakistan in the instant Reference, is not a question of law within the contemplation of Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, accordingly, the same is returned unanswered. Judge Reference No.1 of 2020 - 7 - OPINION OF THE COURT For the detailed opinion to be recorded later, by majority of 4 against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is answered as follows: (i) The Elections to the Senate of Pakistan are held “under the Constitution” and the law; (ii) It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v. Federation of Pakistan & 2 others (PLD 2012 SC 681); (iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, “no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission” under Part VIII, Chapter 1 of the Constitution; (iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution; Reference No.1 of 2020 - 8 - (v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin & others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that “the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election”; (vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is “conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against”. CHIEF JUSTICE JUDGE JUDGE LARGER BENCH ISLAMABAD 01.03.2021 *Hashmi* JUDGE JUDGE APPROVED FOR REPORTING Announced in open Court on 01.03.2021 CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (Original/Advisory Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Munib Akhtar Mr. Justice Jamal Khan Mandokhail CONSTITUTION PETITION NO.2 OF 2022 (Re: restraining Political Parties from holding Public Meetings in Islamabad before Voting on No-confidence Motion) REFERENCE NO.1 OF 2022 (Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution, seeking interpretation of Article 63-A of the Constitution) CONSTITUTION PETITION NO.9 OF 2022 (Re: Imposing Life Time Ban from contesting Elections on defection from Political Party) Supreme Court Bar Association of Pakistan through its President, Supreme Court Building, Islamabad (in Const. P. 2 of 2022) Pakistan Tahreek-e-Insaf through its Chairman Imran Khan (in Const. P. 9 of 2022) …Petitioner(s) Versus Federation of Pakistan through M/o Interior Islamabad and others (in Const. P. 2 of 2022) The Election Commission of Pakistan, Islamabad and others (in Const. P. 9 of 2022) …Respondent(s) For Federation : Mr. Ashtar Ausaf Ali, AGP Mr. Khalid Javed Khan, AGP(Former) Ch. Aamir Rehman, Addl. AG Mr. Sohail Mehmood, Addl. AGP Syed Nayyab Hassan Gardezi, DAG Assisted by: Mr. Munawar Duggal, ASC Barrister Asad Rahim Khan Barrister M. Usama Rauf Mr. M. Usman Peracha, Adv. Mr. M. Ibrahim Khan, Adv. For PTI : Mr. Ali Zafar, ASC Dr. Babar Awan, ASC Reference No.1 of 2022 etc. 2 For SCBA : Mr. Mansoor Usman, ASC Assisted by: Mr. Asfandyar Khan, Adv. Mr. Ahsan Bhoon, President (SCBAP) Mr. Waseem Mumtaz Malik, Sec. (SCBAP) Mr. Anis M. Shahzad, AOR For PPPP : Mr. Farooq H. Naek, Sr. ASC Mian Raza Rabbani, Sr. ASC Assisted by: Mr. Zeeshan Abdullah, Adv. For JUI(P) : Mr. Kamran Murtaza, Sr. ASC Qari Abdul Rasheed, ASC For PML(N) : Mr. Makhdoom Ali Khan, Sr. ASC a/w Saad M. Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Ammar Cheema, Adv. Mr. Yawar Mukhtar, Adv. For BNP(M) : Mr. Mustafa Ramday, ASC Mr. Rashid Hafeez, ASC Assisted by: Mr. Ahmed Junaid, Adv. Mr. Akbar Khan, Adv. Barrister Maria Haq, Adv. Ms. Zoe Khan, Advocate For NA : Mr. Abdul Latif Yousafzai, ASC Mr. Tahir Hussain, Sec. NA Mr. M. Mushtaq, Addl. Sec. For PML (Q) : Mr. Azhar Siddiqui, ASC For Bal. : Mr. M. Asif Reki, AG Mr. M. Ayaz Sawati, Addl AG For ICT : Mr. Niazullah Khan Niazi, AG ICT For KP : Mr. Shumail Butt, AG KP Mr. Atif Ali Khan, Addl. AG Mian Shafaqat Jan, Addl. AG For Punjab : Mr. Ahmed Awais, AG (Punjab) Mr. Qasim Ali Chohan, Addl. AG Punjab For Sindh : Mr. Suleman Talibuddin, AG Sindh Mr. Fauzi Zafar, Addl. AG : Mr. Hassan Irfan Khan, ASC Reference No.1 of 2022 etc. 3 Date of Hearing : 19, 21, 24, 25, 28 to 30.03.2022, 04.04.2022 to 07.04.2022, 18.04.2022 to 22.04.2022, 09.05.2022 to 11.05.2022, 16 & 17.05.2022. O R D E R For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, by majority of three to two (Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail dissenting) these matters are disposed of together in the following terms: 1. The first question referred by the President relates to the proper approach to be taken to the interpretation and application of Article 63A of the Constitution. In our view, this provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can Article 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under clause (1) thereof. Rather, in its true perspective this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17. The two provisions are intertwined. In its essence Article 63A functions to protect, and ensure the continued coherence of, political parties in the legislative arena where they are the primary actors in our system of parliamentary democracy, which is one of Reference No.1 of 2022 etc. 4 the salient features of the Constitution. Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilization tends to shake the bedrock, which can potentially put democracy itself in peril. Defections are one of the most pernicious ways in which political parties can be destabilized. Indeed they can delegitimize parliamentary democracy itself, which is an even more deleterious effect. Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced. 2. It follows that Article 63A must be interpreted in a purposive and robust manner, which accords with its spirit and intent. Ideally, the Article should not need to be invoked at all; its mere existence, a brooding presence, should be enough. Put differently, the true measure of its effectiveness is that no member of a Parliamentary Party ever has to be declared a defector. Article 63A should therefore be given that interpretation and application as accords with, and is aligned as closely as possible to, the ideal situation. The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the Reference No.1 of 2022 etc. 5 fundamental rights of the collectivity (i.e., the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly. 3. Turning to the second question and keeping in mind the answer to the first, it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection. The second question referred to this Court stands answered in the foregoing terms. 4. As regards the third question, it is our view that a declaration of defection in terms of Article 63A can be a disqualification under Article 63, in terms of an appropriate law made by Parliament under para (p) of clause (1) thereof. While it is for Parliament to enact such legislation it must be said that it is high time that such a law is placed on the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate. The question stands answered accordingly. Reference No.1 of 2022 etc. 6 5. The fourth question referred to this Court is stated in terms that are vague, and too broad and general. It is therefore returned unanswered. 6. This short order disposes of pending matters under Article 186 as well as Article 184(3). What has been said herein above is to be read and understood as a simultaneous exercise of (and thus relatable to) both the jurisdictions that vest in this Court under the said provisions, read also in the case of the latter with the jurisdiction conferred by Article 187. Sd/- CHIEF JUSTICE Sd/- JUDGE I am not in agreement with the majority decision and have appended a separate note. Sd/ JUDGE Sd/- JUDGE I am also not in agreement with majority decision. I have annexed a separate note. Sd/- JUDGE Announced in Court on 17.05.2022. Sd/- CJ. APPROVED FOR REPORTING Reference No.1 of 2022 etc. 7 ORDER Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ.- We have had the privilege of going through the short order of our learned brothers. For the reasons to be recorded later, with great respect, we are not in agreement with the same. Article 63A of the Constitution of Islamic Republic of Pakistan (the Constitution) is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof. In case the Election Commission of Pakistan confirms the declaration sent by a Party Head against a member, he/she shall cease to be a Member of the House. As a result thereof, his/her seat shall become vacant. A right of appeal to this Court has also been provided under sub-Article (5) of Article 63A of the Constitution, to either of the party, aggrieved by the decision of the Election Commission. Any further interpretation of Article 63A of the Constitution, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of the Constitution, which has not even been asked by the President through this Reference. Therefore, it is not our mandate. We see no force in the questions asked through this Presidential Reference, which are answered in the negative. However, if the Parliament deems fit or appropriate may impose further bar or restrictions upon the defectors. Similarly Constitution Petitions No. 2 and 9 of 2022 are dismissed. Sd/- (Mazhar Alam Khan Miankhel) Judge Sd/- (Jamal Khan Mandokhail) Judge Reference No.1 of 2022 etc. 8 ORDER OF THE BENCH: The Presidential Reference No.1 of 2022 is answered and the Constitution Petitions No.2 and 9 of 2022 are disposed of in the terms of majority view. Sd/- CHIEF JUSTICE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Islamabad, 17.05.2022. APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Advisory Jurisdiction) Present Mr.Justice Iftikhar Muhammad Chaudhry, CJ. Mr.Justice Javed Iqbal Mr.Justice Abdul Hameed Dogar Mr.Justice Sardar Muhammad Raza Khan Mr.Justice Muhammad Nawaz Abbasi Mr.Justice Faqir Muhammad Khokhar Mr.Justice Mian Shakirullah Jan Mr.Justice M. Javed Buttar Mr.Justice Saiyed Saeed Ashhad REFERENCE NO. 2 OF 2005 Reference by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973. For the President : Mr. Makhdoom Ali Khan, Attorney General for Pakistan. Raja Muhammad Irshad, Dy. Att: Gen. Mr. Nasir Saeed Sheikh, Dy. Att: Gen. Ms. Nahida Mehboob Ellahi, Dy: Att: Gen. Mr. Faisal H. Naqvi, Advocate. Mr. Uzair Karamat Bhandari, Advocate. Mr. Khurram M. Hashmi, Advocate. Mr. M.S. Khattak, AOR. For the Government of NWFP: Mr. Khalid Anwar, Sr. ASC. Haji M.A. Qayyum Mazhar, AOR. assisted by Mr. Muneeb Akhtar, Advocate. Mr. Bilal Shaukat, Advocate. Mr. Younas Tanoli, AG NWFP. Pir Liaqat Ali Shah, Addl: AG NWFP. On Court notice : Mr. Aftab Iqbal Chaudhry, Advocate General (Punjab). Mrs. Afshan Ghazanfar Asstt: AG(Pb.) Syed Sajjad Hussain Shah, Ass: AG (Pb). Dr. Qazi Khalid Ali, Addl: AG Sindh. Mr. Salah-ud-Din Mengal, AG (Balochistan) Dates of hearing : 1st, 2nd, 3rd, and 4th August, 2005. ………………………… Reference No.2/2005 2 OPINION IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – The President of Pakistan has referred the following questions of law for opinion of this Court under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution):- “i) Whether the Hisba Bill or any of its provisions would be constitutionally invalid if enacted? ii) Whether the Hisba Bill or any of its provisions, would, if enacted; be violative of the fundamental rights guaranteed in Part-II, Chapter 1 of the constitution, including but not limited to Articles, 9, 14, 16 to 20, 22 and 25 thereof? iii) Whether the Hisba Bill or any of its provisions would, if enacted, be violative of Articles 2A, 4, 203G, 212, 229 and 230 of the Constitution? iv) Whether the enactment of the Hisba Bill would encroach on an occupied field, violative of the Constitution by creating a parallel judicial system, undermine judicial independence and deny citizens their right of access to justice? v) Whether the enactment of the Hisba Bill would violate the principle of separation of powers enshrined in the Constitution? vi) Whether the Hisba Bill, and in particular Sections 10 and 23 thereof, is unconstitutionally overbroad and vague and suffers from excessive delegation? vii) If the answer to any one or more of the above questions is in the affirmative, whether the Governor, NWFP is obliged to sign into law the Hisba Bill passed by the NWFP Assembly?” 2. Precisely stated, the circumstances which necessitated the seeking of opinion from this Court by the President of Pakistan, are that on 19th June, 2003, a draft Bill titled “HISBA BILL” was submitted under the N.W.F.P Rules of Business, 1985, to the Governor of NWFP for his approval prior to its presentation before the N.W.F.P Assembly. The Governor returned the draft bill to the Reference No.2/2005 3 N.W.F.P Government (hereinafter referred to as the Provincial Government) on 26th June, 2003, with the advice that before moving it for leave to introduce, it may be appropriate, inter alia, to take the following into consideration:- (i) It is an established principle that legislation should be precise, clear and unambiguous so that the legitimate rights of the citizens are protected from the abuse or excess of powers vested in an authority. The draft bill in its present form is vague, more particularly the powers envisaged to be vested in the proposed Mohtasib. This lack of clarity and precision could lead to unnecessary and unlawful infringement of the rights of the citizens besides intrusion in the realm of such areas of private morality which may neither be desirable nor just and fair. Moreover, terms used in the draft Bill need to be clearly defined, such as, inter-alia, un-Islamic social etiquettes, Islamic moral values, respect and etiquettes for prayers etc. (ii) Islam is indeed a complete code of life and any legislation in the name of Islam has to be exercised with caution and utmost care because if the powers thereunder are abused it inevitably damages the image of a dynamic religion. The draft Bill envisages to give wide discretionary powers to the proposed Mohtasib, particularly in section 23 thereof, however the powers have been vaguely worded. Such wide, vague and loosely worded/drafted legislation will inevitably cause immense difficulties for the citizens besides jeopardizing their civil liberties, privacy and constitutional rights. Reference No.2/2005 4 (iii) The EXPLANATION to sub-section (iii) of section 2 of the proposed Bill categorically points out that this law would be invoked, when no other legal, judicial or administrative remedy is available. Contrary to it, five cases mentioned in sub-section (v) of Section 2 and various sub-sections of Section 9 are dealt by comprehensive Efficiency & Disciplinary laws/rules, NAB Ordinance and other punitive laws/rules. (iv) There are valid and enforced laws relating to most of the powers mentioned in section 23 of the draft Bill. All such laws, inter-alia, relating to employment of children, Ehtaram-e- Ramazan, hoarding and black marketing, prohibition of wasteful expenditure in marriages, weights and measures, prevention of cruelty to animals, gambling, regulation of loudspeakers, vagrancy, price control and prevention of profiteering and many others are not only in existence and enforced by various institutions and authorities are provided there-under for administering these laws and the expenditure for which is paid by the exchequer. There is a need to examine all the laws, which are already in existence, and to make the respective executing authorities/ agencies more effective and accountable rather than creating parallel institutions and authorities in haste and vesting them with unbridled and vague powers. This would neither be in the interest of good governance or the citizens. Moreover, it will be an unnecessary burden on the already strained exchequer of the province. Reference No.2/2005 5 (v) The draft bill proposes to touch upon certain laws which fall under the domain of Federal Legislation, inter- alia the Police order. Section 2 sub- section (iii) read with Section 20 of this proposed Bill refers to creation of Hisba force which is contrary to the Police Ordinance, 2002. Any change/ amendment in this Order would require permission from the President of Pakistan as it is included in Schedule-VI of the 1973 Constitution of the Islamic Republic of Pakistan. (vi) Prior approval of the President would be required for extension of the proposed law to Provincially Administered Tribal Areas (PATA). It is therefore advisable to consult the Federal Government through Law and Justice Division and Interior Division before taking further action on the proposed bill. (vii) Vide sub-section (16) of Section 2 of the proposed Bill, the definition of journalist is very vague. It accepts any person as a journalist who is MA (Journalism) or has attachment with journalism for ten years irrespective of the fact whether he holds journalism degree or any other such equivalent qualification. (viii) The proposed appointment and removal of the Mohtasib and the procedure for conducting inquiries and investigations also need to be reviewed so as to make the respective procedures transparent and more accountable. (ix) The matter being of a sensitive and important nature, instead of legislating in a haste, as a first stage the treasury benches may consider seeking the opinion of the Council of Islamic Ideology for the purposes of Article 230 Reference No.2/2005 6 of the Constitution in respect of all the existing laws relating to the proposed powers enumerated in the draft Bill and to seek recommendations as to the measures of bringing such existing laws in conformity with the injunctions of Islam. In the second stage, clear precise and unambiguous legislation may be proposed in relation to areas/issues, which are not covered in the existing laws. It would also require taking into consideration prudent and diligent regard vis-à-vis the exchequer.” 3. The Provincial Government in compliance with the above advice of the Governor, agreed to refer the matter to the Council of Islamic Ideology (hereinafter referred to as CII). The CII rendered its opinion and pointed out inherent defects in the proposed legislation and specifically stated that the draft Hisba Bill violated a number of constitutional provisions and was capable of being exploited for political motives. The opinion of the Council was communicated to the Provincial Government on 18th September, 2004. The Provincial Government, without taking into consideration the opinion of the CII, tabled the draft Hisba Bill in the N.W.F.P Provincial Assembly on 11th July, 2005 and got it approved. The Governor of NWFP, on 11th July, 2005, requested the Prime Minister to make a request to the President of Pakistan for making a Reference to this Court for its opinion on the constitutionality of the draft Hisba Bill under Article 186 of the Constitution as serious questions of law of public importance are involved in the matter. Reference No.2/2005 7 4. In the light of the request of the Governor and the attending controversy, the Hisba Bill which generated serious and substantial questions of constitutionality of fundamental human rights, the Prime Minister of Pakistan was pleased to advise the President of Pakistan to seek opinion of this Court and refer the above questions of law of public importance for opinion on the constitutionality of the draft Hisba Bill. As this Court is required to give its opinion about the constitutionality of the draft Hisba Bill, therefore, it is deemed appropriate to reproduce herein-below the following provisions from the draft Hisba Bill:- “ A BILL to provide for the establishment of the institution of Hisba in the North-West Frontier Province. WHEREAS sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him is a sacred trust; AND WHEREAS implementation of Islamic way of life revolves around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve this objective it is necessary apart from other steps to establish an institution of accountability which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society; AND WHERE it is further necessary to extend the jurisdiction of Mohtasib to Government’s administration and offices in order to have a check upon injustices, abuse of powers and other similar excesses; It is hereby enacted as follows : “1. .Short title and commencement (1) This Act may be called the North-West Frontier Province Hisba Act, 2005. (2) It shall extend to whole of the North-West Frontier Province. (3) It shall come into force at once. 2. Definitions. --- In this Act, unless the context otherwise requires, (a) “Agency” means a Department, Commission or any office of Provincial Government, a Corporation or similar other institutions which the Provincial Government may have established or which may be working under its control, the Secretariat of the Provincial Assembly of the North West Frontier Province, but does not include the High Court and the Courts working under its administrative control; Reference No.2/2005 8 (b) “Amer-bil-Maroof” means fulfilling the obligations of enjoining the good as laid down in Holy Quran and the Sunnah; (c)………………………………………………………………. (d)………………………………………………………………. (e)………………………………………………………………. (f)………………………………………………………………. (g)………………………………………………………………. (h)………………………………………………………………. (i) “Mal-administration” includes all such decision, processes, recommendations, acts and deficiencies which – (i) Is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (ii) Is perverse, arbitrary, unreasonable, unjust, biased, oppressive or discriminatory; or (iii) Is based on irrelevant grounds; or (iv) Involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favoritism, nepotism and administrative excesses; or (v) Amounts to negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities; (j)………………………………………………………………. (k) “Nahi-unal-Munkir” means fulfilling the obligations of forbidding the evil as laid down in the Holy Quran and the Sunnah; (l)………………………………………………………………. (m)……………………………………………………………… (n) “Provincial Advisory Council” means the Council established under this Act; (o) ………………………………………………...……………. (p)………………………………………………………………. (q)………………………………………………………………. (r)………………………………………………………………. 3………………………………………………………………….. 4………………………………………………………………….. 5………………………………………………………………….. 6…………………………………………………………………. 7…………………………………………………………….. 8…………………………………………………………….. 9…………………………………………………………….. 10. Powers and duties of Mohtasib. The Mohtasib shall, on a written complaint of any person, or on reference from the High Court, the Supreme Court or the Provincial Assembly, or suo motu, shall have the power to- (a) Enquire into the allegations of mal- administration against any Agency or its employees: Reference No.2/2005 9 Provided that no Government servant, during his service, shall be entitled, in relation to affairs of his employment, to lodge a complaint with the Mohtasib; (b) Protect/watch the Islamic values and etiquettes at the provincial level; (c) Watch the media established by Government or working under the administrative control of Government to ensure that its publications are useful to the purpose of upholding Islamic values; (d) Forbid persons, Agencies and authorities working under the administrative control of Government to act against shariah and to guide them to good governance; (e) Formulate such directives and principles, which may help in making the conduct of authorities working under this section to be effective and purposeful; (f) Extend help to the provincial administration in discharging its functions smoothly and effectively; provided that the Mohtasib shall not interfere in any mater which is sub-judice before a court of competent jurisdiction or which relates to external affairs of Pakistan or the relations or dealings of Pakistan with any foreign State or Government or relates to or is connected with the defence of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan or the matters covered by laws relating to these forces; (g) For the purposes of attaining the objectives of this Act, with particular reference to doing away with the mal-administration and to remove social injustices, take steps for providing facilities of training, study and research; and (h) Mohtasib shall, in the discharge of his duties and functions, be entitled to engage the services of experts and Consultants with or without remuneration. 11…………………………………………………………… 12. Implementation of orders, etc. (1) On completion of the action in relation to a complaint, the Mohtasib shall have the power to issue directive to the competent officer of the Department concerned for its implementation and may, at the same time, take up such steps as he considers expedient. The concerned Agency within the time limit mentioned in the directive, inform the Mohtasib about the action taken in that behalf, failing which the concerned Agency or competent officer, on the recommendation of the Mohtasib, shall render itself or himself, as the case may be, to the following actions: (a) One or more actions under the law relating to removal from Service; (b) In case of non-cooperation with the Mohtasib or his staff during investigation, legal action for interference in smooth functioning of Government. Reference No.2/2005 10 (c) Where the Mohtasib is satisfied in respect of a complaint under consideration that any functionary of Government has committed a cognizable offence or rendered himself to civil liability, he shall direct the concerned Agency to initiate action as aforesaid in accordance with law. (2) In case of non-compliance of the directive of the Mohtasib, he shall refer the matter to Government, which shall ensure its compliance and inform the Mohtasib of its compliance. (3) A report of such non-compliance of the official shall form part of his personal file. (4) The official concerned shall have the right of representation to the Chief Minister within a period of 30 days from the date of recommendation under sub- section(1). 14. Contempt of Mohtasib . The Mohtasib shall mutatis mutandis have the same powers which are available to the High Court to punish a person who- (a) Hinders or becomes a source of hindrance in the smooth proceedings before the Mohtasib or does any act causing difficulties in the completion of such proceedings; (b) Gives such statement which defames Mohtasib, or any of his officials or representatives; (c) Acts in a manner which, in relation to proceedings before the Mohtasib, influence the mind of the Mohtasib to take a partial decision; or (d) Acts in a manner which, under any law for the time being in force, falls within the definition of contempt; provided that any comments made in good faith and in the public interest on any act or on report of the Mohtasib or his employer or representative shall not be treated as contempt. (2) The person aggrieved against any order of the Mohtasib under sub-section (1) may, within thirty days of such order, appeal in the High Court, which shall be heard by a Division Bench of the said Court. 15………………………………………………………... 16………………………………………………………... 17………………………………………………………... 18………………………………………………………... 19………………………………………………………... 20………………………………………………………... 21………………………………………………………... 22………………………………………………………... Reference No.2/2005 11 23. Special powers of Mohtasib. Without prejudices to the powers conferred by section 10, the Mohtasib shall have the following powers:- (i) To monitor adherence of moral values of Islam at pubic places; (ii) To discourage Tabdhir or extravagance, particularly at the time of marriages and other family functions; iii) To follow code of Islam in giving dowry; (iv) To discourage beggary; (v) To monitor adherence of Islamic values and its respect and regard at the times of ‘Iftar” and Taravih’; (vi) To discourage entertainment shows and business transactions at the times of Eideen and Jumma’ah prayers around mosques where such prayers are being held; (vii) To remove causes of dereliction in performance and proper arrangement of Eidain and Jumu’ah prayers; (viii) To discourage employment of under-age children; (ix) To remove unnecessary delay in discharge of civil liability which is not disputed between the parties; (x) To prevent cruelty to animals; (xi) To remove causes of negligence in the maintenance of mosques; (xii) To observe decorum of Islam at the times of Azan and Fard prayers; (xiii) To prevent misuse of loud-speakers and sectarian speeches in mosques; (xiv) To discourage un-Islamic and inhuman customs; (xv) To check the tendency of indecent behaviour at public palaces including harassment of female; (xvi) To eradicate the deal as profession in ‘Taweez’, ‘Gunda’, palmistry, sorcerery, etc; (xvii) To protect the rights of minorities, particularly to regard the sanctity of their religious places and places where they perform their religious ceremonies; Reference No.2/2005 12 (xviii) To eliminate un-Islamic traditions which effect the rights of women, particularly taking measures against their murder in the name of ‘Ghairat’, to remove the tendency of depriving them of their rights of inheritance, to eliminate the tradition of ‘sura’, and to protect their rights conferred by Shariah and law; (xix) To monitor weights and measures and eliminate impurity; (xx) To eliminate artificial price-hike; (xxi) To protect Government properties; (xxii) To eliminate bribery from Government Departments/offices; (xxiii) To incite feelings of service to people at large amongst Government functionaries; (xxiv) To advise those who are found to be disobedient to their parents; (xxv) To perform any other function or functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council; (xxvi) To mediate amongst parties and tribes in matters pertaining to murders, attempts to murder and similar other crimes threatening to law and order situation. (xxvii) To perform any other function/functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council. 24………………………………………………………... 25. Restriction on the rights of hearing. (1) No court or authority shall be competent to question the legal status of the proceedings before a Mohtasib. (2) No court or authority shall have the power to pass any injunction or any interim or a stay order with regard to any matter under consideration of the Mohtasib. (3) No suit or legal proceeding shall lie against the Mohtasib or his employees for anything in good faith done or intended to be done. 26………………………………………………………... 27………………………………………………………... 28. Offences to be non-cognizable. (1) Defiance of the order of the concerned Mohtasib in the performance of his duties under section 23 of this Act shall be a non-cognizable offence punishable with Reference No.2/2005 13 imprisonment for a term up to six months and a fine up to two thousand rupees. No court shall take cognizance of an offence under this section, except on a complaint in writing of the Mohtasib or his authorized representative. (2) The offence under sub-section (1) shall be tried by the court in accordance with Code of Criminal Procedure, 1898 (V of 1898) and the order shall be appealable. 29………………………………………………………….. 30………………………………………………………….. 31………………………………………………………….. 5. Notices were issued to the Provincial Government of NWFP through Chief Secretary as well as Secretary Assembly, its Advocate General as well as the Advocates Generals of all other Provinces. 6. “Hisba” is an Arabic word, which in the plain language means “to count” or “accountability” or “to prohibit from evil things,” as per available literary sources. The Institution of the office of “Hisba” did not exist at the time of Holy Prophet (PBHU) and the Khulafa-e-Rashideen. Initially the office of “Amil al-suk” was created by “Umayyads” to regulate markets. However, later on it was expended into the office of the “Mohtasib” by the “Abbasids.” Reference in this behalf may be made to the following:--- 1. An Introduction to Islamic Law ” by Joseph Schacht “…………The office of the ‘inspector of the market' (ayopavouos, in Arabic amil al- suk or sahib al-suk, a literal translation) who had a limited civil and criminal jurisdiction; it was later, under the early 'Abbasids’ to develop into the Islamic office of the muhtasib. Similarly, the Muslims took over from Sassanian administration the office of the ‘clerk of the court' who became an assistant of the kadi; this was well known to the ancient authors.” 2. “A history of Islamic Law ” by N.J Coulson “One particular administrative office taken over by the Umayyad regime was that of the Byzantine market inspector, or agronomos. This official, bearing the equivalent Arabic title of ‘amil as-suq, possessed limited powers of jurisdiction Reference No.2/2005 14 concerning such things as weights and measures used in the market and petty offences committed there. At a later stage he was entrusted with the peculiarly Islamic function of hisba, or the duty of safeguarding the proper standards of religious morality. Accordingly he now took the title of muhtasib, but still retained the market-place jurisdiction as a legacy of his historical origin.” 3. “A History of the Arab People” by Albert Hourani “…………In the market there was a special official, the muhtasib, who supervised prices, weights and measures, the quality of goods and the conduct of business; his authority was derived from, a verse of the Qur’an which enjoined upon Muslims the duty of 'bidding unto good and rejecting what is disapproved', and in some circumstances he was appointed from among the religious class, but in others from the military………” 4. “Islami Riasat Main Mohtasib Ka Kirdar ” by Dr. M.S. Naz. 8. To substantiate the above definitions, a good number of books can be quoted including “the Concept of Administrative Accountability in Islam” by Dr. Riaz Mehmood, Urdu Daira Ma’arif-e-Islamia (Urdu Encyclopedia of Islam) Vol. VIII, published under the auspices of University of Punjab Lahore, “Ehkamul Sultania” by Imam-Abul-Hassan Bin Muhammad Bin Habib-e-Baseeri (translated by Maulvi Syed Muhammad Ibrahim), “Adbul Qazi” by Dr. Mehmood Ahmed Ghazi, Edarai-e-Tehkekqat-e-Islami, “Badae-ul-Sana’ay” by Alama Allauddin Abubakar Bin Sulemani (translated by Prof. Khan Muhammad Chawla) and “The Concise Encyclopedia of Islam” by Cyril Glasse. Relevant portion from the last mentioned book is reproduced below:- Reference No.2/2005 15 “Muhtasib. A public functionary whose task, as it has existed since 'Abbasid times, has been that of supervising the merchants' quality and prices. The muhtasib checks and verifies weights and measures and the use of materials in crafts. He gives expert appraisal of the value of cloth, rugs, woven articles brass and copper utensil. These estimates are not binding as a price between buyer and seller, but are indicative of the fair market price. The muhtasib is still found in some traditional markets.” 9. A study of the definitions of “Hisba” from the above books indicates that although it was a very old institution but its inception is not well known. Some of the authors, as is evident from the above definitions, say that in the beginning, the terms “Hisba” and “Mohtasib” were not used but the terms “Sahib al-Suk” or “Amil ul-rusul ” [incharge of Trade or Trade administrator/administrator of streets] were used. The word “Sahib ul-Suk” is said to be a translation of Greek term. However, history reveals that the term “Mohtasib” was started to be used instead of “Sahib ul-Suk” during the Khilafat of “Qazi Mamoon-ur-Rashid” and the “Mohtasib” used to look-after the market business in addition to his religious duties, such as to bring reformation in social life. A careful perusal of the documents on the subject, clearly depicts the fact that duties of the “Mohtasib” were to inspect instruments of the scales of weights and measures. These scales were so complicated and different that the peoples could easily deceive each other. In addition to it he had also to keep a vigilant eye over each kind of shortcoming and dishonesty that could be committed during the preparation and sale of commodities. It is also evident from the history books that keeping in view economic conditions of Muslims, the “Mohtasib” used to check prices of the goods but he had no power to determine them. He had also to ensure that construction and repairing of houses and the shops would not endanger the peace of the Reference No.2/2005 16 public or cause hurdles in the way of pedestrian and traffic. Streets cleanliness, repair of shelters for commuters and supply and drainage of water were amongst his duties and due to such functions “Mohtasib” in Islamic period used to be considered a City Officer. Unfortunately, at the end of middle ages, with the economic downturn and social crises, the office of “Mohtasib” started loosing its respect. During the era of “Mamlik” sometime the posts of Mohtasib, like other institutions, were grabbed by giving bribes. The buyer of this office reimbursed this money by imposing illegal levies. Eventually, fighting started to occur among the contenders of this post. Sometime this post was given to an Army Officer in reward to his performance or from strategic point of view. This office remained established in Muslim countries till the inception of 20th Century. It is most important to note that the office of “Mohtasib” effectively functioned, even when there was no codified law and there were no regular Governments to control the State affairs, to spread virtues and battle against evils as per the comprehensive meanings of the word “Hisba.” In this behalf every Muslim can act as “Mohtasib” for himself as well as for others, in view of the Injunction of Holy Quran, (Surah Al-Imran verse 104), translation of which is “And there must be a section among you to call towards good, to order the right and prevent the bad.” Similarly, Holy Quran in Surah Al-Nisa verse 59 ordained “O Muslims, obey Allah, His Prophet (PBUH) and those in authority from amongst you.” Dr. Riaz Mehmood in his book “the Concept of Administrative Accountability in Islam,” while taking into consideration both these Injunctions of Holy Quran and dealing with the subject of “Hisba” and “Legislature” (Chapter IX page 173), has opined as follows:- “………...In the third verse it is emphatically proposed that there must be a body to call to good, to beneficial Reference No.2/2005 17 state of affairs, to order good and to check bad. Lastly the men in authority or the men who have been assigned some work, who have been deputed or are engaged in the task of some peremptory nature must be obeyed. So a representative or consultative body has been provided. In Ul-Al-AMR the legislature, the executive and judiciary all are encompassed. Dr. Sabhi Mehmasani has concluded by referring to many Quranic verses and traditions that Ijma is an admitted and proved source of Islamic law. So the entity of Shura is established. Hadrat Umer formed a Shura. It has also been discussed in the preceding chapters that the Holy Prophet (P.B.U.H.) and the rightly guided Caliphs conducted Ihtisab themselves. lhtisab of the public and officials had all along been there. However the nomenclature Muhtasib, appeared in the time of Caliph Mehdi. The muhtasib and the shura are therefore to consult each other. Hisba and shura may coincide in a single body notwithstanding whatever qualification of piety or fiqh be laid down for them. Muhtasib is a successors wing of the ruler and the legislature i.e. parliament is the successor of shura. Shura's link as mentioned in the encyclopaedia be reproduced below. "Linked with these tasks was another which has caused modern scholars to stress the view that the traditions of antiquity concerning the councillors of the town were perpetuated in the duties of the Muhtasib.” The councillor is the representative of the urban electorate at the local councils level. He too is often elected on party basis. The members of the parliament have comparatively larger constituencies. The functions are almost the same. They attend to the small disputes of the voters, redress their complaints and are the overall overseers of public officials. The councillors are also invested with some judicial matters. The legislators move the bills in parliament keeping in view the problems of their respective areas. The parliament of Pakistan is officially called MAJLIS-I- SHURA. Reference No.2/2005 18 Thus the members of the parliament (Legislature) themselves act as Muhtasibs in their areas and also advise the rulers. In all countries where there is parliamentary form of government, the parliament (Legislature) almost acts as the Muhtasib of the executive. The same is the position in Pakistan. The relevant articles of the constitution of Islamic republic of Pakistan be referred in this respect. "Article 9: THE CABINET 1. There shall be a cabinet of ministers with the Prime Minister at its head, to aid and advise the president in the exercise of his functions." 4. The cabinet, together with the Minister of State, shall be collectively responsible to the National Assembly.” There is a bit of difference between the Ombudsman and Hisba, which would be discussed in chapter xi. However their relationship with the Legislature is almost the same. An excerpt from the annual report of Wafaqi Muhtasib of Pakistan, 1992 may be adverted to in this connection. WAFAQI MOHTASIB VIS-A-VIS THE PARLIAMENT: The institution of Wafaqi Mohtasib was established through a presidential order in 1983 (p.o. of 1983), during the days when the country was under Martial Law. The Ombudsman law thus does not stipulate linkage between this institution and the parliament which has created a contradiction in the context of the world-wide practice in similar institutions. In all the countries of the world, where this institution exists, the Ombudsman is considered to be a Parliamentary watchdog operating in administrative domain on behalf of the Parliament, to which alone he is responsible. After the restoration of democracy in Pakistan in 1985, this office has continuously been demanding creation of formal linkage between this institution and the parliament either through a constitutional amendment or by setting up of a Public Administration Committee of the Parliament, on the pattern of Public Accounts Committee but to no effect. All efforts seem to have been wasted. Reference No.2/2005 19 Committee of this nature, would not only act as a liaison between the Mohtasib and the Parliament but would also provide necessary guidance and support to this institution in the performance of its functions in various fields. Matters relating to the Ombudsman institutions like its Annual report, budget proposal and amendments in the law, prudence demands, are required to be scrutinized first by that committee for the purposes of evolving bipartisan consensus before these are placed before the Parliament for consideration. 10. NWFP Assembly, despite having all functional democratic institutions under the Constitution, intended to establish the institution of “Hisba,” as per draft Hisba Bill. Its preamble identifies the following two objects :--- “i) Whereas implementation of Islamic way of life revolves around Amar-bil-Maroof and Nahi-unal-Munkir and to achieve this object, it is necessary apart from other steps to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society; ii) And whereas it is further necessary to extend the jurisdiction of Mohtasib to Government’s administrations and Offices in order to have a check upon injustices, abuse of powers and other similar excesses. A careful perusal of above preamble demonstrates that the “Hisba Bill” was drafted to achieve two-fold objectives; one to establish an institution of accountability to fulfil the command of “Amar-bil-Maroof and Nahi-unal- Munkir,” as far as personal lives of the different segments of the society are concerned; and second to extend the jurisdiction of “Mohtasib” to official affairs of the Provincial Government. So far as the second part is concerned, its object seems to be inline with the legislation already available on the subject i.e. the Establishment of Office of the Wafaqi Reference No.2/2005 20 Mohtasib Order 1983, which has been mandated by the Constitution under Item 13 of the Federal Legislative List; Establishment of the Office of Ombudsman for the Province of Balochistan Ordinance, 2001; Punjab Office of the Ombudsman Act, 1997; Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991, respectively. Definition clauses in the “Hisba Bill” and the other laws on the subject, relating to mal-administration in Government offices, are identical in substance. 11. The concept of Ombudsman has been discussed in a “Commentary on Ombudsman” by Mubeen Ahmed Khan, substance whereof is that it is an institution which takes care of a large segment of population or the large number of the residents against the mal-administration of the Government functionaries. Dr. Riaz Mehmood in “The Concept of Administrative Accountability in Islam” in chapter Ombudsman: concept and growth: has described that Ombudsman is a person or an office which on complaint or reference or even suo motu can look into administrative actions, omissions and commissions of Government or Semi-Governmental agencies, affecting their subjects in case they in their own place term them a partial, improper, arbitrary, oppressive, harsh, discriminatory, biased, victimizing, or the result of neglect, lethargy or incompetence, and after necessary investigation, offer possible redressal, within statutory spheres. Three renowned scholars on the subject i.e. Geraled E. Caiden, Nail Macdermot and Ake Sandler have detailed the concept of Ombudsman in lucid manner: “ a new and to many people, a foreign word is being heard more frequently, it is “Ombudsman.” A term that refers to special office or officer to whom people can go with their grievances about the way their business with large anonymous bureaucracies has been handled. The Ombudsman records public complaints, investigates them, and reports the Reference No.2/2005 21 findings to the complainants and the organizations investigated. Should any wrong be discovered, it is expected that it will be put right, if not to the complete satisfaction of aggrieved party, then at least better than it would have been without the Ombudsman’s intervention. For the public, the Ombudsman is a welcome device for assuring that justice is done and that bureaucracies treat their clients fairly, promptly and respectfully. For bureaucracy, it is an additional failsafe check on their operations, thus it provides additional protection for both public and bureaucracy, something that seems required as the transactions between them multiply.” 12. It may be noted that in Pakistan, besides the offices of Ombudsman referred to herein before, at the Federal level, there is yet another office of Tax Ombudsman, established under Ordinance No.XXXV of 2000 titled as Establishment of Office of Federal Tax Ombudsman Ordinance 2000. The objects and the functions of the Tax Ombudsman are to diagnose, investigate, redress and rectify any injustice done to a person through mal- administration by functionaries, administering tax law. Thus, establishment of Federal and Provincial Ombudsman Offices including the Tax Ombudsman, are successfully serving the object of checking mal- administration in Government offices on the complaints of aggrieved persons. 13. The Government of NWFP is legally bound to establish the offices of the Zilla Mohtasibs, under Section 134 read with Third Schedule of the NWFP Local Government Ordinance, 2001. The functions and purposes of the Zilla Mohtasib are enumerated as follows :-- 134. Zilla Mohtasib. (1) Without prejudice to the provisions as contained in the North-West Frontier Province end enactment regarding Provincial Mohtasib, in every district there may be a Zilla Mohtasib. Reference No.2/2005 22 (2) The Zilla Mohtasib shall redress citizen’s complaints against mal-administration of the holders of public offices in the local governments within the district. Explanation. For the purpose of this section, the expression ‘holders of public office’ includes all functionaries of the District Government, Tehsil Municipal Administration, Union Administration, Nazimeen, Naib Nazimeen, District Police Officers and officials, members of the Councils and all officials of the Council. (3) All holders of public offices shall aid and assist the Zilla Mohtasib in exercise of his functions. (4) The Zilla Mohtasib shall hold office for a term of four years and shall be eligible for reappointment for a similar term. (5) The Zilla Mohtasib may resign his office by writing under his hand addressed to the Zilla Council through Naib Zilla Nazim. (6) The manner of selection, appointment, removal, terms and conditions of service, functions, and powers of the Zilla Mohtasib and procedures relating thereto shall be as given in the Third Schedule. 14. The NWFP Local Government Ordinance, 2001 has constitutional protection as its alteration, repeal or amendment, without the previous sanction of the President, has been prohibited under Article 268 (2) read with Sixth Schedule of the Constitution of the Islamic Republic of Pakistan. 15. A comparative study of the duties and the powers of Zilla Mohtasib appointed under Section 134 of the NWFP Local Government Ordinance, 2001 reveals that the duties assigned to District Mohtasib appointed under Section 17 of Hisba Bill, relating to redress the grievances of the citizens against mal-administration by the holders of the public offices, are identical. Therefore, Provincial Government by creating Offices of “ Zilla Mohtasib” under the Hisba Bill is not authorized to delegislate a provision of law having constitutional protection. Reference No.2/2005 23 16. A cursory perusal of the laws on the establishment of the federal and provincial offices of the Ombudsman, makes it clear that under Section 12(1) of the Hisba Bill enormous powers have been given to “Mohtasib” to check the cases of mal-administration and implementation of its orders. Regarding disobeying the order of “Mohtasib” in terms of Section 10(b),(c) & (d) for non-performance of personal religious obligations by a citizen, the “Mohtasib” is competent to punish him for contempt. He can also lodge a complaint before a Magistrate, if there is ‘Khilaf-warzi’ of his orders, issued by him under Section 23(1), (2), (3), (5), (6), (7), (12), (14) and (27) of the Hisba Bill, which can entail imprisonment up to a period of six months and fine up to Rs.2000/-. Thus, the “Mohtasib” enjoys dual powers i.e. as an authority, exercising powers of a judicial officer, competent to punish a person for noncompliance of his orders and at the same time, as an investigator and prosecutor; authorized to submit complaint against a citizen, who in his arbitrary wisdom, failed to oblige him by accepting his orders, refraining him from or ordering him to perform certain actions, which in Mohtasib’s view are in accordance with Islamic thoughts, etiquettes and faith as believed by him. 17. Plurality of powers at the command of “Mohtasib,” as noted above, distinguish him from the “Ombudsman” functioning under other laws, which give Ombudsman an authority only to make recommendatory directions, having no binding effect, as held in National Bank of Pakistan v.Wafaqi Mohtasib (NLR 1993 CLJ 171), Tariq Majeed Chaudhry v. Lahore Stock Exchange (PLD 1995 Lahore 572), Pakistan International Airlines Corporation v. Wafaqi Mohtasib (1998 SCMR 841), East West Insurance Company Ltd. V. Wafaqi Mohtasib (1999 MLD 3050), Punjab Agricultural Development and Supplies Corporation v. Reference No.2/2005 24 Muhammad Rafiq Khan (2002 PLC (CS) 1133), Muslim Commercial Bank Ltd. v. Momin Khan (2002 SCMR 958) and Nazir Ahmed Khan v. Pakistan International Airlines Corporation (2004 PLC (CS) 119). 18. Article 175 (3) of the Constitution mandates that judicial powers of binding nature are not to be conferred upon the Authority exercising Executive powers of an investigator, prosecutor, etc. Section 10 of Hisba Bill, defines powers and duties of “Mohtasib” AND Section 12 prescribes the mode of implementation of orders of “Mohtasib.” Section 14 gives him powers of contempt, as are vested under Contempt of Court Act, 1976, etc. 19. It is significant to note that Section 25 had placed a restriction on the rights of hearing. Analysis of this Section suggests that the powers of judicial review against the orders of “Mohtasib” have been excluded against all cannon of justice with an object to enforce broad, uncontrolled, open and oppressive authority of “Mohtasib,” knowing well that the Courts functioning under Civil Procedure Code and Constitution had always exercised statutory and inherent jurisdiction to control sweeping powers of an Authority, particularly in penal acts, when considering them vague, arbitrary, unreasonable, etc. 20. Mr.Makhdoom Ali Khan, learned Attorney General contended that the judicial powers are to be exercised by Courts and not by Executives like “Mohtasib” under Hisba Bill. Such exercise of powers deny the right of access to justice to a citizen. [See Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607)]. 21. Learned counsel for Government of NWFP stressed that no judicial powers have been conferred upon the “Mohtasib” by Hisba Bill. The Reference No.2/2005 25 powers exercisable by “Mohtasib” are corresponding to powers of “Wafaqi Mohtasib” and by the Mohtasibs of Provinces. 22. Section 12 of the Hisba Bill prescribes implementation powers of “Mohtasib,” and Article 11 of the President’s Order No. 1 of 1983 Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 [herein after referred to as “Wafaqi Mohtasib Order”] deals with the same subject. Same is the position in Provincial laws dealing with the Offices of Ombudsman. The Federal and Provincial “Mohtasibs” after having considered a matter communicate their findings; (a) to consider the matter further; (b) to modify or cancel the decision, process, recommendations, act or omission; (c) to explain more fully the act or decision in question; (d) to take disciplinary action against any public servant of any agency, under the relevant laws applicable to him; (e) to dispose of the matter or case within a specified time; (f) to take action on its findings and recommendations to improve the working and efficiency of the agency within a specified time; (g) to take any other step specified by the “Mohtasib.” Whereas, under Section 12 of the Hisba Bill, “Mohtasib” has been given power to issue Hukam-nama [order] to the competent officer of the department concerned for implementation and at the same time he is authorized to take such steps as he considers necessary. On receipt of “Hukam-nama” [order], concerned agency is bound to implement the same, failing which the action against concerned agency or delinquent officer under the law relating to removal from service or any other action, including criminal and civil proceedings, shall be directed by him. Difference between recommendation i.e. advice, proposal, suggestion, counsel, etc. and “Hukam-nama” [order] i.e. command, direction, instruction, etc. is well understood as per their plain dictionary meanings. Reference No.2/2005 26 Interpretation of both these expression by following golden rules of construction of statutes, to adhere to the ordinary meanings of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnancy, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.” 23. Learned Attorney General explained that under the Wafaqi Mohtasib Order, an agency has either to comply with recommendations on receipt of communication from “Mohtasib” or to inform him the reasons for not complying with the recommendations. But under Hisba Bill, an agency is bound to obey the “Hukam-nama” [order] of Mohtasib, otherwise it is to be implemented in the manner as liked by him as he has an authority under Section 12(1) to take up such steps as he considers expedient. He apprehended that “Mohtasib” would not be precluded to exercise such powers, under the garb of this authority, arbitrarily and callously for want of any check on him. He argued that it can also give rise to corruption and corrupt practices as historically and in the recent past, the office of Hisba had earned a bad name. In this behalf he invited attention to the references given herein before. 24. Learned Attorney General also contended that the “Hukam-nama” [order] of “Mohtasib” under Section 12(2) of the Hisba Bill is not confined to the extent of an agency in respect of official mal-administration but also is applicable to personal/individual religious rights of the citizens qua powers of “Mohtasib” under Section 10(b), (c) and (d). Whereas, in the Federal Mohtasib law and the laws prevailing on the subject in other Provinces, no such “Hukam-nama” [order] of binding nature can be Reference No.2/2005 27 issued by the “Mohtasib.” In case of non-compliance of “Hukam-nama” [order] of “Mohtasib,” within stipulated time, the Officer of agency will expose himself for one or more actions, on recommendations of “Mohtasib” under the law relating to removal from service including facing criminal proceedings, if “Mohtasib” is satisfied that he has committed a cognizable offence and even a civil suit can also be registered against him under Section 12(1)(c) of the Hisba Bill. Surprisingly, against such a binding order of the Mohtasib, a right of appeal has been given to an aggrieved person before the Executive Head of the Province i.e. Chief Minister under Section 12(4) of the Hisba Bill. The official of the agency as an individual, to whom binding “Hukam-nama” [order] has been given, relating to his personal rights, could also face contempt proceedings, under Section 14 of the Hisba Bill. It may be visualized that a binding “Hukam- nama” [order] issued by the Mohtasib, under Section 12(1) has to be obeyed even if it is an unlawful “Hukam-nama” [order], though against illegal orders/unlawful orders, this Court in the case of Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530) and Ramesh M. Udeshi v. The State (2005 SCMR 648), has forbidden the Government Officials to implement such orders. Likewise, an individual having different religious standards/values of understanding the Sharia, as per his sect, is not bound to obey “Hukam-nama” [order] of “Mohtasib” but due to unbridled/ unfettered/arbitrary powers of “Mohtasib” he would have no option but to obey it. Thus, such conduct of “Mohtasib” is bound to create ‘Fasad’ among different sects of Islam, particularly between Sunnis and Ahl-e- Tashees. For exercising powers under Section 10( b) ( c) & (d) and for implementation of “Hukam-nama” [order] under Section 12(1) of Hisba Bill, the citizens and “Mohtasib” both are required a lot of preparation, Reference No.2/2005 28 otherwise, it would be enough for fueling enormous sectarianism not only in NWFP but also in other parts of the country, including a serious threat to law and order and breaking down of constitutional apparatuses, prevailing in the country as well. The prominent jurists had always emphasized for adherence to rule of law acceptable to all the citizens and no sooner a distinction is created between man to man, in exercise of wide ranged unbalanced and un-Constitutional powers, by a particular individual like “Mohtasib,” it will give rise to intolerance in the society as a whole and cause to increase against each other which may endanger peace and tranquility. 18. We are in quite agreement with the contention of learned Attorney General that private life, personal thoughts and the individual beliefs of citizens cannot be allowed to be interfered with. The above discussion persuades us to hold that powers of passing order of judicial nature have been conferred upon “Mohtasib,” being an Executive Officer, basically appointed under the Hisba Bill, to inquire/investigate into the cases of mal- administration of Government Agencies as well as in respect of the religious/personal affairs of the individuals and at the same time blocking the powers of judicial review by the Civil/Criminal Courts, which are under the protection of the Constitutional law. A right of appeal against a binding “Hukam-nama” [order] of “Mohtasib” has been made available to an Officer of agency before the Chief Minister, who being a political Head and Chief Executive of the Province, ordinarily is not expected to give independent decision. Strangely, against a binding “Hukam-nama” [order] of “Mohtasib” issued by him under Section 10 ( b ) ( c ) and ( d ) a citizen has no remedy and if he fails to obey such “Hukam-nama” [order] of “Mohtasib,” he is liable to face contempt proceedings. The Hisba Bill to Reference No.2/2005 29 facilitate the citizens could have defined exhaustively number of terms used in Section 10 i.e. Islamic values etiquettes and Sharia, exhaustively, which should have been acceptable to the Muslims of all sects, including Sunnis, Ahl-e-Tashees, Brailvees, etc. but by using ambiguous terms of these expressions, citizens belonging to different sects have been led into absurdity. Admittedly, the Wafaqi Mohtasib has no authority to issue orders of binding nature, while implementing its findings. Under Article 11(2) of Presidential Order 1983, the agency can inform “Mohtasib” about the action taken on his recommendations or the reasons for not complying with the same and in any one of these situations, no action can be contemplated against the officer of the agency. 25. It is important to note that the Federal Mohtasib can only take action of defiance against an agency, if his recommendations are not complied with or no reason has been given to his satisfaction for non- compliance; otherwise he has no power to punish the officer/official of the agency. Moreover, against the recommendations of the Mohtasib, the aggrieved person including the complainant as well as the agency is competent to file a representation before the President, and not before the Prime Minister qua the Hisba Bill, whereas under Section 12 (4) of Hisba Bill, representation is maintainable before the Chief Minister. It is not understandable as to why powers of implementation of orders of Mohtasib, revolve around the Executive functionaries, instead of conferring such powers upon the Head of the Province i.e. the Governor. In the case of Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) it is held that the Office of Mohtasib has been created to redress the grievances of the citizens; findings of the “Mohtasib” are of recommendatory nature and not a judgment or decision; performance of Reference No.2/2005 30 quasi judicial functions by itself does not confer an authority onto a Court; whether an action is quasi judicial or purely executive, it depends upon the interpretation of the rules and the law, which the authority exercises. Similarly, in Mehram Ali’s case (ibid), it is held that “the Courts/Tribunals which are manned and run by Executive Authorities, without being under the control and supervision of the High Court, in terms of Article 203 of the Constitution, can hardly meet the mandatory requirement of the Constitution.” Relevant portion therefrom, is reproduced herein below:-- (iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. (iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation. (v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in with the judicial framework of the Constitution. (vi) That the right of “access to justice to all” is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the Reference No.2/2005 31 control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. (vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions. 26. Above principles of law have been reiterated in Liaqat Hussain and Khan Asfand Yar Wali (ibid). Relevant para from the latter judgment is reproduced herein below :- “192. Section 9(c) read with Section 24(d) of the NAB Ordinance vests the power to release any person, accused of an offence under the NAB Ordinance, in the Chairman NAB, and that too on the basis of any conditions as he may think fit are unwarranted. The powers to set conditions for the release of an accused from custody or detention is a judicial power which ought not to be exercised except by a Court which is established under Article 175 of the Constitution and is subject to the supervisory jurisdiction of the High Court in terms of Articles 202 and 203.” 27. Mr. Khalid Anwar, learned Sr. ASC for Government of NWFP contended that under Section 14 of the Hisba Bill same powers of contempt of Court are available to “Mohtasib” which are being exercised by the Federal Mohtasib under Section 16 of Wafaqi Mohtasib Order, therefore, the authority to punish for contempt of the “Mohtasib” cannot be questioned. 28. In this behalf it may be noted that according to Section 14 of the Hisba Bill, “Mohtasib” enjoys powers to punish for contempt, a person who acts in a manner which under any law for the time being in force falls within the definition of the contempt; provided that any comments, made in good faith and in the public interest, on any act or on report of the “Mohtasib” or his employee or representative, shall not be treated as Reference No.2/2005 32 contempt. Whereas under Article 16(d) of the Wafaqi Mohtasib Order, the “Mohtasib” has the same powers to punish a person for contempt as the Supreme Court enjoys for its contempt. Under the Contempt of Court Act, 1976, inter alia, a person is said to be guilty of contempt of Court, who disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey. Admittedly, recommendation made by the Wafaqi Mohtasib does not enjoy the status of an order or direction, as discussed herein-above, whereas under Section 12 (1) of the Hisba Bill, the “Mohtasib” seeks the implementation of a “Hukam-nama” [order] of a binding nature, therefore, its disobedience would call for action of contempt of Court. Likewise, under Chapter X of PPC, non-compliance with the recommendations, has not been made punishable as contempt of Court, but disobedience to the order duly promulgated by public servant under Section 188 PPC is punishable. In Section 12 of the Hisba Bill, “Mohtasib” is authorized to issue directives to the competent officer of the department concerned, to implement his “Hukam-nama” [order] and he may take up at the same time, such steps, as he considers appropriate for implementation of “Hukam-nama” [order] as it is of binding nature by its implication, therefore, in exercise of these powers he can also direct to proceed against such persons (both officers of the agency and private citizens) under Section 188 PPC, whereas the Wafaqi Mohtasib in view of the recommendations made by him cannot issue such type of directions. Therefore, on account of the distinction between “Hukam-nama” [order] of a binding nature and recommendations of directory nature, issued by the “Mohtasib” under the Hisba Bill and Federal Ombudsman, under Wafaqi Mohtasib Order, respectively, the action initiated for contempt of Court by the former would be more oppressive. Thus for these reasons, the Reference No.2/2005 33 power of contempt of Court conferred upon the “Mohtasib” under the Hisba Bill cannot be equated with that of the Federal Ombudsman. 29. There is yet another interesting aspect of the Hisba Bill namely as per Section 24, the “Mohtasib” with all his staff including Hisba Force shall be deemed to be a Public Servant within the meaning of Section 21 of the Pakistan Penal Code, therefore, in such capacity, after having passed a binding order in exercise of the powers, conferred upon him, under Section 10 with the aid and assistance of Hisba Police, which is provided to him according to Section 26 of the Act to conduct his affairs, he himself would be the strongest functionary to ensure the implementation of his orders, otherwise, any one either being the officer of the agency or an individual would face the extreme consequences, as discussed herein before. 30. By making available Hisba Police to the Mohtasib, another distinction has been created in between the Hisba Bill and the Wafaqi Mohtasib Order. The object of strengthening the arms of the “Mohtasib,” under the Hisba Bill, is nothing but to implement his “Hukam-nama” [order] per force, if need be. 31. Learned counsel for the Government of NWFP contended that under Section 2 (h) of the Hisba Bill, definition of Hisba Police has been provided, according to which a police force will be deputed to work for the purposes of this Act. According to him the “Mohtasib” would be exercising the supervisory role and that “Mohtasib” will not go on roaming missions, catching hold of an axe, prosecuting and sending people to jail. He stated that according to his instructions, the Provincial Assembly believes not to arm any one with a general warrant to go and arrest to whom he pleased. It was pointed out to learned counsel that such assurances do not seem to be in consonance with the language as used in the Hisba Bill itself. Besides, Reference No.2/2005 34 the questions posed by the President in this reference cannot be answered in view of instructions and assurances, whatsoever that may have been received by him from the NWFP Government. 32. On the other hand, learned Attorney General contended that as per Section 10 in general and Section 23 in particular of Hisba Bill, there is great assortment of activity and due to which the “Mohtasib” is authorized to pickup any one and then apply the provisions or put the investigator to work to pin such provision. According to him “Mohtasib” can virtually pickup a person to whom he may not like or select a group of unpopular persons and then look for their offence and that if such powers are allowed to continue to be exercised by an Executive Authority, there would be a great apprehension and danger of abuse of his powers. 33. It may be recalled that before the separation of Judiciary from the Executive, such powers were used by the Police as well as Executive Magistrates and in this conduct this Court had observed in the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) that “one of the modes for blocking the road of free access to justice is to appoint or handover the adjudication of rights and trial of offence in the hands of the Executive Officers.” Ultimately, it held that “such provision incorporated in such like legislation shall be declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution.” Thus, following the dictum laid down therein, we are of the opinion that the “Mohtasib” under Hisba Bill has been authorized to issue binding “Hukam-nama” [order] to implement the result of his investigation to the officer of the agency, relating to the Government affairs as well as to individuals in respect of their personal religious rights and due to non- compliance of the same, they would have to face penal consequences, Reference No.2/2005 35 details of which have been mentioned herein before. Thus, an Executive Authority, by issuing judicial orders of binding nature violates the fundamental right of the citizens enshrined in Articles 9, 25 read with Article 175 and 203 of the Constitution. The “Mohtasib” had not been appointed in accordance with the provision of Article 175 (1) and (2) of the Constitution, therefore, any order of penal nature passed by him against an agency or individual, would be in violation of the right of access to justice and would also tantamount to setting up a parallel judicial system, recognition whereof is not possible within the present constitutional judicial system prevailing in the country. 34. Learned Attorney General contended that the duty of Amar-bil- Maroof and Nahi-unal-Munkir, however, must be performed by the State in accordance with the Constitutional norms and the fundamental rights of the citizens, thus there is no room for the creation of an office of Hisba with penal powers of “Mohtasib” to implement his “Hukam-nama” [order]. The “Mohtasib” cannot be vested with the authority to decide in his discretion, whether an act is inconsistent with Islamic morals and etiquettes or not. To substantiate his arguments he referred to :--- 1. “A brief on the Hisba Bill” by Javed Ahmed Ghamedi. 2. “Commanding Right and forbidding wrong" by Michael Cook. (relevant at pages 186, 187, 474, 490, 491, 509, 510, 522-524) 3. “Islami Riyasat Main Mohtasib Ka Kirdar” by Dr. M.S. Naz. (relevant at pages 212, 279). 4. “Three Year Report” of Council of Islamic Ideology (1974-1977) (relevant pages 220, 222, 224, 225, 230, 231, 233, 236, 238, 242). 35. On the other hand learned counsel for the NWFP Government contended that the Hisba Bill had focused mainly on mal-administration in government department/agency, and incidentally in the field of personal conduct on the basis of what is contained in the preamble of the Reference No.2/2005 36 Constitution of Pakistan. He further stated that Islam is a religion, both for the individual and the society as a whole, being a complete “Deen” and a complete code of life. Therefore, every law promulgated for an individual or for Government Agencies must be in accordance with Islam. He read the definition of “Amar-bil-Maroof-wa-Nahi-unal-Munkir,” under Section 2(b) and 2 (k) of the Hisba Bill and stated that as per this definition no powers are being conferred upon the “Mohtasib” except that as per the Quranic obligation, he has to fulfil the obligation of enjoining telling people to do the good and forbid wrong, and to achieve the object, Hisba Police has been deputed with the “Mohtasib” under the law to go and enquire, therefore, the role of “Mohtasib” is “supervisory enquiry role to ask question.” He read out different parts of the Hisba Bill to substantiate that the Provincial Assembly has not promulgated it to violate the fundamental rights of the individuals and stated that in view of the simple provisions of the Bill this Court is not bound to answer the reference in affirmative. 36. Islamic jurists are unanimous on the point that except “Sallat” and “Zakat” no other religious obligation stipulated by Islam can be enforced by the State. There is also unanimity that the “Zakat” obligation was seriously enforced through State coercion by Hazrat Abu Bakar and for “Sallat” the only way is through ‘Taleem, Tableegh, Talkeen and Targheeb.’ Article 2 of the Constitution provides that Islam shall be the State religion of Pakistan. Article 227 of the Constitution stipulates that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in Holly Quran and Sunnah and no law shall be enacted, which is repugnant to such injunctions. Explanation attached thereto, being very important lays down that in the application of this clause to the personal Reference No.2/2005 37 law of any Muslim sect, the expression ‘Quran and Sunnah’ shall mean, the ‘Quran and Sunnah’ as interpreted by that sect. Its sub-Article (2) says that the effect shall be given to the provisions of clause (1) only in the manner provided in that part and according to sub-Article (3) nothing in that part shall affect the personal laws of non-Muslim citizens or their status as citizens. 37. The explanation to Article 227 of the Constitution defining the expression ‘Quran and Sunnah’ was added by Constitution (Third Amendment) Order, 1980 (P.O. 14 of 1980). Addition of this explanation was considered necessary as there are more than one sect in Islam like Sunnis and Ahl-e-Tashee, etc. It is important to note that there had been remarkable differences between various schools of thought even on common interpretation, like what is the definition of Muslim. Learned Attorney General had referred to report of the Court of Enquiry, constituted under Punjab Act (II) 1954, to inquire into the Punjab Disturbances of 1953 and stated that Ulemas’ had no unanimity before the Court of inquiry on the definition of ‘Muslim,’ because, everyone being a Muslim has his own interpretation of Quran and Sunnah. Therefore, Mohtasib, under the Hisba Bill cannot be empowered to determine in his discretion whether any act is consistent with Islamic moral values and etiquettes or not. A perusal of Section 10 clauses (Bey )(Jeem) and (Dal), shows that the “Mohtasib” has been authorized to protect/watch the Islamic values and etiquettes at the provincial level; watch the media established by Government or working under the administrative control of the Government to ensure that its publications are useful to the purpose of Islamic values; forbid persons, agencies and authorities working under the administrative control of Government to act against Sharia and to guide Reference No.2/2005 38 them to good governance. Similarly, his powers and duties have been extended by conferring upon him special powers, under Section 23 of the Hisba Bill, which includes (1) to monitor adherence of moral values of Islam at public places, (2) to discourage ‘Tabdhir’ or extravagance, particularly, at the time of marriages and other family functions; (3) to follow code of Islam in giving dowry; (5) to monitor adherence of Islamic values and its respect and regard at the times of ‘Iftar’ and ‘Traveeh’; (6) to discourage entertainment shows and business transactions at the times of ‘Eidain’ and ‘Jumma'hs’ prayers around mosque, where such prayers are being held; (7) to remove causes of dereliction in performance and proper arrangement of ‘Eidain’ and ‘Jumm’ah’ prayers; (12) to observe decorum of Islam at the time of ‘Azan’ and ‘Fard’ prayer; (14) to discourage un-Islamic and inhuman customs; and (27) to perform any other function or functions, which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council. Defiance (Khilaf- warzi) of the order of the Mohtasib, in the performance of his duties under Section 23 of the Bill has been made a non-cognizable offence punishable with an imprisonment, for a term up to six months and a fine up to Rs.2000/- as per Section 28 of the Hisba Bill and cognizance will be taken on the complaint of “Mohtasib” or his authorized representative. No Court shall take cognizance of an offence under this Section except on a complaint in writing to “Mohtasib” or its authorized representative and as per sub-Section (2), the offence under Section (1) shall be tried by the Court in accordance with Code of Criminal Procedure, 1898 and the order shall be appealable. It is quite interesting to note that in respect of most of the personal rights of the individual Muslims, an offence has been created, if he/they had done “Khilaf-warzi” of the order passed by him. Reference No.2/2005 39 38. Learned Attorney General contended that the provisions of Sections 10, 12, 23 and 28 of the Hisba Bill are vague in nature and particularly, being penal, are liable to be declared un-constitutional. He further stated that such penal provisions must explicitly define the conduct of a criminal and unless it clearly and categorically defines its boundaries, it would be treated as an arbitrary enactment, because the citizens against whom a penal action is proposed, has no notice that on account of what type of conduct he is being charged and has been held responsible for penal consequences. Reference is made to Mehram Ali (ibid), Jamat-i-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111), Kartar Singh v. State of Punjab ([1994] 3 SCC 569) Dick Gragory v. City of Chicago [22 L. Ed. 2d 134], Margarete Papachristou v. City of Jacksonville [31 L. Ed. 2d 110]. 39. He further contended that the State can control the fundamental rights by imposing reasonable restriction, in order to survive the test of Constitutional scrutiny, as it has been held in the case of Saiyyid Abul A’la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), Universal Tobacco Co. v. Pakistan Tobacco Board (1998 CLC 1666), Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), R. v. Chaulk [1990] 3 SCR 1303 (Canada)], Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321], Article 26 and the Planning and Development Bill 1999 [2000 (2) IR 321], Treatise on Constitutional Law by Rotunda [3rd Edition Vol. IV 263-264], Coates v. Cincinnati [29 L.Ed. 2d 214], Kunz v. New York [95 L. Ed. 280]. 40. Mr. Khalid Anwar, learned counsel for Government of NWFP contended:- a) That the “Mohtasib” under the ‘Hisba Bill’ is being appointed keeping in view the concept of Reference No.2/2005 40 accountability, therefore, office of the “Mohtasib” is indeed integral to Islam. He stated that the first “Mohtasib” was the Holy Prophet (PBUH) himself. He quoted that “the Holy Prophet (PBUH) checked the market and found that in a heap of corn, the wet corn had been placed under the dry corn; he said “he who deceives is not from me i.e. my class.” b) That this reference has been mainly filed, as per its contents, because in ‘Hisba Bill’ NWFP Assembly has not taken into consideration the recommendations of the CII. According to him a perusal of the report indicates that no recommendations were made in accordance with ‘Sharia.’ c) That the Hisba Bill is strictly as per the final report of CII, published in 1996 and this report has not been brought before the Court by the Federation intentionally. d) That the Hisba Bill is not unconstitutional, vague and is not a penal law. According to him, it does not suggest any criminal action and the powers have only been given to “Mohtasib” to educate the general public to spend their lives according to injunction of Islam and he has not been authorized to send a person into jail. However, he admitted that only those citizens, who commit defiance of the “Mohtasib” order will be liable to prosecution under Section 28 of the Hisba Bill. He stressed that simple disobedience would not make a citizen liable to be punished. e) That the framers of Hisba Bill have not acted unconstitutionally by leaving a number of key Reference No.2/2005 41 concepts undefined, particularly as these terms are incapable of precise definition. According to him some degree of vagueness if inevitable, particularly with respect to Islamic issues, as Islam is like a vast ocean; those standing on its shore cannot even guess its depth and due to this reason, the framers of the Constitution deliberately did not even define Muslim exhaustively. f) That in the modern countries, like United Kingdom, general laws are being framed for anti-social behaviour. He referred to Anti-Social Behviour Order Law. g) That the Hisba Bill is not an unreasonable restriction on fundamental rights. Legislature can make laws, which can place restriction upon personal matters. He quoted example of Muslim Family Laws Ordinance 1961, which controls the right of second marriage of a Muslim. h) That the Hisba Bill is not discriminatory because “Mohtasib” will only decide issues according to the belief of that particular sect. He quoted an example that if “Mohtasib” goes and inquires from a particular individual as to why he is not saying his Zohar prayer; that person may then respond by saying that he belongs to Fiqa Jafria and he will say his “Zoharain” prayer. i) That the “Mohtasib” will not be exercising judicial powers as he will only seek to enforce laws already on the books. For example if an FIR is not being registered, a citizen can approach to the “Mohtasib” who will then direct the SHO to register the FIR. “Mohtasib” can Reference No.2/2005 42 only ask Police to act expeditiously and to fulfil its duties; it cannot order them to arrest people. j) That the “Mohtasib” has no power with regard to private media organizations. 41. First of all it may be noted that the recommendations of CII, dated 6th September 2004, were compiled/prepared by one of the members, i.e. Justice (R) Haziq-ul-Khairi. This report was considered by the Council in its 154th meeting, held on 12th/13th August 2004, and finalized after thorough consideration, wherein CII strongly advised against the enactment of the proposed legislation. In the report, it was also notified that the draft Hisba Bill has violated a number of constitutional provisions and was capable of being exploited for political ends. Reference in particular is required to be made to the following para of the above report:---- The reference of above para is sufficient to counter the arguments of learned counsel about non-expressing of opinion by the CII in accordance with Article 230 of the Constitution. 42. It is surprising to note that learned counsel for Government of NWFP read some portion from previous report including the final report of 1996 of CII, wherein general recommendations on proposed draft of legislation were made and finally in para- 30, the following five measures were suggested. Reference No.2/2005 43 i) The institution of Hisba will be established on the pattern of Ombudsman by an Act of Parliament or by the order of the President. ii) The laws relating to the matters and functions under the jurisdiction of the Hisba will be properly amended to facilitate the working of this Institution. iii) For the education and guidance of the officials, appointed for the purpose of Hisba, a comprehensive guide book must be compiled and published, preferably by the Islamic Research Institution. iv) For training courses for the officials to be appointed for this purpose, must be planned and conducted preferably by the Sharia Academy International Islamic University. v) Courses on the subject of Hasab must be included in Islamic Studies, Law Colleges, Political Science and Civics syllabi and curricula. 43. It is important to note that in 2001, the Ministry of Religious Affairs referred to CII a proposed “Draft Law for the Performance of ‘Sallat’, Amar-bil-Maroof-wa-Nahi-unal-Munkir, (Establishment of Hisba), Ordinance 2000. This draft was examined by CII in its Annual Report 2000-2001 and submitted its opinion as follows:-- i) The Council recommended that the difference of doctrine among the various Muslim Schools of thoughts must be recognized and the views of one school must not be imposed on others. ii) Hisba Officials must work on voluntary basis. iii) Before appointment the Hisba Officials must be properly trained. Necessary training courses must be initiated for this purpose. iv) The number of Ulemas’ in the Hisba Board must be increased in order to ensure representations of the various schools of thoughts. v) Balance of power and authority among the various officials must be clearly maintained. vi) The law should be clear about the offences and punishments. vii) The Ordinance is not clear about Hisba Officials; in some clauses they are defined as volunteers, not receiving any salaries and in others they are designated as public officers. The above opinion clearly suggests that emphases of the CII was to make the law non-sectarian, free from ambiguities and conflict with other laws. Similarly, in the report dated 6th September 2004, the CII again stressed, Reference No.2/2005 44 impliedly and expressly on the clarity, non-sectarian and non-conflictual nature of law on Hisba. The NWFP Government instead of showing haste might have studied in depth, all the reports of CII before moving the Bill in Assembly. However, the arguments raised by learned counsel for Government of NWFP that CII in its report dated 6th September 2004 had not made recommendations in terms of Article 230 of the Constitution, seems to be unfounded in view of the above discussion. 44. A perusal of clauses of Section 23, reproduced herein above, of the Hisba Bill, clearly suggest that the Bill is a penal statute. Language employed therein indicates that if citizens disobey the order of the Mohtasib, particularly passed with reference to the clauses of Section 23, noted herein-above, he/they will make him/themselves liable for prosecution. 45. It is important to note that in English translation, word ‘defiance’ has been used in Section 28 of Hisba Bill, whereas in its Urdu text, the word ‘Khilaf-warzi” i.e. disobedience has been used. As per “Feroze Sons Urdu-English Dictionary” (page 333) “Khilaf-warzi karna” means ‘to oppose,’ ‘to disobey’ and ‘to misbehave.’ Thus, reading the provisions of Section 10 clauses (b),(c) and (d) and Section 23 clauses (1), (2), (3), (5), (6), (7), (12), (14), particularly (27), disobedience (Khilaf-warzi) of the order of “Mohtasib” by a citizen entails penal consequences. Admittedly, in Section 10 (b), (c) and (d), expressions ‘Islamic values and etiquettes’, and ‘Sharia’ have been used, but without any definition. Similarly, ‘Khilaf- warzi’ of the order of Mohtasib, regarding clauses incorporated in Section 23, no definition has been provided. Likewise, any other issue, which would fall within the realm of ‘Amar-bil-Maroof-wa-Nahi-unal-Munkir’ would be Reference No.2/2005 45 dealt with under their open ended definitions as per Section 2(b) and 2(k) of Hisba Bill. 46. Essentially, discretionary powers have been conferred upon “Mohtasib” to create a new offence with the consultation of Provincial Advisory Council or whatever the case may be, in exercise of powers under Section 23(27) of the Hisba Bill. The “Mohtasib” being an Executive Officer under Hisba Bill has been authorized to lodge a report before the Court, either himself or through his authorized representative against the citizen, who is guilty of “Khilaf-warzi” (disobedience) of his orders, passed under any of the clauses of Section 23 of the Hisba Bill, referred to herein before. In respect of some of the items noted in Section 23 of the Hisba Bill, substantive laws already exist which have been framed either by the Federation of Pakistan or by Provincial Governments, detail of which is mentioned herein below:-- Laws already in field: Grounds of challenge Section 23. Special Powers of Mohtasib.— Without prejudice to the powers conferred by section 10, and along with the duties of amar bil maroof and nahi unal munkir the Mohtasib shall have the following powers: - - (i) To monitor adherence of moral values of Islam at public places; Pakistan Penal Code, 1860 (Sections 295-B, 295-C, 296, 298, 298-A & 298-B). Prevention of Gambling Act, 1977. NWFP Prevention of Gambling Ordinance, 1978. West Pakistan Prohibition of Opium Smoking Ordinance, 1960. • Freedom of Assembly • Vague • Overbroad • No definite legislative guidelines Reference No.2/2005 46 Ehteram-e-Ramazan Ordinance, 1981. (ii) To discourage exhibition of extravagance, particularly at the time of marriages and other family functions; NWFP (Prohibition of Firing and use of Explosive Substance at Marriages and other Ceremonies) Act, 1988. Marriage Functions (Prohibition of Ostentatious Display and Wasteful Expenses) Ordinance 2000. • Privacy • Freedom of Assembly • Vague (iii) To follow code of Islam in giving dowry; Dowry and Bridal Gifts (Restriction) Act, 1976. • Privacy • Vague • Over broad • Suffers from excessive delegation (v) To monitor adherence of Islamic values and its respect and regard at the times of iftar and taravih; Ehteram-e-Ramazan Ordinance, 1981. • Freedom of religion • Excessive (vi)To discourage entertainment shows and business transactions at the time of Eidain and Jummah prayers around mosques where such prayers are being held; - • Freedom of trade and business • Vague • Suffers from excessive delegation (vii) To remove causes of dereliction in performance and proper arrangement of Eidain and Jummah prayers; - • Freedom of religion • Lacks specificity • Lacks proportion (xii) To observe decorum of Islam at the time of Azan and Fard prayers; - • Freedom of Assembly • Freedom of religion • Vague • Excessive • Suffers from excessive delegation (xiv) To discourage un- Islamic and inhuman customs; Code of Criminal Procedure, 1898 (Sections 156A, 156B, 401) Pakistan Penal Code 1860 (Sections 310, 310A) • Denial of due process • Violative of right to life, privacy, trade, business and profession, free speech, religion and equality. • Vague • Overbroad • Suffers from excessive delegation • Disproportionate (xxvii) To perform any other functions which the Provincial Mohtasib determines from time to - • Vague • Overbroad • Suffers from excessive delegation Reference No.2/2005 47 time in consultation with the Advisory Council; 47. The perusal of above comparative table suggests that a citizen shall not be prosecuted because of non-violation of the codified penal offences but on account of ‘Khilaf-warzi’ of the order of “Mohtasib,” although with reference to their respective schools of thoughts, they are rightly following the Islamic values and Sharia. Besides, in respect of some of the provisions of the Constitution, they have their own personal laws, according to Muslim Sharia but the “Mohtasib” by curtailing their such rights, shall interfere in their personal liberties as well like under Section 23 clause (1), every Muslim according to his own school of thoughts, has his own moral values. 48. Likewise, the “Mohtasib” would have direct interference/access in the family functions in the garb of discouraging ‘Tabdhir’ or extravagance at the time of marriages and other family functions. Such exercise of the powers would not only interfere in their personal life, freedom of assembly, liberty, dignity and privacy, which is strictly prohibited in Islam. In this behalf reference may be made to the following passage from “Commanding Right and Forbidding Wrong in the Islamic Thought” by Michael Cook :--- “Less directly related to the spectrum of views set out above is concern, with what we would call respect for privacy. There is no single category that corresponds to this in Islamic terms; rather, there are three basic, mutually supporting principles at work here. The first is the prohibition of spying and prying; this is enshrined in Q49:12 The second is the duty not to divulge what would dishonour a Muslim; this is laid down in a Prophetic tradition. The third is the sanctity of a home, which rests on Koranic stipulations regarding the way one should enter the homes of others (Q2:189, Q24:27). All these Reference No.2/2005 48 values are strongly reflected in the materials, we are concerned in this chapter. The prohibition of spying comes into play when Ibn Masud is asked about a man whose beard drips with wine, and responds that God has forbidden spying (Tajassus); we can take action, he says, only if the offence is out in the open (in yazhar lana shay), which is perhaps to say that we must actually see the man drinking. The duty not to divulge finds expression in an anecdote about the companion, Uqba ibn Amir al-Juhani (d 58/677f), who settled in Egypt and was Muawiya ‘s Governor there in 44-7/665-7. His Secretary, Dukhayn al-Hajri, explained to him that he had neighbours who drank wine and proposed to summon the police (shurat) to arrest them. Uqba told him not to do this, but rather to counsel and threaten them (verbally). He did so, but to no effect; so he again proposed to call in the Police. Uqba once more told him not to, and quoted a tradition he had heard from the Prophet (PBUH): who ever keeps hidden what would disgrace a believer (man stara mu’minan), it is as though he had restored a buried baby girl (Mawuda) to life from her tomb. The sanctity of the home is at the center of an exchange which takes place in Basra between a certain Abu l-Rabi al Sufi and Sufyan al- Thawri regarding the activities of what I take to be the officially appointed censors (Mohtasiba): ABU L-RABI: Abu Abdallah! when I’ m with these censors, we go into the homes of these vile people, (Khabithin) clambering over the walls. SUFYAN: Don’t they have door? ABU L- RABI: Well yes, but we rush in so they don’t escape. SUFYAN condemns this misconduct in no uncertain terms, and one of those present unkindly asks: Who let him in here. …………” 49. For discouraging exhibition of extravagance at the time of marriage and other family functions, there are already two laws, as it has been pointed out in the above comparative chart. Out of them, one is Federal and the other is Provincial. This Court, in the case of Muhammad Siddique v. Government of Pakistan (PLD 2005 SC 1), had maintained Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Reference No.2/2005 49 Expenses) Ordinance 2000 (II of 2000). As per this Ordinance, lawgivers had defined criminality for violation of the relevant provisions of the Ordinance and no one can be prosecuted unless the case of such individual falls within the defined boundaries of the law. It being explicit, elaborate and well defined, is in force throughout the country including the NWFP. Thus, it is held that any action taken in this behalf by the Mohtasib, would violate the provisions of Articles 9, 14 and 16 of the Constitution. 50. For ‘Khilaf-warzi’ (disobedience) of the order of Mohtasib in not following the code of Islam in giving dowry under Section 23 (3) of the Hisba Bill, a citizen can be prosecuted, though, already there are defined provisions of law on this subject, details of which have been given in the above chart. The access of “Mohtasib” in such private affairs of an individual, without giving him notice or defining the boundaries of the violation of such penal provisions, would tantamount to denying liberty, dignity and privacy of fundamental rights enshrined under Articles 9 and 14 of the Constitution by means of a vague, overbroad and excessive legislation because a citizen will not be liable for violating the laws already on the subject but for doing “Khilaf-warzi” (defiance) of Mohtasib’s order. 51. A citizen can be held liable for “Khilaf-warzi” (defiance) of the orders of “Mohtasib” purportedly passed by him during watching Islamic values in his own perspective at the time of ‘Iftar’ and ‘Traveeh’ within mischief of Section 23(5) of Hisba Bill. A perusal of above table would show that two laws are already available on the subject which lay down parameters for taking action against a citizen, who violates the law out of any of them but the Mohtasib by passing any “Hukam-nana” [order] can hold any citizen for ‘Khilaf-warzi” i.e. disobedience of the same. Said Reference No.2/2005 50 provision of law is not only vague but also violates right of freedom of religion of citizen under Article 20. It is a fact that different sects of Muslims have got separate values and etiquettes for the “Ehteram-e- Ramzan,” inasmuch as, timing of ‘Iftar’ among ‘Sunnis’ and ‘Ahl-e- Tashee’ are different from each other. Similarly, there is no unanimity that what would be the number of ‘Rakats’ of ‘Traveehs’ and the interference by the “Mohtasib” would deny right guaranteed to the citizen under Article 20 of the Constitution on the basis of excessive delegation of powers 52. Under Section 23 (6) of the Hisba Bill, “Mohtasib” has been allowed to discourage entertainment shows and business transactions at the time of Eid prayer and Jumma prayer around Eidgah and Jamaa Mosques. In NWFP there are provisions of law on this subject incorporated in NWFP Local Government Ordinance 2001. The business of a person cannot be controlled/curtailed except by imposing reasonable restrictions in accordance with law, because it is a matter of common observance that on the occasion of prayers of Eidain and Jumma, people do small businesses like selling balloons, sweets etc, to earn their livelihood, particularly they carry on their business when such congregations are over and people start returning home and this practice is going on since centuries. Curtailment of rights of citizens in such manner would negate right of freedom of trade and business according to Article 18 of the Constitution, by means of a vague legislation which suffers from excessive delegation. 53. Under Section 23 (7) “Mohtasib” is authorized to remove causes of dereliction in performance and proper arrangements of Eidain and Jumma prayers. Offering of prayer or “Sallat,” again is a personal obligation on an individual being the Haqook Allah. Religiously the “Mohtasib” is not Reference No.2/2005 51 authorized to check negligence/disregard of a person who has abandoned “Sallat” for one or the other reason. Allowing such interference by Mohtasib would deny the right of freedom to profess religion to an individual. The CII in 1978-79 had extensively considered this issue and opinioned that as far as “Fard Namaz” is concerned, if it is not offered, there should not be any penal consequences. The following eminent Islamic jurists have expressed their thoughts in the above report of CII:- Mr. Justice Muhammad Gul:- There can be no gain saying the fact that ( ) [Sallat] is the foremost among the injunctions of Islam and yet the fact remains that the Holy Quran has not prescribed any punishment for its non- observance although it is replete with the stern warnings about the chastisement both here and herein after, resulting from its non-observance. This is in sharp contrast with the punishment prescribed for crimes, directly affecting the orderly existence of society e.g. murder, causing hurt, adultery, fornication, perjury, etc. Historically too, it is not controverted that the Holy Prophet (PBUH) the first Four Caliphs of Islam, while they exhorted the faithfuls to be steadfast in the observance of ( ) [Sallat] its non-observance was not made a penal offence. Even after the Islamic State was firmly established and its boundaries had spread far and wide: any laxity or failure in observance of ( ) [Sallat] was not made a penal offence; although it was never doubted that it was quintessence of Islam. Mr.Justice (Rtd.) Kadir Nawaz Awan:- It is true that Namaz is one of the five pillars: It is also true that many Ayats in Qur’an Pak refer to its strict observance and finally that we Muslims do not offer Namaz regularly. Quran Sharif does not lay down any punishment for its non-performance. Accordingly, no authority can lay down any kind of punishment for its non-performance as it amounts to sin and not an offence. Reference No.2/2005 52 Mr. Justice Muhammad Afzal Cheema:- I have not been able to endorse the proposed legislation of the NWFP Government for converting into an offence an act of omission to offer five time prayers. The object, namely to ensure regular offering of prayers is no doubt very salutary but the proposed means of achievement are wholly unwarranted and impracticable. There can be hardly any doubt as to the physical and spiritual benefit of Namaz on which great emphasise has been laid in the Holy Qur’an, the offering of prayers is a personal affair between man and his creator. If offered conscientiously it changes the whole outlook of a man and is perhaps the best kind of worship aimed at self reform and purification which is a life long process. The best mode of inculcation of Namaz is by training, persuasion and practical demonstration which should start from childhood and should be followed up into schools and colleges. Dr. Moinuddin Baqai:- As other members of the Council of Islamic Ideology have opined, Quran and Sunnah and Islamic jurisprudence do not specify non-observance of prayer as an offence, for which an Islamic State should specify worldly punishment. Punishment is provided for offence which violates Haquk-ul-Ibad ( ) or which results in the disruption of social order. Dr. Miss. Kaniz Yousuf:-- I am in agreement with the opinion expressed by Mr. Justice Muhammad Gul on the subject. Islam enjoins two types of obligations upon Muslims. Haquk Allah and Haquq al-Ibad. Offering of prayers is Haquk Allah and only Allah can punish in this case. No punishment is imposed on Muslim for laxity or failure in the observance of ‘Salat’ in terms of Fiqhah………………………………... Dr. Prof. Shamim Akhtar:--- Neither in the Qur’an nor in the hadith has any punishment been sanctioned against non-observance of prayers as in case of penal offences such as theft, murder, adultery, fornication, etc. To my Reference No.2/2005 53 knowledge there is no evidence in the early history of Islam to the effect that the same has been penalized by law or fait either by the Prophet (PBUH) or by the pious Caliphs or their successors. This is not to say however, that no odium was attached to the one who failed to observe prayers…… …………………………………………………………………… ………There developed in Islamic State the institution of Mohtasib, who was entrusted with the enforcement of “Maruf” (law) and prevention of “Munkir” (illegality). He took administrative action to facilitate public welfare and to curb the vices and social evils. The official duties of Mohtasib were varied, ranging from the checking of weights and measures, regulation of traffic on the ferries, demolition of dilapidated buildings, to prevention of cruelty to animals and of undue chastisement of students by teachers etc. He could also order the holding of congregational prayer and admonish those who habitually abstained from prayers but was not permitted to interfere with the beliefs and rituals of Muslims belonging to denomination other than his own. It may be pointed out that these matters fell outside the jurisdiction of judicial officers, Qazis and was the responsibility of Muhtasib, who treated them as administrative problems. As for the purposed legislation, while it is laudable to make sustained and practical efforts to induce the Muslims to observe prayers one fails to understand why would non-observance be declared a penal offence when the Quran and Sunnah and precedents of pious Caliphate have not done so. ………….In my opinion, as by force making people to pray would not serve such of its purpose, it is not advisable to make this a cognizable offence and to prescribe any punishment by legislation for this purpose. All that we can do is to adopt measures of persuasion and exhortation for those who were not regular in their prayers. We may exercise moral pressure, arrange public lectures and publish light literature to preach and propagate the significance and role of prayer and its importance in the Reference No.2/2005 54 life of an individual and in Muslim Society. We may utilize the mass media for this purpose. Maulana Ehtesham-ul-Haq Thanvi:--- 54. In view of above consensus, the arguments of learned counsel for Government of NWFP, become redundant that Hisba Bill is in accordance with Islam. If the proposed legislation is accepted and is made into law, then a citizen who is held responsible for causing dereliction shall be liable to punishment for six months on the “Hukam-nama” [order] of “Mohtasib” by a Magistrate under Section 28 of the Hisba Bill. Besides, there is no provision of the Sharia, which mandates for the imposition of penalties for vague offences. However, if any provision of Sharia has defined relevant offence, like Hadood laws, penalties can be imposed. Reference No.2/2005 55 55. The scheme of various sub-Sections of Section 23 indicates that the “Mohtasib” is empowered to straightaway lodge complaints either himself or through his representative to the Magistrate for ‘Khilaf-warzi’ of his order, without providing opportunity of hearing, against a citizen, despite that this Court has held in a number of cases that “the principles of the natural justice are in accordance with Islam and cannot be avoided.” [see Pakistan Vs. Public at Large (PLD 1987 SC 304) The Province of Punjab v. National Industrial Cooperative Credit Corporation (2000 SCMR 567)]. 56. Learned counsel for NWFP contended that legislature can make laws which intrude upon personal matters of citizens as under Muslim Family Laws Ordinance, 1961, right to a second marriage has been controlled. 57. Argument raised by him seems to be unfounded. First of all it may be seen that learned Attorney General had not stated that no law can be made which impinges upon a private domain but his argument was that no unreasonable and vague law can be made. Besides, if in any specific law, private rights of the individual have been curtailed, such law has not been upheld by the Court if it violates any Constitutional provision. It means that any law dealing in any manner with fundamental rights must be upheld, irrespective of the fact that it is vague and overbroad and suffers from excessive delegation. 58. “Mohtasib” under Section 23(12) of the Hisba Bill, in exercise of additional powers conferred upon him has been empowered to observe decorum of Islam at the time of “Azan” and “Fard” prayer. A Muslim, having different school of thought from that of “Mohtasib” cannot be compelled to observe such decorum of Islam at the time of “Azan” and “Fard” prayer, which are not recognized by his faith, therefore, interference by the Mohtasib in such personal religious affairs of an Reference No.2/2005 56 individual would tantamount to denying a fundamental right of freedom of Assembly and freedom to profess religion and to manage religious institution. The Hisba Bill has no detail of the manner, in which “Mohtasib” would observe decorum of Islam of the Muslim, belonging to different school of thought, therefore, this provision is not only vague but had conferred excess jurisdiction upon the “Mohtasib” and “Khilaf-warzi” (defiance) of any of his such instructions would call for prosecution of the individual. As majority of the provisions of Hisba Bill, particularly under discussion, suffer from vagueness, therefore, such like provision have always been termed unconstitutional being violative of the due process. Learned counsel for Government of NWFP stated that “Mohtasib” will only decide the issue according to the belief of that particular sect. It means that for deciding any issue, “Mohtasib” must possess accurate, comprehensive knowledge in respect of all the sects. A perusal of Section 3 of Hisba Bill indicates that for his appointment no condition of having knowledge of all sects of Islam has been made as his qualification. It may be noted that as it has been discussed above, saying of “prayers and observing decorum of Islam at the time of “Azan” and “Fard Namaz” cannot be regulated by means of a legislation because if non-offering of the prayers [Sallat] by a Muslim cannot be made a penal offence, then how it is possible that due to non-observing decorum of Islam at the time of Azan and Fard prayer, recommendation can be made for the prosecution of such citizen, who had made “Khilaf-warzi” (disobedience) of the order of “Mohtasib” in not observing decorum of Islam at the time of Azan and Fard prayer. Therefore, for such reason, clause 23 (12) of Hisba Bill cannot impose unreasonable restriction on the right of freedom of assembly and religion. It may not be out of context to note at this stage that the State Reference No.2/2005 57 does not regulate the private belief of individuals, but if the exercise of such private beliefs, in terms of the rights guaranteed under the constitution, causes the breach of the public order, only then the State comes forward to regulate such personal beliefs. In Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan (PLD 1957 SC 9), it is observed as follows:--- “………… In the light of these rules of construction of constitutional instruments it seems to me that what Article 18 means is that every citizen has the right to profess, practice and propagate his religion and every sect of a religious denomination has the right to establish, maintain and manage its religious institutions, though the law may regulate the manner in which religion is to be professed, practiced and propagated and religious institutions are to be established, maintained and managed. The words “the right to establish, subject to law, religious institutions” cannot and do not mean that such institutions may be abolished altogether by the law. Speaking of the right of political franchise, Chief Justice Shaw of the Supreme Judicial Court of Massachusetts remarked in Copen v. Foster (12 Pick 485- 488). “That in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that rights which are designed to secure and facilitate the exercise of such right, in a prompt, orderly and convenient manner ….. Nevertheless such a construction would afford no warrant for such an exercise of legislative power, as under the pretence and colour of regulating, should subvert or Reference No.2/2005 58 injuriously restrain the right itself.” This principle is, in my opinion, fully applicable to the interpretation of the extent of religious freedom recognized by Article 18 of our Constitution. That Article inter alia guarantees the right to establish, maintain and manage religious institutions, but concedes to the legislature the power to regulate the manner in which such institutions may be established, maintained and managed. It does not, however, empower the legislature to make a law that hereafter no institutions of a religious character shall be established, maintained or managed or that an existing religious institution shall be abolished. The Article appears to me to proceed on the well-known principle that while legislature may not interfere with mere profession or belief, law may step in when professions break out in open practices inviting breaches of peace or when belief, whether in publicly practicing a religion or running a religious institution, leads to overt acts against public order. In the present case no question of law and order being involved, I am constrained to differ from the view taken of this fundamental right by the High Court.” In Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416) it has been observed that :--- “………………..In regard to the violation of Article 18 of the Constitution, the view expressed in Copen v. Foster, 12 Pick 485-488, in relation to right of political franchise was held to be applicable to its interpretation to the extent of religious freedom recognized by Article 18 of the Constitution. And it was observed: “ The Article appears to me to proceed on the well-known principle that while legislature may not interfere with mere profession or belief, law may step in when professions break out in open practices inviting Reference No.2/2005 59 breaches of peace or when belief whether in publicly practicing a religion or running a religious institution, leads to overt acts against public order.” and as no question of law and order was involved, the Court differed from the view taken of this Fundamental Right by the High Court. Messrs East and West Steamship Company v. Pakistan, PLD 1958 SC 41 follows the same principle as laid down in Jibendra Kishore Achharyya Chowdhury and others v. The Province of East Pakistan PLD 1957 SC 9.” In Zaheeruddin vs. The State (1993 SCMR 1718), in this context, it was held: - “The above views as they are prevalent, in the above jurisdiction, do go to show that freedom of religion would not be allowed to interfere with the law and order or public peace and tranquility. It is based on the principle that the State will not permit anyone to violate or takeaway the fundamental rights of others, in the enjoyment of his own rights and that no one can be allowed to insult, damage or defile the religion of any other class or outrage their religious feelings, so as to give rise to law and order situation. So whenever or wherever the state has reasons to believe, that the peace and order will be disturbed or the religious feelings of others may be injured, so as to create law and order situation, it may take such minimum preventive measures as will ensure law and order.” From perusal of above judgments, following principles are highlighted. 1. While legislature may not interfere with mere profession or belief, law may step in when professions breakout in open practices inviting breaches of peace or when belief, whether in publicly practising a religion or running a religious institution, lead to overt act against public order. Reference No.2/2005 60 2. Whenever or wherever the State has reasons to believe that the peace and order will be disturbed or the religious feeling of others may be injured, so as to create law and order situation, it may take such minimum preventive measures, as will ensure law and order. 59. Admittedly in view of the above judgments, this Court while following the above principles in celebrated judgment of Zaheeruddin (ibid), and examining constitutionality of the action taken under Section 144 Cr.P.C. and Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (XX of 1984), declared the above Ordinance a valid law, holding that freedom of religion is based on the principle that the State will not permit any one to violate or takeaway the fundamental rights of others in the enjoyment of his own rights and that no one can be allowed to insult, damage or defy the religion of any other class or outrage their religious feeling, so as to give rise to law and order situation. Thus, we are of the considered opinion that under Section 23 (12) of the Hisba Bill no restriction on freedom of assembly or freedom of religion, the fundamental rights guaranteed under the Constitution be imposed. 60. Section 23 (14) confers power upon the “Mohtasib” to discourage un-Islamic and in-human customs. The Provincial Assembly had failed to define expression “un-Islamic.” If the possibility of unanimity amongst different sects, on a preliminary or basic concept, is not possible, as observed herein-above, with reference to enquiry report of former Chief Justice of Pakistan Mr. Justice Muhammad Munir, that religious jurists, who appeared before the Enquiry Court could not develop consensus on definition of “Muslim,” then how is it possible that there would be consistency between them on the definition of “un-Islamic” and “in- human” Customs. In this country, as far as another segment of society i.e. Reference No.2/2005 61 non-Muslims (minorities) is concerned, it is not clear whether they are also bound to follow Islamic and human customs? In this judgment at a number of places, we have observed that indefinite, un-certain and not susceptible of being understood provision of law on account of its vagueness cannot be enforced for the purpose of prosecution of a person, if he is found guilty of disobeying any such provision, in respect whereof, he has no information/ notice to know that what is prohibited i.e. Islamic or un-Islamic, such law is treated as un-constitutional. Essentially, such a wide ranged powers conferred upon “Mohtasib” by Section 23(14), allowing him to create in his own discretion an offence for the purpose of prosecution, under Section 28 would deny due process of law, security of a person, dignity of a man, freedom of speech and freedom to profess religion. This provision of law would also violate the freedom of trade, business or profession because if a citizen is indulging in such a business which according to “Mohtasib” is un-Islamic, he would be lodging a complaint for its prosecution, without determining that no restriction can be imposed, except subject to the provision of law. The affected persons would also be discriminated by the “Mohtasib” in exercising wide ranged undefined powers. Thus, the provisions failing to satisfy constitutional scrutiny, with reference to the fundamental rights discussed herein-above, are unconstitutional. 61. It was vehemently contended by the learned counsel for Government of NWFP that Islamic State is a welfare State. The lawmakers had an obligation to frame laws in conformity with the Injunctions of Islam, as laid down in the Holy Quran and Sunnah, and to achieve the object that general public may live with peace and calm without transgressing on the rights of each other, the Government of NWFP had promulgated the Hisba Bill. To emphasize his arguments, he contended that the European community Reference No.2/2005 62 borrowed concept of a welfare State from the Religion of Islam and in the modern countries like the United Kingdom general laws are being framed for curbing Anti Social Behaviour. He read out the whitepaper on Anti Social Behaviour (ABSO). 62. Learned Attorney General contended that there is no cavil with framing laws in accordance with the Injunctions of Holy Quran and Sunnah and according to beliefs of different sects as per mandate of Constitution but provisions of Hisba Bill cannot be tested on the ground that in European countries, identical anti-social laws are being framed. He explained that ASBO law 2004 is not a vague law as it contains all characteristics of a valid law. 63. There is no doubt that Article 227 of the Constitution mandates for promulgating laws in conformity with the Injunctions of Islam as laid down in Holy Quran and Sunnah. Explanation to Article 227 provides that the expression Quran and Sunnah shall mean the Quran and Sunnah as interpreted by any Muslim sect as far as it relates to the personal laws. Applying this very test on some of the provisions of Section 23 of Hisba Bill, we have already observed that as Hisba Bill does not provide definition of Islamic value and Sharia with reference to the belief of various Muslim sects, therefore, due to such vagueness, it is not sustainable. We are in quite agreement with the learned Attorney General that ASBO Law 2004 is not a vague law as it contains intelligible, comprehensible, understandable and tangible provisions, therefore, Hisba Bill 2004 cannot be equated with the ASBO Law 2004. 64. Section 23(27) of Hisba Bill confers powers upon “Mohtasib” to perform any other function/functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council. In Reference No.2/2005 63 Urdu text of the Hisba Bill ‘word’ (Amar) or (Amoor) i.e. order or orders has been mentioned, essentially ‘order’ mean ‘command’ as per its ordinary meaning. Viewing this provision with some of the other provisions of Section 23, which have been discussed herein-above and have been found vague, suffering from excessive delegation and without definite legislative guidelines , it is also suffering from excessive delegation. One feels no hesitation in holding that by conferring sweeping powers on “Mohtasib” lawgivers had conferred the authority of making laws to him and then to lodge prosecution against the citizens, who have made “Khilaf- warzi” (disobedience) of his “Hukam-nama” [order], clearly places embargo upon exercising the fundamental rights conferred upon them under Article 9, 14, 20 and 25 of the Constitution. In other words, any thing, uttered by the “Mohtasib” in respect of ‘Amar’ or ‘Amoors’ (function) would become the law. Would it not be highly discriminatory. Legislation can delegate its powers in a number of statutes but after having its own control and safeguard in place which is only possible when definite guidelines are given, otherwise blatant conferment of powers would make such a statute unconstitutional. In Haji Ghulam Zameer v. A.B. Khundkar (PLD 1965 Dacca 156), it is observed as under:--- “It was next argued that the penal provision of the Ordinance, as embodied in sections 4, 5 and 6 thereof, is also invalid on the ground that it is too vague, too wide, too undetermined and too volatile for anybody to understand and anticipate what acts are being prohibited by the Legislature. The argument is founded on the proposition that the expression ‘law,’ as embodied in Article 2 and all other Articles of the Constitution, connotes intelligible comprehensive, understandable and tangible laws. To make penal provisions in advance and to leave them to be applied to a maze of an Reference No.2/2005 64 undefined mass of individual orders which may be made without even a “public notification” is to leave the liberty of citizens to the mercy of the gambling freaks of unforeseeable dooms. Each order served on an individual would be a code by itself. There can be thousands of such orders. This principle is specially important because under the Ordinance there is no requirement that orders made there under should be under a “notified order” as is the case in respect of the Essential Supplies (Temporary Powers) Act or similar enactments. An unanticipated order can, under the Ordinance, be made in any individual case and a breach thereof would attract the penal provisions of the Ordinance. In the following cases it has been held that the Act is too indefinite and uncertain as a penal statute, as it does not classify or define, with any degree of certainty those who are subject to the operation of the Act.” In the case of Asfand Yar Wali (ibid) it has been observed that:--- “269. The above provisions of section 25A (e) and (g) in their present form suffer from excessive delegation of power, in that, these provisions confer unfettered discretion on the Chairman NAB to reject the recommendations of a duly appointed committee and to refuse to recognize a settlement arrived at between a creditor and a debtor. We, therefore, direct that the recommendations made by the Governor State Bank of Pakistan shall be binding on the Chairman NAB except for valid reasons to be assigned in writing subject to approval of the Accountability Court to be accorded within a period not exceeding seven days. Suitable amendment be made in Section 25A (e) and (g).” In Director Food NWFP v. Madina Flour and General Mills (PLD 2001 SC 1), this Court observed as followed:--- “8. It is true that Provincial Legislature is competent to promulgate appropriate legislation Reference No.2/2005 65 for abolishing wheat quota or to regulate the supply of the same provided the above threshold-requirements are met and the Fundamental Rights contained in the Constitution are not violated. Here, the N.W.F.P. Government has the power to determine the supply of wheat in its absolute discretion. The law does not lay down the methodology or guidelines for allocation of wheat quota. The High Court was, therefore, right in holding that Article 18 and Article 25 of the Constitution were violated by the impugned legislation. We may also add that clause (a) of section 2 of the Act was saved by holding that the same is not violative of the Constitution.” In Pakistan Tobacco Co. Ltd. vs. Government of NWFP (PLD 2002 SC 460) it was held “there is consensus of the judicial opinion that delegation of powers should not be uncontrolled, unbridled and to check the arbitrary attitude of the Executive in exercise of powers the legislature must provide some guidelines basing on the policy of the government to exercise such powers.” In Dick Gregory v. City of Chicago (22 L. Ed. 2d 134), United State Supreme Court observed that :-- “It is because of this truth, and a desire both to promote order and to safeguard First Amendment freedoms, that this Court has repeatedly warned States and governmental units that they cannot regulate conduct connected with these freedoms through use of sweeping dragnet statutes that may, because of vagueness, jeopardize these freedoms. In those cases, however, we have been careful to point out that the Constitution does not bar enactment of laws regulating conduct, even though connected with speech, press, assembly, and petition, if such laws specifically bar only the conduct deemed obnoxious and are carefully Reference No.2/2005 66 and narrowly aimed at that forbidden conduct.……… ………… ……… The disorderly conduct ordinance under which these petitioners were charged and convicted is not, however, a narrowly drawn law, particularly designed to regulate certain kinds of conduct such as marching or picketing or demonstrating along the streets or highways. Nor does it regulate the times or places or manner of carrying on such activities. To the contrary, it might better be described as a meat-ax ordinance, gathering in one comprehensive definition of an offense a number of words which have a multiplicity of meanings, some of which would cover activity specifically protected by the First Amendment. The average person charged with its violation is necessarily left uncertain as to what conduct and attitudes of mind would be enough to convict under it. Who, for example could possibly foresee what kind of noise or protected speech would be held to be “improper”? That, of course, would depend on sensibilities, nerves, tensions and on countless other things…………..……………………………. Their guilt of “disorderly conduct” therefore turns out to be their refusal to obey instanter an individual policeman’s command to leave the area of the Mayor’s home. Since neither the city council nor the state legislature had enacted a narrowly drawn statute forbidding disruptive picketing or demonstrating in a residential neighborhood, the conduct involved here could become “disorderly” only if the policeman’s command was a law which the petitioners were bound to obey at their peril. But under our democratic system of government, lawmaking is not entrusted to the moment-to- moment judgment of the policeman on his beat. Laws, that is valid laws, are to be made by representatives chosen to make laws for the future, not by police officers whose duty is to enforce law already enacted and to make arrests Reference No.2/2005 67 only for conduct already made criminal……………………………” 65. Admittedly, different parts of Section 23 discussed herein-above including sub-Section (27) confer unfettered/unbridled/unchanalized powers on “Mohtasib” under Hisba Bill being an Executive functionary for the purpose of this provision, therefore, these powers are liable to be declared ultra vires the Constitution in view of the following principles:--- I. Waris Meah v. State (PLD 1975 SC (Pak)157) “Here, not only is there discretion in the specified authorities whether they will proceed at all against any member of the class concerned, viz. offenders against the Act, but there is also an unfettered choice to pursue the offence in any one of three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution.” II. F.B. Ali v. State (PLD 1975 SC 506) “It is first sought to be contended that the Ordinances were not law at all because they purported to unreasonably deprive a citizen of even the norms of a Reference No.2/2005 68 judicial trial. But this generalization cannot be accepted. Law has not been defined in the Constitution of 1962 and, therefore, in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of a competent law- giver. There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law as pointed by me in the case of Asma Jilani (PLD 1972 SC 139). This claim was abandoned even in England as long ago as 1871 when Willes, J., in the case of Lee Vs. Bude & Torrington Junction Railway Co. (2) said:- “ We sit here as servants of the Queen and the Legislature. Are we to act as regents over what is done by parliament with the consent of the Queen, Lords, and Commons? I deny that any such authority exists ……… the proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them.” ……………………………………… ……………………………………… Where, however, the law itself makes no classification but leaves the selection to an outside agency or an administrative body without laying down any guidelines, thus enabling the body or authority to pick and choose, a legitimate complaint may be made on the ground that the law itself permits discriminatory application. Such was the position which came under consideration by this Court in the case of Waris Meah Vs. The State [PLD 1957 SC (Pak) 157] where this Court struck down the law on the ground that it was violative of this particular right………………………………” 3. Province of Punjab v. Manzoor Ahmed Wattoo (1998 CLC 1585) “……………………..It is clear that no guidelines or parameters have been provided for Government in making the nomination of the Sarpanch of the Reference No.2/2005 69 Panchayat. The Government is free to pick and choose any person of its choice without any qualifications. The discretion of the Government has not been structured which is absolute and arbitrary. The impugned Ordinance is ex facie discriminatory. It is also capable of being administered in a discriminatory and arbitrary manner in violation of Article 25 of the constitution of Pakistan which guarantees the equality before law and equal protection of law.” 4. Pak. Tobacco Co. Ltd. v. Government of NWFP (PLD 2002 SC 460) In Vasanthlal Manganbhai Sajanwal v. The State of Bombay, 1961 SCR 341: (AIR 1961 SC 4) the above proposition was summarized in following words :- “A statute challenged on the ground of excessive delegation must therefore, be subject to two tests, (1) whether it delegates essential legislative function or power, and (2) whether the Legislature has enunciated its policy and principle for the guidance of the delegate.” Likewise a learned Division Bench of Lahore High Court, Lahore in case of Muhammad Aslam and others v., Punjab Government and others (1996 MLD 685) following the judgments from our own jurisdiction in the cases reported in PLD 1958 SC 41, PLD 1965. Dacca 156, PLD 1966 SC 854 PLD 1988 SC 416 has held that naked, unbridled and unguided powers cannot be conferred upon the outside agency like executive. 66. The observations noted herein-above are based on the following two tests, (1) whether it delegates essential legislative functions or powers (2) whether the legislature has enunciated its policy or principle for the guidance of the delegatee Vasanlal Maganbhai vs. State of Bombay [AIR 1961 SC 4]. Applying above test to the provisions of Section 23, discussed herein-above in detail, suggest to hold that none of these tests have been Reference No.2/2005 70 fulfilled, therefore, for violation of the provisions of Articles 4, 9, 14, 16, 18, 20, 25 of the Constitution, these provisions are not sustainable being ultra vires the constitution. 67. The legislature is under the bounden duty to define the crime explicitly, putting the citizens on notice and when the statute is vague and the notice is denied to the citizens, it creates arbitrariness. In this behalf reference be made to the case of Mehram Ali (ibid). In this case Section 5(2)(i) of the Anti-Terrorism Act was struck down because no checks or guidelines were provided for exercise of powers. Relevant para therefrom is reproduced herein below:- “The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. We are, therefore, of the view that the aforesaid provision in its present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him. 68. It may be noted that some vague expressions i.e. “internal disturbances,” “illegal strikes,” “go slows and lock outs” in terms of Section 7-A of the Anti-Terrorism Act, 1997 came up for consideration before this Court in the case of Jamat-i-Islami Pakistan (ibid), and while taking into consideration meaning of the word ‘vague,’ it was held as follows:- Reference No.2/2005 71 “12. It is well-settled that Statutes must be intelligibly expressed and reasonably definite and certain. An act of the Legislature to have the force and effect of law must be intelligibly express and statutes which are too vague to be intelligible are a nullity. Certainty being one of the prime requirements of a statute, a statute in order to be valid must be definite and certain. Anticipated difficulty in application of its provisions affords no reason for declaring a statute invalid where it is not uncertain. Reasonable definiteness and certainty is required in statues and reasonable certainty is sufficient. Reasonable precision, and not absolute precision or meticulous or mathematical exactitude, is required in the drafting of statutes, particularly as regards those dealing with social and economic problems. Clearly, the language of the statute and, in particular, statute creating an offence must be precise, definite and sufficiently objective so as to guard against an arbitrary and capricious action on the part of the State functionaries who are called upon to enforce the statute. It is well settled that penal statutes contemplate notice to ordinary person of what is prohibited and what is not. Mr. M. Akram Sheikh, learned A.S.C. for the petitioners, was right in contending that Article 4 of the Constitution relating to the rights of individual to be dealt with in accordance with law, is in the nature of “due process” clause. To enjoy protection of law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No person shall be prevented from or be hindered in doing that which is not prohibited by law and no person shall be compelled to do that which the law does not require him to do. Every citizen has the inalienable right under the Constitution to know what is prohibited by law and what the law does not require him to do. It is, therefore, incumbent upon the State to express in clear terms susceptible of being understood by an ordinary citizen of what is prohibited and to provide definite standards to guide discretionary actions of Police Officers so as to prevent arbitrary and discriminatory operation of section 7-A of the Act. In other words, it must be spelt out from a bare reading of Reference No.2/2005 72 section 7-A as to what constitutes “internal disturbance,” “illegal strikes,” “ go-slows” and “lock-outs” in terms of section 7-A of the Act. Likewise, in the case of Kartar Sindh v. State of Punjab [1994] 3 SCC 569], Indian Supreme Court held as follows:- “130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizen to “steer far wider of the unlawful zone, than if the boundaries of the forbidden areas were clearly marked.” The above principle has been reiterated by United States Supreme Court in the case of Margarete Papachristou v. City of Jacksonville (31 L. Ed. 2d 110). Relevant para therefrom reads as under :-- “This ordinance is void for vagueness, both in the sense that it “ fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v Harriss. And because it encourages arbitrary and erratic arrests and convictions. Thornbill v Alabma. Living under a rule of law entails various suppositions, one of which is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v New Jersey…… ………………………………………………………………… ………………………………………………………………….. This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: “It would certainly be dangerous if the legislature could set a net Reference No.2/2005 73 large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set.” 69. Section 25 of Hisba Bill has placed complete restriction on the right of hearing by the Courts against the proceedings before a Mohtasib. The right of hearing being essentially a principle of natural justice has got well- entrenched rules in our system of administration of justice. The mere denial of the right of hearing to a citizen against whom Mohtasib has passed an order, is by itself sufficient to declare the provisions of section 25 of Hisba Bill to be ultra vires the constitution. Besides, no absolute ouster of jurisdiction of Courts is possible as the Constitution itself confers powers of judicial scrutiny upon the superior Courts, therefore, a subordinate legislature cannot take away such rights. In the Hisba Bill the word “Court” has not been defined but in its ordinary meaning it would include the subordinate Courts as well as Superior Courts exercising constitutional jurisdiction. In Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd) Vs. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3) it was observed, as under :-- “5. The next question which arises for consideration in the case is, whether the Civil Court was competent to examine the validity of the auction conducted by the authorities? The Civil Court under section 9 of the Code of Civil Procedure are competent to try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the Reference No.2/2005 74 validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court. In the case before us, the action of the Cooperative Authorities in auctioning the suit property for recovery of the loan against respondent No.1 was challenged in the suit as contrary to the provision of the Ordinance and M.L.O. 241. In Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 SC 607), and it was held, as follows : “It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution “remain available to their full extent…notwithstanding anything contained in any legislative instrument enacted by the Chief Executive” Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561A or any other Reference No.2/2005 75 provision of the Code of Criminal Procedure or any other Law for the time being in force, to grant bail to any person accused of an offence under the Nab Ordinance. It is well settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably.” The above principle was also highlighted in the case of Zafar Ali Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the relevant para therefrom is reproduced below: - “Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquility, peace and maintenance of law and order depend to a considerable degree on the interpretation of constitution and legislative instruments by the superior Court. It is, therefore, of utmost importance that the Judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the constitution, the Court exercise their jurisdiction as conferred upon them by the constitution or the law. Therefore, so long as the Superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely Reference No.2/2005 76 under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of Judiciary and encouragement of public confidence in the Judicial system.” 70. Section 25 of the Hisba Bill can also not survive the constitutional scrutiny for violation of Article 2A of the Constitution which guarantees fundamental rights of equality before law, freedom of thought, expression, belief, faith, worship and association subject to law and morality as well as the independence of judiciary. The language of Section 25(1) (2) of Hisba Bill makes it abundantly clear that by ousting the jurisdiction of the Courts the rights of the citizens have been curtailed and the right of access to justice has also been denied as discussed herein-above. 71. In the present set up of administration of justice the Judicial forums are empowered to take cognizance of the offences which are capable to stand the test of constitutional scrutiny. Under Section 23 of the Hisba Bill the ‘Mohtasib’ has been empowered to lodge a complaint before a Magistrate under Section 28 for the purpose of trial of a citizen who has allegedly done Khilaf –warzi (defiance) of his Hukam-nama [Order]. Most of the provisions of Section 23 as discussed herein-above have been found ultra vires the Constitution. Therefore, investing powers in a Court to take cognizance under Section 28 on the complaint of the Mohtasib in respect of such offences is not warranted. Consequently, such forums created for trial of the citizens shall also be acting contrary to the provisions of Article 4 of the Constitution which guarantees that every individual should be dealt with in accordance with law. Therefore, being contrary to this provision of the Constitution, Section 28 is declared to be ultra vires the Constitution. Reference No.2/2005 77 72. Learned counsel for NWFP Government contended:-- a) That opinion rendered by Supreme Court has no binding effect because it is not a decision between parties. b) That “Mohtasib” and the person who allegedly is going to be affected by this opinion is not before the Court as such it has no legal value c) That the decision of the Court in terms of Article 189 is binding on the Executive and Judicial Authorities if rendered on a lis and Legislature is not bound with such decision as Court could not regulate the process of legislation. Thus, opinion of the Court would have no effect upon legislation. d) The Constitutionality of Hisba Bill could adequately be dealt with after its becoming an Act of Assembly, in appropriate proceedings. In the following judgments parameters have been laid down for assuming jurisdiction by the Courts despite absolute ouster clause. See : In re: Kerala Education Bill 1957 (AIR 1958 SC 956), In re: U/s 213 Government of India Act, 1935 (AIR 1944 FC 73), Umayal Achi v. Lakshmi Achi (AIR 1945 FC 25), Attorney General for Ontario v. Attorney General of Canada [1912] AC 571 and Attorney General for the Province of British Columbia v. Attorney General for Dominion of Canada [1914] AC 153.] 73. We have considered the judgments relied upon by the learned counsel. The opinions expressed therein had been overruled by subsequent judgments by the Indian Supreme Court itself. In re: Special Courts Bill, 1978 (AIR 1979 SC 478), it was held as under:-- 101. There was some discussion before us on the question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under Reference No.2/2005 78 Art. 143 (1) of the Constitution is binding as law declared by this court within the meaning of Art. 141 of the Constitution. The question may have to be considered more fully on a future occasion but we do hope that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain. In the cases of Estate Duty Bill, 1944 FCR 317 at pp. 320, 332, 341: (AIR 1944 FC 73 at pp. 74, 75, 79, 82); U. P. Legislative Assembly, (1965) 1 SCR 413 at pp. 446, 447: (AIR 1965 SC 745 at pp. 762, 763) and St. Xavier’s College, (1975) 1 SCR 173 at pp. 201, 202 (AIR 1974 SC 1389 at pp, 1401, 1402) the view was expressed that advisory opinions do not have the binding force of law, In Attorney General for Ontario v, Attorney General for Canada (1912) AC 571 at p. 589 it was even said by the Privy Council that the opinions expressed by the Court in its advisory jurisdiction “will have no more effect than the opinions of the law officers.” On the other hand, the High Court of Calcutta in Ram Kishore Sen v. Union of India, AIR 1965 Cal 282 and the High Court of Gujarat in Chhabildas Mehta v. Legislative Assembly, Gujarat State, (1970) 2 Guj LR, 729 have taken the view that the opinion rendered by the Supreme Court under Art. 143 is law declared by it within the meaning of Art. 141. In The province of Madras v. Boddu Paidanna & Sons, 1942 FCR 90: (AIR 1942 FC 33) the Federal Court discussed the opinion rendered by it in the Central Provinces case, 1939 FCR 18: (AIR 1949 FC 1) in the same manner as one discussed a binding judgment. We are inclined to the view that though it is always open to this Court to re- examine the question already decided by it and to overrule, if necessary, the view earlier taken by it, in so far as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in exercise of its advisory jurisdiction under Art. 143 (1) of the Constitution. We would also like to draw attention to the observations made by Ray C.J., in St. Xaviers College (AIR 1974 SC 1389) that even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight. It would be strange that a decision given by this Court on a question of law in a dispute between two Reference No.2/2005 79 private parties should be binding on all courts in this country but the advisory opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the Bill was urged before us and to think that our opinion is an exercise in futility is deeply frustrating. While saying this, we are not unmindful of the view expressed by an eminent writer that although the advisory opinion given by the Supreme Court has high persuasive authority, it is not law declared by it within the meaning of Art. 141. (See Constitutional Law of India by H. M. Seerval, 2nd Edition, Vol II, Page 1415, para 25.68) In re: Presidential Reference No.1 of 1998 (AIR 1999 SC 1) the Court recorded following statement of Attorney General:--- “9. We record at the outset the statements of the Attorney General that .-----(1) the Union of India is not seeking a review or re-consideration of the judgment in the second Judges case, and (2) that the Union o India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.” As per the material available on the official web-site of the Department of Justice Canada, there have been 76 references by the Federal Government alone to the Supreme Court since 1867 to 1981 and it states:--- “the Court issues an advisory opinion in the form of judgment as a legal pronouncement from the highest Court in the land. It has always been treated as binding.” Similarly Peter W. Hogg in Constitutional Law of Canada (4th Ed. Page 227) states as under :--- “But there do not seem to be any recorded instances where a reference opinion was disregarded by the parties, or where it was not followed by a subsequent Reference No.2/2005 80 court on the ground of its advisory character. In practice, reference opinions are treated in the same way as other judicial opinions. (emphases provided) Likewise, Mohamed Sameh M. Amer in The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (page 116) states as under:- “Thus far the ICJ has delivered advisory opinions in twenty-four cases, and in no case has the requesting organ rejected the Court’s opinion or acted contrary to its substance; on the contrary, the Court’s opinions have been received and respected by the organs.” 74. National Assembly of Pakistan, after obtaining opinion from the Supreme Court in re: Special Reference under Article 187 of the Interim Constitution, on 8th July 1973 passed a resolution, expressing its opinion that the Government of Pakistan may accord a formal recognition to Bangladesh and initiate such constitutional measures as may be necessary, therefore, at a time when, in the judgment of the Government, such recognition is in the best national interest of Pakistan and will promote a fraternal relationship between the two communities. A writ petition was filed seeking declaration that the resolution passed by the National Assembly in its Session held on 8th July 1973 be declared to be without lawful authority and the respondent be restrained from announcing any ‘recognition of Bangladesh.’ A learned Division Bench of the Lahore High Court while disposing of the petition in the case of Hakim Muhammad Anwar Babri v. Federation of Pakistan (PLD 1974 Lahore 33), held as under :--- 5. From what has been written above, it will be evident that the resolution in question was passed after obtaining the advice and opinion of the Supreme Court. The Supreme Court held that such a resolution could be passed, and after that to ask this Court to declare that Reference No.2/2005 81 such a resolution could not have been passed or that it was without lawful authority is an attempt to ask us to sit in judgment over the views of the Supreme Court. Obviously, such an attempt cannot succeed because in Article 189 of the Constitution of the Islamic Republic of Pakistan, it is written that: - “Decisions of Supreme Court binding on other Courts-Any decision of the Supreme Court shall, to the extent that if decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.” 75. It is true that opinion by the Court on the reference by the President is not a decision between the parties but the Court undertakes an extensive judicial exercise during which the arguments advanced by the Advocates appearing on behalf of the parties summoned by the Court are evaluated and appreciated and then an opinion is formed, therefore, it has binding effect as held in above quoted judgments as well as by eminent jurists on the Constitution. 76. From the language of Articles 189 and 190 of the Constitution, it is concluded that opinion expressed by the Supreme Court in a reference under Article 186 is required to be esteemed utmost by all the organs of the State, therefore, it would not be fair to say that the opinion expressed by the Supreme Court on Presidential Reference under Article 186 of the Constitution has no binding effect. 77. Under Article 116 of the Constitution, the Governor of the Province is required to assent to a bill which has been passed by the Assembly in accordance with the Constitution. Arguments raised by learned counsel, firstly, are premature as at this stage it is not possible to ascertain whether the Governor will assent to the Bill or not. Secondly, two positions could be visualized in respect of a Bill, namely, if in judicial scrutiny by this Court for the purpose of forming its opinion, it is held that it is intra vires Reference No.2/2005 82 the Constitution then Article 116 of the Constitution would lay an obligation on the Governor to assent to it. If the opinion is formed that either the Bill as a whole or some of its parts are ultra vires the Constitution then the Governor being Constitutional Head of a Province would not assent to the Bill particularly on noticing violation. In present case, the provisions of the Hisba Bill namely Sections 10(b), (c), (d), 12(1)(a), (b) and (c), Section 23(1), (2), (3), (5), (6), (7), (12), (14) and (27), Section 25(1) & (2) and Section 28 , have been declared ultra vires the Constitution of Islamic Republic of Pakistan, therefore, in its present form, the Governor is not bound to assent to the same. To strengthen this argument, reference may be made to Attorney General for New South Wales v. Trethowan (47 CLR 97). In this case, two bills were passed but without the majority of the electors, therefore, the Governor was restrained from assenting to the same unless and until the majority of the voters had approved them. 78. In addition to above judgment,, this Court in a number of cases has held that a Government functionary is bound to obey and carry out only lawful orders and acts and is not bound to become a party to the acts, which are not in accordance with law. Reference in this behalf may be made to Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530), Yaqoob Shah v XEN PESCO (PLD 2002 SC 667), Secretary Education NWFP v. Mustamir Khan (2005 SCMR 17) and The State v. Udeshi M. Ramesh (2005 SCMR 648). 79. It is equally important to note that once some of the Sections of a Bill have been declared unconstitutional, it would not mean that leftover Sections of the Bill have been declared in accordance with the Constitution. Their Constitutionality remains open to be questioned, which can be upheld Reference No.2/2005 83 or struck down as or when challenged before a competent forum, as held by Irish Supreme Court in re: In the matter of Article 26 of the Constitution and in the matter of The Housing (Private Rented Dwellings) Bill, 1981 ([1983] I.R. 181). Relevant para therefrom reads as under:--- “It is to be noted that the Court’s function under Article 26 is to ascertain and declare repugnancy (if such there be) to the Constitution in a referred bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred bill with a stamp of constitutionality. If the Court finds that any provision of a referred bill or of the referred provisions is repugnant, then the whole bill fails for the President is then debarred from signing it- thus preventing it from becoming an Act. There thus may be areas of a referred bill or of referred provisions of a bill which may be left untouched by the Court’s decision. The authors of a bill may therefore find the Court decision less illuminating than they would wish it to be.” In the matter of Article 26 of the Constitution and in the matter of the Matrimonial Home Bill, 1993 [1994] 1 IR 305, the above principle of declaring some parts of a Bill unconstitutional was upheld. 80. Learned counsel for Government of NWFP contended that the Courts on the basis of legislative controversial matters between the Federal and Provincial Government may not invalidate the Provincial legislation. In support of his contention he relied upon Duport Steels Ltd. v. Sirs and others ([1980] 1 All ER 529) and Union of India v. Elphinstone Spinning and Weaving Co. Ltd. [2001] 4 SCC 139. 81. We have examined both these judgments in light of the arguments of the learned counsel. The judgment in Duport Steels Ltd. (ibid) is from English jurisdiction, where the Courts at the relevant time, were not empowered to invalidate legislation for want of such Constitutional Reference No.2/2005 84 mandate. Second judgment, in the case of Union of India (ibid), pertains to a fiscal matter. Admittedly, sufficient privilege is always given to the fiscal matters then to the law laid down by the Legislature, as it has been pronounced in Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582), wherein it has been held that “ Courts, while interpreting laws relating to economic activities, view the same with greater latitude then the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems, which do not admit of solution through any doctrinaire of strait jacket formula. Whereas penal statutes are to be interpreted strictly against the State and liberally in favour of accused [Understanding Statutes 2d Ed. by S.M.Zafar page 243]. Therefore, following this principle, the penal statute calls for strict constitutional scrutiny, as such the second judgment cited by the learned counsel in support of his arguments is of no help to him. Thus, it is held that the Court seized with a Reference wherein constitutionality of a law/bill is required to be examined to form an opinion , it would not be transgressing its jurisdiction and is bound to inform the President about the constitutional status of the bill which is likely to become an Act of Parliament or Assembly. 82. The learned counsel for NWFP Government questioned the maintainability of the Reference on following grounds:- i) The bill has not been enacted into law as yet, therefore, Reference being premature, deserves to be dismissed. ii) The request made by the Governor to the Prime Minister requesting him for filing of Reference without advice of the Chief Minster is illegal. iii) On the advice of the Prime Minister, the President is only competent to refer the question of law which relates to federal law and not with respect to a provincial law. Reference No.2/2005 85 iv) Under Article 186 of the Constitution, this Court can only express its opinion on question of law whereas in instant Reference, a mixed question of law and fact has been raised, therefore, this Court is not bound to answer the same. 83. Before addressing the arguments of learned counsel, it would be appropriate to reproduce herein-below different Articles from Government of India Act, 1935, Constitution of Pakistan, 1956, Constitution of Pakistan, 1962, Interim Constitution of Islamic Republic of Pakistan, 1972 and Constitution of Pakistan, 1973, conferring the advisory jurisdiction on the Supreme Court:- Government of India Act 1935 Article 213: (1) If at any time it appears to the Governor General that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Federal court upon it, he may in his discretion refer the question to that court for consideration, and the court may, after such a hearing as they think fit, report to the Governor General thereon. (2) No report shall be made under this section save in accordance with an opinion delivered in open court with concurrence of a majority of the judges present at the hearing of the case, but noting in this subsection shall be deemed to prevent a judge who does not concur from delivering a dissenting opinion. Constitution of Pakistan 1956 Article 162: If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public important that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration, and the court may, after such hearing as it thinks fit, report its opinion thereon to the President. Constitution of Pakistan 1962 Article 59: (1) If, at any time, the President considers that it is desirable to obtain an opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. Reference No.2/2005 86 Interim Constitution of the Islamic Republic of Pakistan 1972 Article 187: (1) If any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. Constitution of Pakistan 1973 Article 186: (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. 84. Under Article 106 of the Constitution of Peoples Republic of Bangladesh; Article 177 of Constitution of Republic of Sri Lanka; Article 130 of Constitution of Malaysia; Section 19 of Constitution of Independent State of Papua New Guinea; Article 123 of the Constitution of Republic of Fiji Islands; Section 53 of the Canadian Supreme Court Act, 1985, Section 4 of the Judicial Committee Act, 1833, “United Kingdom;” Article 26 of Constitution of Ireland; Article 14 of the Covenant of League of Nations (including amendments adopted on December, 1924), Article 65 of the Statute of Permanent Court of International Justice (Amendments by the Protocol of September 14, 1929), Article 96 of Charter of United Nations; Article 165 of the Statute of International Court of Justice and Article 143 of the Indian Constitution; confer same jurisdiction upon their Supreme Courts as is being enjoyed by this Court. 85. Article 143 from the Indian Constitution; Section 53 of the Canadian Supreme Court Act, 1985 and Article 26 of the Constitution of Ireland, are reproduced herein-below having identical features/ characteristics to Article 186 of the Constitution. Reference No.2/2005 87 Constitution of India Article 143: (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. (2) The President may, notwithstanding anything in… the proviso in article 131 refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. Canadian Supreme Court Act 1985 Section 53: (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning. (a) The interpretation of the Constitution Acts; (b) The constitutionality or interpretation of any federal or provincial legislation; (c) The appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or (d) The powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised. (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with enumerations contained in subsection. (1), With reference to which the Governor in Council sees fit to submit any such question. (3) Any question concerning any of the matters mentioned in subsections (1) And (2), and referred to Court by the Governor in Council, shall be conclusively deemed to be an important question. (4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question Reference No.2/2005 88 so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons. (5) Where the question relates to the constitutional validity of any Act passed by the legislature of any province, or of any provision in any such Act, or in case, for any question, the attorney general of the province shall be notified of the hearing in order that the attorney general may be heard if he thinks fit. (6) The Court has power to direct that any person interested or, where there is a class of persons interested, any one or more persons as representatives of that class shall be notified of the hearing on any reference under this section, and those persons are entitled to be hard thereon. (7) The Court may, in its discretion, request any counsel to argue the case with respect to any interest that is affected and with respect to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance out of any moneys appropriated by Parliament for expenses of litigation. Judicial Committee Act 1833 (United Kingdom) Section 4 His Majesty may refer any other matter to the committee ….. It shall be lawful for his Majesty to refer to the said judicial committee for hearing or consideration any such other matter whatsoever as his Majesty shall think fit: and such committee shall thereupon hear to consider the same, and shall advise his Majesty thereon manner aforesaid. Constitution of Ireland Article 26 (1) This article applies to any Bill passed or deemed to have been passed by both Houses of Parliament other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by the Senate shall have been abridged under Article 24. Reference No.2/2005 89 (1.1) The President may, after consultation with Council of State, refer any Bill to which this article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof. (1.2) Every such reference shall be made not later than the seventh day after the date on which such Bill have been presented by the Prime Minister to the President for his signature. (1.3) The President shall not sign any Bill the subject of a reference to the Supreme Court under this article pending the pronouncement of the decision of the Court. (2.1) The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference. (2.2) The decision of the majority of the judges of the Supreme Court shall, for the purpose of this article, be the decision of the Court and shall pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed. (3.1) In every case in which the Supreme Court decides that any provision of a Bill the subjection of a reference to the Supreme Court under this article is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill. (3.2) If, in the case of a Bill to which Article 27 applies, a petition has been addressed to the President under that article, that article shall be complied with. (3.3) In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. 86. A comparison of above Articles with Article 186 of the Constitution, conferring advisory jurisdiction upon this Court, reveals that in Article Reference No.2/2005 90 213 of the Government of India Act 1935 and Article 162 of the Constitution of Pakistan, 1956, the phrase a question of law has risen or is likely to arise, identical to Article 143 of the Constitution of India, has been used. In Article 59 and Article 187 of the Constitution, 1962 and 1972, as well as in Article 186 of the Constitution, 1873, words “any question of law” have been used. By pre-fixing word “any” scope of Article 186 of the Constitution has been widened. Mr. Justice (R) Muhammad Munir, former Chief Justice of Pakistan in his book “The Commentary on the Constitution of Pakistan, 1973, has observed that “present Article has replaced these words “any question of law” which are more comprehensive in their scope and cover both question of law that has arisen and question of law that is likely to arise.” Words “any” has always been interpreted by the Courts broadly. Reference may be made to the case of Bank of Bahawalpur versus Chief Settlement and Rehabilitation Commissioner (PLD 1977 SC 164). In this case, a full bench of this Court, on the basis of Queen vs. Rowlands and others (1880) Q.B.D 5308 and Duek versus Bates (1884) 12 Q.B.D 79, has held that “the word “any” is an expression of utmost generality removing all limitations or qualifications. In Ch.Zahoor Elahi vs. The State (PLD 1977 SC 273), it was held that the word “any” is used at no less than 7 places in Section 13(1) (b). It is a word of very wide amplitude and defined in Stroud’s Judicial Dictionary as “a word which excludes limitations or qualifications.” Acceptably, Constitutional document is interpreted broadly so as to cover all exigencies. A narrow construction has no room in the context of constitutional dispensation (Understanding of Statutes – Canons – Construction –Second Edition 850) by S.M. Zafar. In Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), it was held that “Constitution is Reference No.2/2005 91 the supreme law of the land to which all laws are subordinate. Constitution is an instrument by which government can be controlled. The provisions in the Constitution are to be considered in such a way which promotes harmony between the different provisions and should not render any particular provision to be redundant as the intention is that the Constitution should be workable to ensure survival of the system which is enunciated therein for the governance of the country.” In Special Re. No.1 of 1957 (PLD 1957 SC 219) it was held that “effect should be given to every part and every word of the Constitution. Hence as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.” In this context, reference can also be made to the cases of The State v. Zia-ur-Rehman (PLD 1973 SC 49) and Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151). In Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473) it was also held that “while interpreting fundamental rights, the approach of the Court should be dynamic, progressive and liberal keeping in view ideals of the people, socio-economic and politico cultural values which in Pakistan are enshrined in the Objectives Resolution so as to extend the benefit of the same to the maximum people.” In the case of Al- Jehad Trust versus Federation of Pakistan (PLD 1996 SC 324), it was held that “approach of the Court while interpreting a constitutional provisions has to be dynamic, progressive and oriented with the desire to meet the situation which has arisen effectively because efforts should be made to construe the provision broadly so that it may be able to meet the requirement of ever changing society. General words cannot be considered Reference No.2/2005 92 in isolation but the same are to be considered in the context in which they are employed.” These observations have been reiterated in Bahadar Khan v. Atta Ullah Mengal (1999 SCMR 1921) and Pakistan Tobacco Company (ibid), we feel no hesitation in holding that Constitution makers by using the expression ‘any question of law’ in Article 186 of the Constitution had widened its scope and had also covered disputes which are likely to arise. We may observe that if such construction is not placed on the expression ‘any question of law’ there is apprehension that the provision of advisory jurisdiction will become redundant. 87. The President, when desires to obtain opinion of the Supreme Court on any question of law which he considers of public importance, he bears in his mind the significance of public importance, persuading him to seek opinion of Supreme Court, therefore, he being the custodian of Constitution, in capacity as a symbol of head of Federating units under the Constitution seeks guidance of the Court with no object except to avoid controversies and to ensure that Constitutional provisions are fully enforced in the good governance of Federal as well as Provincial Government as it may be, as such no embargo can be placed on the authority of the President of Pakistan to seek the advice on the question of law, which is likely to arise. Likewise, the Court is bound to express opinion in respect of those events which are likely to occur in future. At this juncture reference to the events that took place in Pakistan in December 1971, would not be out of context, on account of which Bangladesh emerged. When confronted with such situation, a chaos was prevailing and the Government was not decisive either to recognize Bangladesh or not and to resolve the situation, it felt it necessary to move a resolution in the National Assembly which would express that holding of trials in Dacca or Reference No.2/2005 93 outside Pakistan or among the prisoners of war or civilian internees on alleged criminal charges would seriously jeopardize efforts towards reconciliation of peace in the sub-continent and would also be contrary to the International Law of Justice, therefore, considering the issue to be of public importance a Reference on the question “can a resolution of the purport described in paragraph 6 above and envisaging such constitutional measures as may be necessary before according of formal recognition, be validly adopted by the National Assembly, was made by the President of Pakistan. Admittedly, it was purely a question which was likely to arise because till then National Assembly had not passed a resolution, therefore, in view of such a concrete example, the arguments raised by learned counsel for the Government of NWFP loses its value. 88. In Re. Reference under section 213 of the Government of India Act, 1935 (AIR 1944 FC 73) it was held “the fact that the question referred related to future legislation cannot by itself be regarded as valid objection.” Section 213 of the Government of India Act, 1935, empowers the Governor General of India to make a Reference when questions of law “are likely to arise.” It is most important that in similar situation with which we are presently confronted i.e. whether the Hisba Bill has been passed by the NWFP Assembly, in accordance with the Constitution. The Indian Supreme Court examined the same proposition in re. Kerala Education Bill 1957 (AIR 1958 SC 956) and observed “The principles established by judicial decisions clearly indicate that the complaint that the questions referred to us relate to the validity, not of a Statute brought into force but of a bill which has yet to be passed into law by being accorded the assent of the President is not a good ground for not entertaining the reference.” Inasmuch as there are cases in which references have been Reference No.2/2005 94 made even to consider proposed amendments by way of putting a bill before the law makers. [In re. Sea Customs Act, 1878 Section 20(2) (AIR 1963 SC 1760)]. In this Reference it was proposed to amend sub-section (2) of Section 20 of the said Act (Sea Customs Act) so as to amend the provisions of sub-section (1) of that section in respect of goods belonging to the Government of a State irrespective whether goods are used or not for the purposes set out in the said sub-section (2) as at present in force. One of the terms of Reference was “whereas governments of certain States have expressed the view that the amendments as proposed in the said draft of the Bill (emphasis provided) may not be constitutionally valid as the provisions of Article 289 read with the definitions of ‘taxation’ and tax in clause 28 of Article 366 of the Constitution of India precluded the Union from imposing or authorizing the imposition of any tax, including customs duties and excise duties, on or in relation to any property of a State except to the extent permitted by clause-2 read with clause-3 of the said Article 289.” There is yet another category of References in which the president filed a Reference even before Bill was tabled in the Parliament and it was held that it makes no difference that bill is pending, since President was competent to make a Reference at any stage .[In re: Special Courts Bill 1978 (AIR 1979 SC 478)]. 89. It may not be out of context to note that in a country like Canada, the advisory jurisdiction of Supreme Court is invariably invoked and the Court had been examining legislative proposal before making the same as law. The jurisdiction invariably has been invoked not only in respect of Constitutionality of a Federal law but the constitutionality of a provincial law as well. Reference may be made to the Constitutional Law of Canada by Peter W. Hogg (244, 228 and 229), wherein the commentator Reference No.2/2005 95 has observed “the reference procedure has been used mainly for constitutional questions. It has rarely been used to seek answers to non- constitutional questions, although it is available for that purpose as well. The questions referred are usually about the constitutionality of a federal law (or a proposed federal law), but the constitutionality of a provincial law can also be referred, and this has been done from time to time.” 90. The importance of seeking opinion of the Supreme Court has been well explained by the same author in following words:- “A balanced assessment of the reference procedure must acknowledge its utility as a means of securing an answer to a constitutional question. As noted earlier, the reference procedure has been used mainly in constitutional cases. This is because it enables a government to obtain an early and (for practical purpose) authoritative ruling on the constitutionality of a legislative programme. Sometimes questions of law are referred in advance of the drafting of legislation; sometimes draft legislation is referred before it is enacted; sometimes a statute is referred shortly after its enactment; often a statue is referred after several private proceedings challenging its constitutionality promise a prolonged period of uncertainty as the litigation slowly works its way up the provincial or federal court system. The reference procedure enables and early resolution of the constitutional doubt.” 91. One another commentator P. Macklem, in Canadian Constitutional Law, Volume-I 1994, has opined that “one of the most distinctive features of the Canadian Judicial Review is its frequent resort to the constitutional reference. This frequency can be demonstrated by a survey of the leading cases: those reaching the Privy Council up to 1949, the Supreme Court of Canada thereafter, decided from 1867 to 1981. Of 282 cases involving constitutional issues, 77 had their origins in a constitutional reference while 205 involved concrete cases. Nor does the fact that over a quarter, of Reference No.2/2005 96 the leading decisions were given in such proceedings reveal the full significance of constitutional references. In terms of impact on the political, social and economic affairs of the country the decisions in these cases have had an effect far beyond their numerical proportion.” 92. The Supreme Court of Ireland has on various occasions examined the vires of pending bills under its advisory jurisdiction details whereof are available in Constitutional Law in Ireland by James Casey which reads as under:- “Article 26 has so far been used seven times, viz: (a) The Offences against the State (Amendment) Bill 1940[1940] I.R.470. (b) The School Attendance Bill 1942[1943] I.R.334. (c) The Electoral Amendment Bill 1961[1961] I.R. 169 (d) The Criminal Law (Jurisdiction) Bill 1975 [1977] I.R. 129. (e) The Emergency Powers Bill 1976 [1977] I.R. 159. (f) The Housing (Private Rented Dwellings) Bill 1981 [1983] I.R. 181. (g) The Electoral (Amendment) Bill 1983 [1984] I.L.R.M. 539.” 93. Thus, above discussion leads us to conclude that President in exercise of powers under Article 186 of the Constitution is empowered to seek opinion of this Court in its advisory jurisdiction in respect of any question of law which has arisen or is likely to arise including the Bills passed by Provincial Assemblies. 94. Learned counsel for NWFP relying upon the decision in Attorney General for Ontario versus Hamilton Street Railways Privy Council (1903) A.C 524, has emphasized that the courts will not decide the speculative question, the Supreme Court can only give decision on a concrete case. The argument has no substance in view of the discussion made herein-above. So far as, the law relied upon by him is concerned, it pertains to the year 1903 whereas, in the meanwhile, number of constitutional changes in different countries have taken place wherein the Reference No.2/2005 97 advisory jurisdiction of the Courts have been extended and invoked to determine the constitutional questions of public importance. 95. The learned counsel also relied upon ref: under Section 213 Govt. of India Act 1935 (AIR 1944 FC 73) and read minority opinion of Sir Zafarullah Khan, J. who declined to answer the question whereas the majority of the Hon’ble Judges had answered the reference, while holding “the fact that the question referred relates to future legislation cannot by itself be regarded as an objection.” In this very context, it was further observed that some instances were brought to our notice in which Reference had been made under the corresponding provision in the Canadian Supreme Court Act when the matter was at the stage of Bill. It may be pointed out that the comments made by Sir Zafarullah Khan in his judgment, were the views made by Justice Frank Furter in an article published by Harvard Law Review but not in a judicial decision. Reference may be made to footnote 13 at page 80 of the judgment. In re: Special Courts Bill 1978 (AIR 1979 SC 478), the Supreme Court of India ruled that it was not for the Court to refuse to answer the Reference. This Court in ref: No.1 of 1988 (PLD 1989 SC 75), reference of which has already been made herein-above, has expressed the same view. 96. The objection of the learned counsel for NWFP that President is only competent to refer a question of law which relates to a federal law and not with respect to a provincial law is also not sustainable in view of the comprehensive and broad language employed in Article 186 of the Constitution. As per history special reference No. 1 of 1957 (PLD 1957 SC 219), reference was made by the President asking the Supreme Court whether under the circumstances Governor can dissolve the Government of a province. Similarly, in Reference No.1 of 1988, the President of Reference No.2/2005 98 Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, asked the Supreme Court whether a Chief Minister could authenticate expenditure from the Provincial Consolidated Fund when the Provincial Assembly stood dissolved. As it has been pointed out herein- above that Indian Supreme Court also entertained a Reference dealing with the Provincial subject i.e Kerala Education Bill 1957 (AIR 1958 SC 956). Likewise, in ref: under Article 143 of the Constitution of India (AIR 1965 SC 745), the Indian Supreme Court held as under:---- “At the hearing of this reference, Mr. Varina has raised a preliminary objection on behalf of the Advocate General of Bihar. He contends that the present reference is invalid under Art. 143(1) because the questions referred to this Court are not related to any of the entries in Lists I and III and as such, they cannot be said to be concerned with any of the powers, duties or functions conferred on the President by the relevant articles of the Constitution. The argument appears to be that it is only in respect of matters falling within the powers, functions and duties of the President that it would be competent to him to frame questions for the advisory opinion of this Court under Art. 143(1). In our opinion, this contention is wholly misconceived. The words of Art. 143 (1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or which is likely to arise, provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of this Court upon it ………” 97. Identical observations have been made by this Court in ref: No.1 of 1988 (PLD 1989 SC 75) reference of which has already been made herein- above. In this very context under the Constitutional Law of Canada by Peter Hogg, reference of which has already been made, it has been Reference No.2/2005 99 observed that the constitutionality of a provincial law can also be referred and this has been done from time to time. 98. Learned counsel vehemently stressed about the competency of the Governor to approach the Prime Minister for filing a Reference by the President without seeking advice of the Chief Minister. Under Article 105 of the Constitution, the Governor is supposed to act on the advice of the Chief Minister but there are certain areas where he can act in his discretion under the Constitution. The Constitution is silent as to how the Governor will communicate with the Prime Minister and if the argument of the learned counsel prevails, it would lead to an anomalous position that the Governor cannot communicate with the Prime Minster except on the specific advice of the Chief Minister. In the instant case, the Governor was involved at pre-legislative stage by the Chief Minister as he was asked to express his opinion about the Hisba Bill and in view of his observation the bill was referred to the CII but the objection raised by the Governor as well as by the CII in its report dated 6th September 2004, were not removed, therefore, the Governor who had already come into picture had no Constitutional restraints to communicate with the Prime Minister. The argument of the learned counsel in this behalf loses its value for the reason that it is not the Governor who had made the Reference but the President of Pakistan on the basis of the advice from the Prime Minister notwithstanding the fact as to why the Governor had communicated with the Prime Minster, but in any case, it cannot be considered un- constitutional. It has been rightly held in ref: No.1 of 1988 (PLD 1989 SC 75) that the President is the sole judge of the public importance to question the desirability of referring it to the Supreme Court. Therefore, the objection being without substance is kept out of consideration. Reference No.2/2005 100 99. It is also objected to by the learned counsel that reference is not competent because it is not inter se the parties. This Court in exercise of advisory jurisdiction under Article 186 of the Constitution, has to express its opinion on constitutionality of the Hisba Bill, therefore, presence of the parties is not called for. Advisory jurisdiction of this Court is definitely different and distinct from the jurisdiction under Article 184 and 185 of the Constitution. Reference may be made to In re: Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan (PLD 1973 SC 563) wherein question with regard to adopting a resolution by the National Assembly for formal recognition of Bangladesh was examined by this Court in absence of the parties. Thus, this objection being without substance is turned down. OPINION OF THE COURT On having dilated upon the questions referred to by the President of Pakistan, the Court is of the unanimous opinion that Section 10 (Bey), (Jeem), (Dal); Section 12(1) (Alif), (Bey), (Jeem); Section 23(1), (2), (3), (5), (6), (7), (12), (14), (27); Section 25(1), (2) and Section 28 of the ‘Hisba Bill’ 2005, passed by the Provincial Assembly of NWFP, are ultra vires the Constitution of the Islamic Republic of Pakistan, 1973. The above referred Sections of the Hisba Bill are violative of Articles 2A, 4, 9, 14, 16, 17, 18, 19, 20 and 25 as well as 175 of the Constitution being vague, overbroad, unreasonable, based on excessive delegation of jurisdiction, denying the right of access to justice to the citizens and attempting to set up a parallel judicial system. Reference No.2/2005 101 The Governor of the North-West Frontier Province may not assent to Hisba Bill in its present form as its various Sections noted herein-above have been declared ultra vires the Constitution of the Islamic Republic of Pakistan, 1973. Herein-above are the reasons for our opinion (short order) dated 4th August, 2005. REFERENCE ANSWERED ACCORDINGLY C.J . J. J. J. J. J. J. J. J. Islamabad, August, 2005. Irshad /* APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Advisory Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Jamal Khan Mandokhail Presidential Reference No.2 of 2022 (Reference by the President of the Islamic Republic of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973.) IN ATTENDANCE For the Federation : Ch. Aamir Rehman, Addl. Attorney General Assisted by: Barrister M. Usama Rauf Mr. Zohair Waheed Miss Maryam Rashid & Miss Faryal Shah Afridi, Adv. For PPL/OGDCL/ Govt. Holdings (Pvt.) Ltd. : Barrister Jahanzeb Awan, ASC Assisted by: Mr. Umar Shahzad Abbasi Mr. Abdullah Raza Mr. Shabbir Harianwala For Govt. of Balochistan : Mr. Salahuddin Ahmed, ASC Mr. M. Asif Reki, AG, Balochistan Mr. M. Ayaz Khan Swati, Addl. AG, Balochistan For PBC : Mr. Mansoor Usman Awan, ASC For Balochistan Bar : Mr. Amanullah Kanrani, ASC Amici Curiae : Mr. Salman Akram Raja, ASC Dr. M. Farogh Naseem, ASC Mr. Zahid F. Ibrahim, ASC For Barrick Gold Corporation : Mr. M. Makhdoom Ali Khan, Sr. ASC Assisted by: S.M. Faisal Hussain Naqvi, ASC Mr. Iftikhar-ud-Din Riaz, ASC Mr. Saad M. Hashmi, Advocate Kh. Aziz Ahsan, Advocate Mr. Yawar Mukhtar, Advocate Kh. Azeem, Advocate White & Case : Rabecca Campbell Mr. Kamran Ahmed (Via Video-Link) Reference No.2/2022 2 Lazard : Spiro Youakim Pierre Cailletea Xovier de Regloix (Via Video-Link) Dates of Hearing : 25 Oct 2022, 01-02 Nov 2022, 7-10 Nov 2022, 14-17 Nov 2022, 21-24 Nov 2022, 28-29 Nov 2022 OPINION For detailed reasons to be recorded later and subject to such amplification and elaboration as may be considered necessary, Presidential Reference No.2 of 2022 is answered as follows: 2. On 29.07.1993 the Balochistan Development Authority (BDA) entered into the Chaghi Hills Exploration Joint Venture Agreement (CHEJVA) with a foreign investor having 75% shareholding and BDA having 25% shareholding plus 2% royalty. Subsequently, in the year 2006, the foreign investor was succeeded by Tethyan Copper Company Pty. Ltd., Australia (TCCA). TCCA in turn was acquired by Barrick Gold Corporation (Barrick) and Antofagasta in equal shares. Under CHEJVA Barrick and its partner had the exclusive right to prospect and explore for copper and gold in the Reko Diq area. 3. Between 2006 and 2011, TCCA invested in mineral exploration and developed detailed plans for mining at Reko Diq. However, on 15.11.2011, the licensing authority of the Government of Balochistan (GoB) declined the mining lease application submitted by the project company of TCCA. Shortly thereafter, on 28.11.2011 TCCA initiated arbitration proceedings under the Pak- Australia Bilateral Investment Treaty (BIT) against the Government of Pakistan (GoP), which claim was registered as an arbitration case with the International Centre for Settlement of Investment Disputes (ICSID). TCCA also commenced arbitration proceedings Reference No.2/2022 3 against GoB at the International Chamber of Commerce (ICC) for claims arising out of the CHEJVA. Meanwhile a Writ Petition filed by a Pakistani citizen challenging CHEJVA was dismissed by the High Court of Balochistan on 26.06.2007. Leave to appeal to the Supreme Court against the said judgment was clubbed with other Constitution Petitions. All the matters were disposed of by the Supreme Court vide short order dated 07.01.2013 setting aside the judgment of the High Court of Balochistan. The detailed reasons are reported as Abdul Haque Baloch Vs. Government of Balochistan (PLD 2013 SC 641). As a result, CHEJVA was declared void, inter alia, on the ground that it had been entered into without lawful authorization and was a non-transparent agreement that failed to comply with the regulatory provisions of law regarding mining operations in the Province. 4. The ICSID arbitration continued in the meanwhile and on 10.11.2017 the ICSID Tribunal rendered its decision on jurisdiction and liability. On 12.07.2019 the ICSID Tribunal announced its final award with TCCA receiving approximately US$ 5.9 billion in damages, pre-award interest and costs incurred by it. Further litigation ensued as TCCA made efforts for enforcing the award in different jurisdictions. 5. In the above background, the GoP and the GoB commenced talks with the TCCA. After lengthy negotiations spanning over three years between the representatives of the two Governments and the TCCA Board, a settlement was proposed. According to the settlement the financial liability of the GoP under the ICSID award was agreed to be settled under the terms and conditions incorporated in a set of agreements executed between the parties. We do not propose nor are we required to comment on Reference No.2/2022 4 the commercial terms settled between the parties which have been agreed after extensive negotiations between GoP/GoB and Barrick/Antofagasta. In such negotiations GoP/GoB had the assistance of independent international financial, technical and legal experts in addition to Pakistani experts. The negotiations were conducted by the duly authorized representatives of the parties who had been instructed by the competent authorities. Simultaneously, the ICC proceedings have also matured to a point of decision on liability and quantum with a likely award (as per the advice of international legal and financial consultants of GoP) of approximately US$ 2 to 3 billion expected in favour of TCCA. As a result, in addition to the actual determined liability of US$ 5.9 billion plus interest (on the basis of the ICSID Award), another US$ 2 to 3 billion award is in the pipeline to be paid to Barrick and Antofagasta by the GoP and GoB. We have been informed that as part of the settlement, the parties have agreed that Antofagasta shall be paid an amount of US$ 900 million which has since been deposited in an Escrow Account by the GoP. Upon fulfillment of the conditions precedent on or before December 15, 2022 Antofagasta shall be entitled to the amount in the Escrow Account. On receipt of the said amount any and all rights of Antofagasta under the ICSID award, the ICC proceedings and any and all claims of Antofagasta against GoP/GoB directly or indirectly arising out of or having any nexus or connection with the Reko Diq project shall stand finally and conclusively extinguished with no further claims either against Barrick or GoP/GoB. It was also agreed between the parties that under the settlement the Reko Diq project will be reconstituted with Barrick being the operator and TCCA holding 50% of the equity with the remaining 50% of the Reference No.2/2022 5 equity being held by local Pakistani entities. We have been informed that the 50% local interest will be held as follows: (i) GoB holding a 10% free carried interest; (ii) GoB holding a 15% fully participating interest indirectly; (iii) GoB receiving royalty at the rate of 5%; and (iv) GoP or designated Pakistani entities holding the remaining 25% fully participating interest. The parties also agreed to a package of negotiated fiscal measures such as royalties and taxes applicable to the project that will be stabilized/granted for a specific period. Following the restructuring of the Reko Diq project, Antofagasta will be paid US$ 900 million plus accrued interest by the GoP and will exit the project by transferring its entire interest in TCCA to Barrick. The GoP, GoB and both Barrick and Antofagasta have agreed that all the disputes that have arisen from the Reko Diq project which are the subject matter of litigation/Arbitration Award(s) anywhere in the world shall finally and conclusively stand resolved as soon as the agreements which have been placed on record and the conditions precedent mentioned therein are met on or before December 15, 2022, and any or all claims including the outstanding ICSID award and the anticipated ICC award shall stand settled without any further claim of any nature from either side. One of the conditions precedent for finalization of the proposed settlement is the President of Pakistan seeking an opinion from this Court on the points noted in the Implementation Agreement. 6. In light of the above background the President of Pakistan has referred the following questions for consideration and opinion of this Court: “i) Whether the earlier judgment of this Honourable Reference No.2/2022 6 Court reported as [Maulana] Abdul Haque Baloch v. [Government of Balochistan], PLD 2013 SC 641 or the laws, public policy or Constitution of Pakistan prevent the GoB and the GoP from entering into the Implementation Agreement and the Definitive Agreements [Agreements] or affect their validity? ii) If enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 [FI Bill 2022] be valid and constitutional?” 7. We have heard the learned Additional Attorney General for Pakistan, the learned counsel appearing on behalf of Barrick and the Advocate General Balochistan assisted by Mr.Salahuddin Ahmed, ASC. We also appointed Mr.Farogh Naseem, ASC, Mr. Zahid Ibrahim, ASC and Mr.Salman Akram Raja, ASC as amici curiae who have also ably assisted the Court on the legal and constitutional issues involved in the matter. Mr.Amanullah Kanrani, ASC also submitted written submissions on behalf of the Balochistan Bar Council. We have also heard Messer Spiro Youakim, Pierre Cailletea and Xovier de Regloix, representatives of Lazard as well as Ms.Rabecca Campbell and Mr.Kamran Ahmed of White and Case (via video link) who were the Financial Consultants/Legal Advisors of the GoP/GoB respectively during negotiations with Barrick/ Antofagasta . 8. On hearing the parties, we find that the following issues arise from the Reference: i) Whether the Constitution places any bar on the disposal of public assets through a negotiated agreement? ii) Whether the Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act, 2022 (2022 Act) is within the Reference No.2/2022 7 legislative competence of the Balochistan Assembly? iii) Whether the process through which the GoB is entering into the Agreements is fair, transparent, reasonable and in accordance with law? iv) Whether the terms of the Agreements violate or are in conflict with the judgment of this Court in Abdul Haque Baloch’s case (PLD 2013 SC 641)? 9. In light of our answers to the foregoing issues which raise legal and constitutional questions, the first question referred to this Court by the President of Pakistan, reproduced in paragraph 6(i) above is answered in the negative for the following reasons: i) It is settled law that while disposal of public assets through a competitive process is the ordinary rule, it is not an invariable rule. The Constitution does not forbid disposal of public assets other than through a competitive process so long as such disposal has the support of the law and is justified on rational grounds, as is the case here. ii) Ever since the enactment of the Constitution, legislative competence to deal with mines and mineral development (other than minerals used for nuclear energy) has rested exclusively with the Provincial Assemblies. Therefore, the Provincial Assemblies of Sindh and Khyber Pakhtunkhwa have already enacted comprehensive statutes dealing with mines and mineral development (other than minerals used for generation of nuclear energy). It follows from the legislative ambit of the Provincial Assemblies under the Constitution that they are competent to “alter, amend or repeal” any existing law to the extent that it deals with mines and mineral development. As far as the amendment incorporated in the Regulation of Mines and Oil fields and Mineral Development Reference No.2/2022 8 (Government Control) Act, 1948 (1948 Act) is concerned, which has been introduced by way of the 2022 Act, to the extent that the said statute applies to the Province of Balochistan it is intra vires the Constitution and the rules framed by the GoB under Section 2 of the 1948 Act. The 2022 Act can therefore be treated as a standalone provision that operates alongside the 1948 Act and the aforesaid rules insofar as the subject of mines and minerals development (other than oil fields and mineral resources necessary for generation of nuclear energy) falls within the exclusive legislative competence of the provincial legislature. iii) The Balochistan Cabinet has approved the decision to enter into the Agreements on the basis of a detailed summary, a copy of which has been filed with this Court. The summary considers ‘public interest’ inherent in the negotiated agreement and since the Agreements pertain to an ‘international obligation’ in terms of the 2022 Act (i.e., Pakistan’s obligation to make payment of approximately US$ 6 billion under an ICSID award dated 12.07.2019), the formal obligations required under the 2022 Act for entering into a negotiated agreement stand fulfilled. iv) The Federal Government has placed on record documents to show that an Apex Committee headed by the Prime Minister of Pakistan and attended by all the relevant stakeholders (including the Chief Minister and Chief Secretary of Balochistan) had carefully negotiated the terms of the Agreements with the help of international financial advisors, international legal advisors, international mining experts and international tax advisors in addition to independent Pakistani advisors. As noted above, the international advisors also addressed the Court directly during proceedings in-person and through video link, and answered all the queries raised by the Reference No.2/2022 9 Court. Prima facie, the Agreements cannot be faulted for lack of due diligence on the part of State authorities. v) The Agreements do not, prima facie, violate any of the findings recorded in the Abdul Haque Baloch case (PLD 2013 SC 641). Unlike CHEJVA, the decision to enter into the Agreements is backed by law and has been taken on the basis of careful negotiations during which authorized representatives of GoP/GoB were duly assisted by independent international consultants. Further, the obligation to act in accordance with “Applicable Law” contained in the Agreements as well as the obligations of the Licensee to apply for consents in accordance with law and satisfy all conditions prescribed by the Applicable Law means that the statutory discretion of public functionaries is not being fettered by the Agreements. vi) We have also been informed that the Provincial Assembly of Balochistan was given a detailed in- camera briefing and was taken into confidence regarding the entire project and the terms and conditions of the proposed settlement between the parties were accepted without any objections being raised by the chosen representatives of the people of Balochistan. vii) On our specific query relating to environmental considerations, particularly in relation to the use of water, we have been informed that the Agreements contain no exemption from Pakistan’s environmental laws. Rather, the Agreements require Barrick to act in accordance with both international environmental standards and domestic laws. Reference No.2/2022 10 10. The second question is answered in the affirmative for the following reasons: i) Article 144 of the Constitution allows Provincial Assemblies to empower Parliament to pass a law dealing with issues within the legislative competence of the Provinces. Similarly, Article 147 of the Constitution allows the Provinces to entrust, either conditionally or unconditionally, to the Federal Government or to its officers, functions in relation to any matter to which the executive authority of the Province extends. ii) We have been provided the draft resolutions proposed to be passed by the Provincial Assemblies of Sindh and Balochistan to empower Parliament to enact the proposed FI Bill 2022. Provided that the draft resolutions are passed, Parliament will be competent to enact the FI Bill 2022, including the notified exemptions specified in the Bill and the protected benefits listed in the Third Schedule. iii) The provisions of Section 3 of the FI Bill 2022 do not in our opinion fetter the sovereignty of Parliament. It appears that the FI Bill 2022 represents a version of the Protection of Economic Reforms Act, 1992. It allows the Federal Government to notify certain benefits which may not be withdrawn to the prejudice of an investor. We have also been informed and there is consensus of all the learned counsel in this matter that Parliament remains at liberty to repeal the entire FI Bill 2022, if it so desires, of course subject to the corresponding legal consequences that may arise from such repeal. On our query, we have also been informed that most of the exemptions proposed to be granted are already available under the regulatory regimes pertaining to Export Processing Zones and Special Technology Zones. Further, the exemptions being granted from Reference No.2/2022 11 the operation of Labour Laws do not denude the labour force of their rightful entitlement to fair wages, allowances and guarantees/benefits provided by law. The learned counsel for Barrick has categorically assured us that the applicable minimum wage laws will be fully observed and the Agreements expressly provide that all operations will be carried out in accordance with International Mining Standards which are defined to include compliance with IFC Performance Standards, to the extent applicable. It has been pointed out to us that the IFC Performance Standards contain detailed provisions pertaining to labour rights. Barrick has also committed to act in accordance with the United Nations Guiding Principles on Business and Human Rights. We have also been assured that Barrick will contribute substantially towards Corporate Social Responsibility by dedicating a percentage of its returns towards provision of fresh drinking water, health facilities, schools and local infrastructure to the people of Balochistan. In addition, most of the labour force will be employed from amongst the local population of the Province. In addition, programs for development of skills will also be put in place. 11. A point that emerges from the Reference filed before us is whether the FI Bill 2022 can be challenged on the ground that it is a person specific law. We note that the FI Bill 2022 is not limited exclusively to the Reko Diq project. Instead, it provides a framework for grant of investment incentives which will, subject to the provisions of the Bill, be available to all investments of US$ 500 million or more. The fact that the Reko Diq project is the first to be identified as a “Qualified Investment” under the FI Bill 2022 does not render the statute as “person-specific.” Furthermore, to the extent that legislative amendments in the Second Schedule to Reference No.2/2022 12 the FI Bill 2022 pertain specifically to the Reko Diq project, such statutory provisions and mechanisms are the norm in a number of other fiscal statutes, including, but not limited to the Income Tax Ordinance, 2001. Under the terms of the FI Bill 2022 such specific exemptions are required either to be legislatively promulgated or legislatively ratified. 12. We also note that the proposed FI Bill 2022 will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures. 13. To sum up we are of the view that the parameters set out in Abdul Haque Baloch’s case (PLD 2013 SC 641) and the reasons for the same, have been duly addressed by the Federal and Provincial Governments. The process for the reconstitution of the Reko Diq project has been undertaken transparently and with due diligence. The Agreements are being signed by authorities duly authorized and competent to do so under the law. To ensure transparency and fairness, expert advice on the financial, technical and legal issues involved has been sought from both local as well as independent international experts/consultants on the terms settled in the Agreements. The Agreements have been put in place after due deliberation and have not been found by us to be unconstitutional or illegal on the parameters and grounds spelt out in Abdul Haque Baloch’s case ibid. Likewise, the rationale, basis, legality and vires of the FI Bill 2022 as well as the amendments to its schedules and annexures and the amendments incorporated Reference No.2/2022 13 through SROs, provided the resolutions are passed by the Sindh and Balochistan Provincial Assemblies and the Bill is passed by the Parliament after following due process, shall be duly enacted as required under the Constitution. And such laws and regulatory measures do not in any manner violate the Constitution or the Law. The Reference is accordingly answered in the aforenoted terms. Sd/- Chief Justice Sd/- Judge Sd/- Judge I agree subject to my clarification that I may not respond to question No.1 to the extent of “public policy.” My detailed reasons shall follow. Sd/- Judge Sd/- Judge Announced in Court on 09.12.2022 Sd/- CJ. APPROVED FOR REPORTING.

SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan REPORT NO.128-K OF 2021 [Report on behalf of Shehri-Citizens Vs. Federation of Pakistan and others] AND REPORT NO.135-K OF 2021 [Regarding KMC Officer Co-operative Housing Society land of abounded KMC Sewage Vs. Federation of Pakistan and others] AND REPORT NO.146-K OF 2021 [Chairman KMC Officer Co-operative Housing Society Owais Qarni Town at Abandoned KMC Sewage Farm Vs. Federation of Pakistan and others] In attendance : Mr. Ayyaz Shaukat, DAG Mr. Fauzi Zafar, Addl. A.G., Sindh Mr. S.M. Saulat Rizvi, Addl. A.G., Sindh (via video link from Karachi) : Mr. Abrar Hasan, ASC Mazhar Khan, Chairman Qazi Mumtaz Iqbal, General Secretary (For KMC Officers Co-operative Housing Society) Mrs. Amber Alibhai, In person Muhammad Iqbal Memon, Commissioner, Karachi Muhammad Shahab Aslam, A.C. Revenue, Karachi Mrs. Azra Muqeem, Legal Advisor, KMC Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Sindh (all via video link from Karachi) Reports No.128-K, 135-K and 146-K of 2021 - 2 - Date of Hearing : 11.01.2022 O R D E R GULZAR AHMED, CJ.- Since partition time, there exists in Karachi a plot of land measuring 1016 acres for Sewage Farm on Manghopir Road, Karachi, popularly known as Gutter Baghicha and the whole of the land is an amenity land and is meant for use of a park in the City of Karachi. This whole plot of land is now almost in the heart of the City of Karachi. The land of Gutter Baghicha belongs to Karachi Metropolitan Corporation (KMC) for developing it as a park and creating other amenities in it. With the passage of time, a certain portion of the land of Gutter Baghicha came to be occupied unauthorizely and it is alleged that some portion of it is occupied by Kachi Abadis while some part of it is occupied by factory or industry. Graveyards also exist on some portion of this land. On some portion of this land there is KDA Treatment Plant TP-I, Incinerator Plant and also Pumping Station. 2. KMC by law is mandated to establish and maintain parks in the City of Karachi and also to ensure that none of the lands meant for such purposes is occupied and encroached upon. KMC seems to have failed in securing the land of Gutter Baghicha measuring 1016 acres and allowed it to be encroached and there also seems to be some illegal allotments on portions of this Gutter Baghicha land. We, however, in the present case, are dealing with grant of 200 acres of land of Gutter Baghicha to KMC Officers’ Co-operative Housing Society Limited (hereinafter called the Society). On 27.12.2021, while Reports No.128-K, 135-K and 146-K of 2021 - 3 - hearing matters relating to Civil Petition No.9 of 2010, which is a petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, it was brought to the notice of the Court that 200 acres of land of Gutter Baghicha, which land is meant for the park for the people of the City of Karachi has been allotted to the Society. On the said date, the Chairman of the Society, appeared before the Court and requested for time to engage a counsel. The Society has filed its Report bearing No.146-K of 2021. 3. We have heard the submissions of Mr. Abrar Hasan, learned ASC on behalf of the Society. We have also heard the submission of Mrs. Azra Muqeem, Legal Advisor, KMC, and also Mrs. Amber Alibhai, who has appeared in person on behalf of Shehri-Citizens for a Batter Environment. 4. In the report filed by the Society, referred to above, it has attached a photocopy of Society letter dated 03.01.1993, addressed to the Minister for Local Government, Sindh, Karachi, wherein the Society has requested for grant of 200 acres of KMC land in KMC Sewage Farm, Manghopir Road, Karachi i.e. Gutter Baghicha labelled as waste land. The letter is signed by one Abdul Hafeez, Chief Promotor of the Society. The Society has filed a copy of Minutes of Meeting held on 06.03.1993 in KMC building under the Chairmanship of the Minister, Local Government, Sindh. In these Minutes on the subject of grant of 200 acres of land to the Society, the Minister, Local Government, appears to have passed an order that 200 acres of waste KMC land at Sewage Form, Manghopir Road, Reports No.128-K, 135-K and 146-K of 2021 - 4 - Karachi (Gutter Baghicha) may be granted to the Society for housing purposes at the rate of Rs.10/- per square yard as Occupancy Value and at the rate of Rs.15/- per square yard as Development Charges. These Minutes are contained in a document dated 09.03.1993 signed by Mohammad Irshad Ahmad, Minister for Local Government, Sindh. The Society again seems to have made an application to KMC Council Secretariat for grant of lease of 99 years, pursuant to the Minutes recorded in document dated 09.03.1993. Giving details for which the land is required i.e. for residential purposes of KMC employees requested that 200 acres of land may be allotted to the Society under Section 45(5)(i) of the Sindh Local Government Ordinance, 1979 (the Ordinance of 1979). The administrator, KMC passed a Resolution No.82 dated 11.03.1993, which is as follows:  � دادرا�٨٢  �ر�١١  چر�١٩٩٣ء  �ارا  � ��ر � ��� �ؤ� ��آ� �آ � �ا � �ا� � ��٩٩  ���د � � �� /ل�/ىا �ا ىڈ �ا � �ادد� � � �� � � ��٩٣ �ر�٩  چر�١٩٩٣ � ء  �� � ت�ر� جرد۔�� �� � ىر� � ھ� �� � ۔� �� � ىر� There is a letter dated 25.07.1993, signed by Muhammad Siddique Dar, Section Officer-VI, Government of Sindh, Local Government, Public Health Engineering and Rural Development Department, addressed to the Municipal Commissioner, Metropolitan Corporation, Karachi on the subject of Grant of 200 Acres of Waste KMC Land in Sewage Farm, Manghopir Road, Karachi (Gutter Baghicha) to the Society. The contents of the said letter are as follows: Reports No.128-K, 135-K and 146-K of 2021 - 5 - “The Municipal Commissioner, Metropolitan Corporation, Karachi. Subject: GRANT OF 200 ACRES OF WASTE KMC LAND IN SEWAGE FARM MANGHOPIR ROAD, KARACHI TO KMC OFFICER’S CO-OPERATIVE HOUSING SOCIETY. Reference your letter No.SDLE/6335/93, dated 29- 5-1993, on the subject noted above. 2. In exercise of powers conferred by section 45(5)(1) of the Sindh Local Government Ordinance, 1979, Government of Sindh are please to accord approval to the KMC Council Resolution No. 82, dated 11-3-1993, regarding allotment of 200 Acres of Waste KMC land in Sewage Farm Manghopir Road Karachi in favour of KMC Officer’s Co-op. Housing Society for allotment to its registered members, at the rate of Rs.10/- per sq. yard occupancy value plus development charges at the rate of Rs.15/- per sq. yard, for residential purpose, on 99 years lease basis, on the terms and conditions specified in the above resolution. SD/- (MUHAMMAD SIDDIQUI DAR) SECTION OFFICER-VI For Secretary to Government of Sindh” 5. The letter is signed by Section Officer for Secretary to Government of Sindh. The letter also does not mention that it is issued under the direction of the competent authority rather the Section Officer himself has accorded approval of Government of Sindh which is not legal as Section Officer is not shown to have power to accord approval of the Government of Sindh. 6. The said letter mentions that in exercise of powers conferred by Section 45(5)(i) of the Ordinance of 1979, the Government of Sindh is pleased to accord approval to KMC Council Resolution No.82 dated 11.03.1993 regarding allotment of 200 acres of waste KMC land in Sewage Form, Manghopir Road, Karachi (Gutter Baghicha) to the Society for allotment to its registered members at the rate of Rs.10/- per square yard occupancy value plus development charges at the rate of Reports No.128-K, 135-K and 146-K of 2021 - 6 - Rs.15/- per square yard for residential purposes on 99 years lease basis. It seems that some payments in respect of the land were deposited. On 03.08.1993, an allotment letter seems to have been issued by KMC of the said 200 acres of land to the Society. On the same day i.e. 03.08.1993, handing and taking over of possession was also made. On 11.08.1993, lease of the land was also signed and executed by KMC in favour of the Society and it was also registered. The Society appears to have prepared a layout plan in which it has provided plots of land for residential and commercial purposes. The Society, apparently, has made allotment of the plots to its members i.e. the employees of KMC. 7. The learned counsel for the Society, in the first place, has contended that the plots have been allotted by the Society to KMC retired employees. We have asked the learned counsel to show whether the Society is for the retired employees of KMC, he admitted that the Society is not meant for the retired employees but of serving employees of KMC. The learned counsel further contended that in some cases the plots are in the name of widows of KMC employees. We have asked the learned counsel for the Society to show under what mandate of law KMC or the Sindh Government or the Minister of Local Government, Sindh, has granted the land to the Society. The learned counsel referred to provision of Section 45(5) clause (i) of the Ordinance of 1979. The learned counsel also contended that the Society has filed a Civil Suit in the High Court of Sindh Reports No.128-K, 135-K and 146-K of 2021 - 7 - in which it has obtained a stay order in respect of the land in question. 8. The legal Advisor, KMC has referred to Rule 10 of the Sind People’s Local Council (Land) Rules, 1975 (the Rules of 1975) to contend that the land in question was rightfully leased out to the Society. On the other hand, Mrs. Amber Alibhai relying upon Report No.128-K of 2021 contended that the whole of the land of KMC Sewage Form, Manghopir Road, Karachi known Gutter Baghicha measuring 1016 acres is meant for a park for the City of Karachi and could not be allotted by KMC to its own employees for housing and commercial purposes and such grant/allotment/ lease is wholly illegal and prayed that the land allotted, granted and leased to the Society may be retrieved. 9. As noted above, the learned counsel for the Society has placed complete reliance on Section 45(5)(i) of the Ordinance of 1979 to support the grant/allotment/lease of 200 acres of land to the Society. Section 45 of the Ordinance of 1979 is as follows: “45. Contracts.- (1) Every council shall, within the budget grant, be competent to enter and perform all such contracts as it may consider necessary or expedient in order to carry into effect the provisions and purposes of this Ordinance. (2) All contracts made by or on behalf of a council shall be :- (a) in writing expressed to be made in the name of the council; and (b) reported to the council by the Mayor or, as the case may be, Chairman, at the meeting next following the execution of the contract. Reports No.128-K, 135-K and 146-K of 2021 - 8 - (3) All contracts shall, subject to the rules, be entered into after inviting competitive tenders or quotations: Provided that tenders or quotations involving expenditure exceeding such amount as may be prescribed shall be invited by a notice in a newspaper; Provided further that in case the lowest tender or quotation is not accepted, the authority competent to grant the contract, if other than the council, shall lay down in writing, and if the council itself, shall express in the resolution approving the tender or quotation, the reasons for not accepting the lowest tender or quotation. (4) All contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property or for leasing out rights to collect taxes shall, subject to the rules be entered into after inviting offers in an open auction : Provided that if the highest bid is not accepted by the council, approval in writing of Government shall be obtained, and Government shall, in its order give reasons for not accepting the highest bid : Provided further that a council may with the approval of Government enter into a contract without inviting offers in auction. (5) Notwithstanding anything contained in sub-section (4) its council may grant, sell, or lease out land at rates to be fixed in consultation with Government, to :- (i) Associations, organisations, individuals or any department or institution of the Federal or a Provincial Government for establishing, maintaining or extending education, religious and charitable institutions or for such other purposes for the benefit of the public, subject to the condition that if the land is not used for the purpose it was granted, the council may, after affording such association, organization, individual or department or institution, as the case may be, an opportunity to show-cause against the proposed action, resume such land alongwith structures, if any without any compensation; Reports No.128-K, 135-K and 146-K of 2021 - 9 - (ii) land holders for adding to their holdings, alignments or small plots of not more than forty square yards at the market price likely to be obtained in auction; (iii) holders of lease for twenty years or more after the expiry of the lease, on the same terms and conditions. (6) Government may subject to the other provisions of this ordinance, make rules laying down the procedure to regulate the making of contracts and the execution thereof. (7) No contract executed otherwise than in conformity with the provisions of this Ordinance shall be binding on the council.” The reading of this provision shows that it deals with the matters relating to the Contracts. Sub-section (5)(i) of the above Section provides that notwithstanding anything contained in sub-section (4) its council may grant, sell, or lease out land at rates to be fixed in consultation with the Government, to associations, organisations, individuals or any department or institution of the Federal or a Provincial Government for establishing, maintaining or extending education, religious and charitable institutions or for such other purposes for the benefit of the public, subject to the condition that if the land is not used for the purpose it was granted, the council may, after affording such association, organization, individual or department or institution, as the case may be, an opportunity to show-cause against the proposed action, resume such land alongwith structures, if any without any compensation. It is apparent from the reading of this provision that it speaks of grant/sell/lease of the land to associations, organizations, individuals or any department or institution of the Federal or a Provincial Government and the purpose is also given that is for Reports No.128-K, 135-K and 146-K of 2021 - 10 - establishing, maintaining or extending educational, religious and charitable institutions. 10. The learned counsel for the Society has contended that this provision also contains that the land could be used for such other purpose also. We note that though “for such other purpose” is mentioned in the provision but it is also written that such other purposes for the benefit of the public. It was also noted that the words for such other purposes can only be read in ejusdem generis, in that, it has meaning confined to its earlier words that are educational, religious and charitable purposes. The land of 200 acres have been granted/allotted/leased by KMC to the Society for use of housing purposes of its own employees and also as the layout plan shows for commercial purposes. This provision of law does not at all provide that the Council could grant, sell or lease the land of KMC to its own employees for housing and commercial purposes. The land which is allowed to be granted, sold or leased, in the first place is to associations, organizations, individuals or any department or institution of the Federal or a Provincial Government and that too for establishing, maintaining or extending educational, religious and charitable institutions and for such other purposes for the benefit of the public. Obviously, the allotment of land for housing and commercial purposes to the employees of KMC will not be that for the benefit of the public. Thus, reading of the provision of Section 45(5)(i) ibid did not at all provide for Reports No.128-K, 135-K and 146-K of 2021 - 11 - grant/allotment/lease of a land to the Society for allotment to the employees of KMC. 11. The Legal Advisor of KMC has referred to Rule 10 of the Rules of 1975, which reads as follows: 10. Leasehold right to Co-operative Housing Societies.—(1) A Council shall prepare a general lay out of the areas to be granted to Co- operative Housing Societies dividing the area in blocks and the blocks in plots. (2) Such lay out shall specify the purpose for which the plots shall be used, the class of buildings to be constructed on such plots and the order in which the construction of such buildings on different plots in each block shall commence. (3) The Council shall, with the approval of Government, prepare a schedule showing the occupancy value per square yard for each block and for each plot in such block except the plots, if any, reserved for providing amenities for the residents of the block. (4) Subject to these rules such blocks shall be leased to the Co-operative Housing Societies on payment of a deposit equal to twenty per cent. of the occupancy value and ground rent for one year in advance for such blocks. (5) The balance of the occupancy value and rent shall be paid by the Society in the manner as may be specified by the Council. (6) The lease shall be for a period of ninty- nine years, commencing from the date of the payment of full occupancy value of the plot. (7) Where the Co-operative Housing Society has completed the buildings on all the residential plots in a block in accordance with the rules, terms and conditions of the lease and bye-laws, it shall, be entitled to a lease for the same period of the plots reserved, if any, for providing amenities for the residents of the block free of ground rent but where the Society has failed to commence or complete buildings as aforesaid the plots reserved for providing amenities shall not be lease out to the Society and the same shall be disposed of in any manner as the Council may deem fit. Reports No.128-K, 135-K and 146-K of 2021 - 12 - (8) Where more than one and Society applies for any particular block or blocks, such block or blocks shall be leased by drawing lots. (9) Where the Society fails to fulfill the terms and conditions of the lease or fails to carry out development of the land, the Council shall be competent to carry out the development and grant direct leases to the allottees/members of the Society; provided that such allottees/members have paid full occupancy value and development charges incurred by the Council.” So far Rule 10 of the Rules of 1975 is concerned, we note that Rule 3 thereof provides that the lands shall vest in a Council. Clause (b) thereof provides that all lands shall include open spaces, playgrounds, gardens, parks and other places of public resort belonging to the Council or transferred to it by Government or reserved or acquired by it, by gift, purchase or otherwise. Under Rule 7 of the Rules of 1975, the Council has been given power to lease out land for constructing buildings for residential and commercial purposes. Rule 8 of the Rules of 1975, provides that sale of the Council land shall be made by public auction on payment of full occupancy value. Rule 10 of the Rules of 1975 provides a Council to prepare a general lay out of the areas to be granted to Co-operative Housing Societies dividing the area in blocks and the blocks in plots and also to lease the blocks to the Co-operative Housing Society. 12. In the first place, we note that the land of Gutter Baghicha is not a building site on which construction of building of residential and commercial purposes can be made, for that, the whole land of Gutter Baghicha is an amenity land and can only be used for amenity purpose that of park. The Reports No.128-K, 135-K and 146-K of 2021 - 13 - leasehold right of amenity plot cannot be granted to a Society nor any such thing is provided in Rule 10 of the Rules of 1975, cited before us. 13. Thus, Rule 10 of the Rules of 1975, as relied upon by the Legal Advisor of KMC, has no application to the case in hand and cannot protect the grant/allotment/lease of land under the provision of Section 45(5)(i) of the Ordinance of 1979 and once the Ordinance of 1979 itself cannot support such grant/allotment/lease, the same could not be saved by the Rules, as the Rules have to be consistent with the law under which the Rules are made. 14. An overall examination of the case and the law referred to by the learned counsel for the parties, we note that KMC or the Council or the Government of Sindh or the Minister of Local Government, Sindh were not empowered to grant 200 acres of land of Sewage Form, Manghopir Road, Karachi (Gutter Baghicha) to the Society, as neither the law allowed such grant or allotment or sale of the land to the Society for the purpose of KMC employees housing and commercial use; as such, land as noted in the very provision is to be used for establishing, maintaining or extending educational, religious and charitable organizations and for the benefit of public. Thus, from inception the Society has wrongly claimed the land granted to it under the provision of Section 45(5)(i) of the Ordinance of 1979 and the very grant made under this very provision by the Administrator/Council or the Government of Sindh is totally Reports No.128-K, 135-K and 146-K of 2021 - 14 - against the law and could only be considered as illegal but void exercise. 15. During the course of hearing of this matter, the Secretary of the Society has admitted that though allotment has been made to the employees of KMC but no housing or any commercial building has been constructed on the land up till now. During the course of hearing, learned counsel for the Society has admitted that the terms and conditions of KMC employees does not mention that they would be entitled to grant of land by KMC for their houses. 16. We are of the considered view that the grant/ allotment/lease of 200 acres of land at Sewage Farm, Manghopir Road, Karachi (Gutter Baghicha) to the Society was altogether illegal and not supportable by law and void ab initio. 17. We, therefore, hold and declare that the grant of 200 acres of land by the Minister, Local Government, Sindh contained in the Minutes of Meeting dated 06.03.1993 mentioned in document dated 09.03.1993, the approval of the Government of Sindh vide letter dated 25.07.1993, the letter of allotment dated 03.08.1993, the letter of possession dated 03.08.1993 and the lease deed dated 11.08.1993, are all contrary to law, illegal and thus, set aside, resultantly, all consequential allotments made by the Society to its members are also declared to be contrary to law and illegal and the same are also set aside and cancelled. 18. The Administrator, KMC is directed to resume the land immediately and to utilize it for the amenity purposes that Reports No.128-K, 135-K and 146-K of 2021 - 15 - of park for which it is meant. The Administrator shall submit its report to the Court of showing compliance of the Court order within two weeks. 19. All the reports are disposed of. CHIEF JUSTICE Special Bench-I Islamabad 11.01.2022 ‘APPROVED FOR REPORTING’ Mahtab/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Nasir-ul-Mulk, HCJ Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam Civil Appeal No.1000 of 2006 Against judgments dated 26.04.2006 of High Court of Sindh at Karachi, passed in HCA No.329, of 2005. National Logistic Cell Appellant(s) VERSUS Irfan Khan & others Respondent(s) For the Appellant(s): Mr. Anis-ud-Din, ASC Mr. Rifaqat Hussain Shah, AOR For Respondents#1-3: Mr. Nasir Maqsood, ASC For Respondents#4-6: Ex-parte Date of Hearing: 30.01.2015 JUDGMENT Mushir Alam, J-. This appeal is directed against judgment dated 26.04.2006, whereby a learned Division Bench of High Court of Sindh at Karachi dismissed the appeal (HCA No.329 of 2005), filed by the appellant-NLC, with slight modification in the judgment & decree of 16.05.2005 passed in Suit No.612 of 1994. 2. Facts of the case appear to be that the deceased Sher Azam Khan, a driver on PIA Van on the fateful day i.e. 11.04.1993 was on his way from Karachi Airport towards City to drop the crew members to their homes, when he reached near Muhammad Ali Housing Society, at about 5.30 A.M early in the morning, all of a sudden one NLC Trailer, appeared in a rash and negligent manner from the opposite side, in a bid to overtake other vehicles, dashed into the PIA van causing severe accident that took the life not only of the driver Sher Azam Khan but, of the three air hostesses as well. Civil Appeal No.1000 of 2006 2 3. Respondents No. 1 to 3, all minors of 2 to 6 years at that time, through their mother being legal heirs of the deceased driver on 09.08.1994 filed a suit bearing No.612/1994 under the Fatal Accident Act, 1855 for the recovery of compensation in the sum of Rs.35,00,000/- against the appellant-NLC, its driver Naik Muhammad Arif, (driver of offending NLC-trailer), Respondent No.5 herein, and Karachi Development Authority (succeeded by City District Government (CDGK/KDA)), Respondent No.6 herein, and another. It was the case of Respondents No.1 to 3 that the road repairing work of one track of Shahrah-i-Faisal was being carried out by the KDA; on the track meant for vehicular traffic flowing from Karachi Airport towards the City, which was closed for vehicular traffic. Other track was being used by the traffic of both ways. Case against the CDGK/KDA as pleaded in the plaint was that as an executing agency for the road repair, the KDA neglected to take due care to install any caution signs, nor they installed any bifurcating device, as is required of an ordinary prudent person, thus defaulted in performance of their duty that also contributed in the unfortunate accident that took lives of four persons. 4. Suit was contested by the defendants, written statements were filed. Out of the pleadings of the parties, following issues were framed:- “1. Whether the death of the deceased Sher Azam Khan was caused by the composite negligence and wrongful act of the defendants, if so, its effect? 2. Whether the defendants are liable to pay the compensation to the plaintiffs and other legal heirs, if so, to what extent?” 5. To substantiate the claim in the suit, Mst. Naseem Akhtar, widow of the deceased driver and, mother of the minor plaintiffs, examined herself as EX.P/1, and produced various documents to prove the accident. She also examined an eyewitness of the accident namely Muhammad Ihsanul Haq EX.2/1, Muhammad Iqbal, ASI of Police Station Bahadurabad, as EX.P/3, who produced inspection report, site sketch of the place of incident, etc and Abdul Razzak Shaikh, Accountant of PIA to prove employment of the deceased with PIA and his emoluments. All the witnesses corroborated the plea of the Plaintiff, as to the factum of accident, negligence of the NLC driver and non provision of warning Civil Appeal No.1000 of 2006 3 and cautionary measures by the CDGK/KDA and quantum of damages and liability of the defendants. 6. The appellant-NLC and Respondent No.5 cross- examined the plaintiff’s witnesses but were unable to shatter the case of Respondents No.1 to 3 on any count. They chose not to lead any evidence in rebuttal and or in support of their defense plea of contributory negligence on the part of deceased driver or sole responsibility of the KDA/Respondent No.6 for failing to perform public duty. Likewise, KDA/Respondent No.6 neither cross- examined the Plaintiff, her witnesses nor led any evidence in rebuttal that they had not taken any precautionary measures to warn public of any road diversion and or repair, etc nor did they advance any argument either before the Courts below or before this Court. 7. On preponderance of the evidence, issue No.1 was decided in favour of the Respondents No.1 to 3 and against the Appellant-NLC, as well as rest of the respondents. Finding against the CDGK/KDA, is contained in paragraph 13 of the judgment dated 16.05.2005 of the learned Single Judge, who in Chambers after in- depth examination of evidence on issue No.1 concluded as follows:- ““13. from the above evidence it is clear that one side of Shahra-i-Faisal road was being repaired by the defendants No.4 through contractor therefore it was closed for traffic. The traffic was diverted to the other side of the road. Under the circumstances the defendants No.4 were required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights with standby generators, diversion signboards fixed on either end of the intersections of the road, also barricades and flicker lights in the middle of the road for smooth flow of the traffic on the road and for the guidance of the dual traffic on one side of the road and should have also deployed traffic constables on the road. The eyewitness Muhammad Ihsanul Haq clearly admitted that no such signs or lights were available on the road for the guidance of the traffic. The evidence of the witness went unchallenged as the defendants No.4 did not cross- examine him on the above points of his evidence nor the defendants No.4 that defendants Nos.4 and 2 are also liable to pay compensation.” 8. As regards the factum of accident, negligence, liability of the Driver/Respondent No.5 and vicarious liability of the Appellant- NLC., there was no serious contest nor, any evidence was led in rebuttal to the case of Respondents No.1 to 3. Evidence of the star eyewitness of the accident Muhammad Ihsanul Haq EX.2/1, who Civil Appeal No.1000 of 2006 4 was driving another PIA van just behind the ill-fated van and had witnessed the accident within his sight had not only gone unchallenged but, the Appellant-NLC, as noted above, also failed to adduce or lead any evidence in rebuttal even the driver of the of offending NLC Trailer was also not produced. 9. On the strength of evidence on record, the Appellant- NLC, the Respondent No.4, Respondent No.5 (Driver of offending vehicle) and the Respondent No. 6 CDGK/KDA, were held jointly liable for the accident. The learned Single Judge in paragraph 15 of his judgment dated 16.05.2005, found them liable in the following terms:- “15. From the above position it is clear that the defendants No.4 and defendants Nos. 2 and 3 were negligent and the accident took place due to their negligence therefore it is a case of normally styled in the legal parlance as composite negligence. The principles of composite negligence are that the victim has a choice of proceeding against all or any one or more than one of the wrong doers and every wrong doer are liable for the whole damages if it is otherwise made out. Reliance is placed on Andhora Marine Exports {P} Ltd. V. P. Radhakirshina. AIR 1984 Madras 358 and Vanguard F. & G.I. Co. V. Sarla Devi, AIR 1959 Punjab 297.” 10. Consequently, issue No.2 as to quantum of liability was also decided in favour of the Plaintiffs/Respondents No.1 to 3 and against the Appellant, and rest of the Respondents. They were jointly and severally held liable to the Respondents No.1 to 3 in the sum of Rs.27,o97,43.62/- with profit/mark up at rate of 15% per annum from the date of judgment till recovery of the amount with costs. The amount of compensation so decreed also included compensation of Rs.300,000/- for each of the minor plaintiff. 11. This judgment was challenged by the Appellant-NLC only, through High Court Appeal No.329 of 2005 and a learned Division Bench of the High Court maintained the judgment and decree with modification and the additional compensation awarded to the minor children of the deceased at Rs.300,000/- per child, which was considered to be on higher side, was revised to Rs.100,000/- per child. Hence, this appeal. 12. Learned ASC for the appellant took serious exceptions to the impugned judgment passed in the High Court Appeal. It was Civil Appeal No.1000 of 2006 5 contended that the accident occurred due to sheer negligence of Respondent No.6 KDA/CDGK, who failed to perform its public duty, in as much as, it failed to install dividers as ought to have been done, they failed to take due care as an ordinary prudent person would have taken. It was urged that death of the deceased was caused by actionable negligence, default and wrongful act of the KDA/CDGK. It was urged that if at all, the suit should have been decreed against the respondent No.6 KDA/CDGK which was mainly responsible for the accident and not against the Appellant-NLC. According to the learned ASC, the Appellant cannot be saddled with the liability for the neglect in performance of duties by the CDGK/KDA, which was responsible to carry out repair and maintenance of the road, and while repairing work was underway, it was their duty to take all precautionary measures for the diversion of the traffic, putting dividers and installing warning lights, signs and other safety measures as a person of an ordinary prudence would have taken, had such measure been taken accident could be averted. 13. Mr. Nasir Maqsood, learned counsel for the respondents No.1 to 3 contended that there is no denial of the unfortunate accident that took the life of sole bread earner of Respondents No.1 to 3. He has drawn our attention to the evidence of Mst. Naseem Akhtar, EX.P/1 widow of the deceased driver, who in response to a suggestion in cross examination stated that “As matter of fact the accident took place on account of negligence on the part of defendant No.4 (CDGK/KDA), as well as defendant No.2 i.e. the appellant herein (NLC). He also drew attention of the Court to the deposition of eyewitness of the incident, Muhammad Ihsanul Haq (Ex 2/1), who was driving another PIA Van and was just behind the ill-fated Van of the Sher Azam Khan since deceased, had categorically stated “that the vehicle driven by the defendant of the NLC emerged from the wrong side in a high speed and collided with Van of deceased and hit him resulting into the death of driver and three Airhostesses as well”. His testimony on such a vital aspect proving negligence of the Driver of the Appellant had gone rebutted. 14. Mr. Nasir Maqsood, learned ASC contended that the Appellant cannot shift its burden on the shoulder of other wrongdoer/tortfeasor. It was urged that it is a case of joint or Civil Appeal No.1000 of 2006 6 composite negligence, Appellant is vicariously liable for the wrongful act of its driver; they cannot be totally absolved of their liability, which is joint and several with driver/Respondent No.5 and the Civic Agency namely CDGK (KDA)/Respondent No. 6 herein who were also negligent and failed to take due care and caution as is expected from a person of an ordinary prudence. He further urged that the driver of the offending vehicle was not produced by the Appellant, withholding such an important witness and wrongdoer by the Appellant, negative inference is to be drawn. It was, therefore, contended that the Appellant and Respondents No.4 to 6 are jointly and severally liable for the composite negligence, which resulted in loss of valuable life of the deceased driver. He relied on a large number of cases from Pakistan and Foreign jurisdiction, including the one reported as Karachi Transport Corporation v. Latif-Ur- Rehman and others (1993 SCMR 1149) to urge that Courts have invariably deprecated the trend prevailing with the public functionaries, of contesting and prolonging the fatal accident cases, denying the bereaved families of their due rights and compensation, by raising frivolous pleas and dragging the citizens to highest Courts in appeals on frivolous and untenable grounds, thus adding salt to the injury of such persons. 15. We have heard the arguments and perused the record. We have noted that the accident that took life of the driver of PIA Van was caused due to the negligence of the Respondent No.5/driver of the appellant-NLC coupled with negligence of CDGK/KDA for failure to take precautionary and preventive measures to avert any untoward happening. In fact, the appellant on one hand not only failed to cross examine any of the Plaintiff’s witness on material aspect of the case and secondly failed to lead any evidence to rebut the claim in suit and lastly, in the instant Appeal the Appellant-NLC have tried to shift the entire blame of the accident and of the liability to compensate on Respondent No.6 CDGK (KDA) alone. Both the learned Single Judge in Chambers and the learned Division Bench have appreciated the evidence. Suit was decreed in the sum of Rs.27,09,743.62/- jointly and severally with profit/markup at the rate of 15% per annum from the date of judgment till the recovery. The compensation included Rs.300,000/- for each of the three minors. In Appeal, however, the learned Division Bench on proper Civil Appeal No.1000 of 2006 7 consideration modified the judgment and decree to the extent of revising the compensation from Rs. 300,000/- to Rs. 100,000/- for each of the three then minor plaintiffs and such finding of fact is based on proper appraisal of the evidence on record. No error of misreading or non reading of the evidence has been pointed out by the learned counsel for the appellant. 16. Now adverting to the contentious assertion of the learned ASC for the Appellant that the Respondent No.6 CDGK (KDA) is solely responsible for the unfortunate incident, therefore, suit should have been decreed against such Respondent alone. Arguments were considered. As regards joint and several liabilities of two wrongdoers namely the NLC/Appellant and the driver of NLC offending trailer and KDA/CDGK, the Civic Agency responsible for the repair work, they were held liable by the learned Single Judge, who aptly dealt with the contention as raised before us thoroughly in paragraph 15 of the impugned judgment, reproduced hereinabove. 17. Finding against the CDGK (KDA), Respondent No.6, the agency for executing road repairs is as follows; ““13. from the above evidence it is clear that one side of Shahra-i-Faisal road was being repaired by the defendants No.4 through contractor therefore it was closed for traffic. The traffic was diverted to the other side of the road. Under the circumstances the defendants No.4 were required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights with standby generators, diversion signboards fixed on either end of the intersections of the road, also barricades and flicker lights in the middle of the road for smooth flow of the traffic on the road and for the guidance of the dual traffic on one side of the road and should have also deployed traffic constables on the road. The eyewitness Muhammad Ihsanul Haq clearly admitted that no such signs or lights were available on the road for the guidance of the traffic. The evidence of the witness went unchallenged as the defendants No.4 did not cross- examine him on the above points of his evidence nor the defendants No.4 that defendants Nos.4 and 2 are also liable to pay compensation.” 18. There is no statutory definition of the word “negligence”. However, in Oxford Dictionary (Volume-VII of 1933), it is defined to mean “(1) want of attention to what ought to be done or looked after; carelessness with regard to one’s duty or business; lack of necessary or ordinary care in doing something; (2) an instance of inattention or carelessness; a negligent act, omission, Civil Appeal No.1000 of 2006 8 or feature; and (3) a carless indifference, as in appearance or costume, or in literary or artistic style; in later use esp. with suggestion of an agreeable absence of artificiality or restraint” and in Black’s Law Dictionary (Ninth Edition), it is defined as “failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others’ rights”. In claims arising out of wrongful or tortuous act, most common defence taken by the tortfeasor or wrongdoer is against the injured or the victim of tortuous act, is contributory negligence on the part of such person who has suffered loss, injury or fatality has himself failed to take due care that has resulted and or contributed to the loss, injury or fatality to such person or his property (for further discussion on contributory negligence one may see Ena Pearl Nance v. British Columbia Railway PLD 1951 PC 47) . In appeal in hand, the appellant has not blamed the deceased driver of the contributory negligence rather they have tried to shift the liability of negligence on the CDGK/KDA, which according to the learned ASC for the appellant, failed to perform its duty of care as is required to be taken by person of an ordinary prudence, in as much as, while undertaking road repair or maintenance work no precautionary measures were taken, no warning signs were affixed, at the site of work, to caution commuters that could have averted the unfortunate incident. 19. Plaintiffs/Respondents No.1 to 3 have claimed damages from the Appellant being vicariously liable for the act of its driver and against the CDGK/KDA, jointly and severally and had built up a case of joint or composite negligence. By composite negligence, it means where the wrong, damage or injury is caused by two or more persons, in such cases each of the wrongdoer is jointly and severally liable to make good the loss to the claimant who suffered at the hands of such tortfeasors. It is the prerogative of the plaintiff to proceed against any or all such wrongdoers. It is not the plaintiff who is saddled with responsibility to establish separate liability against each of the tortfeasor nor is it considered the responsibility of the Court to ordinarily determine liability of each tortfeasor Civil Appeal No.1000 of 2006 9 separately, proportionately and or independently in absence of any such issue at the trial. The distinction between ‘composite negligence’ and contributory negligence’ was aptly noted in the case referred to as T.O. Anthony vs. Karvarnan & Ors (2008) 3 SCC 748 as affirmed in the case of Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. [2014 (3) SCC 590]. It was laid down by the Indian Supreme Court that ‘composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly or severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. On the other hand, where a person suffers injury, partly due to his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. 20. Instant case is not a case of contributory negligence on the part of deceased driver but, of joint/composite negligence of two wrongdoers. In a case where plaintiff sues a civic agency or a person for its failure or neglect to perform its duty of care resulting any damage to his person and or property, initial burden is on the Plaintiff to plead and show such negligence and failure to perform duty of care by such person or agency. In the instant case, it is noted that Plaintiff herself and through her witnesses established that CDGK/KDA failed to perform its duty of care as there was no light and or cautionary signs forewarning or putting commuters on lookout of any potential hazard nor, any divider or fence was placed to make road travel safe for the commuters. 21. In a case reported as Municipal Corporation of Delhi v. Sushila Devi (AIR 1999 SC 1929) a person passing by the road died because of a fall of branch of a tree standing on the road, on his head. The Municipal Corporation Delhi was held liable as its Horticultural Department failed to carry out periodical inspections of trees and to trim and or remove the out grown/dried branches of tree protruding or hanging out that could be dangerous for the passers-by, failure and or neglect to perform such duty was Civil Appeal No.1000 of 2006 10 considered sufficient to make them liable to compensate the family of bereaved passerby. In another case reported as Municipal Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750); a clock- tower in the heart of Chandni Chowk, collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-50 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, held liable. In a case reported as Madhu Kaur Vs Government of N.C.T. of Delhi and another (AIR 2010 (NOC) 395 Del (full text of judgment may be retrieved from link http://indiankanoon.org/doc/181916184/). In last cited case, it had come on record that tarcol and concerts on the road surface were badly eroded, which had created a pit (khadda) of about 3 to 4 inch deep and about one square foot in area on the road. The investigation revealed that the motorcyclist when struck the pit fell and succumbed to multiple skull injuries. It was held by the Court that failure on the part of the State authorities to maintain road & display caution notice in respect of a pit created on surface of road amounts to negligence. It is the duty of the State to see that contractor performs assigned work properly, and accordingly the State was held liable to pay compensation. In Paragraph 16 of the cited case, it was held as under:- “The respondent authorities should be conscious and aware of their duty to maintain roads and ensure that the road surface does not have any pits or khada so as to cause accidents, thus resulting in injuries and even loss of life. It is the obligation and responsibility of the road owning agencies to ensure that the roads are maintained properly and repairs undertaken. Even if they have entered into third party contracts for road maintenance, road users should not suffer injuries fatal or otherwise because of lack of maintenance, proper care and repairs. In case road is found to be damaged, necessary caution board/sign boards or barricades should be fixed. In case accidents take place as a result of negligence and failure to maintain roads, damages can always be awarded to persons who have suffered or lost a near and dear one. Loss of life because of negligence of state instrumentalities results in violation of right to life and liberty under Article 21 of the Constitution”. 22. In the instant case as well, the Plaintiff led evidence to establish that the accident was caused by the wrongful act of the Driver of Appellant-NLC, thus it was vicariously liable. Evidence was further led to show that the CDGK/KDA contributed in the unfortunate accident as they neglected in performance of their duty Civil Appeal No.1000 of 2006 11 of care to display any cautionary signs, warring lights cautioning commuter of the closure of one track and or divergence of traffic and, further failed to put fences, barricade or dividers making it safe for the two way traffic on the same track of the road, such evidence had gone unchallenged. As noted above, it is not the Plaintiff’s concern as to assess and seek inter-se proportionality of wrong and or liability of each of the tortfeasor, nor does the Court ordinarily enter into such controversy, in absence of any issue, necessitating such determination between the joint tortfeasors inter-se. In case of composite negligence by two or more persons each of the tortfeasor is jointly and severally liable to make good the loss to the persons who have suffered loss of beloved one or suffered injury or damage to his person or property. It does not lie in the mouth of one of the joint tortfeasor to turn around and shun his liability and pass on the entire liability on the other joint tortfeasor/wrong doer (See Irfan Khan v Islamic Republic of Pakistan 2005 MLD 1409, Marine Exports (P) Ltd. V.P.Radhakrishan and others AIR 1984 Mad. 358). It is the prerogative of the Plaintiff, who has suffered loss or injury to recover the entire amount from either or any of the solvent tortfeasor, who may in turn seek recovery of proportionate or whole amount from the other tortfeasor in appropriate proceedings, after making good the compensation to the decree holder. 23. For what has been discussed above, we do not find any substance in the contentions of the learned counsel for the appellant- NLC to interfere in the well reasoned finding recorded by the learned Court of plenary jurisdiction and as maintained in the High Court Appeal through impugned judgment dated 26.4.2006. 24. The appeal is accordingly dismissed with costs throughout. Chief Justice Judge Judge ISLAMABAD, THE 30.01.2015 Not Approved For Reporting

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL APPEAL NO.1000 of 2020 [Against the judgment dated 22.06.2020, passed by the High Court of Sindh, Karachi in C.P.No.D-253 of 2015] Chairman National Accountability Bureau through Prosecutor General Accountability, NAB Headquarters, Sector G-5/1, Islamabad …Appellant (s) Versus Faraz Ahmed Sherwani son of Afroz Ahmed Sherwani and others. …Respondent(s) For the Appellant(s) : Mr. Imran ul Haq, Deputy Prosecutor General, NAB Mr. Muhammad Sharif Janjua, AOR For Respondents No.1-2 : Mr. Muhammad Shoaib Shaheen, ASC Date of Hearing : 09.06.2021 O R D E R GULZAR AHMED, CJ.- The Respondents No.1 & 2 (the respondents) were initially appointed as Regular Stenographers (BPS-15) vide Notification dated 29.07.2004 by the appellant. The Finance Division, Government of Pakistan issued Office Memorandum dated 23.12.2011, by which the post of Stenographer was up-graded from BPS-15 to BPS-16. The benefit of such Office Memorandum was given to the respondents and they were up-graded in BPS-16 vide Notification dated 31.07.2012. In the meantime, the respondents were promoted to CIVIL APPEAL NO.1000 of 2020 - 2 - the post of Personal Assistant (BPS-16) with effect from 27.06.2012 vide Notification dated 05.07.2012. The Respondent No.2 along with one Jawaid Ali Panhwar filed a Constitution Petition No.2056 of 2013, in the High Court of Sindh at Karachi (the High Court), in which prayer was made that the respondents/petitioner be granted promotion in BPS-16 with effect from 31.05.2007, when the vacancies became available and till such time the respondents be restrained from holding Departmental Promotion Committee (DPC) for grant of promotion and also prayed that the post of Personal Assistant be up-graded as done in the case of Private Secretary, Stenographer and Steno- typist. Para-13 of this very Constitution Petition, the respondents/petitioners have alleged as follows: - “That it may be submitted that six posts of Private Secretary (BPS-17) remained vacant for filling up through 100% promotion quota amongst Personal Assistant (BPS-16) in NAB. But despite promotions to the post of (BPS-17) from amongst the officers of NAB & Regional NAB's, the Departmental Promotion Committee constituted on 06.02.2013 in NAB HQ Islamabad did not follow the method of promotion shown in the NAB TCS. These vacant posts have been filled amongst the 4 X Personal Assistant (BPS-16) and 2X Stenographer (BPS- 16) without any legal/ cogent reason by way of promotion vide Notification dated 08.02.2013, due to which the Personal Assistants (BPS-16) including the Petitioners have suffered grave injustice besides huge financial loss on the one hand and have lost their seniority on the other hand. The method of promotion for Stenographers to Personal Assistant and CIVIL APPEAL NO.1000 of 2020 - 3 - Personal Assistant to Assistant Director/Private Secretary should have been followed in accordance with the NAB TCS which has not been done in the instant promotion case. Hence, the whole process has become illegal, arbitrary and discriminatory qua the fundamental rights of the affected persons including the Petitioners have been violated.” 2. This very Constitution Petition was disposed of by the High Court of Sindh vide its order dated 11.12.2013 with observations as follows: - The case of the petitioners is that they were promoted as Stenographers/Personal Assistants and are performing their duties in BPS-16. The petitioners are claiming that the Respondents No.5 and 6 were juniors to them in service, but in the DPC they have been considered and promoted to the posts of Private Secretaries/Assistant Directors in BPS-17. It is further alleged by the learned counsel for the petitioners that the petitioners were promoted from the post of Stenographers to the Personal Assistants, while the Respondents No.5 and 6 were promoted from the post of Stenographers/Personal Assistants to the post of Private Secretaries/Assistant Directors. The petitioners prayed that they may be treated at par and may not be discriminated while they are also serving with the Respondent No.1 for the last several years. Mr. S. Amjad Ali Shah, Special Prosecutor for NAB/Respondents No.1 to 4 as well as Mr. Muhammad Asif Mangi, learned Standing Counsel both have contended that the case of the petitioners will be considered in the next CIVIL APPEAL NO.1000 of 2020 - 4 - DPC and if they will be found eligible, they will be promoted on the basis of their performance and previous ACRs and they will be treated alike with the Respondents No.5 and 6. Upon such statement, learned counsel for the petitioners are satisfied. This petition is disposed of with the directions to the Respondents No.1 to 4 to consider the case of the petitioners in the next DPC.” 3. Pursuant to this order of the High Court, the cases of the respondents were placed before the DPC. Vide Notification dated 27.05.2014, the respondents were promoted on regular basis to the post of Private Secretary (BPS-17) with effect from 22.05.2014. The respondents filed Constitution Petition No.253 of 2015 in the High Court of Sindh challenging the Notification dated 27.05.2014 being contrary to the rules and fundamental rights of the respondents and sought direction to consider the respondents for promotion against the post of Assistant Director (BPS-17) with effect from 24.07.2012, the date when the respondents became eligible for promotion in accordance with their 25% prescribed quota available for promotion. 4. This very constitution petition filed by the respondents was dismissed by the High Court vide judgment dated 24.10.2017. The review application filed by the respondents before the High Court was also dismissed vide order dated 30.10.2017. The respondents filed Civil Petition No.687-K of 2017 in this Court. Vide order dated 31.12.2018, this Court passed the following order: CIVIL APPEAL NO.1000 of 2020 - 5 - “Having heard the learned counsel and perused the record and further documents that have been placed on record through CMA No. 1867-K of 2018 whereby the creation of the post, method of its appointment and adaptation of the government rules by the NAB were not before the High Court, therefore, we deem it appropriate by consent of the parties to remand the matter to learned bench of High Court to consider the documents. The impugned judgment is being set aside without dilating upon the implication of such documents which are sought to be placed before us. The documents sought to be filed by the NAB before this court shall be filed before learned bench of High Court and the bench may on the consideration of such documents or any other documents as may be sought to be placed by the parties may proceed to hear the matter afresh and decide the same without being influenced by its earlier decision within a period of not more than six months from the date of this order. Petition is accordingly converted into appeal, Impugned Judgment is set aside. Matter is remanded. C.P. No. D-253 of 2015 shall be deemed to be pending and shall be decided as directed above.” 5. Pursuant to the order of remand through the impugned judgment, the High Court has allowed the constitution petition filed by the respondents striking down the notification dated 27.05.2014, whereby the respondents were promoted to the post of the Private Secretary (BPS-17) and directed to re-visit the nomenclature of the respondents so as to suitably designate them against any of the notified posts in place under TCS-2002 as on CIVIL APPEAL NO.1000 of 2020 - 6 - 27.05.2014. We may note that the High Court has not specifically granted relief to the respondents that they be promoted to the post of Assistant Director (BPS-17) rather has directed the appellant to re-visit the nomenclature of the respondents and suitably designate them as per TCS-2002. So it means that the nomenclature to be given to the respondents in terms of TCS-2002 on their promotion from the post of Personal Assistant (BPS-16) could be anyone i.e. Assistant Director, Investigation Officer or Section Officer (BPS-17), because in the TCS-2002, these are the three posts available for promotion from the post of Personal Assistant (BPS-16). We note that while giving the impugned judgment, the High Court did not materially comply with the order of remand dated 31.12.2018, where it was specifically noted that further documents placed on record through CMA No.1867-K of 2018, whereby creation of the post, method of its appointment and adaptation of the government rules by the NAB were not before the High Court and therefore, by consent of the parties the matter was remanded to the High Court to consider the documents. 6. In the first place, we note that respondent No.2 in his earlier Constitution Petition No.2056 of 2013 before the High Court of Sindh has specifically made a mention that six posts of Privates Secretary (BPS-17) remained vacant for filling up through 100% quota amongst Personal Assistants (BPS-16) in NAB. Respondent No.2 has, thus, admitted as a fact that there were posts of Private Secretary (BPS-17), which were provided to be fill CIVIL APPEAL NO.1000 of 2020 - 7 - in through 100% promotion quota from amongst the Personal Assistant (BPS-16) in NAB. This very fact, which was available on the record was omitted to be considered by the High Court. 7. We have gone through the history of employment of Private Secretary (BPS-17) in the establishment of NAB and have noted that as back as on 15.11.2002, three temporary posts of Private Secretary (BPS-17) were created. The very TCS-2002 was amended by Corrigendum dated 19.02.2003 and the post of Private Secretary (BPS-17) was added in TCS-2002. The addition of the post of Private Secretary (BPS-17), however, was cancelled from TCS-2002 vide Corrigendum dated 28.09.2004. Though this cancellation was made but the NAB continued to employ Private Secretaries in BPS-17 on temporary basis, in that, three temporary posts of Private Secretary (BPS-17), were extended for the Financial Year 2005-2006. One more temporary post of Private Secretary (BPS-17) was created vide order dated 15.02.2006 and again one more post of Private Secretary (BPS-17) was created vide order dated 24.03.2006. Five temporary posts of Private Secretary (BPS-17) were extended for one year till 31.05.2007. These were continued for the Financial Year 2007-2008 vide order dated 22.07.2007. On 02.01.2008, three temporary posts of Private Secretary (BPS-17) were converted into permanent posts. Two Private Secretary (BPS-17) who remain on temporary posts were extended for the Financial Year 2008-2009 vide order dated 11.07.2008 and the same were also continued for the Financial Year 2009-2010 vide order dated 10.12.2009 and for the Financial CIVIL APPEAL NO.1000 of 2020 - 8 - Year 2011-2012 vide order dated 28.07.2011. Vide order dated 30.01.2012, two temporary posts of Private Secretary (BPS-17) were converted to permanent posts. Thus, on this date there were five permanent posts of Private Secretary (BPS-17) in NAB. Again on 01.06.2012 one temporary post of Private Secretary (BPS-17) was created and on 10.07.2012, five more temporary posts of Private Secretary (BPS-17) were created. On 29.03.2013, four more temporary posts of Private Secretary (BPS-17) were created. In all, there were thus, ten temporary posts of Private Secretary (BPS-17) which continued until Financial Year 2018-2019 vide orders dated 18.07.2013, 23.07.2014, 10.07.2015, 31.07.2016, 07.07.2017 and 03.07.2018. Thus, at the time when the notification dated 27.05.2014 was issued, by which the respondents were promoted on regular basis on the post of Private Secretary (BPS-17), there existed in the organization of the NAB, five permanent posts and ten temporary posts of Private Secretary (BPS-17). 8. To support that the respondents were justifiably promoted to the post of Private Secretary (BPS-17), the appellant has relied upon the above orders by which the posts of Private Secretary (BPS-17) were created in NAB. The respondents have further taken a stand that in exercise of the powers under paragraph No.14.08 of TCS-2002 the NAB has adopted the rules applicable to the other civil servants on 24.10.2005, which specifically provides, inter alia, as follows: It is further pointed out that despite these FIA posts, the recruitment rules of following three CIVIL APPEAL NO.1000 of 2020 - 9 - categories of NAB’s own posts are also required to be framed out since their creation: - a. Private Secretary (BPS-17) x 3 posts b. Librarian (BPS-17) x 1 post c. Protocol Officer (BPS-16) x 1 post Foregoing in view, in light of Deputy Financial Advisor, Finance Division’s remarks and to proceed further in the case, the following course of actions are proposed: - a. ……………………………………………… b. ……………………………………………… c. We may fill the three posts of PS (BS-17), one post of Librarian (BS- 17) and one post of Protocol Officer (BS-16) by adopting the rules applicable to the other civil servants in light of para 14.08 of NAB TCS; d. We may fill all the vacant posts related to promotion quota by holding the respective Departmental Selection Committees meeting or by grant of current charge to meet the remarks of Deputy Financial Advisor; and” 9. This adoption was made with the approval of the Chairman, NAB, given on 24.10.2005. Further reliance has been placed by the respondents on SRO No.99(KE)/87, dated 22.10.1987, which provides as follows: “In pursuance of sub-rule(2) of rule 3 of the Civil Servants (Appointment, Promotion and transfer) Rules, 1973, the following method, qualifications and other conditions are laid down for appointment to the post of Private Secretary (BPS-17) to the Secretary/Additional Secretary CIVIL APPEAL NO.1000 of 2020 - 10 - and other officers in BPS 22/21 in the Federal Government: - 2. Method of Appointment:- Appointment to the post shall be made by promotion on the basis of selection by the DPC of the Ministry/Division/Department concerned and with the approval of the appointing authority, from amongst the regularly appointed Stenographers of the Ministry/Division/ Department concerned: Provided that failing promotion, the post of Private Secretary shall be filed by transfer in accordance with para 4 below. 3. Conditions for Promotion:- Promotion to the post in column 1 below shall be made by selection from amongst the persons who hold the post specified in column 2 on a regular basis and possess qualifications and experience prescribed in column 3: Name of the Post Persons eligible Conditions of eligibility Private Secretary (BPS-17) Regularly appointed Stenographers, including those in the selection grade. Seven Year satisfactory Service as stenographer, including service in selection grade. 10. It seems that for appointment to the post of Private Secretary (BPS-17), the respondents have adopted the rules as mentioned in the SRO dated 22.10.1987 and this very aspect of adoption was not disputed from the side of the respondents, rather as noted above, respondent No.2 in his earlier constitution petition before the High Court had admitted as a fact that the posts of Private Secretary (BPS-17) were available in the establishment of NAB which were to be filled in by 100% promotion quota from amongst the Personal Assistants (BPS-16). 11. All these documents, which were placed on the record CIVIL APPEAL NO.1000 of 2020 - 11 - and landing support to the case of the appellant that there existed the posts of Private Secretary (BPS-17) in the organizational set up of NAB and said posts were to be filled in through 100% promotion quota from amongst the Personal Assistants (BPS-16), remained altogether concealed or at least not adverted to by the learned Division Bench of the High Court in the impugned judgment, although this Court while remanding the matter has emphasized that all these documents be considered by the High Court. 12. The question remains that what is the effect of the introduction of the posts of Private Secretary (BPS-17) in the organizational set up of the appellant, more particularly, in view of TCS-2002. It is admitted that TCS-2002 was formally amended vide SRO No.1106(I)/2015, dated 30.10.2015, wherein in “Method of Appointment” at Serial No.9, the post of Private Secretary (BPS- 17) is mentioned and the method of appointment is 100% by promotion. The post of Stenographer (BPS-16) has been omitted and the post of Assistant Private Secretary (BPS-16) has been created. In the “Conditions for Promotion” to the post of Private Secretary (BPS-17) the persons eligible for promotion are Assistant Private Secretary (BPS-16) rather than Stenographer (BPS-16). This very SRO although was issued on 30.10.2015 and published in the Gazette of Pakistan on 11.11.2015 but in actual fact, the posts of Private Secretary (BPS-17) already existed in the organizational set up of the appellant way back from 15.11.2002 and on 02.01.2008, three temporary posts of Private Secretary CIVIL APPEAL NO.1000 of 2020 - 12 - (BPS-17) were converted into permanent posts and then on 30.01.2012, two more posts of Private Secretary (BPS-17) were converted into permanent posts. The respondents were aware of the fact that these posts of Private Secretary (BPS-17) did exist in the NAB and these posts of Private Secretary (BPS-17) were being filled up by 100% promotion from amongst the post of Personal Assistant/Stenographer (BPS-16), which is apparent from the plea of respondent No.2 in his very Constitution Petition No.2056 of 2013. 13. The respondents have also referred to the notification dated 30.04.2007 whereby Mr. Shaukat Ali, Mr. Liaqat Ali, Mr. Qaleem-ud-Din Qureshi, Mr. Muhammad Shabbir and Mr. Tariq Mehmood were promoted from the posts of Personal Assistants (BPS-16) on the recommendation of DPC as Private Secretary (BPS-17). Further, Mr. Muhammad Maroof, Stenographer (BPS- 16), Mr. Arshad Mehmood, Personal Assistant (BPS-16), Mr. Arshad Khan, Personal Assistant (BPS-16), Mr. Muhammad Sohail, Personal Assistant (BPS-16), Mr. Riasat Ali Khan, Stenographer (BPS-16) and Mr. Mukhtar Ali, Personal Assistant (BPS-16) were promoted to the posts of Private Secretary (BPS-17) vide notification dated 08.02.2012. Through the notification impugned by the respondents dated 27.05.2014, Syed Waqar Hussain, Ms. Izzat Khatoon, Mr. Iltaf Hussain, Mr. M. Khalid Farooq, Mr. Faraz Ahmed Sherwani and Mr. Muhammad Zafar Ahmad, (the last two are the respondents) were all promoted to the posts of Private Secretary (BPS-17). Apparently, only the CIVIL APPEAL NO.1000 of 2020 - 13 - respondents have challenged the notification, while the remaining seem to have accepted their promotion, as there is nothing on record to show that they have not accepted their promotion to the posts of Private Secretary (BPS-17). 14. There is no dispute that TCS-2002 did not mention the post of Private Secretary (BPS-17) but the fact remains that firstly the Private Secretary, though on temporary post, was appointed in the NAB on 15.11.2002. Subsequently, more Private Secretaries were appointment on 15.02.2006, 24.03.2006, 01.06.2012, 10.07.2012 and 29.03.2013, while three temporary posts were converted into permanent posts on 02.01.2008 and further two permanent posts of Private Secretary (BPS-17) were created on 30.01.2012. It is also not disputed that the posts of Private Secretary (BPS-17) were created in NAB by adopting the rules applicable to the Government Servants. Thus, the posts of Private Secretary (BPS-17), apparently, were created by following the rules as were applicable to the Government Servants and this was done under paragraph 14.08 of TCS-2002, which provides as follows: “In matters not covered, under these TCS the employees of the NAB shall be governed by the rules applicable to the other civil servants and the instructions issued from time to time by the Federal Government on such subject.” Thus, on the basis of this very paragraph in TCS-2002, in matters not covered under the TCS-2002, the employees of NAB were to be governed by the rules as applicable to the other civil servants and instructions issued from time to time by the Federal CIVIL APPEAL NO.1000 of 2020 - 14 - Government on the subject. The rules applicable to the civil servants for appointment to the posts of Private Secretary (BPS- 17) were adopted by NAB on 24.10.2005 and as quoted above, the rules applicable to other civil servants in the light of paragraph 14.08 of TCS-2002 were applicable to the posts of Private Secretary (BPS-17). Thus, as it appears that the posts of Private Secretary (BPS-17) were created in NAB by adopting the rules, as noted above, on 24.10.2005, for all intends and purposes, in our view, TCS-2002 stood amended by adoption of the rules applicable to other civil servants in respect of the posts of Private Secretary (BPS-17) on 24.10.2005. When the posts were created by following the rules as were applicable to the other civil servants, obviously the manner in which they were to be filled in was also to be adopted and such adoption was provided in SRO dated 22.10.1987 where the posts of Private Secretary (BPS-17) were to be filled in from amongst the Stenographers, including those in the Selection Grade. The post of Stenographer and the post of Personal Assistant, both being in BPS-16, their line of promotion as per rules was to the post of Private Secretary (BPS-17). Reference in this regard is made to the case of Muhammad Amin v. Chief Engineer, Irrigation and others [2012 PLC (C.S.) 834], wherein this Court has observed as follows:- “7. The appellant's case for the purpose of promotion to the post of Superintendent will depend upon the Rules applicable to him in the year 1993. The two relevant Rules are, as stated above, of 1962 and 1998, on which reliance is placed by the appellant and the amendments brought about in the years 1983, 1985 and 1986, on which the case of CIVIL APPEAL NO.1000 of 2020 - 15 - the respondents rests. Undoubtedly, under the 1962 Rules, made especially for the Irrigation and Power Department, there was no mention of Senior Scale Stenographer and promotion to the post of Superintendent was to be made from combined seniority list of Stenographers and Assistants. These Rules for the Irrigation and Power Department were entirely replaced by the 1998 Rules, wherein the post of Senior Scale Stenographer was also incorporated and promotion to the post of Superintendent was to be made from Senior Scale Stenographers and not Stenographers. In between these two Rules, the Governor of Punjab, in exercise of the powers conferred upon him by section 23 of the Punjab Civil Servants Act, 1974, amended the Rules in the year 1983, whereby the post of Senior Scale Stenographer was introduced and promotion to the post of Superintendent was to be made from the Senior Scale Stenographers. These Rules were further amended in the years 1985 and 1986 but as far as the method of the said promotion, the Rule remained unchanged. These Rules were made applicable to all the Government Departments of Punjab, which obviously included the Irrigation and Power Department. The 1962 Rules thus stood amended by implication. The learned counsel for the appellant had referred to the advice of December, 1990 given by the Government of Punjab, Services, General Administration and Information Department, to the Irrigation and Power Department, stating that the service Rules of the latter Department needed to be amended so as to reflect the change, to include the post of Senior Scale Stenographer, from which promotion is to be made to the post of Superintendent. This advice, however, does not mean that the 1983 amendment in the Rules remained inapplicable to the Irrigation and Power Department. The advice of changing Rules was meant to remove any confusion in the Irrigation Department regarding promotion to the post of Superintendent. The advice explicitly stated that the promotions were to be made in accordance with the changed Rules. It was made clear that under the scheme of Basic Pay Scale the original posts of Stenographer CIVIL APPEAL NO.1000 of 2020 - 16 - and Stenotypist have been changed to those of Senior Scale Stenographer and Stenographer, respectively. The 1998 Rules relating to the Irrigation and Power Department were replacement of the 1962 Rules and the change already made about by the 1983 amendment were reflected therein. It cannot be said that the change regarding promotion in the Irrigation and Power Department was made for the first time in the year 1998. It was already in existence since 1983 and thus expressly incorporated in the year 1998.” The principle laid down by this Court as noted above is fully applicable to the case in hand. 15. For all the reasons discussed above, we find that the impugned judgment of the High Court is not sustainable. The same is, therefore, set aside and the appeal is allowed. CHIEF JUSTICE JUDGE Bench-I ‘APPROVED FOR REPORTING’ Rabbani/* JUDGE Announced on ______________ at _____________. CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali, HCJ Mr. Justice Amir Hani Muslim Mr. Justice Iqbal Hameedur Rahman Civil Appeal No. 1002/2014 (On appeal against the judgment dated 18.7.2014 passed by the Election Tribunal, Bahawalpur and D.G.Khan Divisions, Bahawalpur in E. P. No. 13/2013) Sultan Mahmood Hinjra Appellant Versus Malik Ghulam Mustafa Khar, etc. Respondents For the Appellant: Mr. Muhammad Shahzad Shoukat, ASC Mr. Arshad Ali Ch., AOR (Absent) For Respondent No. 1: Ch. Muhammad Wasi Zafar, ASC Mr. Mehr Khan Malik, AOR For Respondent No. 5: Sardar Muhammad Aslam, ASC Mr. M. S. Khattak, AOR Date of Hearing: 20.04.2016. JUDGMENT Iqbal Hameedur Rahman, J.- This appeal is directed against the judgment dated 18.7.2014 passed by the learned Election Tribunal, Bahawalpur & D. G. Khan Divisions, Bahawalpur, whereby the election petition filed by Respondent No. 1 bearing number E. P. No. 13/2013 against the Appellant and 17 others was partly accepted and the election of the Appellant was declared as void and re-election ordered. 2. The relevant facts of the matter are that the Appellant and the Respondent contested elections for the seat of NA-176 Muzaffargarh-I in the general election held on 11.05.2013. The C. A. No. 1002/2014 2 Appellant, Sultan Mahmood Hinjra was declared as the returned candidate after securing a total of 87335 votes, whereas Respondent No. 1 secured a total of 74845 votes. Accordingly, the Appellant was notified as the Returned Candidate. The success of the Appellant was challenged by Respondent No. 1 by means of an Election Petition. It was averred in the election petition that the Appellant utilized his influence in the Education Department for the appointment of Presiding and Assistant Presiding Officers favorable to the Appellant and that the objections of Respondent No.1 in this regard were not attended to; the unofficial result of 60 polling stations reflected that the Respondent No.1 had secured 29608 votes whereas the Appellant had secured 9454 votes, thereafter the results stopped coming in, however, the next morning when the unofficial results were announced, the Appellant’s votes had drastically increased to a total of 87,335 and those of the Respondent No.1 were 74,845, as such, it was stated that these results were obtained through the commission of corrupt and illegal practices as during the process of polling and counting of votes, the Presiding Officers and Assistant Presiding Officers committed corrupt and illegal practices in violation of the law. It was also canvassed in the petition that no notice under Section 39(1) of the Representation of Peoples Act, 1976 (the ROPA, 1976) was issued to the Respondent No.1 by the Returning Officer and that no date, time or place was fixed for the consolidation of the result thereby compelling the Respondent No.1 to submit an application in this regard. It was pleaded that upon receipt of the said application, the Returning Officer (RO) fixed C. A. No. 1002/2014 3 15.05.2013 as the date of hearing, however, in the absence of the respondent, the learned RO illegally prepared a fictitious final result sheet dated 14.05.2013. It was stated that by relying on this forged and fictitious report and by mentioning incorrect facts in his order, the RO dismissed the said application. With regard to pre-elections disqualification, it was averred in the petition that the appellant knowingly misstated various facts and intentionally omitted/concealed important information in his nomination papers including inter alia the details of assets of his wife and children; that even though the Appellant mentioned that a criminal case bearing number 134/2000 was registered against him, but the same was cancelled pursuant to report of the Anti Corruption Establishment, however, no such report or order was produced before the learned RO. It was further averred in the petition that the Appellant is a defaulter of payment of Agricultural Income Tax, therefore, he is disqualified from being elected as a member of the National Assembly. In this regard it was stated in the petition that Appellant’s agricultural income was Rs. 4,000,000/- ,Rs. 3,500,000/- and Rs. 4,200,000/- for the years 2010-11, 2011-12 and 2012-13 respectively, however, no tax was paid for the year 2010-11 on account of floods and paid only Rs. 1,950/- each in the year 2011-12 & 2012-13. These admissions prove that he is a defaulter as even on the said declared income, the amount of income tax payable was much more than the one paid by him. The Respondent No.1 also averred in his election petition that the Appellant acquired government land on lease situated in Mouza Parhar Sharqi by C. A. No. 1002/2014 4 making misstatements through deed No. 1793 dated 17.09.1991 and sold half of the same on that very day and the remaining half subsequently. It was contended that the Appellant has no house adjacent to the said government land and as such he misstated when he said that he required the land for extension of his dera. The Respondent No.1 also stated in his petition that the Appellant illegally procured allotment of a plot which was a part of a scheme prepared by the provincial government for the poor and the down trodden. The Respondent No.1 also stated in his petition that the process of the election was rife with instances of corrupt practices, in that, the ballot papers were handed over by the polling staff to the polling agents of the Appellant who marked stamps thereon, fictitious ballot papers were issued to favour the Appellant, the Appellant’s polling agents opened the ballot boxes and started process of counting of votes themselves, during which the polling agents of the Respondent No.1 were not allowed to be present and that to facilitate this, Presiding Officers and Assistant Presiding Officers prepared false reports. The Respondent No.1 also alleges in his petition that during counting of votes several ballot papers were observed to have not been issued at the concerned polling station, and that after the process of counting was complete, the Presiding Officers did not prepare statement of count in the prescribed form. Additionally, it was urged that the Presiding Officer also did not prepare the prescribed forms showing the number of ballot papers entrusted to him, number of unissued ballot papers, number of ballot papers taken out from the boxes and counted, number of C. A. No. 1002/2014 5 tendered ballot papers, number of challenged ballot papers and number of spoilt ballot papers and further that at all the polling stations, the Presiding Officers did not give any certified copy of statement of count and the ballot paper account to the polling agents of the Respondent No.1. To substantiate this allegation, it was averred that no statement of count or ballot paper account contains the signature of the polling agents of the Respondent No.1. The Respondent No.1 also averred in his petition that 40,000 bogus ballot papers/votes were added in the record to ensure the success of the Appellant. Further, that Mr. Asghar Ali Pachar Advocate, who appeared before the RO at the time of consolidation of result had not been appointed by Respondent No. 1 as his attorney. While relying on major differences of about 9,900 votes cast for NA-176 and for PP- 251 & PP-253 at the common polling stations of these constituencies, as well as in the unofficial and official results, inasmuch the votes of the Appellant increased but the number of votes of the Respondent No.1 were decreased, as a result the entire election was conducted in an illegal and non transparent manner, and accordingly prayed for the declaration that the election of the Appellant as void and that the Respondent No.1 be declared as returned candidate, or in the alternative, the election as a whole be declared as void. 3. The Appellant contested the petition on legal as well as factual plane. It was urged that the petition merits dismissal for non- compliance of the mandatory provisions of Section 55(3) of the ROPA, 1976. On facts, it was stated that no substantive material has been brought on record to substantiate the allegations contained in C. A. No. 1002/2014 6 the petition. It was also asserted in the written statement that Respondent No. 1 committed corrupt and illegal practices through his son Bilal Mustafa Hussain and Ashraf Rind candidate for MPA to maneuver favourable result, who launched criminal assault alongwith 100 supporters to possess forcibly the ballot boxes and election record, resulting in the registration of FIR No. 232/2013. Out of the divergent pleadings of the parties, the learned Tribunal framed as many as 15 issues. Thereafter, the parties were afforded an opportunity to adduce evidence. After completion of the trial, the learned Tribunal partly allowed the petition by declaring the election of the Appellant void, and ordering a re-election in NA-176, hence this appeal. 3. Learned counsel for the Appellant at the very outset vehemently argued that the petition merited dismissal on the ground that the same had not been duly verified in terms of Section 55 of the ROPA, 1976 and in accordance with Order VI rule-15(2) of CPC, instead the same has been verified by means of a separate affidavit. No date has been given at the foot of the petition. Learned counsel submits that the Tribunal erroneously arrived at the conclusion that verification through an affidavit is a suitable alternative to the mode of verification mandatorily prescribed under Section 55 of the ROPA, 1976. Learned counsel for the Appellant also contended that the signature on the petition and the affidavit are visibly different as such the signature has been fabricated; that the affidavit has been attested in Islamabad whereas the petition has been prepared in Multan, the dates of the petition and verification C. A. No. 1002/2014 7 are different. Learned counsel submitted that as per the mandate of the ROPA, 1976, annexures to the petition also have to be verified, however, the affidavit annexed with the petition does not make reference to the annexures appended with the petition, therefore, the petition has not been verified in terms of Section 55 of ROPA, 1976. In this regard, he placed reliance on the cases of Feroze Ahmed Jamali vs. Masroor Ahmad Khan Jatoi and others (2016 SCMR 750), Lt. Col(R) Ghazanfar Abbas Shah vs. Mehr Khalid MahmoodSargana and others (2015 SCMR 1585),Inayatullah vs. Syed Khursheed Ahmed Shah and others (2014 SCMR 1477) and Malik Umar Aslam vs. Sumera Malik and another(PLD 2007 SC 362). Regarding the merits of the case, the learned counsel for the Appellant submits that main allegation against the Appellant was that of corrupt and illegal practices, however, no substantial evidence in this regard has been produced and all that there is on the record is the sole statement of the Respondent No.1 as such allegation of rigging has not been proved, even the allegation of concealment of assets has not been proved through evidence. Further contended that during Appellant’s cross examination, no question regarding the allotment of land or default in payment of tax was put to him. Learned counsel contended that the learned Tribunal arrived at contradictory findings, inasmuch as it has been observed in the impugned judgment that the Appellant was not a defaulter, however, despite such observation, the Tribunal came to the conclusion that tax had not been paid by the Appellant, further submitted no such demand had been raised in this regard by the C. A. No. 1002/2014 8 concerned authorities as such the Appellant could not be considered to be a defaulter strictosenso, and in this regard, reliance was placed on the case of Nadeem Sarwar vs. Election Commission of Pakistan through Election Commissioner, Punjab and 3 others(2013 CLC 1481). Learned counsel submitted that while arriving at the conclusion that the Appellant illegally got land allotted to him, the Tribunal relied on an application which was not part of the record, as the same was not tendered in evidence and the same has been illegally scanned and made part of the judgment. In conclusion, learned counsel for the Appellant submits that non-observance of statutory provisions by election staff, unless shown to materially affect the result of the election in view of the fact that the margin of difference of votes is substantial, cannot be made basis to declare the whole election as void and in this regard placed reliance on the case of Muhammad SiddiqueBaloch vs. Jehangir Khan Tareen and others (PLD 2016 SC 97). Further argued that in election laws, the finding of disqualification must be based on positive evidence, as the standard of evidence in election matters is similar to that of a criminal trial. Accordingly, the Tribunal cannot decide the same on the basis of conjectures and surmises. In this regard, he placed reliance on the cases of Muhammad Saeed and 4 others vs. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC 91), Khan Muhammad Yusuf Khan Khattak vs. S. M. Ayub and 2 others (PLD 1973 SC 160), Syed Saeed Hassan vs. Pyar Ali and 7 others(PLD 1976 SC 6) and Lahore Improvement Trust, Lahore through its Chairman vs. The Custodian, Evacuee Property, West C. A. No. 1002/2014 9 Pakistan, Lahore and 4 others (PLD 1971 SC 811 (836)). He lastly argued that the Respondent No.1 had not filed any list of documents or witnesses as required by law, as such the election petition merited dismissal under Section 63 of the ROPA, 1976 due to non- compliance of mandatory provisions Section 55 of the ROPA, 1976. 4. Conversely, while supporting the impugned judgment, the learned counsel for the Respondent No.1 submitted that allotment of 13 marlas of commercial property was illegally procured through a simple application moved to the Chief Minister, who was not empowered to allow the same. States that land was allegedly required by the Appellant for extension of his dera, but said land was not adjacent to Appellant’s property and further, the said land was further alienated on the same day and adverted to Registry of Sale Deed of Ahata at pages-393 & 435 regarding sale to Dr. Faiz Muhammad, as such making false statement and getting Ahata of 2 kanals and then selling both the properties to make money disqualified the Appellant to contest election as he was not Sadiq and Ameen. In support of his arguments he relied upon the judgments of this Court delivered in the cases of Sardarzada Zafar Abbas and others vs. Syed Hassan Murtaza and others (PLD 2005 SC 600) and Lt. Col(R) Ghazanfar Abbas Shah vs. Mehr Khalid Mahmood Sargana and others (2015 SCMR 1585). 5. We have heard the arguments of the learned counsel for the parties and also perused the material placed on the record as well as the impugned judgment with their able assistance. C. A. No. 1002/2014 10 6. Since the learned counsel for the Appellant at the very outset has raised the question with regard to the maintainability of the election petition filed by the Respondent No. 1, hence we are forfeited to address this issue first. It was objected by the learned counsel for the Appellant that the petition had not been verified in terms of the mandatory provisions of Section 55 of the ROPA, 1976 read with Order VI Rule 15 CPC as neither the petition nor the annexures or schedules appended thereto had been verified, but instead an affidavit had been belatedly filed to cure such defect. It would be pertinent to reproduce the above quoted provisions of law: 55. Contents of Petition:- (1)…………………. (2)…………………. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings. Order VI Rule 15.Verification of Pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.” From the above it is crystal clear that verification of an election petition in the prescribed manner is a mandatory requirement and that too in accordance with the provisions of Order VI Rule 15 C. A. No. 1002/2014 11 C.P.C. specifying to numbered paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true. From the record it reveals that the Appellant while filing his election petition did not comply with the mandatory requirements with regard to the verification of the election petition and to cure such defect subsequently submitted an affidavit in this regard, wherein the entire contents of his election petition were reproduced. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleadings are generally directory in nature, the position is different in election laws by virtue of Section 63 of the ROPA, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of Sections 54 or 55 of the ROPA, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under Section 63 of the ROPA, 1976. 7. We would now proceed to examine the affidavit, which finds mention at the foot of the petition and purportedly serves to verify the same. In the said affidavit, the Respondent/Election Petitioner has reproduced the entire contents of his election petition. In order to determine the sufficiency of verification by affidavit, it would be useful to reproduce the provisions of High Courts Rules and Orders, Chapter 12, Volume No. IV, Rules No. 11, 12, 14, 15 and 16 as these have material bearing on the case at hand:- “11. Identification of Deponent- Every person making an affidavit shall , if not personally known to the Court, magistrate C. A. No. 1002/2014 12 12. Mode of attestation- 14. Attesting Officers duty 15. Attesting, signing and making of affidavit. 16. Manner of administering oath to deponent. - FORM OF VERIFICATION OF OATH OR AFFIRAMTION (Vide paragraph 15 above) Oath. I solemnly swear that this may declaration is true, that it conceals nothing, and that no part of it is false............. so help me God. Affirmation. I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is false. II-FORM OF CERTIFICATE (vide paragraphs 12, 14 and /5 above) Certified that the above was declared on............... (here enter oath)/affirmation as the case may be) before me this................(date) day of.............(month).........(of 19 , at .................. (place) in the district of (name of district)............ by .................. (full name and description of declarant) who is.............. here enter "personally known to me" or identified at (time and place of identification) by (full name and descriptor: of person marking the identification), who is personally known to me". (Full Signature) A. B. (Officer) District Judge (or as the case may be) of ............ II-A The exhibits marked A.B.C. (as the case may be) above referred to are annexed hereto under this date and my initials. Certified further that this affidavit has been read and explained to (name) .................. the declarant who seemed perfectly to understand the same at the time of making thereof. " Placing reliance on the case of Lt Col (R) Ghazanfar Abbas Shah vs Khalid MehmoodSargana (2015 SCMR 1585), would be beneficial here, wherein, the issue of verification by an affidavit was agitated before this Court and while referring to the above Rules, this Court highlighted the following pre-requisites for a valid affidavit: 1. Identification of Deponent (Rule 11) C. A. No. 1002/2014 13 2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11) 3. Time and place of making of the affidavit to be specified (Rule 11) 4. Certification by court/magistrate/other officer at the foot of the affidavit that such affidavit was made before them. (Rule 12) 5. Date, Signature and name of the office and designation of the court/magistrate/other officer to be subscribed underneath the Certification. (Rule 12) 6. Every exhibit referred to in the affidavit to be dated and initialed by the court/magistrate/other officer. (Rule 12) 7. Where deponent of an affidavit does not understand the contents of an affidavit, the court/magistrate/other officer administering oath must read out the contents of the affidavit to such person so that he understands. Where such is the case, the court/magistrate/other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents. (Rule 14). 8. Deponent to sign/mark and verify the affidavit and the court, magistrate or other officer administering the oath or affirmation to attest the affidavit. (Rule 15) 9. Oath to be administered by the court/magistrate/other officer in accordance with the Indian Oaths Act 1878 and affidavit to be verified by deponent and attested by court/magistrate/other officer on forms appended thereto (Rule 16)” When the affidavit at hand is examined in the light of the above it transpires that certain essential requirements are missing therefrom. Firstly, it has not been mentioned whether the Respondent No.1 was administered oath by the Oath Commissioner before the attestation was made. Secondly, it has not been specified whether the Respondent No.1 was duly identified before the Oath Commissioner. In this regard, it has simply been stated at the foot of the affidavit that the Respondent No.1 was present before the Oath Commissioner in person, however, the details of the person identifying the Respondent No.1 have not been mentioned whereas according to the above quoted provisions, the Oath Commissioner is bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate has to be appended. Furthermore, it is also C. A. No. 1002/2014 14 not clear from the affidavit that the Respondent No.1 was identified with reference to his ID card and in this regard, no ID card number is given, as such the identification does not seem to have been made. There is yet, another aspect to the matter. The affidavit in question does not make any reference to the numbered paragraphs contained therein which the Respondent No.1 verifies on his own knowledge and what he verifies upon information received and believed to be true. Further, the affidavit in question also does not make any reference to the verification of the annexures appended along with the petition, which although have been mentioned in the said affidavit. 8. This Court in a chain of judgments has addressed the issue of verification of pleadings wherefrom reproducing the relevant portions would be beneficial here. In the case of Zia ur Rehman Vs. Syed Ahmed Hussain and others (2014 SCMR 1015) it has been held as under:- “10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly. Otherwise it would not be in-compliance with the legislative intent. Non-compliance of this provision carries a penal consequences in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effect of non-compliance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehaman (2000 SCMR 250) wherein at page 290 it was candidly held that “the verification of pleadings has been provided under Order VI,. Rule 15, C.P.C. which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syued Iftikhar Hussain Gilani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be C. A. No. 1002/2014 15 said that requirements of section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity.” And in the case of Sardarzada Zafar Abbas and others Vs. Syed Hassan Murtaza and others (PLD 2005 SC 600), this Court has laid the following guidelines:- “The verification on oath of the contents of an election petition, is provided under section 55(3) of the Representation of the People Act of 1976, (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. The Code contains such provisions under Order VI, rule 15, which requires the verification of pleadings, on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered. So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of sections 54 and 55 of the Act have not been complied with. Similar view was taken by this Court in Iqbal Zafar Jhagra’s case (2000 SCMR 250), though related to the Senate elections. It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory.” 9. In the above perspective, and while placing reliance on the case of Lt. Col (R) Ghazanfar Abbas Shah (supra), the affidavit at hand, can hardly be considered to be a proper verification. The learned Election Tribunal therefore, erred in holding that the election petition had been duly verified. In our considered opinion, the election petition had not been duly verified in accordance with law and even the affidavit annexed thereto could also not be considered C. A. No. 1002/2014 16 to be proper verification as it failed to meet the criteria mentioned above, therefore, the election petition merited outright dismissal by the election tribunal. 10. In conclusion to our discussion we are of the opinion that when an objection with regard to the maintainability of an election petition for non- compliance of a mandatory provision is raised then the Tribunal should decide that very objection first because if such objection sustained then the Tribunal left with no option but to dismiss the election petition. Mentioning the case of Zia ur Rehman (supra) would again be beneficial here wherein it has been held as under:- “7. …………… If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition……………” 11. For what has been discussed above, this appeal is allowed, impugned judgment dated 18.07.2014 passed by the Election Tribunal is set aside and the election petition filed by the Respondent No.1 is hereby dismissed under Section 63 of the ROPA, 1976 as not being in conformity with the mandatory provisions of Section 55 of the ROPA, 1976. Chief Justice Judge Judge Announced in open Court at Islamabad on Judge ‘Not Approved For Reporting’

C 4 IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.10 10 OF 2020. (Against the order dated 20.02,2019 passed by the Federal Service Tribunal, Lahore Bench, Lahore in Review Petition No. 03 of 2019). The Chief Postmaster General, Post Office, Multan and others. Appellant(s) Versus Hameed-ud-Din. For the Appellant(s): For the Respondent(s): Date of Hearing: Respondent(s) Mr. Ayyaz Shaukat, DAG. Mr. Mehmood A. Sheikh, AOR. Mian Mahmood Hussain, ASC. 25.06.2021. JUDGMENT IJAZ UL AHSAN, J. - . The Appellant through this Appeal has challenged the judgment of the Federal Service Tribunal, Lahore dated 20.02.20 19 passed in Review Petition No.03 of 2019. Through the Review Petition, the Appellant prayed that the judgment of the Federal Service Tribunal, Lahore, dated 19.12.2018 passed in Service Appeal No. 271(L) of 2017 be reviewed (hereinafter referred to as "Impugned Judgments"). Through the Service Appeal, the Respondent had challenged the order dated 24.02.2017 whereby his departmental appeal was rejected. The learned Federal Service Tribunal (hereinafter referred to as "FST") through the Impugned Judgment allowed the Service Appeal of the Respondent thereby converting his penalty of dismissal from service to that of stoppage of increment for one year CIVIL APPEAL NO.OP 2021 2 without cumulative effect. Aggrieved, the Appellants filed a Review Petition before the FST, Lahore, which was dismissed. 2. The necessary facts giving rise to this Us are that the Respondent was posted in GPO, Multan as Postal Clerk, Utility Bills Compilation and was further entrusted with the additional duty of Assistant Chief Postmaster (Counter) GPO ("ACPM"), Multan w.e.f. 14.05.15 to 11.09.15. The Respondent while working against the said post signed the Postal Payment Order ("PPO") Paid Statement for July 2015 to September 2015 and sent the same to the office of the Director of Accounts. The said Accounts Office informed that the PPO Paid Vouchers amounting to Rs. 11,09,500 which ought to have been with the PPOs were missing, even after a lapse of 04 months i.e. from July to September 2015. When inquired, the Respondent stated that he had kept the said vouchers in a bag, however, the said bag was lost. The Respondent was placed under suspension on 25.11. 15 on the allegation that he failed to submit PPOs for July, August, and September 2015. The department served the Respondent with a charge sheet and statement of allegations vide order dated 02.01.2016. After completion of the inquiry, the Respondent was served with a Show Cause Notice dated 05.03.16 which was responded to on 26.01.16. Vide order dated 28.04.2016 the Respondent was dismissed from service and recovery of Rs. 10,39,500 was ordered by the competent authority. The departmental appeal of the Respondent was dismissed vide order dated 24.02.17. The Respondent preferred a service N CIVIL APPEAL NOM/dJF 2021 ':1 appeal before the Service Tribunal which was partly allowed and the penalty was modified. The Appellants are aggrieved of the said order. Hence, this appeal. 3. Leave to appeal was granted by this Court vide order dated 25.11.2020 in the following terms:- "Learned Counsel contends that the respondent was entrusted for payment of PPOs in the sum of Rs. 11,09,500. The respondent was required to maintain the paid vouchers of such PPOs and submit them along with the monthly statement, but he did not do so and it was found that the Post Office had incurred a loss of the said amount. The charge was framed against the respondent, who in response thereto, filed a letter mentioning that he is depositing Rs. 40,000 towards the loss amount and requested that this case may not be referred to the FIA. It seems that the petitioner conducted an inquiry and in such inquiry, the respondent was found responsible for the commission of such loss and recommended dismissal from service and recovery of the loss amount. Thus, through the order dated 28.04.16 the respondent was imposed with the penalty of dismissal from service and recovery of the loss amount, against which the respondent filed a service appeal before the Federal Service Tribunal (Tribunal), which was decided by the judgment dated 19.12.2018, converting the penalty of dismissal from service and recovery to stoppage of increment for one year without cumulative effect. The petitioner filed a review petition before the Tribunal stating that the Tribunal has wrongly exercised jurisdiction in modifying the penalty, however, by the impugned order dated 20.02.2019, the Tribunal dismissed the review petition. 2. Learned Deputy Attorney General contends that the loss amount could not be explained by the respondent and even he did not place before the petitioner the record pertaining to the loss amount and by depositing Rs, 40,000, the respondent has admitted that he was responsible for causing loss to the government. He further contends that the Tribunal has interfered with the penalty imposed on the respondent on the ground that he has not committed misappropriation or embezzlement but the inquiry report shows that such was the case." 4. Learned Deputy Attorney General appearing on behalf of the Appellants contends that the Director of Accounts ("DA") vide letter dated 05.08.2009 requested for the provision of - - - r L CIVIL APPEAL NO. /0/40? 2021 4 PPO Paid Vouchers or recovery of the lost paid vouchers amounting to Rs. 11,09,500. The Respondent in his application dated 26.01.2016 informed that he had returned an amount of Rs. 40,000 and further promised to credit the remaining amount of loss voluntarily which amounts to an admission by the Respondent of his guilt. Further, that the Respondent was allowed to provide the department with the Serial Numbers of the lost PPOs, however, he failed to do so. He further submitted that the Respondent signed the PPO Paid Statement himself for July to September 2015 and dispatched the same to the office of the DA ("DA") while the regular ACPM was present on duty which is a violation of Rule 402/27 of the Pakistan Post Office Manual Volume 6. Thereafter, the Appellant Department informed that the supporting vouchers (PPO Paid) amounting to Rs. 11, 09,500 were not supplied even after a lapse of four months and, this act of the Respondent has caused the Appellant Department a loss of Rs. 11,09,500. Further, that the Respondent when asked stated that the vouchers were kept by him in a bag which was lost, however, he failed to report this loss to his superiors which at any stage was a violation of the relevant rules of the Appellant -Department which the Respondent was bound to follow. S. Learned ASC appearing on behalf of the Respondent submitted that it is only after the payment is made that vouchers are issued. Just because the vouchers were purportedly missing, it cannot be held that the CIVIL APPEAL NO.148)P 2021 5 Respondent misappropriated or embezzled the amount when the Respondent has stated that he placed the vouchers in a bag which was lost due to no fault of his own. Further, that the Respondent was condemned unheard and the departmental order was passed without affording the Respondent a fair opportunity to defend himself. Further, that the charges levelled against the Respondent in the charge sheet are different from those which are mentioned in the Show Cause Notice issued to the Respondent. He further added that parallel inquiries were conducted against the Respondent in the shape of a preliminary inquiry and a final inquiry. The result of these inquiries was that the preliminary inquiry prejudiced the final inquiry and prompted the Appellant Department to impose the penalty suggested in the preliminary inquiry report. The Chief Postmaster conducted a preliminary inquiry against the Respondent and recorded adverse findings therein, which prejudiced the formal inquiry which was to take place subsequently. After the formal disciplinary proceedings concluded, the recommendations of I the Chief Postmaster were accepted, consequently, the penalty of dismissal from service was imposed upon the Respondent in a slipshod manner. Lastly, the learned ASC submitted that no allegation of fraud or misappropriation was levelled against the Respondent and a case of mere negligence is different from a case of misappropriation and misconduct and cannot be treated at par with it so as to warrant the dismissal of the Respondent and recovery of loss (if any) from him. CIVIL APPEAL NO /6/40? 2021 6. We have heard the learned Deputy Attorney General and the learned ASC appearing on behalf of the parties. The issues which require adjudication by this Court are as follows:- I. Was the Respondent condemned unheard in violation of the principles of natural justice and the law? II. Was the inquiry conducted against the Respondent in violation of the prescribed procedure? III. Was the penalty of dismissal and recovery commensurate with the seriousness of allegations levelled against the Respondent? WAS THE RESPONDENT CONDEMNED UNHEARD IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND THE LAW? 7. It is an admitted fact that the Respondent was granted a personal hearing. The Respondent in his appeal before the FST has stated that he was called for a personal hearing, however, the personal hearing was "meaningless". The learned DAG has submitted that the Respondent was heard twice. Once on 30.03.2016 and then on 28.04.2016 and that during the personal hearing on 28.04.2016, the Respondent admitted the fact that he was negligent and he failed to submit the PPO Paid Vouchers. 8. We have examined the order of the Postmaster- General, Southern Punjab Circle, Multan. The said orde - I - CIVIL APPEAL NO$b OF 2021 7 states that the Respondent was called for a personal hearing on 17.02.2017. The Respondent appeared in person and stated that due to heavy workload, he could not submit the statement of PPOs to the DA and he kept the same in a bag that was stolen. He further stated that this was unintentional and that he was a Hafiz-e-Quran who had an unblemished service record. The fact that the Respondent was able to explain his working conditions, his religious qualification, and that he had an unblemished service record goes to establish that the personal hearing granted to the Respondent was not meaningless, however, the Respondent was unable to justify his actions which prompted the Appellant-Department to take action against him. This aspect of the case has been left unconsidered by the FST. In the presence of these facts and circumstances, it cannot by any stretch of imagination be held that the Respondent was condemned unheard. The Respondent has not brought anything on the record to establish that he asked his superiors to change his duties so that he could perform them more efficiently, owing to his workload. He voluntarily performed the duties he was assigned. He cannot blame the Appellant Department in this regard and pin the blame of his negligence on his circumstances. 9. We are, therefore, unable to agree with the learned ASC for the Respondent to the effect that he was condemned unheard. Even otherwise, sufficient material is available on the record which establishes that the Respondent wa CIVIL APPEAL N0J4$OF 2021 8 granted various opportunities to defend himself. The findings of the FST in this regard are against the record and unsustainable in law as well as fact. When confronted with the aforesaid averments, the learned ASC replied by saying that the charges against the Respondent were different in the charge sheet and the show-cause notice. This, in our view, does not address the question of whether or not the Respondent was condemned unheard. When he has stated that the personal hearing was in his opinion "meaningless", it cannot be held that a hearing was not granted and the rule of audi alterarn partem was violated. If the hearing was not up to the satisfaction of the Respondent or he did not get the relief that he was expecting, the Appellant Department cannot be held to have condemned him unheard. The only grievance of the Respondent is that he was not heard properly and the Respondent has left this ground unsubstantiated. As such, the findings of the FST in this regard are erroneous and unsustainable. WAS THE INQUIRY CONDUCTED AGAINST THE RESPONDENT IN VIOLATION OF THE PRESCRIBED PROCEDURE? 10. The learned ASC appearing on behalf of the Respondent has stated that the inquiry proceedings against the Respondent were conducted in a disorderly manner. The learned DAG in this regard has drawn our attention to the Show Cause Notice, Charge Sheet and Statement of Allegations served upon the Respondent. A perusal of the said documents reveals that the Respondent was issued a charge - S - CIVIL APPEAL NO1*DF 2021 9 sheet and was asked to submit his defence. He was issued a Show Cause Notice to which he replied rebutting the allegations against him. An inquiry was conducted in which he participated and thereafter, the penalty of dismissal from service along with recovery was imposed upon the Respondent. The Respondent then preferred a departmental appeal which was rejected. This prompted the Respondent to approach the FST by filing a service appeal. 11. The Respondent was proceeded against under the law. Nowhere has the Respondent during the pendency of the aforesaid process stated that the proceedings against him were biased or were being conducted improperly. He participated in the proceedings and was able to give his defence, which was left to the Appellant Department to accept or not accept. Not only a regular inquiry but a preliminary inquiry was also held against the Respondent. The contention of the learned ASC for the Respondent that two parallel inquiries were being conducted, one of which prejudiced the final inquiry proceedings against the Respondent is not supported by the record. We have perused the final inquiry report and the preliminary inquiry report of the Chief Postmaster. Both of these reports are comprehensive and have analysed the Respondent's case thoroughly. The fact that there are similarities in both the said reports is inconsequential because the foundation of the charges levelled against the Respondent which has been made the basis of the preliminary inquiry and final inquiry is the same. J CIVIL APPEAL N0./8b0F 2021 10 The preliminary inquiry report merely recommended that the Respondent be proceeded against on the charges which were levelled against the Respondent. The Final Inquiry Report investigated the charges levelled against the Respondent and held him guilty of the allegations. It can be seen from the preliminary inquiry report that disciplinary action along with a recovery of Rs. 11,09,500 was recommended against the Respondent, whereas, the final order of dismissal mentions that he was dismissed from service and recovery of Rs. 10,39,500 was ordered to be effected by the Respondent. The difference which exists in each of these inquiries and also the order of dismissal sufficiently establishes that the said order and inquiry reports were independent of each other and were prepared after examining the record and due application of mind. The Respondent has not been able to establish from the record that any official of the Appellant-Department was biased or had a grudge against the Respondent which prompted them to proceed against the Respondent with malice or ill will. WAS THE PENALTY OF DISMISSAL AND RECOVERY COMMENSURATE WITH THE SERIOUSNESS OF ALLEGATIONS LEVELLED AGAINST THE RESPONDENT? 12. It is an admitted fact that the Appellant Department suffered a financial loss of Rs. 11,09,500, which could have been prevented but for the alleged loss of or inability of the Respondent to account for the PPO Paid Vouchers. The Respondent signed the PPO Paid Statement while the incumbent APCM was present on duty. Furthermore, the Respondent in his application dated 26.01.2016 has stated that he will make up for the loss caused to - I CIVIL APPEAL NO4IOOF2O2 I 11 the Appellant Department and has further requested that his case may not be sent to the FIA. It is pertinent to mention that PPOs are documents that were of fundamental importance and needed to be proved or if they had been lost, independent evidence should have been produced to show that the payments were made against surrendered PPOs which had been cancelled, retained and relevant particulars thereof had been entered in the relevant records. The Respondent was also required to present the vouchers against which PPO payments were made to authenticate such payments. No such evidence/material/documents were placed on record. The Appellant Department gave several opportunities to the Respondent to prove his innocence. The Respondent in return deposited an amount of Rs. 40,000, which in our view, amounts to admission on his part of the misappropriation. This aspect of the case has been ignored by the learned FST in the impugned judgment. 13. The learned FST has taken the stance that all the allegations against the Respondent stood proved, however, he could not have been held responsible ipso facto for embezzlement or misappropriation. We are unable to agree with this observation for the reason that, when the FST, on one hand, held that the Respondent was indeed responsible for the loss caused to the Appellant-Department, it could not assume the role of the competent authority and hold that embezzlement or misappropriation was not proved without holding that there was a defect in the inquiry proceedings which caused serious prejudice to the Respondent. 14. The Tribunal has recorded in its order that the Respondent had deposited three amounts i.e. Rs. 4,13,400 and Rs. -- C . I CIVIL APPEAL NO. 2021 12 2,9 1,400, which totals Rs. 11,09,500 with the department towards the settlement of his liability. The learned Counsel for the Appellants states that this finding is factually incorrect. We have asked the learned ASC for the Respondent to show us any material on the record which establishes that the Respondent did make the said payments. He has been unable to do so. Lastly, we asked the learned ASC for the Respondent if there was a mistake in the impugned judgment, and, he candidly admitted that there was indeed a factual error in the impugned judgment insofar as payment of the said amount is concerned. As such, given the said facts and circumstances, the learned FST could not have arbitrarily changed the impugned penalty into that of stoppage of increment of one year without cumulative effect. 15. The learned FST has incorrectly applied the relevant law, misunderstood the facts and circumstances of the case, and has misread the record which warrants interference by this Court. As a result of this, the impugned judgment passed by the learned FST is unsustainable and liable to be set aside. 16. For the reasons noted above, this appeal is allowed and the impugned judgments of the learned FST dated 19.12.2018 and 20.02.2019 are accordingly set aside. SChie 4^atb e ISLAMABAD. 25.06.2021. HarisZC/ * yZApproved For Repori ti'

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Nasir-ul-Mulk, CJ Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam C.As.No.1011 & 2786 of 2006 AND Civil Petition No.538 of 2006 [On appeal against a common Judgment dated 31.05.2006 passed by the Lahore High Court, Multan Bench, in ICA No.229 of 1999 & RFA No.328 of 2001] Mst. Nasreen Zahra (in CA.1011) Government of the Punjab through Secretary Communication & Works Department, Lahore (in CA.2786) Appellant(s) Mst. Nasreen Zahra (in CP.538) Petitioner(s) VERSUS Multan Development Authority Multan & another (in CA.1011) Mst. Nasreen Zahra wife of Javed Haider Gardezi (in CA.2786) Assistant Commissioner (C) Land Acquisition Collector City Sub Division Multan & 6 others (in CP.538) Respondent(s) For the Appellant(s) [in CA.1011 & CP.538] : Syed Najam-ul-Hassan Kazmi, Sr. ASC Mr. Muhammad Ali Shah Gillani, ASC [in CA.2786] : Mr. Razzaq A. Mirza, Addl.A.G.Punjab (also on Court’s Notice in CP.538 & CA.1011) For the Respondent(s) [R.1 in CA.1011] : Mr. Anwar Kamal, Sr. ASC [R.2 in CA.1011] : Ex-parte [R.1 in CA.2786] : Syed Najam-ul-Hassan Kazmi, Sr. ASC Mr. Muhammad Ali Shah Gillani, ASC [R.2 in CA.2786] : Mr. Anwar Kamal, Sr. ASC [R.7 in CP.538] : -do- Date of Hearing : 29.01.2015 C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 2 - JUDGMENT GULZAR AHMED, J.— Civil Appeal No.1011 of 2006 and Civil Petition No.538 of 2006 have been filed by Mst. Nasreen Zahra while Civil Appeal No.2786 of 2006 is filed by Government of the Punjab through Secretary Communication & Works Department, Lahore. There is a common impugned judgment dated 31.05.2006 of a learned Division Bench of the Lahore High Court, Multan Bench. 2. Brief facts of the matter are that a Notification dated 07.05.1976 was issued under Section 4 of the Land Acquisition Act, 1894 (the Act) by the Collector/Deputy Commissioner, Multan District, Multan, which was published on 10.12.1976 notifying the acquiring of certain lands by Government of the Punjab at the public expense for the public interest i.e. construction of Multan Bye-Pass. A Corrigendum Notification dated 18.03.1977 was issued whereby the land of Mst. Nasreen Zahra was included in the project of construction of Multan Bye-Pass. Another Notification dated 21.01.1980 was issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 read with Chapter VI of the Punjab Development of Cities Act, 1976 by the Deputy Commissioner, Multan, notifying that the land specified in the Notification is needed by the Multan Development Authority (MDA) at its expense for the construction of Multan Bye- Pass Phase-II, which shall be deemed to be a Housing Scheme under Section 25 of the Punjab Development of Cities Act, 1976. Mst. Nasreen Zahra challenged this Notification dated 21.01.1980 by filing Writ Petition No.7932 of 1980, which was allowed vide judgment dated 23.12.1990. Against this judgment, MDA filed ICA No.12 of 1991 which through judgment dated 18.03.1992 was dismissed. The judgment of ICA was challenged by the MDA before this Court in Civil C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 3 - Appeal No.492 of 1993, which was dismissed vide judgment dated 26.05.1998 with direction to the Land Acquisition Collector, Multan (LAC) to deliver the Award allowing compensation under the Land Acquisition Act, 1894 and also determine the Authority who will pay the compensation. The Award dated 26.08.1998 was announced and Mst. Nasreen Zahra was awarded compensation of her land @ Rs.20,000/- per marla with 15% compulsory acquisition charges and the acquiring agency namely MDA was directed to deposit the amount of compensation. The Award was reviewed by the LAC through his further order dated 04.10.1998 whereby the rate of acquisition was reduced from Rs.20,000/- per marla to that of Rs.10,000/- per marla. Mst. Nasreen Zahra, being aggrieved, challenged the order of review dated 04.10.1998 by filing Writ Petition No.11480 of 1998 while the MDA also filed Writ Petition No.1439 of 1999 challenging the Award dated 26.08.1998 and its review dated 04.10.1998. Both these Writ Petitions were decided vide judgment dated 25.10.1999 whereby the order of review dated 04.10.1998 was declared illegal while the Award dated 26.08.1998 was upheld. Writ Petition of Mst. Nasreen Zahra was thus allowed and that of the MDA was dismissed. MDA filed ICA No.229 of 1999 which was dismissed vide judgment dated 08.10.2001, against which the MDA filed C.P.No.3857-L of 2001 in this Court. In the meanwhile Mst. Nasreen Zahra had filed Reference under Section 18 of the Act with the Referee Court for enhancement of compensation, which was dismissed vide judgment dated 30.07.2001. Against this judgment of Referee Court, Mst. Nasreen Zahra filed RFA No.328 of 2001. The MDA also field RFA No.366 of 2001 against this judgment. The C.P.No.3857-L of 2001 was disposed of by this Court vide order dated 07.07.2004 by consent of the parties’ counsel C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 4 - whereby the ICA No.229 of 1999 was remanded to the Lahore High Court, Multan Bench for decision along with the two RFAs. By the impugned judgment dated 31.05.2006 the learned Division Bench of the Lahore High Court, Multan Bench partly allowed ICA No.229 of 1999 to the extent that it is the Punjab Government and not the MDA who has to pay the compensation. The RFA No.366 of 2001 filed by the MDA was found to be not maintainable and dismissed while the RFA No.328 of 2001 filed by Mst. Nasreen Zahra was not pressed for enhancement of compensation instead only the claim under Section 34 of the Act was pressed, which the Court did not allow and therefore dismissed the said RFA. Mst. Nasreen Zahra filed C.A.No.1011 of 2006 and C.P.No.538 of 2006 while Government of the Punjab has filed C.A.No.2786 of 2006 in this Court. 3. Syed Najam-ul-Hassan Kazmi, learned Senior ASC appearing for the appellant/petitioner Mst. Nasreen Zahra has taken us through the record of the case and has contended that Mst. Nasreen Zahra is entitled for payment of interest in that no compensation was deposited in Court nor was it paid to her. He contended that under Section 31 of the Act, it was the responsibility of the Collector to tender the payment of compensation awarded by him to Mst. Nasreen Zahra and that at no time she has refused to receive the compensation. The learned Senior ASC contended that where such default is made, the Collector becomes liable to pay interest in terms of Section 34 of the Act. In support of his arguments, the learned Senior ASC has relied upon the case of Hissar Improvement Trust V. Smt. Rukmani Devi & another [AIR 1990 SC 2033]; Mangat Ram Tanwar & another V. Union of India [AIR 1991 SC 1080]; and Imamuddin Shah through Attorney V. Deputy District Officer C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 5 - (Revenue) and Land Acquisition Collector Sanghar & another [2005 MLD 69 Karachi]. 4. Mr. Razzaq A. Mirza, learned Additional Advocate General, Punjab, appearing for Government of the Punjab has contended that there were in all 108 effected parties whose land was acquired by the MDA out of whom 107 effected parties have received compensation without any protest. Only Mst. Nasreen Zahra did not receive the compensation. He further contended that Government of the Punjab was not a party in the proceedings before this Court; therefore, it was not heard and that the Reference was filed against the MDA and it was the MDA who filed appeal against the judgment given in the Reference. He further contended that the first Award given by the LAC was @ Rs.20,000/- per acre which comes to Rs.153/- per marla while in the present case the Award is given @ Rs.20,000/- per marla, which is challenged by Government of the Punjab. He contended that though the project for which the land was acquired was funded by the Federal Government but the Federal Government has assigned the project to the Provincial Government of the Punjab and MDA was its executing agency. He contended that Government of the Punjab had no opportunity to contest the Award announced in favour of Mst. Nasreen Zahra. 5. We will first of all deal with the contentions of the learned Additional Advocate General, Punjab because they are in the nature of preliminary objections. The learned Additional Advocate General has raised the objection that Government of the Punjab was not heard in the determination of compensation of the land acquired from Mst. Nasreen Zahra and that its challenge to the award of compensation be accepted now by this Court. We may note that Mst. Nasreen Zahra C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 6 - had filed her claim for awarding compensation before the LAC through her petition dated 30.06.1998 in which respondent No.1 was the Province of Punjab. Yet again we note that in Writ Petition No.7932 of 1980 filed by Mst. Nasreen Zahra, Government of the Punjab was a party where it was represented by its Additional Advocate General, as is apparent from the judgment dated 23.12.1990. Against this judgement, MDA filed C.A.No.492 of 1993 in this Court in which too Government of the Punjab was a party but as it appears it did not make appearance in the said Civil Appeal. In the second round of litigation before this Court, the MDA also filed C.P.No.3857-L of 2001, in which Government of the Punjab was a party. In the RFA No.328 of 2001 filed by Mst. Nasreen Zahra, Government of the Punjab was not impleaded as a party but in the RFA No.366 of 2001 filed by the MDA, Government of the Punjab was very much a party. At the time of hearing of the two RFAs so also ICA No.229 of 1999, Government of the Punjab was very much represented through its learned Assistant Advocate General namely Mr. Muhammad Qasim Khan and this is reflected from the impugned judgment. In the face of so many proceedings in which Government of the Punjab was a party, it is hard to imagine as to how Government of the Punjab could be considered to have remained unheard in the matter of determination of the compensation to Mst. Nasreen Zahra. In the three proceedings in which the impugned judgment was announced by the High Court, at least in two of them Government of the Punjab was directly a party, and those proceedings contained all material facts relating to acquiring of land from Mst. Nasreen Zahra for construction of Multan Bye-Pass and in the determination of compensation and giving of Award by the Collector. Government of the Punjab had an opportunity of raising this C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 7 - objection that it has not been heard in the proceedings of determination of compensation but no such objection seems to have been raised by Government of the Punjab before the High Court. In any case, it became aware of the fact of acquiring of land of Mst. Nasreen Zahra when initial Writ Petition No.7932 of 1980 was filed by her and the culmination of such proceedings into an Award when RFA of MDA was served upon it. No steps were taken by Government of the Punjab to ensure its representation at the stage of determination of compensation before the Collector or before the Referee Court. It, however, was represented in the two RFAs which arose from judgment of the Referee Court. Thus, we find no substance in this objection of the learned Additional Advocate General, Punjab. As regard the next submission of the learned Additional Advocate General that there were 108 effectees of whom 107 have been paid compensation and only Mst. Nasreen Zahra has not received the compensation. Though such submission was made by the learned Additional Advocate General but he did not point out from record as to who were those 107 effectees to whom compensation was paid and if paid at what rate and on the basis of which Award and of what date, as the proceedings for acquiring of land for construction of Multan Bye-Pass were initiated as early as on 07.05.1976 when the first Notification under Section 4 of the Act was issued. The Award in the case of Mst. Nasreen Zahra was made by the Collector on 26.08.1998 by which Mst. Nasreen Zahra was allowed compensation @ Rs.20,000/- per marla and it was not shown to us from the record that such compensation, after the Award, was tendered to Mst. Nasreen Zahra and that she refused to receive the same. What this argument of the learned Additional Advocate General reflects is that there was no cavil to the compensation awarded to Mst. C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 8 - Nasreen Zahra but the grievance was that she did not receive the same while the other effectees have received their compensation. As regards the submission of the learned Additional Advocate General that the first Award given by the LAC was @ Rs.20,000/- per acre which comes to Rs.153/- per marla while in the present case the Award is given @ Rs.20,000/- per marla and the latter Award is claimed to be challenged by Government of the Punjab before this Court. The Award in this case was made by the Collector as back as on 26.08.1998 and it could not be directly challenged by Government of the Punjab before this Court by filing C.A.No.2786 of 2006. However, we have looked into the record to ascertain the factum on the basis of which this argument of the learned Additional Advocate General is based and have found a copy of an Additional Award of the Collector, Land Acquisition, MDA, Multan, dated 02.10.1980 in respect of land in villages Ravi Mari Seatal and Kotla Muhammad Baqa for Multan Bye-Pass Phase-II. This Additional Award is available at page 226 of CMA No.1831 of 2006 filed by the learned Senior ASC for Mst. Nasreen Zahra. This Award was made under the Punjab Acquisition of Land (Housing) Act, 1973, where it was noted that average sale price for two years prior to acquisition proceedings supplied by the Tehsildar, Multan, was Rs.91,318/40 P.A., whereas the maximum compensation prescribed by the Act was Rs.20,000/- per acre and the latter amount was awarded as compensation. It has already been noted above, that application of Punjab Acquisition of Land (Housing) Act, 1973 for acquiring of land of Mst. Nasreen Zahra for Multan Bye- Pass was declared to be illegal by this Court vide its judgment dated 26.05.1998 and directions were given for computation of the Award according to the Land Acquisition Act. In the face of the judgment of C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 9 - this Court being in the field we cannot at all look into this argument of the learned Additional Advocate General as the same is not tenable. In any case, there is nothing on record to show that compensation allowed by the Additional Award dated 02.10.1980 @ Rs.20,000/- per acre was accepted by any of the effectees whose land was acquired for the construction of Multan Bye-Pass. As regards the liability of Government of the Punjab for payment of compensation for the land acquired for construction of Multan Bye-Pass, the very first Notification dated 07.05.1976 issued under Section 4 of the Act shows that the land was acquired by Government of the Punjab for public purpose i.e. construction of Multan Bye-Pass. Through a Corrigendum Notification dated 18.03.1977, the land of Mst. Nasreen Zahra was included in the project i.e. construction of Multan Bye-Pass. The beneficiary of land in terms of the above Notification is Government of the Punjab and this fact alone is sufficient to establish its liability for payment of compensation for the land acquired. 6. We now take up the issue of payment of interest, as claimed by Mst. Nasreen Zahra in her petition dated 30.06.2006 filed before the Collector and in the Reference application also such claim was made by her. In RFA No.328 of 2001 this was the only claim pressed by Mst. Nasreen Zahra. The relevant provisions that deal with payment of compensation in the Act is Section 31 (1) & (2) which read as follows :- “Sec.31. Payment of compensation or deposit of sum in the Court.--(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 10 - (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Sec.18 would be submitted”. Section 34 of the Act deals with the payment of interest and it reads as follows :- “Sec.34. Payment of interest.--When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of six per centum per annum from the time of so taking possession until it shall have been so paid or deposited”. 7. It is clear from reading of the provisions of Section 31 that on making of Award under Section 11 of the Act, the Collector is bound to tender the payment of compensation awarded by him to the person entitled thereto according to the Award. In case the Collector is prevented from tendering compensation awarded by him, the Collector is required to deposit the compensation in the Court to which Reference under Section 18 of the Act is made. The compliance of the provision of Section 31 of the Act by the Collector is mandatory for the simple reason that its non-compliance give rise to penal consequences and such penal consequences are those as are provided in Section 34 of the Act i.e. interest prescribed therein will become payable. 8. Syed Najam-ul-Hassan Kazmi, learned Senior ASC for Mst. Nasreen Zahra has emphatically contended before us that neither the compensation awarded by the Collector to Mst. Nasreen Zahra was tendered to her nor was it deposited in the Referee Court where Reference was filed by Mst. Nasreen Zahra. The learned Additional C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 11 - Advocate General was unable to show us that on making of the Award, the Collector in fact tendered/offered compensation awarded by him to Mst. Nasreen Zahra. Further we also note that the learned Additional Advocate General did not point out to us that the compensation awarded by the Collector was deposited in the Court where Mst. Nasreen Zahra has filed Reference under Section 18 of the Act. The payment of interest as provided in Section 34 of the Act is mandatory and it has been so held by this Court in the case of Collector of Land Acquisition, Nowshera V. Fazal Rahim & 3 others [1984 SCMR 1043]. Therefore, in the absence of any proof that compensation amount awarded by the Collector was tendered to Mst. Nasreen Zahra or was deposited with the Referee Court, in our view, will establish the claim for payment of interest, as provided under Section 34 of the Act. We may note that in the impugned judgment, the High Court while disallowing the claim for payment of interest to Mst. Nasreen Zahra assigned the reason that the Provincial Government has released Rs.10 Million to the MDA for compensation. This reason from reading of the provisions of Section 31 and 34 of the Act becomes altogether irrelevant in that the mandatory requirement of law is that the compensation amount awarded by the Collector was required to be tendered to Mst. Nasreen Zahra and in case the Collector was prevented from tendering the compensation amount to Mst. Nasreen Zahra, he was required to deposit the same in the Referee Court where Reference under Section 18 of the Act was field by Mst. Nasreen Zahra. This having not been done, we are of the view that Mst. Nasreen Zahra is entitled to payment of interest, as provided under Section 34 of the Act. C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006 - 12 - 9. We, therefore, allow Civil Appeal No.1011 of 2006 to the extent as noted above and dismiss Civil Appeal No.2786 of 2006. Civil Petition No.538 of 2006 is converted into an appeal and is also allowed in the above terms. CJ. Bench-I ISLAMABAD J. APPROVED FOR REPORTING *Hashmi* J. Announced in open Court on 07.07.2015 J.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE JAMAL KHAN MANDOKHAIL Civil Appeal No.1018/2016 (On appeal from the judgment dated 22.01.2016 passed by the Peshawar High Court, Peshawar in C.R. No.235/08) Shan Muhammad alias Shany …Appellant Versus Said Mashal ..Respondent For the appellant: Mr. Abdul Rehman Qadar, ASC Syed Rifaqat Hussain Shah, AOR For the respondent: Mr. Amjad Ali, ASC Date of hearing: 12.05.2022 ORDER MAZHAR ALAM KHAN MIANKHEL, J-. The respondent herein had filed a pre-emption suit against the present appellant with regard to a sale effected through mutation No.1310 attested on 23.12.2004. The suit was contested by the present appellant by filing his written statement wherein he through a general/evasive denial alleged that Talabs were not performed in accordance with law and not within the stipulated time besides other legal and factual objections. After a full- fledged trial, the suit was decreed by the Civil Judge-VII, Swabi vide his judgment and decree dated 29.06.2007 but in appeal of the present appellant, the appellate court while accepting the appeal vide its judgment and decree dated 27.2.2008, set aside the judgment and decree dated 29.06.2007 of the trial court and dismissed the suit of C.A.1018/16 2 the present respondent. The respondent/pre-emptor, feeling aggrieved, approached the High Court by way of civil revision and the learned Judge-in-Chambers vide impugned judgment and decree dated 22.01.2016 accepted the same by restoring the judgment and decree of the trial Court. The vendee-appellant, being dissatisfied, has questioned the same through the instant appeal. 2. We have heard the learned counsel for the parties and have gone through the available record with their able assistance. The only point urged and argued by the learned counsel for the appellant was with regard to non-mentioning of the date of issuance of notice of Talb-i-Ishhad (the ‘Notice’) in the plaint and delivery of physical possession of the suit property prior to attestation of mutation which makes the plaint of respondent as barred by time. The learned counsel by placing reliance on the cases of Mst. Saleem Akhtar Vs. Chaudhry Shauk Ahmed (2009 SCMR 673), Mst. Bashiran Begum Vs. Nazar Hussain and another (PLD 2008 SC 559) and Mian Pir Muhammad and another Vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) submitted that the pre-emptor has failed to mention the date of Notice in his plaint which in view of the law laid down by this Court in the above referred judgments is sine qua non and in absence of such date the suit of the respondent is liable to dismissal. On the other hand, the learned counsel for the respondent supported the judgments rendered by the trial Court as well as the High Court in favour of the respondent. 3. In light of the arguments of learned counsel for the appellant, we have noted that though the date of Notice is not mentioned in the plaint but the appellant has never alleged such C.A.1018/16 3 deficiency in his written statement and has simply denied the performance of Talabs in accordance with law within the stipulated time; no further details whatsoever were given in his written statement. The appellant, while appearing as a witness as DW-1, has repeated the same stance and was not specific with regard to the argument advanced by the learned counsel for the appellant. The evidence led by the respondent clearly establishes the fact that the Notice (Ex.PW-4/1), which bears the date of its issuance/execution, was tendered in evidence without any objection by the present appellant. The postman in this regard, who appeared as PW.1, has stated in categorical terms that the said Notice through a registered cover was delivered to the defendant. Besides the above, there is nothing in rebuttal by the present appellant. When confronted as to whether objection with regard to non-mentioning of date of issuance of Notice was raised in his written statement or in his grounds of appeals before the fora below or before this Court, his answer to such query was in negative. The appellant has never ever raised this ground during the trial or in both of his appeals. Learned counsel for the appellant has tried to make out a case which was never pleaded by him earlier and the law does not allow him to make out a new case by raising such a factual plea. We have gone through the entire evidence regarding the performance of Talabs and have found that the entire evidence establishes the fact that both the Talabs were performed by the respondent in accordance with law. It appears that substantial compliance of the statutory provisions has been made by the respondent and no prejudice has been caused to the appellant which is also in accordance with the law laid down by this court in the above referred judgments, and many other judgments on the point. In view of the ample evidence on the record which goes un- C.A.1018/16 4 rebutted, the respondent cannot be non-suited for a bonafide omission of non-mentioning of the date of notice in the plaint. Notice was available on the file along with plaint from day one. So, simply non-mentioning the date of issuance of notice cannot be held to non- suit the respondent in the peculiar circumstances of the case. Though in the above judgments it has been held that mentioning the date of issuance of notice in the plaint is must but the same has not been elaborated as to why and what for the mentioning date in the plaint is must. Had in the said cases/judgments, this aspect was clarified then one could have considered the same in the light of peculiar circumstances of the case. As explained above in detail, in presence of entire evidence on the point, mere non-mentioning of date of issuance of notice would not be fatal for preemptor. The above judgments in the circumstances are distinguishable and have no bearing on the merits of the case in hand. 4. As far as the second argument regarding delivery of possession of the suit property prior to attestation of mutation is concerned, there is no evidence on the record in this regard except a single sentence by the appellant and his vendor in their respective statements that after the sale transaction, physical possession of the property was delivered to the appellant on the second day but neither any entry in the daily diary of Patwari Halqa was tendered in evidence nor any Khasra Girdawari reflecting change of possession in favour of the appellant was available on the file in support of the argument of the learned counsel for the appellant. Mere alleging such an important matter in their statements, even if not cross-examined, cannot be termed as a sufficient evidence to hold the suit of the respondent as barred by time. For such an important aspect of the C.A.1018/16 5 case, there should have been a detailed evidence reflecting the mode and manner of change of possession with specific date and time and the persons witnessing such change of possession. In absence of such evidence, it cannot be held that possession of the property was handed over to the appellant prior to attestation of mutation. 5. The judgments and decrees rendered by the trial Court as well as the learned Judge-in-Chambers of the High Court would reflect that the same are based on proper appraisal of the entire evidence and we do not see any infirmity, misreading or non-reading of any material evidence on the record which could suggest a different opinion by this court. Hence this appeal, being meritless, is dismissed as such. C.M.A. No.2781/2016: In view of our above findings, this application has lost its fate and is accordingly disposed of. Judge Judge Islamabad, 15th May, 2022 Nasir Khan /- ‘Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, CJ Mr. Justice Mian Saqib Nisar Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan Mr. Justice Mushir Alam Civil Appeals No.101 & 102-P of 2011. (On appeal from judgment dated 27.04.2010, of the Peshawar High Court, Peshawar, passed in Writ Petitions No.205 of 2010 and 33 of 2009). Regional Commissioner Income Tax, Northern Region, Islamabad. (in Civil Appeal No.101-P/2011) Commissioner of Income Tax Company Zone, Income Tax Officer, Peshawar (in Civil Appeal No.102-P/2011). …Appellants. VS Syed Munawar Ali and others. (in Civil Appeal No.101-P/2011) Kiramatu Ullah Khan and others. (in Civil Appeal No.102-P/2011). …Respondents. For the Appellants: Mr Shahid Raza, ASC. (in both Appeals) For Respondent No.: Mr Ijaz Anwar, ASC. 1-8 in C.A.No.101-P/11 & for Respondents No.1-39 In C.A.No.102-P/11). Date of hearing: 17.02.2016. JUDGMENT AMIR HANI MUSLIM, J. - These Appeals, by leave of the Court, are directed against common judgment dated 27.04.2010, passed by the Peshawar High Court, Peshawar, whereby the Writ Petitions filed by the C.A.No.101-P/11 etc. 2 Respondents were disposed of with the direction to the Appellants to act according to law and to do what is required by the law to do within a minimum possible time. 2. The facts necessary for the adjudication of the present proceedings are that the Respondents and others while working as Superintendents/Supervisors with the Appellants filed an Application before the Chairman, Federal Board of Revenue (Revenue Division) for upgradation of their posts from BS-13 to BS-16, inter alia, on the ground that since the post of Superintendent has been upgraded to BS-16 in Federal/Provincial Government, therefore, the post of Superintendent may also be upgraded in the Federal Board of Revenue from BS-13 to BS-16. The said Application remained undecided, and the Respondents filed Writ Petitions before the Peshawar High Court, which were disposed of by a learned Division Bench by the consolidated impugned judgment. 3. The Appellants filed Civil Petitions for leave to Appeal against the judgment of the Peshawar High Court in which leave was granted to consider whether in view of the bar contained under Article 212 (3) of the Constitution, the High Court has the jurisdiction to entertain a Constitution Petition relating to the terms and conditions of service of civil servants. Hence these Appeals. 4. The learned Counsel for the Appellants has contended that the jurisdiction of the learned Peshawar High Court was barred under Article 212 (3) of the Constitution, as the issue of upgradation which was the subject matter of the Writ Petitions relates to the terms and conditions of C.A.No.101-P/11 etc. 3 service of the Respondents and could not have been adjudicated upon by the High Court. He next contended that the terms and conditions of service of civil servants fall within the domain of the Service Tribunal, therefore, the impugned judgment was without jurisdiction. 5. As against this, the learned Counsel for the Respondents have contended that the issue of upgradation is not covered by the expression “terms and conditions of service” of a civil servant, therefore, the High Court has the jurisdiction to decide the issue. 6. We have heard the learned Counsel for the parties and have perused the record. The expression “upgradation” is distinct from the expression “Promotion”, which is not defined either in the Civil Servants Act or the Rules framed thereunder, and is restricted to the post (office) and not with the person occupying it. The upgradation cannot be made to benefit a particular individual in term of promoting him to a higher post and further providing him with the avenues of lateral appointment or transfer or posting. In order to justify the upgradation, the Government is required to establish that the department needs re-structuring, reform or to meet the exigency of service in the public interest. In the absence of these pre-conditions, upgradation is not permissible. 7. The aforesaid definition of the expression “Upgradation” clearly manifests that it cannot be construed as promotion, but can be granted through a policy. In fact, this Court in the judgment titled as Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456) and an unreported judgment of this Court passed in the case of Chief Commissioner C.A.No.101-P/11 etc. 4 Inland Revenue and another vs. Muhammad Afzal Khan (Civil Appeal No.992 of 2014) has held that the issue relating to upgradation of civil servants can be decided by a High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. The policy of upgradation, notified by the Government, in no way, amends the terms and conditions of service of the civil servant or the Civil Servants Act and or the Rules framed there-under. The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of upgradation, as it does not form part of the terms and conditions of service of the civil servants. The question in hand has already been answered by the aforesaid two judgments of this Court. 8. For the aforesaid reasons, we do not find any infirmity in the impugned judgment; consequently these Appeals are dismissed. Chief Justice Judge Judge Judge Judge Islamabad the, 17th February 2016. Approved for reporting. Sohail/**

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO. 1020 OF 2014 (On appeal from the judgment dt. 20.5.14 passed by the Election Tribunal, Lahore in Election Petition No.190/13). Muhammad Ahmad Chatta … Appellant VERSUS Iftikhar Ahmad Cheema and others … Respondents For the Appellant: Syed Hamid Ali Shah, ASC For the Respondent-1: Mr. Mubeen uddin Qazi, ASC with Mr. Tariq Aziz, AOR For respondfent-10: In person. For respondents,3-9,11-16: Ex-parte. Date of Hearing: 25.01.2016 JUDGMENT Khilji Arif Hussain, J.- This appeal under Section 67(3) of the Representation of the People Act, 1976 (the Act), is directed against the judgment dated 20.5.2014 passed by the Election Tribunal, Lahore whereby the learned Tribunal dismissed the petition, filed by the appellant. 2. The brief facts necessary to decide the present appeal, are that appellant and respondent No.1 (the respondent) contested the general elections, 2013 for Member, National Assembly from Constituency No.NA-101 (Gujranwala-VII). The nomination papers filed by the appellant and respondent, after scrutiny, were declared as validly filed. The appellant secured 60,795 votes whereas respondent No.1 got 99,924 votes and as such respondent No.1 declared returned candidate. The appellant in his election petition, filed before the Election Tribunal, alleged that respondent has not disclosed various properties owned by him and his spouse in the CA 1020 of 2014 2 nomination papers, the detail of which is given in para 3 of memo of petition. The appellant further questioned that respondent has concealed and deliberately avoided to provide information in respect of four accounts as highlighted in para 5 of the memo of petition. The respondent filed written statement in which he made an effort to explain properties/accounts about non disclosure of the same. After framing the issues, recording of evidence and hearing the parties, the learned Election Tribunal dismissed the petition, as mentioned above. Hence, this appeal. 3. The learned ASC for the appellant contended that respondent owned various properties/accounts, the detail whereof is given in memo of petition and the same were not disclosed by him in his nomination papers. However, after arguing at some length, the learned counsel has not pressed this issue and confined his arguments only to the extent of the property owned by his spouse and non- disclosure of some accounts, maintained by him. He then drawn our attention to the statement of accounts and contended that respondent had deliberately not disclosed these accounts in his nomination papers and concealed the facts. He further contended that respondent’s wife owned undivided share of land measuring 5- kanals, 2-sarsai in joint Khewat No.19, Khatooni No.67-70 located in Aabadi of Chak No.303/JB, District Toba Tek Singh, Agricultural land meansuring 34 kanals, 18 marlas, bearing Khewat No.44, Khatooni No.207, located in Revenue Estate, Chak No.303/JB, House No.282, St. No.103, FECHS, Sector E-11/1, Islamabad and House No.1, Jami/Roomi Road, Rawalpindi Cantt. In this view of the background, the learned counsel contended that notification of respondent No.1 as returned candidate, be declared as void. In support of his contention, he relied upon Iqbal Ahmad Langrial vs. Jamshed Alam (PLD 2013 SC 179), Workers’ Party Pakistan vs. Federation of Pakistan (PLD 2013 SC 406), Najeeb-ud-Din Owasi vs. Amir Yar Waran (PLD 2013 SC 482), Khalid Pervaiz Gill vs. Saifullah Gill (2013 SCMR 1310) and Muhammad Rizwan Gill vs. Nadia Aziz (PLD 2010 SC 828). CA 1020 of 2014 3 4. On the other hand, the learned counsel for respondent No.1 argued that respondent has not disclosed the properties of his spouse as they have estranged relations since long and as regards the various accounts mentioned in memo of petition are concerned, it is contended that the same were dormant and as such the respondent was not under obligation to disclose the same. He contended that appellant has failed to establish any mens rea against the respondent for non- disclosure of above mentioned assets/accounts and as such the Tribunal has rightly dismissed his appeal. In support of his contention, he relied upon Hassan Nawaz vs. Election Commission of Pakistan (2013 CLC 1101) and Muhammad Sameen Khan vs. Returning Officer (2012 CLC 820). 5. We have heard the arguments of learned counsel for the parties and carefully gone through the available record. From the nomination paper, filed by the respondent, it appears that the respondent take all possible care as a prudent man while submitting the same which is evident from the facts that the respondent has changed many sentences not attributed to him. He categorically stated on oath that neither he nor his spouse or any other person dependent upon him owned any company. Likewise, he stated that he maintained one account bearing No.2670-5, in the National Bank of Pakistan, Main Branch, Wazirabad in which a sum of Rs.15,00,000/- is available. As regards his assets, he declared that he owned 151- kanals, 5 marlas of agricultural land and a house. The respondent in his written statement before the Tribunal admitted that apart from the account mentioned in his nomination papers, he was maintaining an account No.0010014643510016 with Allied Bank of Pakistan, Gunnianwala More Branch and at the time of submitting his nomination papers, the respondent withdraw an amount of Rs.15,00,000/- which was deposited in the account maintained by him in National Bank of Pakistan, Wazirabad Branch for election as per direction of the Election Commission of Pakistan and after withdrawal of amount of Rs.15,00,000/- from Allied Bank, petty negligible amount had left in the Allied Bank account because another cheque for CA 1020 of 2014 4 purchase of machinery was also simultaneously issued, therefore, the said account bona fidely omitted in the nomination papers. The respondent further admitted that he maintain a joint account No.0010014643510022 with one Arshad Mehmood and the amount in the said account was not owned by him as it was the property of the village Mosque/Mosque Committee of village Kathor Kallan. The respondent was merely a signatory being a trustee for this charitable purpose and that after death of Arshad Mehmood, who was joint signatory of the account, about two years back, the said account is lying dormant. 6. From perusal of record, it transpires that at the time of submitting his nomination papers, an amount of Rs.25,28,893.90/-, as on 30.6.2012, was available in the respondent’s account bearing No.0010014643510016 which fact was not disclosed by him in his nomination papers as required under the Act, 1976. The respondent’s assertion that since on the date of submitting nomination papers, negligible amount was available, therefore, it was not considered appropriate by him to mention in the nomination papers, appears not correct. From scrutiny of record, it appears that even at the time of submitting nomination papers, a sum of Rs.2,93,342.90/- was shown on credit side in the said account. The contention of respondent that he issued another cheque for purchasing some articles on the said date when he issued cheque of Rs.15,00,000/-, is not supported by the documents on record as after withdrawal of Rs.15,00,000/- by cheque No.10965677, two cheques bearing No.10965678 and 10965679 were debited from the said account and after deducting the same amounts, there still remain much amount to be mentioned in his nomination papers. It further transpires that after the issuance of above mentioned two cheques, substantial amounts were credited in the said account which clearly established that, for all practicable purposes, the account was operative and respondent, for the reasons best known to him, deliberately not mentioned the same in his nomination papers. 7. As regards the properties owned by spouse of the respondent, the appellant categorically highlighted the property owned by spouse of the respondent CA 1020 of 2014 5 which fact is not disputed by the respondent in his written statement. The respondent stated that due to peculiar family circumstances and estranged relations with his spouse, he bona fidely not mentioned the same in his nomination papers and he came to know about properties of his spouse first time after the filing of election petition by the appellant. He further stated that when the respondent requested his sons for the requisite information, he came to know that even his estranged spouse no longer owned the said residential properties and had already gifted the same to their sons through oral gift deed. To prove the alleged oral gift deed dated 25.12.2012, respondent produced RW-8, RW-9 and RW-10. All these witnesses attempted to prove the alleged oral gift deed but failed to prove delivery of possession of said properties which is one of the ingredients to make a valid gift. The witnesses accepted that they have not paid any tax in respect of the properties being owner of the same nor produced any rent receipts to prove that after gift, they received the rent of said properties. Even if, for the sake of arguments, it is accepted that the alleged oral gift deed was declared by the respondent on 25th December, 2012 whereas under section 12(2)(f) of the Act, the respondent had to declare all the assets owned by him or his spouse on 30th June, 2012. From the record of the register haqdaran zamin for the year 2008-2009 issued on 19.6.2013, it appears that the spouse of the respondent had been shown as owner of the said property. The respondent’s spouse in his wealth statement for the year, 2012 declared House No.282, St. No.103, FECHS, Sector E-11/1, Islamabad and House No.1, Jami/Roomi Road, Rawalpindi Cantt., as her own property. At present, we are not touching the question whether the respondent manoeuvred the documents regarding declaration of assets submitted by him on 30.6.2012 by inserting that “I have no knowledge about the assets of my wife because I have estrange relations with her” because an application in this regard is already pending before the Election Tribunal. Section 12 of the Act, 1976 provided a detailed procedure for submitting nomination papers. Section 14 provided that at the time of scrutiny of the nomination papers, the Returning Officer can examine the CA 1020 of 2014 6 nomination papers and decide any objection raised by any such person to any nomination and after summary inquiry can reject the nomination papers of a candidate if he satisfied that the candidate is not qualified to be elected as a member, the proposer or the seconder is not qualified to subscribe to the nomination paper, any provision of section 12 or section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular or the signature of the proposer or the seconder is not genuine. Section 76A of the Act, 1976 which was inserted on 31.7.2002, give additional power to the Election Tribunal which stipulates that “the Election Tribunal can declare election of the returned candidate as void if he has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents under section 12”. 8. The learned counsel for the respondent relied upon the case of Malik Muhammad Sameen Khan vs. Returning Officer (2012 CLC 820) wherein the Lahore High Court held that appellant had provided approximate information of loan, and had not concealed factum of securing the loan from Zarai Taraqiati Bank Ltd. In this matter appellant mentioned that he secured Rs.3,50,000/- as loan whereas correct figure was Rs.3,95,000/-. In the case of Hassan Nawaz vs. Election Commission of Pakistan (2013 CLC 1101), it was alleged that candidate maneuvered release of personal guarantee issued to secure finance from a Bank, the learned High Court held that no one has questioned the release of personal guarantee and even Banking Court deleted the name of the candidate from array of defendants and on the basis of these facts set aside the order of rejection of nomination papers. The issues of both the referred judgments are clearly distinguishable as to the matter in hand. In the case of Khaleefa Muhammad Munawar Butt vs. Hafiz Muhammad Jamil Nasir (2008 SCMR 504) the appellant has not declared the amount received by him as part payment of sale consideration of his property and this Court held that petitioner was bound to have shown said amount as his asset in the column of nomination paper. CA 1020 of 2014 7 Same view was earlier taken by this Court in the case of Muhammad Jamil vs. Munawar Khan (PLD 2006 SC 24). 9. From the perusal of record, it is established that while submitting the nomination papers, the respondent has not submitted statement regarding assets of his spouse as required under section 12 of the Act, 1976. The learned Election Tribunal, without taking into consideration this aspect of the case and while holding that respondent has not disclosed assets owned by his spouse and the account maintained by him, dismissed the election petition merely on the ground that mens rea is not proved and further the government exchequer has not suffered any loss on account of non-disclosure of these material facts. This finding of the Tribunal is against the spirit of law and as such calls for interference. 10. Before parting with the judgment we will like to expunge the observation made by the learned Presiding Officer that “subject to a few and very few exceptions, the female legal heirs in Rural Punjab after having inherited agricultural land from their predecessor-in-interest, surrender their inherited rights in favour of the male legal heirs”. Even if, there is any such custom of surrendering inherited share by female legal heirs in agriculture land to male legal heirs, the same is not only against the injunction of Islam but also violative of law and Constitution of Pakistan and the Courts should not take notice of any such custom, if any. 11. In the foregoing discussions, this appeal is allowed. These are the reasons of our short order announced today in Court. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 25th of January, 2016 A.Rehman APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1022 OF 2012 (On appeal against the judgment dated 1.7.2010 passed by the High Court of Balochistan, Quetta in C.P. No. 209/2009) Hafeez ur Rehman … Appellant VERSUS Judge Accountability Court No. 2 and another …Respondents For the Appellant: Mr. Wasim Sajjad, Sr. ASC For the Respondents: Mr. Nasir Mehmood Mughal, Special Prosecutor, NAB For the Federation: Mr. Abdur Rasheed Awan, DAG Date of Hearing: 06.06.2016 ORDER ANWAR ZAHEER JAMALI, CJ.- We have heard the arguments of the learned ASC for the appellant and the learned Special Prosecutor General, NAB. For the reasons to be recorded separately, this Civil Appeal is dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 6th of June, 2016 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.1023, 1024, 1357, 1358 AND 2155 OF 2016 (Against the judgment dated 19.1.2016 of the Peshawar High Court, Peshawar passed in Writ Petitions No.2485-P and 506- A/2014) 1. Abdul Haq Khan etc. Vs. Haji Ameerzada etc. In CA 1023/2016 2. Deedar Khan etc. Vs. Maulana Asmatullah etc. In CA 1024/2016 3. Malik Qadam Khan etc. Vs. Haji Ameerzada etc. In CA 1357/2016 4. Malik Qadam Khan etc. Vs. Maulana Muhammad Asmatullah etc. In CA 1358/2016 5. Government of KPK through Chief Secretary, Civil Secretariat, Peshawar etc. Vs. Haji Ameerzada etc. In CA 2155/2016 For the appellant(s): Mr. Aitzaz Ahsan, Sr. ASC (In CAs 1023 & 1024/2016) Sardar Abdul Raziq Khan, ASC (In CAs 1357 & 1358/2016) Mr. Waqar Ahmed Khan, Addl.A.G. KPK Mr. Mugees Sana Ullah, Assistant Commissioner, PATA (In CA 2155/2016) For the respondent(s): Mr. Arshad Zaman Kayani, ASC Ch. Akhtar Ali, AOR (For respondents 1 to 7 in CA 1023/2016) Syed Iftikhar Hussain Gillani, Sr. ASC (For respondents 1 to 5 in CA 1024/2016) Mr. Waqar Ahmed Khan, Addl.A.G. KPK (For respondents 6 to 11 in CA 1023/2016) Mr. Arshad Zaman Kayani, ASC Ch. Akhtar Ali, AOR (For respondent No.1 in CA 1357/2016) Civil Appeal No.1023 of 2016 etc. -: 2 :- Mr. Waqar Ahmed Khan, Addl.A.G. KPK (For respondents 8 to 13 in CA 1357/2016) Mr. Imtiaz Ali, ASC (For respondents 1, 11 to 15 in CA 1023/2016) For Federation: Mr. Sajid Ilyas Bhatti, DAG Dates of hearing: 22.11.2016 & 23.11.2016 … JUDGMENT MIAN SAQIB NISAR, J.- These appeals, with the leave of the Court, involve the sole proposition of law whether the re- constitution of districts in the Provincially Administered Tribal Areas (PATA) of Khyber Pakhtunkhwa (KPK) is violative of the provisions of Article 246 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). 2. The facts are that vide notification dated 20.9.1976, issued under Section 3 of the West Pakistan District Re-constitution Ordinance, 1960 (the Ordinance), Hazara District was split into three districts, namely, Abbottabad, Mansehra and Kohistan (Kohistan comprised of 159 villages). Through another notification of even date issued under Sections 5 and 6 of the West Pakistan Land Revenue Act, 1967 (the Act), Hazara District ceased to be a part of Peshawar Division, and was to be known as Hazara Division consisting of the aforementioned three districts. Kohistan District comprised of Sub-division and Tehsil Dassu which in turn comprised of the 159 villages of Kohistan (settled area). Thereafter by a notification dated 1.10.1976 issued by the Governor, KPK (note:- the notification does not state under which law it was issued), 154 villages of Swat District were included in Kohistan District (note:- Swat is admittedly a PATA). On 30.12.1976, the Constitution (Sixth Amendment) Act, 1976 (6th Amendment) was passed which added the phrase “tribal area of Kohistan district” to Article 246(b)(i) of the Constitution. Another Civil Appeal No.1023 of 2016 etc. -: 3 :- notification dated 8.10.1977 was issued under Sections 5 and 6 of the Act which partially modified the second notification dated 20.9.1976 under which a new Sub-division and Tehsil Pattan were created and the 154 villages (formerly) of Swat District were made a part thereof. Therefore at this point of time, Kohistan District comprised of two Tehsils, namely Dassu (comprising 159 villages i.e. settled area) and Pattan (comprising 154 villages i.e. former Swat District villages which were PATA). On 20.10.1995 a notification was issued under Sections 5 and 6 of the Act which created another Sub-division in Kohistan District, i.e. Palas, and for this purpose some of the villages which earlier formed a part of Sub- division Pattan (500 villages in 10 Union Councils) were now made part of Palas. Thus at this point, Kohistan District comprised of three Sub- divisions and Tehsils, i.e. Dassu, Pattan and Palas. Vide notification dated 23.8.2007 issued under Section 6(1) and (2) of the NWFP Land Revenue Act, 1967 (the West Pakistan Land Revenue Act, 1967 was renamed thus) Tehsil Kandia was created (note:- Kandia and Dassu are settled areas). Thereafter vide notification dated 15.1.2014 issued under Sections 5 and 6 of the KPK Land Revenue Act, 1967 (the NWFP Land Revenue Act, 1967 was renamed thus) Kohistan (Lower) District was carved out of the existing Kohistan District; the former comprised of Sub-divisions and Tehsils Pattan and Palas while the latter comprised of Sub-divisions and Tehsils Dassu and Kandia. It is instructive to note at this juncture that a notification dated 7.2.2014 partially amended the notification dated 15.1.2014, in that 63 villages out of the 154 villages formerly of Swat District were removed from Tehsil Pattan and 20 were instead included in Tehsil Dassu, whilst the remaining 43 were included in Tehsil Kandia. Thus both Kohistan District and Kohistan (Lower) District comprised of settled areas as well as PATA. This act of splitting Kohistan District vide notification dated Civil Appeal No.1023 of 2016 etc. -: 4 :- 15.1.2014 was challenged through eight constitutional petitions. The first Writ Petition No.79-A/2014 titled “Action Committee Palas Vs. Secretary to Govt. of KPK Revenue Department, Civil Secretariat, Peshawar and others” was dismissed on 24.6.2014 as not being maintainable. Of the remaining seven constitutional petitions, five were dismissed through the impugned judgment (note:- none of the six dismissals have been challenged before us). However vide the same judgment, two of them, Writ Petition No.2485-P/2014 titled “Haji Amirzahda and others Vs. Secretary to Govt. of KPK Revenue Department, Civil Secretariat, Peshawar and others” and Writ Petition No.506-A/2014 titled “Maulana Muhammad Asmatullah and others Vs. Secretary to Govt. of KPK Revenue Department, Civil Secretariat, Peshawar and others” were partially allowed. In all these constitutional petitions four issues were raised:- 1. Whether the impugned action of the Government of KPK is ultra vires on the ground that the creation of districts could only be made by the Provincial Government under the Ordinance; 2. Whether the impugned action of the Provincial Government was adverse to public interest and resulted in administrative difficulties, practical inconvenience and difficulties for the local population; 3. Whether the impugned action of the Provincial Government was illegal for being based on mala fide; 4. Whether the impugned action of the Provincial Government offends the mandate of Article 246 of the Constitution, in that the constitutional status of PATA forming part of Kohistan District, has been disturbed without any constitutional amendment. Civil Appeal No.1023 of 2016 etc. -: 5 :- The learned High Court decided the first three issues against the writ petitioners by holding that:- 1. The assertion of the writ petitioners that the action of the Provincial Government lacked authority for not having been invoked under the Ordinance of 1960 was not legally correct. The impugned action of the Provincial Government fell within the authority vested in the Provincial Government under the enabling provisions of the Act; 2. The concerns raised in issue No.2, unless patently absurd or unreasonable, were not justiciable. Thus it was best to leave it to the wisdom of the Executive Authority of the State to maintain the trichotomy of power as engrained in the Constitution; 3. The general and bald assertions of ill will and mala fide attributed in the writ petitions were without particulars and would not survive the legal test laid down by the Supreme Court. The ground of mala fide taken in the writ petitions did not fulfil the condition precedent to successfully challenge the impugned action on this basis. The findings on these issues going against the writ petitioners have not been challenged before this Court and have therefore attained finality. However, the two constitutional petitions mentioned above were allowed on the fourth issue, as the learned High Court held that the PATA excluded from Kohistan District and included in the newly established Kohistan (Lower) District did not figure anywhere in Article 246 of the Constitution thus the same could not be regarded as territory forming part of PATA, and hence the impugned action of the Provincial Government had disturbed the constitutional status of the said area. 2. Mr. Aitzaz Ahsan, learned counsel for the appellants in Civil Appeals No.1023 and 1024/2016 made the following submissions:- Civil Appeal No.1023 of 2016 etc. -: 6 :- 1. Article 246(b) of the Constitution merely identifies the physical areas forming part of PATA; 2. The inclusion or exclusion of these identified areas (PATA) in any other district will not change their character and PATA status; 3. PATA’s status can only be changed in accordance with Article 247(6) of the Constitution which process has not been undertaken in the matter and therefore the said area retains its PATA status; 4. The constitution or reconstitution of districts is not as sacred as the constitutional limits of the provinces which can only be altered in terms of the mandate of Article 239(4) of the Constitution; 5. The constitution or reconstitution of districts is an administrative function of the executive and shall not be interfered with in the constitutional jurisdiction if such executive authority has been properly and fairly exercised; 6. On facts, the administrative changes made (the splitting of Kohistan into two districts) are reasonable and in the public interest considering the size and terrain of the original Kohistan District. He relied upon the judgment reported as The Collector Customs Vs. Abdul Jabbar and others (PLD 2005 SC 247). 3. Sardar Abdul Raziq Khan, learned counsel for the appellants in Civil Appeals No.1357 and 1358/2016 adopted the arguments of Mr. Aitzaz Ahsan, learned ASC. However he added that the Government of KPK had addressed the grievances of the people of these areas by issuing a revised notification dated 7.2.2014 returning some of the villages to their respective tehsils. He argued that this subsequent notification was never challenged yet the learned High Court set it aside. Civil Appeal No.1023 of 2016 etc. -: 7 :- 4. The learned Advocate General in Civil Appeal No.2155/2016, while adopting the arguments of Mr. Aitzaz Ahsan, learned ASC, submitted that Article 246 of the Constitution merely defines the tribal areas and identifies their boundaries. It does not confer territorial integrity to the areas mentioned therein and does not bar the competent authority from making it a part of a district by attaching or detaching it from a settled area. Further, while referring to Section 4 of the Ordinance and Article 247(1) of the Constitution, he contended that no authorization is required from the Federal Government in this regard, rather the Governor is the competent authority to take action in this case. 5. On the other hand, Mr. Arshad Zaman Kiyani, learned counsel for the respondents in Civil Appeals No.1023 and 1357/2016 (states that his concise statement, filed vide C.M.A.No.6393/2016 should be read as part of his arguments) submitted that as shown in the map appearing at page 13 of the noted C.M.A., the area east of the Indus River is settled whereas the area west of the Indus River is tribal, and the culture, customs and language etc. of both east and west parts are entirely different. Further, while referring to Article 246 of the Constitution, he argued that there is a distinction between the word “means” appearing in Article 246(b) and the word “includes” appearing in Article 246(c). He submitted that by virtue of the splitting of Kohistan the meaning of PATA changes and this impinges on Article 246(b). Lastly he argued that in paragraph D of the memo of appeal (Civil Appeal No.1023/2016) the appellants have admitted the case of the respondent which is adequate to non-suit the appellants. 6. Syed Iftikhar Hussain Gillani, learned counsel for the respondents in Civil Appeal No.1024/2016 stated at the very outset that in order to understand the proposition in hand, it is important to Civil Appeal No.1023 of 2016 etc. -: 8 :- appreciate the scheme of the Constitution vis-à-vis the tribal areas. He referred to Articles 103 and 104 of the Constitution of 1956 which contained the concept of special areas (now called tribal areas). The term tribal areas was first introduced in Articles 223 and 223A of the Constitution of 1962 which provisions according to him were pari materia to Articles 246 and 247 of the present Constitution. He pointed out that previously, there was no concept of PATA, only Federally Administered Tribal Areas, and the former concept was introduced in Articles 260 and 261 of the interim Constitution of 1972 which is reflected in Articles 246 and 247 of the present Constitution. He argued that since 1956 the scheme has been the same throughout in that anything to do with a tribal area, particularly one which is provincially administered, requires the involvement of the Federal Government. In this context he stated that wherever the Constitution talks about administration by the Governor, it must be with the prior approval of the President, and in the instant case, whilst issuing the impugned notification the Provincial Government had tried to bypass the Federal Government which is not permissible under the constitutional scheme. He argued that the inclusion of the villages of Swat District (PATA) into Kohistan District vide notification dated 1.10.1976 was unlawful and this is bolstered by the fact that subsequently the 6th Amendment was brought about in order to give cover to this act by adding the “tribal area in Kohistan District” to Article 246(b)(i) of the Constitution, and interestingly, in the 6th Amendment it was specifically mentioned that it would take effect from 1.10.1976 which is the date of the said notification, otherwise there was no need to specify the date. He vehemently argued that though the President can exclude, and not include, any area from a tribal area Civil Appeal No.1023 of 2016 etc. -: 9 :- in accordance with Article 247(6) of the Constitution, it is only Parliament which has the power to include an area as a tribal area through a constitutional amendment, as it had done vide the 6th Amendment. PATA are set out in Article 246(b)(i) of the Constitution and any area not included or mentioned therein is not a PATA, therefore until and unless Kohistan (Lower) District was added into the said article by virtue of a constitutional amendment, the character of the areas listed therein would stand changed in that they would cease to be tribal area(s) for the purposes of our Constitution. He further stated that a district with part-settled and part-tribal area could not be created as it was against the scheme of the Constitution. Finally he submitted that the notifications have been issued under the Act which has never been extended to Kohistan District, and are therefore invalid on this score as well. 7. Mr. Imtiaz Ali, learned counsel for respondents Nos.1 and 11 to 15 in Civil Appeal No.1358/2016 adopted the arguments of Mr. Syed Iftikhar Hussain Gillani, learned Sr. ASC and additionally stated that it is clear from Article 246(b)(i) of the Constitution that the phrase “which includes Kalam” therein was subsequently added which reflects the fact that Kalam was not part of Swat initially and this connotes that PATA cannot be changed without a constitutional amendment. 8. The learned Additional Attorney General stated that certain tribal areas were taken out of D. I. Khan and Bannu and put into Lakki Marwat and Tank Districts by virtue of the 18th Amendment (note:- this was in fact done by the 19th Amendment which change exists till date) and this means that the tribal areas of Kohistan (Lower) District could only have been created through a constitutional amendment. Civil Appeal No.1023 of 2016 etc. -: 10 :- 9. Mr. Aitzaz Ahsan, learned Sr. ASC stated in rebuttal that drawing an analogy with Abdul Jabbar’s case (supra) it could be said that the Act was deemed to be applicable to the tribal areas in Kohistan by virtue of the fact that the Act was previously made applicable to Swat District, as Kohistan District was subsequently carved out of Swat for administrative purposes. He further stated that the phrase “tribal area of Kohistan” featuring in Article 246(b)(i) of the Constitution itself envisages districts consisting of both settled and tribal areas. 10. Heard. Before answering the question identified in the opening paragraph of this opinion, let us first examine the meaning and purpose of a “district”. A district is basically a type of territorial division usually made for administrative or electoral purposes, etc. Territories are marked off as districts to facilitate local governments in terms of administration. In Pakistan, districts are the third tier of administrative division, featuring after provinces and divisions. The creation and variation of the limits of districts was governed by the West Pakistan Land Revenue Act, 1967. At present for the purposes of KPK, it is the KPK Land Revenue Act, 1967 which is in force. The relevant provisions are contained in Section 6 thereof which read as under:- “6. Division to be divided into Districts and District into Subdivision, etc. (1) Each Division shall be divided into such Districts, and each District may be divided into such Sub-Divisions or Tehsils (which also include Talukas) as Government may, by notification, specify; and each sub-Division may consist of Tehsils and having such limits, as Government may, by notification, direct. Civil Appeal No.1023 of 2016 etc. -: 11 :- (2) Government may, by notification, vary the number and limits of Division, Districts, Sub-Division or Tehsils in the Province.” Therefore it is the Government which has the power to divide a division into districts and vary the number and limits of such districts by issuing a notification under the Act. 11. Let us now discuss the concept of Provincially Administered Tribal Areas or PATA. Article 246 of the Constitution deals with PATA. Prior to the 6th Amendment, Article 246 read as follows:- “246. In the Constitution,– (a) “Tribal Areas” means the areas in Pakistan which, immediately before the commencing day, were Tribal Areas, and includes— (i) the Tribal Areas of Baluchistan and the North-West Frontier Province; and (ii) the former States of Amb, Chitral, Dir and Swat; (b) “Provincially Administered Tribal Areas” means— (i) the districts of Chitral, Dir and Swat (which includes Kalam), Malakand Protected Area, the Tribal Area adjoining Hazara district and the former State of Amb; and (ii) Zhob district, Loralai district (excluding Duki Tehsil), Dalbandin Tehsil of Chagai district and Marri and Bugti tribal territories of Sibi district; and Civil Appeal No.1023 of 2016 etc. -: 12 :- (c) “Federally Administered Tribal Areas” includes— (i) Tribal Areas adjoining Peshawar district; (ii) Tribal Areas adjoining Kohat district; (iii) Tribal Areas adjoining Bannu district; (iv) Tribal Areas adjoining Dera Ismail Khan district; (v) Bajaur in Malakand Agency; (vi) Mohmand Agency; (vii) Khyber Agency; (viii) Kurram Agency; (ix) North Waziristan Agency; and (x) South Waziristan Agency.” After the 6th Amendment was introduced, Article 246 read as below:- “246. In the Constitution,– (a) “Tribal Areas” means the areas in Pakistan which, immediately before the commencing day, were Tribal Areas, and includes— (i) the Tribal Areas of Baluchistan and the North-West Frontier Province; and (ii) the former States of Amb, Chitral, Dir and Swat; (b) “Provincially Administered Tribal Areas” means— (i) the districts of Chitral, Dir and Swat (which includes Kalam), the Tribal Area in Kohistan district, Malakand Protected Area, the Tribal Area adjoining Mansehra Civil Appeal No.1023 of 2016 etc. -: 13 :- district and the former State of Amb; and (ii) Zhob district, Loralai district (excluding Duki Tehsil), Dalbandin Tehsil of Chagai district and Marri and Bugti tribal territories of Sibi district; and (c) “Federally Administered Tribal Areas” includes— (i) Tribal Areas, adjoining Peshawar district; (ii) Tribal Areas adjoining Kohat district; (iii) Tribal Areas adjoining Bannu district; (iv) Tribal Areas adjoining Dera Ismail Khan district; (v) Bajaur Agency; (va) Orakzai Agency; (vi) Mohmand Agency; (vii) Khyber Agency; (viii) Kurram Agency; (ix) North Waziristan Agency; and (x) South Waziristan Agency.” (Emphasis supplied) A bare reading of Article 246(b) of the Constitution suggests that it is a clause which defines and describes PATA and according to sub-part (i) thereof, the tribal areas of Kohistan District have been declared to be PATA. We find that the mention of particular names of certain districts or areas in Article 246(b) is only for the purposes of describing the geographical limits of PATA or to mark a certain area as a tribal area. It is not the “districts” mentioned therein which have attained territorial sanctity, rather it is the area identified as PATA which has attained Civil Appeal No.1023 of 2016 etc. -: 14 :- territorial sanctity. This fine distinction needs to be appreciated. To attach such sanctity to districts would be to equate them with provinces, which interpretation to our mind is incorrect keeping in view the scheme of the Constitution. In this context it is relevant to reproduce Article 239(4) of the Constitution which reads as under:- “A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be presented to the President for assent unless it has been passed by the Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership.” Article 239(4) reproduced above essentially confers territorial sanctity upon the geographical limits of a province by providing that such limits cannot be changed without a constitutional amendment. Conversely, there is no such bar in the Constitution which prevents the limits of districts, whether in relation to a PATA or not, from being changed without a constitutional amendment. To impute such a bar into Article 246(b) would be to read into it something which is not there and is not envisaged by the Constitution. This is not a correct interpretation of the law. The reading in of words or meaning into a statute when its meaning is otherwise clear is not permissible. As a matter of statutory interpretation, Courts generally abstain from providing casus omissus or omissions in a statute, through construction or interpretation. An exception to this rule is, when there is a self-evident omission in a provision and the purpose of the law as intended by the legislature cannot otherwise be achieved, or if the literal construction of a particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this Civil Appeal No.1023 of 2016 etc. -: 15 :- power is to be exercised cautiously, rarely and only in exceptional circumstances. The creation or variation of the limits of a district is not governed by the Constitution, but as mentioned in the earlier portion of this opinion, by the Act. The limits of a tribal area, in this case PATA, are most certainly governed by the Constitution and the creation or increase in the limits of PATA can only take place through a constitutional amendment by amending the list provided in Article 246(b). The reduction in the limits of a tribal area is governed by Article 247(6) of the Constitution according to which the President has the authority to declare that a tribal area or a part thereof has ceased to be a tribal area. The said article is reproduced herein below for ease of reference:- “247(6) The President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to be a Tribal Area, and such Order may contain such incidental and consequential provisions as appear to the President to be necessary and proper: Provided that before making any Order under this clause, the President shall ascertain, in such manner as he considers appropriate, the views of the people of the Tribal Area concerned, as represented in Tribal jirga.” There is no bar in the Constitution that prevents a district from comprising both a settled area and PATA. Furthermore, as stated by Mr. Aitzaz Ahsan, learned ASC, the status of the areas marked as PATA which fell within Kohistan District and Kohistan (Lower) District was not changed despite the change in district. Such areas never ceased to be tribal areas as the process provided in Article 247(6) of the Constitution to remove their PATA status was never invoked. These Civil Appeal No.1023 of 2016 etc. -: 16 :- areas remained PATA for all intents and purposes and they were simply made part of a different district(s) for the purposes of local government administration. 12. Now that we have established that it is not the Constitution but the Act which governs the creation and variation of limits of districts, an ancillary question that arises is whether the Act is applicable to PATA. In this context, Article 247(3) and (4) of the Constitution are relevant which read as under:- “(3) No Act of Majlis-e-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction. (4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Majlis-e- Shoora (Parliament), and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province.” (Emphasis supplied) Civil Appeal No.1023 of 2016 etc. -: 17 :- Therefore for an Act of Parliament or a Provincial Assembly to be applicable to PATA or any part thereof, the Governor of the Province in which the tribal area is located, with the approval of the President, must issue a direction to that effect. Further, the Governor also has the power, with the prior approval of the President, to issue regulations for the peace and good governance of PATA or any part thereof. The question is whether the Act that was made applicable to the tribal areas of Swat District still continues to remain applicable to such tribal areas that are taken out from Swat District and made part of Kohistan District and Kohistan (Lower) District? Prior to the formation of Kohistan (Lower) District and even Kohistan District, the PATA that formed a part thereof was a part of Swat District. The Governor of NWFP, with the approval of the President, promulgated the Provincially Administered Tribal Areas (Application of Laws) Regulation, 1974 (NWFP Regulation No.1 of 1974) (the Regulation) pursuant to Article 247(4) of the Constitution, and the relevant provisions thereof are reproduced below for ease of reference:- “1(2) It extends to the Provincially Administered Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand Protected Area. 3. The Laws specified in the Schedule as in force in the North-West Frontier Province immediately before the commencement of this Regulation, subject to modifications herein specified and so far as may be, all rules, notification and orders made or issued thereunder, shall apply to the Provincially Administered Tribal Area of Chitral, Dir, Kalam, Swat and Malakand Protected Area, hereinafter referred to as the said Areas. Civil Appeal No.1023 of 2016 etc. -: 18 :- SCHEDULE 1………………………………………………………………… 2………………………………………………………………… 3………………………………………………………………… 4………………………………………………………………… 5. The West Pakistan Land Revenue Act, 1967 (W. P. Act No. XVII of 1967).” According to Section 3 read with Entry 5 in the Schedule of the Regulation, the Act was made applicable to the PATA of Swat. Subsequently vide notification dated 1.10.1976 issued by the Governor, KPK, 154 villages of Swat District were included in Kohistan District. As we have established above, variation in the limits of a district does not affect the PATA status of an area, therefore the tribal areas of Swat District remained tribal areas even after they became a part of Kohistan District. Since the Act was made applicable to PATA in Swat through the Regulation, even if such tribal area was subsequently made a part of Kohistan, it remained a tribal area for all intents and purposes and the Act would be deemed to be applicable to such area. The case of Abdul Jabbar cited by Mr. Aitzaz Ahsan, learned ASC deals with a matter in which this Court had to answer inter alia the following questions:- “(a) Whether the provisions of Customs Act, 1969 have been extended to the area in question within the contemplation of Article 247 of the Constitution; (b) Whether the area in question having once been detached from the Malakand Division (to which the Customs Act, 1969) was extended and subsequently attached to Kohistan District of Hazara Division (to which Customs Act, 1969 was not then extended) would Civil Appeal No.1023 of 2016 etc. -: 19 :- still be deemed to be a part of Malakand Division for the purpose of the extension of Customs Act, 1969;” In answering the above a three member bench of this Court held as follows:- “It is to be noticed that there is no dispute between both the parties that the tribal area of Kohistan was a part and parcel of Swat District. Admittedly vide Regulation No.III of 1975, Customs Act was extended to the Swat District with effect from 22nd July, 1975. At that time Constitutional position as per Article 246 of the Constitution of Swat District was as follows… Later on Kohistan area was carved out from Swat District and ultimately status of District was also given to it by the Provincial Revenue Department for administrative purposes but by means of Act 1976 of the Constitution following amendment was made in Article 246(b)… 7. Although by means of above amendment the tribal area in Kohistan was recognized to be a Provincially Administered Territory but fact remains that it is the same area which was once a part of the Swat District where Regulation No.III of 1975 was extended, therefore, following the dictum laid down in the case of Superintendent, Land Customs, Torkham (Khyber Agency) (ibid) it would be deemed that the Act 1969 was also extended to the tribal area in Kohistan…” In a similar vein, since all the PATA in Kohistan District and Kohistan (Lower) District were once a part of Swat District to which the Regulation had extended the application of the Act, therefore, it (the Act) would be deemed to be extended to the tribal areas in both Kohistan District and Kohistan (Lower) District. Civil Appeal No.1023 of 2016 etc. -: 20 :- 13. In the light of the above, all the appeals are allowed and the impugned judgments are set aside to the extent that they hold that the PATA in Kohistan (Lower) District do not find mention anywhere in Article 246 of the Constitution, thus the same cannot be regarded as territory forming part of PATA, and the impugned action of the Provincial Government had disturbed the constitutional status of the said area. Resultantly any subsequent actions taken pursuant to the impugned judgments, including inter alia the letter dated 16.2.2016, shall cease to have effect. JUDGE JUDGE JUDGE Announced in open Court on 17.1.2017 at Islamabad Approved For Reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1033 OF 2014 (On appeal against the judgment dated 20.06.2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 28/2013) Muhammad Arif Muhammad Hassani … Appellant VERSUS Amanullah and others … Respondents For the Appellant: Mr. Kamran Murtaza, ASC Mr. Qahir Shah, AOR For the Respondent (1): Mr. Shakeel Ahmed, Sr. ASC Mr. Abdul Sattar, ASC Date of Hearing: 06.04.2016 JUDGMENT FAISAL ARAB, J.- In the General Elections that were held on 11.5.2013, the appellant and respondent No. 1 were the main contesting candidates from Balochistan Provincial Assembly seat PB-39 Chagai-I. For 66842 registered voters of this constituency, the Election Commission setup 73 polling stations. In all 35197 valid votes were polled. The turnout was 55%. The appellant bagged 12289 votes and the respondent No. 1 bagged 13376 votes. The rest went to other candidates. Leading with a margin of 1087 votes, the respondent No. 1 was declared returned candidate. The appellant was not satisfied with the result. He alleged rigging on Civil Appeal No. 1033/2014 2 the part of respondent No. 1 and filed an election petition before the Election Tribunal, Quetta. The challenge was mainly based on the grounds that (i) the respondent No. 1 employed corrupt and illegal practices in 25 polling stations and did not allow his polling agents to enter their respective polling stations; (ii) the Returning Officer had changed locations of certain polling stations without seeking prior permission from the Election Commission and without notice to the contesting candidates due to which voters of such polling stations could not cast their votes; and (iii) the Returning Officer, in connivance with respondent No. 1 made changes in the polling staff after appointment of the Presiding Officer and other polling staff without intimation to the Election Commission. 2. During the pendency of the election petition, the appellant filed an application before the Election Tribunal seeking verification of thumb impressions on the counterfoils of the votes polled in 25 disputed polling stations through biometric system of NADRA, which was granted. Record reflects that the election material was dispatched to NADRA for verification. As per NADRA’s report out of 25 polling stations, it did not receive election material of two polling stations i.e. Polling Station Nos. 64 and 73. The Election Tribunal after recording evidence of the parties dismissed the election petition. Aggrieved by such decision, the appellant filed the present appeal. Civil Appeal No. 1033/2014 3 3. Learned counsel for the appellant, Mr. Kamran Murtaza straightaway took us to paragraph 22 of the impugned judgment. This paragraph contains a table based on the figures taken from NADRA’s report. For the sake of convenience, this table is reproduced below:- 4. From NADRA’s report, the above table was taken. It shows that out of 10273 votes that were cast, CNIC numbers on 748 counterfoils were either missing or contained incorrect CNIC numbers; 41 votes were cast by 20 voters; 91 counterfoils did not contain thumb impressions; thumb impressions on 61 counterfoils could not be authenticated; on 5399 counterfoils thumb impressions were of bad quality as inedible ink was not used hence the same could not be deciphered; and, thumb impressions on 3933 counterfoils were authenticated. After adding up the figures contained in serial numbers 2, 3, 4 and 6 of the above table, learned counsel for the appellant submitted that when these 941 bogus votes are deducted from the vote count of respondent No. 1 1 Votes polled in polling stations whose election material was received by NADRA 10,273 2 Invalid NIC number mentioned on used counterfoils, this also includes such counterfoils that do not have CNIC mentioned over it. 748 3 Duplicate voters on used counterfoils 41 4 Used counterfoils without fingerprints 91 5 Fingerprints successfully authenticated on used counterfoils and ER 3,933 6 Fingerprints on used counterfoils and ER failing authentication 61 7 Fingerprints of bad quality affixed on used counterfoils resultantly NADRA was unable to decipher them due to non-utilization of proposed ink beside other possibilities. 5,399 Civil Appeal No. 1033/2014 4 then keeping in view the small margin of 1087 votes with which the respondent No. 1 was declared successful and the fact that election material of polling station Nos. 64 & 73 was not dispatched to NADRA for verification, it would be sufficient to hold that election result of the constituency had been materially affected as envisaged under Sections 68 & 70 of the Representation of the Peoples Act, 1976 and the entire election of PB-39 is to be declared as void. The whole thrust of the argument of appellant’s counsel was based only on the data contained in NADRA’s report. In support of his contentions, he relied upon the case of Dr. Raja Aamir Zaman Vs. Omar Ayub Khan (2015 SCMR 890) as well as on a recent unreported judgment of this Court rendered on 2.3.2016 in Civil Appeal No. 1219 of 2014 (Khalid Hussain Magsi Vs. Mir Abdul Rahim Rind) where this Court upheld the judgment of the Election Tribunal which nullified the entire election result of NA- 267 and ordered re-election in the entire constituency. The decision of this Court in the case of ‘Khalid Hussain Magsi Vs. Mir Abdul Rahim Rind is distinguishable from the facts of the present case as the same was the result of phenomenal turnout of 96% shown on 54 polling stations of NA-267 and not only this but all such votes were shown to have been cast in favour of only one of the contesting candidates whereas the rival contesting candidate was shown to have bagged not a single vote. For the sake of convenience certain excerpts from the judgment in the case of ‘Khalid Hussain Magsi Vs. Mir Abdul Rahim Rind are reproduced as follows:- Civil Appeal No. 1033/2014 5 6. ……………………..we have scrutinized the data of Form XVI which is a consolidated statement of the results of the vote-count of the entire constituency. From the consolidated statement it is apparent that on 54 polling stations, where one of the two contesting candidate had obtained no vote at all, the other contesting candidate had obtained almost all votes that were polled. …………………… 7. From the ……….tables containing vote count of 54 polling stations, it is surprising to note that on 21 polling stations where the appellant obtained not a single vote, the respondent No.1 bagged 98.4% of the total votes that were cast. Similarly, on the remaining 33 polling stations where respondent No. 1 obtained not a single vote, the appellant bagged 99.8% of the total votes cast. It is also surprising to note that in the above discussed 54 polling stations, in all 50,922 votes were polled, the average of vote count comes to 943 votes per polling station whereas in the rest of 111 polling stations, where the remaining 37,358 votes were polled, this average stands at only 337 votes per polling station. The first question that comes to our mind is why on the above referred 54 polling stations where one contesting candidate had not even bagged a single vote, the percentage of polled votes in fovour of the other is phenomenal i.e. around 99%. The other question that arises is why on these 54 polling stations the turnout was almost triple in comparison to turnout on the rest of 111 polling stations i.e. the percentage of turnout on the above mentioned 54 polling stations was 96% whereas turnout in the remaining 111 polling stations stood around 40% only. These unimaginable differences in the voting pattern on 54 polling stations as against the remaining 111 polling stations cannot be a simple case of mere coincidence, given the fact that both the contesting candidates were not candidates with marginal following. They were politically popular figures of the constituency as 92% of the total votes that were polled went to both of them only. When the issue is analysed from this perspective, the preponderance of probabilities leads us to believe that both the candidates must have exerted their respective political clout in their respective areas of influence in order to bag maximum number of votes. 5. From the above findings of this Court in the case of Khalid Hussain Magsi it is evident that unimaginable voting figures of 54 polling stations noticed by this Court coupled with the findings contained in NADRA’s verification report confirmed prevalence of illegal practices on a very large scale which lead us to declare the elections of NA-267 constituency as a whole void in Civil Appeal No. 1033/2014 6 terms of Section 70(b) of the Representation of the Peoples Act, 1976. There is no similarity of facts and circumstances between the above referred unreported case and the present one. In the present case, there were 21899 registered votes in the disputed 25 polling stations and a total of 11570 votes were cast in these polling stations. The turnout was 53% as against the turnout of 55% on the rest of the undisputed 48 polling stations. A comparative table of the voting pattern and the turnout on the disputed and undisputed polling stations is as follows:- Result of 25 disputed polling stations Result of 48 undisputed polling stations Total registered votes 21899 44943 Total votes polled 11570 (53%) turnout 24887 (55%) turnout Total valid votes cast 11005 24192 Votes obtained by appellant 2149 10140 Votes obtained by respondent No. 1 5447 7929 Lead of votes 3298 votes lead gained by respondent No. 1 2213 votes lead gained by the appellant 6. Thus it is apparent from the above table that on both the sets of polling stations no phenomenal difference in the polling pattern or the voters’ turnout was noticeable as was noticed in the case of Khalid Hussain Magsi referred above. Then the argument of appellant’s counsel for deduction of 941 votes from the tally of respondent No. 1’s vote count also does not appeal to reason. If we accept the argument of the appellant’s counsel that based on NADRA’s report 941 votes be deducted from the tally of the votes Civil Appeal No. 1033/2014 7 cast in favour of respondent No.1 then it would mean to lay down a principle that all disputed votes on a certain set of polling stations should be deducted from the vote-count of such candidate who had secured the highest number of votes in such polling stations, in absence of the evidence as to which of the contesting party was involved in corrupt practices. One cannot rule out the possibility that a candidate may still loose though he may have himself indulged in rigging practice. Without any substantial material coming on record why it should be assumed that the winning candidate has indulged in rigging. When the principle suggested by appellant’s counsel is made applicable to a selected number of polling stations of a constituency then the winning candidate may also come up with his own list of selected polling stations of the constituency where the runner-up candidate had secured the highest number of votes in order to seek verification and then get all the disputed votes, in case such are pointed out by NADRA, deducted from the tally of votes bagged by the runner-up candidate. We may mention here that in the remaining 48 polling stations, it was the appellant, who was runner-up, had secured the highest number of votes i.e. 10,140 as against 7927 votes secured by respondent No.1 the winning candidate. We see no reason to deduct all disputed votes from the vote count of respondent No. 1. Therefore, the principle sought to be devised by appellant’s counsel on the basis of NADRA’s verification of selected polling stations of a constituency would not resolve the controversy but would further complicate the controversy. Civil Appeal No. 1033/2014 8 7. Furthermore, in NADRA’s report it is stated that 748 used counterfoils had invalid CNIC numbers. The report describes invalid CNIC numbers to mean such counterfoils on which either CNIC numbers do not relate to the voters of the constituency or on which CNIC numbers were missing. NADRA’s report does not say that on these 748 counterfoils thumb impressions were missing or that the thumb impressions were not verifiable. We don’t know that the thumb impressions on all or some of these 748 counterfoils were found to be correct. If thumb impressions on any of these 748 counterfoils had matched with that of the voters of the constituency then such votes cannot be described as invalid votes, irrespective of the fact that they contained incorrect CNIC numbers or CNIC numbers were altogether missing. The reason being that the possibility that the polling staff may have wrongly written or omitted to write CNIC numbers on these 748 counterfoils cannot be ruled out. Why a candidate be penalized for such an error or omission. So the figure of 748 votes, as contained in NADRA’s report, cannot be treated as invalid votes that were cast at the behest of respondent No. 1. Furthermore, NADRA’s report shows that there was duplication with regard to 41 votes as all these 41 votes were polled by 20 voters of the constituency. This shows that 20 duly registered voters polled more than once so in reality 21 votes were invalidly cast by them and not all of 41. It also cannot be ascertained as to in whose favour these 21 bogus votes were polled. Apart from the above analysis of NADRA’s report, if the voting pattern and the turnout of voters, as discussed earlier, on 25 disputed polling stations is compared with the voting pattern Civil Appeal No. 1033/2014 9 and the turnout on rest of the 48 polling stations, nothing phenomenal is noticeable to hold prevalence of corrupt practices so as to nullify the entire election result. 8. In view of the above discussion, we are of the view that NADRA’s verification report relating to election material of only 25 polling stations cannot be made basis for nullifying the entire election result of the constituency. There has to be some convincing material or record to reach the conclusion that the election as a whole needs to be declared void. We may mention here that in the election petition, it was claimed that appellant’s 25 polling agents were denied entry in the polling stations. We have noticed that appellant examined 14 witnesses of which only 10 were polling agents of the appellant. Of these polling agents 6 claimed that they were denied entry in the polling stations. Four polling agents did not even deny their entry in the polling stations. None of the 15 remaining polling agents of 15 disputed polling stations were even examined as witnesses. No attempt was made by the appellant to even call Presiding Officers of the disputed polling stations as court witnesses in order to establish that appellant’s polling agents were denied entry in the polling stations on the polling day. Apparently on account of lack of evidence that the counsel for the appellant did not even refer to any piece of evidence to establish that respondent No.1 had in any manner resorted to rigging practices except for the figures of disputed votes contained in NADRA’s report. Unsubstantiated and bald Civil Appeal No. 1033/2014 10 allegations of rigging cannot be made basis to nullify the entire election result. 9. We are therefore of the view that no evidence has come on record of the present case to nullify the election result of Balochistan Provincial Assembly seat PB-39. This appeal fails and is hereby dismissed. JUDGE JUDGE JUDGE Islamabad, the Announced on ______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram Civil Appeal No. 1033/2014 11 Result of 24 out of 25 disputed polling stations where respondent No. 1 got lead: S.No. Polling Station No. Respondent’s votes Appellant’s votes Total of valid votes cast Percentage of rspdt No. 1’s Votes 1 4 217 205 513 2 5 132 93 358 3 6 85 68 242 4 10 441 176 742 5 11 413 188 798 6 19 364 7 518 7 20 421 17 613 8 21 198 21 335 9 22 207 70 418 10 23 189 46 313 11 25 262 126 526 12 26 182 82 344 13 35 107 94 337 14 40 309 160 634 15 53 121 39 219 16 55 244 44 490 17 57 125 21 251 18 62 365 148 801 19 63 49 5 111 20 64 143 63 344 21 65 204 45 277 22 69 154 3 316 23 71 78 62 192 24 73 137 1 178 Total votes 5147 1784 Result of 23 undisputed polling stations where respondent No. 1 got lead: S.No Polling Station No. Respondent’s votes Appellant’s votes Total of valid votes cast Percentage of rspdt No. 1’s Votes 1 3 325 239 731 2 7 244 221 528 3 8 174 165 388 4 9 469 242 973 5 12 223 171 547 6 13 177 118 384 7 14 335 317 908 8 15 136 2 214 9 16 124 115 315 10 24 180 63 450 11 18 97 26 233 12 29 336 139 529 13 34 205 15 332 14 36 116 43 293 15 37 469 289 989 16 38 249 206 637 17 43 293 233 800 18 54 197 8 261 19 56 102 48 186 20 58 255 116 659 21 59 223 85 524 22 60 241 157 777 23 67 119 9 177 Total votes 5289 3027 Result of 26 polling station (including one disputed polling station) where appellant got lead: Civil Appeal No. 1033/2014 12 S.No Polling Station No. Respondent’s votes Appellant’s votes Total of valid votes cast Percentage of rspdt No. 1’s Votes 1 1 180 242 555 2 2 143 204 453 3 17 54 268 363 4 27 126 303 507 5 28 151 243 460 6 30 105 312 443 7 31 1 627 673 8 32 55 219 293 9 33 8 646 702 10 39 99 102 426 11 41 220 407 877 12 42 156 198 499 13 44 190 587 870 14 45 230 572 895 15 46 110 275 502 16 47 34 270 446 17 48 101 280 516 18 49 107 292 366 19 50 30 157 222 20 51 90 145 347 21 52 129 221 514 22 61 21 36 165 23 66 6 144 155 24 68 3 68 87 25 70 (Disputed) 300 365 1135 26 72 78 175 378 Total votes 2727 7358

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Iqbal Hameedur Rahman Mr. Justice Qazi Faez Isa Civil Appeal No.1038 of 2000. (On appeal from judgment of Lahore High Court, Lahore, dated 30.6.2000, passed in Writ Petition No.914 of 2000) The Chairman, National Accountability Bureau …Appellant Versus Fehmida Begum & others … Respondents For the appellant: Raja M. Ibrahim Satti, Sr. ASC. Mr. Fauzi Zaffar, Addl.DPG NAB. For respondents No.1&2: Mr. M.A. Siddiqui, ASC. Respondents No.3 to 8: Ex-parte. Date of hearing: 10.11.2014. JUDGMENT Anwar Zaheer Jamali, J.- This civil appeal with leave of the Court in terms of the order dated 16.8.2000, is directed against the judgment dated 30.6.2000, passed by a five member Bench of the Lahore High Court, in Writ Petition No.914/2000, whereby the said petition filed by respondent No.1 was allowed and consequently the pending proceedings in Reference No.8/2000, against respondent No.2, Mukhtar Hussain, the husband of the petitioner, were quashed with a majority of three to two. 2. The controversy involved in the said petition revolved around the interpretation of “person” as defined in sub-section (o) of Section-5 of the National Accountability Bureau Ordinance, 1999 (in short “the NAB Ordinance”), which at the relevant time read as under:- “(o) “Person” includes in the cause of a corporate body, the sponsors, Chairman, Chief Executive, Managing Director, elected Directors, by whatever C.A No.1038 of 2000. 2 name called, and guarantors of the company or any one exercising direction or control of the affairs of such corporate body, but will not include employees appointed and designated as Director or Chief Executive; and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having interest in the said firm, partnership or proprietorship concern or direction or control thereof.” 3. As per the majority view of the Lahore High Court, respondent No.2, being employee of the Company, despite being a guarantor, was not liable for prosecution before the NAB Court in such capacity. While as per the separate dissenting notes of the other two Hon’ble Judges, despite being an employee of the company, respondent No.2 being also a guarantor as regards the loan, which was the subject matter of the NAB reference, the proceedings in the NAB Court against him could not have been quashed and he was liable to face such prosecution. 4. Raja M. Ibrahim Satti, learned Sr. ASC for the appellant in his submissions, referred before us the definition of “person” under the NAB Ordinance, as reproduced above and contended that the mere fact that as per the assertions of the petitioner, respondent No.2 was also an employee of the said company, his status of being a guarantor on behalf of the company would not change. Thus, he will still be liable to face prosecution before the Accountability Court in his capacity as a guarantor of the company. In addition to it, he also referred before us the judgment in the case of Abdul Aziz Memon v. State (PLD 2013 SC 594), wherein, inter alia, the definition of “person”, though it was slightly amended during the pendency of these proceedings, has been thoroughly examined and regarding its scope and application, the following observations have been made:- “16. For what has been discussed above we hold and declare that the provisions of the National Accountability Ordinance, 1999 are applicable even to a person who is not holder of a public office and also to a person who has not aided, assisted, abetted, attempted or acted in conspiracy with holder of a C.A No.1038 of 2000. 3 public office and the words "any other person" appearing in section 9(a) of the said Ordinance are to be understood and applied accordingly. For removal of any doubt or ambiguity it is clarified that a stand alone private person can be proceeded against under the said Ordinance if the other conditions mentioned in that Ordinance in that respect are satisfied.” 5. Conversely, learned ASC for respondents No.1 & 2, has strongly supported the majority view of the three Hon’ble Judges contained in the impugned judgment as regards the scope and application of sub-section (o) to section-5 of the NAB Ordinance so as to extend benefit of acquittal to respondent No.2 in terms of the said judgment. However, when he was confronted with the ratio of the judgment in the case of Abdul Aziz Memon (supra), the learned ASC had no plausible defence to offer except to agitate that during the intervening period, the definition of “person” has been drastically amended. In this context, he however did not controvert that under the old definition of “person”, at the relevant time, the guarantor of a company was fully covered, as also under the amended definition of “person”. Faced with this situation, he further argued that the proceedings in Reference No.8/2000, wherein respondent No.2 was one of the accused, have already been disposed of by the Accountability Court, therefore, no fruitful purpose will be served in case the impugned judgment is set aside at this stage, and respondent No.2 is called upon to face the proceedings in the said reference after lapse of more than 14 years. 6. In reply to it, learned ASC for the appellant has brought to our notice the fact that an appeal against the said order of the Accountability Court is pending before the Lahore High Court, and contended that the impugned judgment as regards the interpretation of “person” defined in sub-section (o) to section-5 of the NAB Ordinance, has affected a large number of NAB cases. Therefore, in the light of the judgment in the case of Abdul Aziz Memon (supra) C.A No.1038 of 2000. 4 and the law, its applicable interpretation is to be corrected by this Court as of duty. He further contended that the trial of respondent No.2 before the Accountability Court in Reference No.8/2000 will of course be subject to its revival/resurrection by the appellate Court, thus, its earlier disposal cannot be made basis for disposal of this appeal without proper adjudication on the relevant question of law involved in it. 7. We have carefully considered the above noted submissions, which, on facts, are not disputed. Thus, now the only point for consideration in this appeal before us is the true import and interpretation of the word “person” as contained in sub-section (o) of section 5 of the NAB Ordinance. The majority view of the Lahore High Court, observed that by using the word “includes” in the definition of “person” the intention of the legislature was to restrict the meaning of “person” to sponsors, Chairman, Chief Executive, Managing Director, elected Directors, by whatever name they are called, and guarantors of the corporate body or anyone exercising direction or control of the affairs of such a corporate body. It was further observed that the definition of “person” contains an exclusionary element as well, whereby employees of a corporate body appointed or designated as Directors are excluded from the definition for the purposes of the NAB Ordinance to save the employees of a corporate body from unwarranted prosecution under the Ordinance. The Lahore High Court thus held, by way of majority, that as Respondent No. 2 was neither a sponsor nor the owner of the defaulting corporate body; nor did he exercise any dominative influence in the workings of the company, therefore, he was not a “person” as defined in sub-section (o) of section 5 of the NAB Ordinance. 8. We are, however, unable to agree with the majority view of the Lahore High Court. The observations of the High Court, as summarized hereinabove, appear to be contrary not only to the purpose and preamble of the C.A No.1038 of 2000. 5 NAB Ordinance, but also to settled principles of statutory interpretation. As per the preamble, one mischief that the Ordinance sought to curb was recovery of outstanding amounts from those persons who committed default in the repayment of amounts to Banks, Financial Institutions, Government Agencies and other agencies. Admittedly, Respondent No. 2 was the surety or guarantor of the loan facilities etc., availed by Ittefaq Foundry (Pvt.) Ltd., which form the subject matter of the instant case. The terms of the guarantee executed by Respondent No. 2 have been reproduced by the two learned Judges of the Lahore High Court, in their respective dissenting notes. According to the terms of the guarantee, Respondent No. 2’s responsibility under the guarantee is that of a principle debtor and he is liable under the guarantee until all moneys due from Ittefaq Foundry (Pvt.) Ltd. have been paid. Therefore, once the company defaulted in its liability to repay the loan amount, it was the obligation of Respondent No. 2 to repay the said amount. As rightly pointed out by one of the learned judges of the Lahore High Court, in his dissenting note, if the personal guarantees of the nature executed by Respondent No. 2 were to be read in the exclusionary clause of the definition of “person” it would have disastrous effects on the recovery of loans advanced by banks. 9. Furthermore, the Lahore High Court in holding, by way of majority, that Respondent No. 2 was not a “person” for the purposes of the NAB Ordinance since he “was neither sponsor nor owner of the defaulting corporate entity; nor he exercise any dominative influence in the working of defaulting Company” seems to have overlooked the fact that the NAB Ordinance applies with equal force to guarantors of a company as to sponsors or “owners” of a company. It may be noted that a person may be a Director or employee of the company while at the same time be a guarantor as well. The NAB Ordinance only provides for exclusion of those individuals from the definition of “person” who C.A No.1038 of 2000. 6 are in fact employees but have been appointed as the Chief Executive or Directors of the company. In the instant case, Respondent No. 2 was not only a Director of Ittefaq Foundary (Pvt.) Ltd., but he was also its guarantor. Therefore, the question of the applicability of the exclusion contained in sub-section (o) of section 5 of the NAB Ordinance does not arise in the instant case. 10. We are further fortified in our view, that Respondent No. 2 is a “person” for the purposes of the NAB Ordinance, by the judgment in the case of Abdul Aziz Memon (supra), the relevant portion of which has been reproduced above. It may be observed at this point that although the definition of “person” appearing in sub-section (o) of section 5 of the NAB Ordinance has been amended from time to time, however, admittedly, the amendments have brought no material change in the scope of the said word, in the context of guarantors of a company. 11. The upshot of the above discussion is that this appeal is allowed and the judgment of the three Hon’ble Members of the Bench of the Lahore High Court, passed in Writ Petition No.914/2000 dated 30.6.2000, is set aside. However, any further proceedings against respondent No.2 in NAB Reference No.8/2000, will be subject to the fate of the appeal pending before the Lahore High Court. Announced. Islamabad, 25th November, 2014. Judge Not approved for reporting. �ا� Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.1042 OF 2018 (Against the order dated 10.8.2018 of the Election Commission of Pakistan, Islamabad passed in Case No.3(1)/2016-GA) Shaukat Ali …Appellant(s) VERSUS E.C.P. through its Secretary, Islamabad & others …Respondent(s) For the appellant(s): Mr. Gohar Ali Khan, ASC For ECP: Mr. M. Arshad, D.G. Law, ECP On Court’s notice: Mr. Sohail Mahmood, DAG Amicus Curiae: Mr. Bilal Hassan Minto, ASC For private respondent(s): Not represented Date of hearing: 26.9.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- The Appellant contested General Elections held on 25th May 2018 on the ticket of Pakistan Tehreek-e- Insaaf (PTI) from PK-23 Shangla-1 (District Shangla) KPK. There were 135 polling stations in that constituency according to the final polling scheme notified by the Election Commission of Pakistan (ECP) for 200,525 registered voters---113,827 male, and 86,698 females. The turnout in the Elections was approximately 34.82% as the count provisionally compiled on 26-07-2018 showed that a total of 69,827 votes were cast. The appellant was shown as having secured the highest votes i.e. 17399. Civil Appeal No.1042 of 2018 -: 2 :- 2. An application for recount was submitted to the ECP by Respondent No.12 (Muhammad Rishad Khan) who had secured 15533 votes. The application was allowed and after recount the final consolidated result on Form.49 was issued on 29-07-18 showing 17712 as the Petitioner’s votes and 16007 as the Respondent’s. A further application was then made to the ECP by Mr. Wali Khan, brother of Respondent No.12, alleging that women had been restrained from casting their votes which had resulted in less than 10% turn out for women (i.e. 5.02%) and therefore the poll being null and void notification declaring the Appellant as the returned candidate should not be issued. After hearing the contesting parties, the ECP allowed the application on 10-08- 18 and directed a re-poll in the whole constituency under Section 9(1) of the Election Act 2017. This appeal was filed against the said order of the ECP dated 10-08-18 detailed reasons for which were filed in this court at a later stage through CMA- No: 7708 of 2018. 3. On 04-09-2018 when this appeal came up for hearing, Syed Iftikhar Gillani Sr. ASC appearing for the Appellant contended that Section 9(1) of the Act was ultra vires Articles 8(2) (c) and 25 (2) of the Constitution. When confronted that this ground was not taken before the ECP or in the memo of appeal he urged that since the ground related to the vires of a statutory provision and interpretation of the Constitution, it could be raised at any time. 4. Notices were issued to the ECP and the Attorney General for Pakistan in terms of Order XXVIIA Rule 1 of the Code of Civil Procedure and Mr Bilal Hasan Minto, ASC was appointed amicus curiae. No order staying the elections was passed and the appeals were later fixed for today i.e. 26-09-18. Civil Appeal No.1042 of 2018 -: 3 :- 5. Mr. Gohar Ali Khan ASC, appearing for the Appellant has submitted that since re-election has already taken place in PK 23 Shangla 1 and the Appellant has been returned again, this time with women voter turnout of 13.75%, therefore the appeal has become infructuous. Be that as it may, counsel for the Appellant and the Amicus Curiae were asked to make their submissions on the questions of law involved as we consider it appropriate to settle the issue regarding the vires and interpretation of Section 9(1) ibid. 6. Counsel for the Appellant has raised two arguments. Firstly, that Section 9(1) read with its explanation permitting re-poll when women turnout is less than 10 % offends Article 4 (2) (c) which guarantees everyone equal protection of the law and also Article 25 (2) which states that there shall be no discrimination on the basis of sex. Secondly, he submitted that Section 9 (1) which permits the ECP to order re-poll if women turn out is less than 10 % in a constituency may result in the election being held again and again ad infinitum which makes the provision absurd. 7. Learned amicus curiae submitted the view that the general clause regarding equal protection contained in Article 4 is to be read in light of and in consonance with Article 25 which is the specific article dealing with equal treatment and safeguards against discrimination. He pointed out that sub-article (3) of Article 25 clearly allows for positive discrimination in favour of women and that taking of measures in an effort to ensure adequate participation of women in elections would be covered by sub-article (3) ibid and therefore section 9 (1) is intra vires. 8. Regarding the second contention of the counsel for the Appellants, the amicus curiae stated that in the context of low turnout of Civil Appeal No.1042 of 2018 -: 4 :- women, re polling may only be ordered under Section 9 (1) when from facts apparent on record and after inquiry---if deemed necessary---the ECP concludes that there existed an agreement restraining women from voting and because of that agreement the results of poll (at specific polling stations or the entire constituency) have been materially affected. He further submitted that the explanation clause to Section 9(1) states that the ECP may presume that women voters were prevented from casting their votes through an agreement only if the female turnout is less than 10 % in the entire constituency and the use of the word “may” as opposed to “shall” implies that the ECP would have to provide reasons for making the a presumption, i.e reasons in addition to the turnout being less than 10 %. He submitted that, in the context of voting by women, what emerges from reading the entire section is, that if it is found on the face of record or from an inquiry that women have been restrained through an agreement materially affecting the result of a poll at certain polling stations or the entire constituency; OR, if valid reasons exist for making a presumption under the explanation clause when women turn out is less than 10% in the constituency; then, it is of no consequence that polling in specific polling stations or the entire constituency will have to be held again, or multiple times---as long as the provisions of Section 9 (1) are attracted. Section 9 (1) is meant, inter alia, to safeguard or enable the exercise of a constitutional right by women and the inconvenience of multiple re-polls cannot be a counter veiling consideration especially when sub article (3) of Article 25 specifically mandates such a safeguard. In regard to the validity of positive and beneficial provisions favouring women he referred to Musarrat Uzma Usmani Vs. Government of Punjab (PLD 1987 Lahore 178) and Civil Appeal No.1042 of 2018 -: 5 :- Shireen Munir and others Vs. Government of Punjab through Secretary Health, Lahore (PLD 1990 SC 295). 9. Learned Amicus Curiae, submitted, lastly that in the present case, the reasons provided by the ECP in para 5 of its order were that in the sister constituency of Shangla 2 in the same district with similar cultural background women turn out had been 17.28% and that this was sufficient reason to presume that women in Shangla 1 had be restrained through an agreement materially affecting the result. In the present case, the reasons given by the ECP in its order stood vindicated because in the re-poll which have already been held, the women turn out increased to 13.75%. 10. Having considered the above submissions, we are inclined to generally agree with the submissions made by the learned amicus curiae. It is apparent from Section 9(1) of the Election Act that it affords women special treatment stating as follows: “9. Power of the Commission to declare a poll void.—(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such enquiry as it may deem necessary, the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections. Civil Appeal No.1042 of 2018 -: 6 :- Explanation. —If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void.” Clearly, it is a provision consciously designed for a society in which several practices depriving women of their legitimate legal rights are commonplace. This is also recognized by the Constitution, Article 25 whereof provides as follows: “25. Equality of citizens. — (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.” Clause (3) unequivocally allows for special provisions to be made for the benefit of women as an exception to the general rule of equal treatment contained in this article (or in Article 4). We do not think that this clear provision admits of any debate as regards the permissibility of positive discrimination in favour of women but for authority, reference may be made to this court’s decision in Shirin Munir’s case (PLD 1990 SC 295) which held that not only were women entitled to compete on equal merit Civil Appeal No.1042 of 2018 -: 7 :- with boys in co-educational medical colleges on all seats (as opposed to reserving only a few seats for women which practice was under challenge in this case) but that it was also perfectly permissible under Article 25 (3) to have medical colleges admitting only women. 11. In the present case the right involved is a very precious right guaranteed directly by the Constitution i.e. the right to vote; and we find that the safeguards provided in respect of women by Section 9 (1) are permissible under Article 25 (3) and hence, intra vires. 12. As regards the Appellant’s argument that one of the consequences of giving effect to the provisions of Section 9 (1) regarding women’s turnout may result in infinite rounds of elections we feel that that is only a theoretical possibility. It is a theoretical possibility just like one that may arise by virtue of Article 223 (3) of the Constitution which permits a person to contest elections from multiple constituencies, in fact, from all 266 seats, and if he/she wins from all 266 seats a reelection on 265 of them will automatically have to be held again. Then, in the next round, if another person does exactly the same i.e. contests from all 265 seats, the whole exercise will have to be repeated for another 264 seats and so on and so forth. In the case of Section 9(1) of the Election Act the possibility of infinite rounds of elections is actually far less because this provision does not permit automatic re-poll at all. The main section requires re-poll, on satisfaction based on facts apparent on record or an inquiry—if necessary---that women were restrained through an agreement which materially affected the result of the election whereas the explanation permits the making of a presumption that women were restrained through an agreement if the turnout of women in the entire constituency is less than 10 %. The re-poll under the explanation is not automatic and reasons have to be provided by the ECP which, in the Civil Appeal No.1042 of 2018 -: 8 :- present case, were not only provided, but were also vindicated in the re poll when women turnout rose from 5.02% to 13.75% which also seems to suggest that the spectre of a possible re-poll may actually act as a deterrent for the practice of restraining women from participation in polls. Of course, if the turnout had again been less than 10 %, the ECP would have been entitled to make the said presumption again but would have had to support it by fresh reasons. 13. It is clear then, that each time the ECP invokes its power under the explanation it will have to provide reasons for its order which, in any case, would be justiciable before the court of competent jurisdiction. 14. With the above observations, this appeal is disposed of. CHIEF JUSTICE Islamabad, the 26th of September, 2018 Not Approved For Reporting JUDGE JUDGE Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE TARIQ PARVEZ CIVIL APPEALS NO.1049 TO 1055/2011, CIVIL MISC. APPLICATION NO.1841/2016 IN CIVIL APPEAL NO.1054/2011, CIVIL APPEALS NO.24 TO 26, 64 TO 66, 918 TO 944, 961 AND 1061/2013, 1266 TO 1299, 1364 TO 1379/2014, 72 TO 74, 178, 179, 388, 316 TO 321, 583 TO 585/2015 AND CIVIL PETITION NO.1767/2012, CIVIL MISC. APPLICATION NO.8118/2015 IN CIVIL PETITION NO.1767/2012, CIVIL APPEALS NO.107 TO 114 AND 755/2016, CIVIL PETITION NO.1005/2016, CIVIL APPEALS NO.1022 AND 1341/2016 AND CONSTITUTION PETITIONS NO.5 TO 8/2016, CIVIL APPEAL NO.1298/2016, CIVIL MISC. APPLCIATIONS NO.3520 TO 3522/2016 IN CONSTITUTION PETITIONS NO.5 TO 7/2016 (Against the judgment dated 19.8.2011/3.10.2012,15.2.2012/1.3.2013/20.5.2013/ 1.5.2013/28.5.2013/29.5.2014/11.3.2011/29.10.2015/27.10.2015/23.9.2014/25.2.201 6/17.11.2015/20.5.2015/12.1.2016 of the Lahore High Court, Lahore/High Court of Sindh, Karachi/Lahore High Court, Lahore/High Court of Sindh, Karachi/Peshawar High Court, Peshawar/High Court of Sindh, Karachi/Peshawar High Court, Peshawar/Islamabad High Court, Islamabad/Peshawar High Court, Peshawar passed in W.Ps.No.8763, 3643, 4216, 4217, 8766, 8767 & 8768/2011, Const.Ps.No.1588-D, 1589-D & 1743-D/2012, W.Ps.No.2100 to 2102/2012, Const.Ps.No.3753-D/2009, 1483-D, 4119- D, 4120-D & 4121-D/2011, 3618-D/2010, 367-D, 699-D, 3482-D, 3483-D, 3484-D, 3488-D to 3494-D & 495-D/2011, 3521-D/2010, 702-D, 703-D, 704-D, 706-D, 1048-D & 1619- D/2011, 452-D/2010, 2109-D/2013 & 2039/2010, T.Rs.No.2 to 4, 38 & 42/2012, 9, 34, 42, 44, 45, 76, 79, 86, 98 & 100/2013, 4/2014, 43, 46, 48, 64, 65, 77, 78, 80, 81, 82, 84, 85, 97, 99, 101 & 123/2013, 5/2014, 87/2013, W.Ps.No.1425/2010, 981 & 3420/2012, 3155 & 3156/2013, 144, 1139 & 579/2014, 3155 & 3156/2013, 3420/2012, 1139/2014, 981/2012, 144 & 579/2014, 1425/2010, T.Rs.No.9/2012, 19 & 102/2013 & 15 & 16/2014, 74, 18, 55 to 57, 51, 52 & 81 to 83/2014, Const.P.No.260/2008, T.Rs.No.35, 38 & 45 to 50/2015, W.Ps.Nos.2250 & 4203/2012 & T.Rs.No.58/2015, W.P.No.31/2015 and T.R.No.54/2015) Workers Welfare Funds M/o Human Resources Development, Islamabad through Secretary In C.As.1049 to 1055/2011, 64 to 66/2013 & 1364 to 1371/2014 Employees Old Age Benefits Institution through its Chairman and another In C.As.24, 25 & 26/2013 Karachi Electric Supply Company Ltd. In C.A.918/2013 Agar International (Pvt.) Ltd. In C.A.919/2013 M/s Sindh Abadgar’s Sugar Mills Ltd. In C.A.920/2013 M/s Mirza Sugar Mills Ltd. In C.A.921/2013 M/s Pangrio Sugar Mills Ltd. In C.A.922/2013 Civil Appeal No.1049/2011 etc. -: 2 :- M/s Naveena Exports Ltd. In C.A.923/2013 M/s Gul Ahmed Textile Mills Ltd. In C.A.924/2013 M/s Indus Dyeing & Manufacturing Co. Ltd. In C.A.925/2013 M/s Blessed Textile Ltd. In C.A.926/2013 M/s Bhanero Textile Mills Ltd. In C.A.927/2013 M/s Nagina Cotton Mills Ltd. In C.A.928/2013 M/s Faisal Spinning Mills Ltd. In C.A.929/2013 M/s Sapphire Textile Mills Ltd. In C.A.930/2013 M/s Sapphire Finishing Mills Ltd. In C.A.931/2013 M/s Sapphire Fibers Ltd. In C.A.932/2013 M/s Reliance Cotton Spinning Mills Ltd. In C.A.933/2013 M/s Amer Cotton Mills (Pvt.) Ltd. In C.A.934/2013 M/s Diamond Fabrics Ltd. In C.A.935/2013 M/s Hassan Ali Rice Export Company In C.A.936/2013 M/s Lucky Cement Ltd. In C.A.937/2013 M/s Lucky Textile Mills Ltd. In C.A.938/2013 M/s Lucky Energy (Pvt.) Ltd. In C.A.939/2013 M/s Lucky Knits (Pvt.) Ltd. In C.A.940/2013 M/s Fazal Textile Mills Ltd. In C.A.941/2013 M/s Adamjee Enterprises etc. In C.A.942/2013 M/s Younus Textile Mills Ltd. In C.A.943/2013 M/s Younus Textile Mills Ltd. In C.A.944/2013 Sohail Textile Mills Ltd. In C.A.961/2013 Arif Habib Corporation Ltd. through its Chief Financial Officer & Company Secy. In C.A.1061/2013 Chief Commissioner Inland Revenue, RTO, Peshawar In C.As.1266 to 1281 & 1372 to 1377/2014 & 72, 74, 178, 179 & Civil Appeal No.1049/2011 etc. -: 3 :- 316/2015, 1341 & 1298/2016 Commissioner Inland Revenue, RTO, Peshawar In C.As.1282 to 1299, 1379/2014, 388, 317 to 321, 583 to 585/2015, 107 to 114 & 1022/2016 Chief Commissioner Inland Revenue, Zone-II, RTO Peshawar In C.A.73/2015 Employees Union, FFC (CBA), Fauji Fertilizer Company Ltd. In C.P.1767/2012 & CMA.8118/2015 Federation of Pakistan through Secretary M/o Finance Islamabad and another In C.A.755/2016 ICI Pakistan Employees Union Soda Ash Khewra In C.P.1005/2016 PKP Exploration 2 Limited In Const.P.5/2016 & CMA 3520/2016 PKP Kandanwari Limited In Const.P.6/2016 & CMA 3521/2016 KUFPEC Pakistan B.V. In Const.P.7/2016 & CMA 3522/2016 PKP Kirthar B.V. In Const.P.8/2016 …Appellant(s)/Petitioner(s) VERSUS East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. In C.As.1049/2011 Sunrize Bottling Company (Pvt.) Ltd. through its Chief Executive Officer etc. In C.A.1050/2011 Haseeb Waqas Sugar mills through its G.M. Finance etc. In C.A.1051/2011 Abdullah Sugar Mills Ltd. thr. its G.M. Finance etc. In C.A.1052/2011 Chiniot Textile Mills through its G.M. Finance etc. In C.A.1053/2011 East Pakistan Chrome Tannery through its G.M. Finance etc. In C.A.1054/2011 & CMA 1841/2016 Ayesha Spinning Mills thr. its G.M. Finance etc. In C.A.1054/2011 Soneri Bank Ltd. Karachi and another In C.A.24/2013 Civil Appeal No.1049/2011 etc. -: 4 :- Bank Al-Falah Ltd. Karachi and another In C.A.25/2013 Standard Chartered Bank Ltd. Karachi & another In C.A.26/2013 M/s JDW Sugar Mills Ltd. through its Company Secretary, Lahore Cantt etc. In C.As.64, 65 & 66/2013 Federation of Pakistan through Secretary M/o Finance etc. In C.As.918 to 944/2013 Federation of Pakistan through Secretary Law and Justice Division, Islamabad etc. In C.A.961/2013 Federation of Pakistan through Secretary Islamabad In C.A.1061/2013 M/s Shoaib Pipe Store In C.A.1266/2014 M/s New Ruby Jewelers, Peshawar In C.A.1267/2014 M/s Choice Communication, Peshawar In C.A.1268/2014 Nasrullah Jan Inamullah Jan & Co. (Pvt.) Ltd. In C.A.1269/2014 Gateway Gas (Pvt.) Ltd. Peshawar In C.A.1270/2014 Chashma Sugar Mills (Pvt.) Ltd. In C.A.1271/2014 Universal Plastic Industries (Pvt.) Ltd. In C.A.1272/2014 Abdul Rehman & Co. In C.A.1273/2014 Gul Construction Company Pvt. Ltd. In C.A.1274/2014 Gul Construction Company Pvt. Ltd. In C.A.1275/2014 Lucky Cement (Pvt.) Ltd. In C.A.1276/2014 Jaffar shah, Government Contractor Bannu In C.A.1277/2014 Dr. Safia Shahid Nowshera In C.A.1278/2014 Wireless Communication, Peshawar In C.A.1279/2014 Inayatullah Khan & Co. In C.A.1280/2014 Spinzer Travel Pvt. Ltd. In C.A.1281/2014 Ziaullah & Co. In C.A.1282/2014 Nisar Ahmed & Brothers, Peshawar In C.A.1283/2014 Worldwide Chemicals, Peshawar In C.A.1284/2014 Civil Appeal No.1049/2011 etc. -: 5 :- Imdad Khan Brothers, Peshawar In C.A.1285/2014 Imdad Khan Brothers, Peshawar In C.A.1286/2014 Lucky Cement (Pvt.) Ltd. In C.A.1287/2014 Jaffar Shah, Government Contractor, Bannu In C.A.1288/2014 Unique Technologies In C.A.1289/2014 Unique Technologies In C.A.1290/2014 Worldwide Chemicals, Peshawar In C.A.1291/2014 Muhammad Saleem Marwat In C.A.1292/2014 Inter Construct (Pvt.) Ltd. In C.A.1293/2014 Muhammad Saleem Marwat In C.A.1294/2014 Speed Zone (Pvt.) Ltd. In C.A.1295/2014 Inayatullah Khan & Co. In C.A.1296/2014 Unique Technologies In C.A.1297/2014 Spinzer Travel Pvt. Ltd. In C.A.1298/2014 Dr. Safia Shahid In C.A.1299/2014 Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad etc. In C.As.1364, 1365, 1369 & 1371/2014 Federation of Pakistan through Secretary Cabinet Division, Islamabad etc. In C.As.1366, 1367 & 1368/2014 Federation of Pakistan through Secretary M/o Finance & Economic Affairs, Islamabad etc. In C.A.1370/2014 M/s M.K.B. Enterprises Pvt. Ltd. In C.A.1372/2014 M/s Cherat Cement Pvt. Ltd. In C.A.1373/2014 M/s Rehman Cotton Mills Ltd. etc. In C.A.1374/2014 M/s Utman Ghee Industries Pvt. Ltd. etc. In C.A.1375/2014 M/s Saif Textile Mills Ltd. etc. In C.A.1376/2014 M/s Lucky Cement Ltd. etc. In C.A.1377/2014 M/s ECOPACK Ltd. and another In C.A.1378/2014 Civil Appeal No.1049/2011 etc. -: 6 :- M/s Associated Industries Ltd. and another In C.A.1379/2014 Gadoon Textile Mills (Pvt.) Ltd. In C.A.72/2015 New Ahmed Roller Flour Mills (Pvt.) Ltd. In C.A.73/2015 Ghulam Sadiq Ghulam Habib & Co. (Pvt.) Ltd. In C.A.74/2015 Gadoon Textile mills (Pvt.) Ltd. In C.As.178 & 179/2015 M/s Bilour Industries (Pvt.) Ltd. In C.A.388/2015 Lucky Cement (Pvt.) Ltd. In C.A.316/2015 M/s Sohail Vegetable Ghee Mills Pvt. Ltd. In C.As.317 to 319/2015 M/s Faisal Company (Pvt.) Ltd. In C.As.320 & 321/2015 M/s Ithfz Match Pvt. Ltd. In C.A.583/2015 M/s Khan Match Pvt. Ltd. In C.As.584 & 585/2015 Federation of Pakistan through Secretary M/o Human Resource Development Islamabad etc. In C.P.1767/2012 & CMA 8118/2015 M/s Chashma Sugar Mills Ltd. In C.A.107/2016 M/s Premier Sugar Mills Ltd. In C.A.108/2016 M/s Bilour Industries Pvt. Ltd. In C.As.109, 111 & 113/2016 M/s M. B. Dyes Chemicals & Silk Industries Swabi In C.As.110, 112 & 114/2016 Akbar Ali Khan In C.A.755/2016 Federation of Pakistan through Secretary Law, Islamabad etc. In C.P.1005/2016 M/s F.C. NWFP, Security Services Pvt. Ltd. In C.A.1022/2016 M/s Cherat Packaging Ltd. etc. In C.A.1341/2016 Federation of Pakistan etc. In Const.Ps.5 to 8/2016 & CMAs 3520, 3521 & 3522/2016 Lucky Cement (Pvt.) Ltd. In C.A.1298/2016 …Respondent(s) Civil Appeal No.1049/2011 etc. -: 8 :- (in C.A.1378/2014) Mr. Arshad Zaman Kiyani, ASC Mr. Muhammad Saleem Khan, ASC Mr. Asif Fasih-ud-Din Vardaq, ASC Qazi Ahmed Naeem Qureshi, ASC Mr. Tariq Aziz, AOR (in C.P.1767/2012) Ms. Misbah Gulnar Sharif, ASC (in C.A.942/2013) Mr. Tasleem Hussain, ASC (in C.As.1374 & 1379/2014) Mr. Habib Ahmed Qureshi, ASC (in C.A.1364/2014) Mr. Sohail Mahmood, DAG Mr. Abid Hussain Channa, S.O. (Finance) Mr. Mudassir Khalid Abbasi, A.A.G. Punjab Mr. Abbas Ali, Law Officer, Labour Deptt. Punjab Mr. Noor Ahmed Wahgra, Dy. Director (Legal), EOBI Mr. Faisal Tariq, Dy. Director (Legal) Workers Welfare Fund, Islamabad Nemo (in C.As.1272, 1274, 1278 & 1299/2014) Not represented (in C.As.1061, 1266 to 1268, 1270, 1273, 1275, 1277, 1279 to 1289, 1364, 1366 to 1368, 1370 to 1372, 1375/2014, 72 to 74, 178, 179, 317 to 319, 583/2015, 110, 112, 114 & 1022/2016) Date of hearing: 27.09.2016 … JUDGMENT MIAN SAQIB NISAR, J.- These matters involve common questions of law, thus are being disposed of together. The key question involved in these matters is whether the levies/contributions/payments under various laws which were amended through different Finance Acts are in the nature of a tax or not. This would in turn determine whether or not the amendments were lawfully made through Finance Acts, i.e. Money Bills, as defined in Article 73 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution). 2. The facts pertaining to these matters are broadly divided into three categories for ease of reference. The first set of facts are that Sections 2 and 4 of the Worker Welfare Ordinance, 1971 (Ordinance of 1971) Civil Appeal No.1049/2011 etc. -: 9 :- were amended by Section 12 of the Finance Act of 2006 and subsequently by Section 8 of the Finance Act of 2008 which broadened the scope of the obligation on industrial establishments to contribute towards the Workers’ Welfare Fund established under Section 3 of the Ordinance of 1971. The said amendments (and notices demanding enhanced payment by virtue of the amendments) were challenged through writ petitions before various High Courts of the country. It is pertinent to mention that there are divergent views of the learned High Courts on this question. The view of the learned Lahore High Court in the judgment dated 19.8.2011 reported as East Pakistan Chrome Tannery (Pvt.) Ltd Vs. Federation of Pakistan and others (2011 PTD 2643) is that the levy in question was a fee and not a tax, therefore the amendments made by the Finance Acts of 2006 and 2008 to the Ordinance of 1971 could not have been lawfully brought through a money bill, rather should have been brought through the regular legislative procedure under the Constitution. The learned Peshawar High Court, vide judgment dated 29.5.2014, followed suit. Subsequently the learned Peshawar High Court disposed of numerous tax references on the basis of this decision, against which the appeals are before us. We would like to point out at the very outset that as regards those cases in which the revenue authorities/collecting agencies have assailed the judgment of the learned Peshawar High Court, although no rights of the collecting agencies have been affected as their job is to merely collect contributions for the Workers’ Welfare Fund, we are nevertheless deciding those cases as well keeping in view the importance of the matter and the conflicting judgments impugned before us. There is a contrary view of the Full Bench of the learned High Court of Sindh expressed in the judgment dated 1.3.2013 reported as Shahbaz Garments (Pvt.) Ltd Vs. Pakistan Civil Appeal No.1049/2011 etc. -: 10 :- through Secretary Ministry of Finance, Revenue Division, Islamabad and others (PLD 2013 Kar 449) (Full Bench judgment) to the effect that the levy in question was a tax and not a fee, therefore the amendments made by the Finance Acts of 2006 and 2008 to the Ordinance of 1971 were lawfully brought through a money bill. The aforementioned judgments have been challenged by the parties before us. 3. The second set of facts are that various provisions of the Employees Old Age Benefits Act, 1976 (Act of 1976) pertaining to contributions to be made thereunder were amended by Section 9 of the Finance Act of 2008 effectively widening the scope of the obligation on employers to contribute towards the Employees’ Old-Age Benefits Fund established under Section 17 of the Act of 1976. These amendments were challenged through constitution petitions before the learned High Court of Sindh which, through its judgment dated 3.10.2012 reported as Soneri Bank Limited through Jaffar Ali Khan and others Vs. Federation of Pakistan ah21 through Secretary Law and Justice Division, Pak Secretariat, Islamabad and others (2013 PLC 134), held that the levy in question was a fee and not a tax, therefore the amendments made by the Finance Act of 2008 to the Act of 1976 could not have been lawfully brought through a money bill. 4. The third set of facts are that various provisions of the Workmen Compensation Act, 1923, the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968 (Ordinance of 1968), the Companies’ Profit Workers’ Participation Act, 1968 (Act of 1968), the Minimum Wages for Unskilled Workers Ordinance, 1969 (Ordinance of 1969) and the Act of 1976 were amended through the Finance Act of 2007 which amendment(s) in effect broadened the scope of the obligation of the Civil Appeal No.1049/2011 etc. -: 11 :- employers in the respective statutes (the obligation(s) in each statute shall be discussed during the course of the opinion). These amendments were challenged through a constitution petition before the learned High Court of Sindh which, through its judgment dated 26.2.2011, held that the changes sought to be made by amendments through the Finance Act of 2007 did not fall within the purview of Article 73(2) of the Constitution, hence, the said amendments could not have been lawfully brought through a money bill. All the aforementioned judgments have been challenged before us. 5. The contentions of the learned counsel can be grouped into two for the sake of convenience. The first set of arguments is of those counsel who espouse the view that the levies/contributions in question are in the nature of a tax, hence, the amendments brought in the respective statutes were validly and lawfully made through Money Bills, i.e. different Finance Acts. 6. Ms. Asma Jehangir, learned counsel for Employees Old-Age Benefits Institution (Institution), sought to challenge the judgment passed in the case of Soneri Bank (supra). Her basic argument was that the levy in the Act of 1976 is a tax and not a fee, and an amendment could be validly brought in the Act of 1976 through a money bill. The Act of 1976 is the outcome of the obligation of the State to sustain the working class from falling below the poverty line. This obligation has been recognized in the Constitution (Articles 9, 37 and 38). Under Article 37 of the Constitution the State has become a signatory to and ratified the conventions of the International Labour Organisation to set up institutions so that the aged, disabled, pregnant women, and survivors of accidents and their families are paid benefits. The Institution is a conduit for the obligation that the State owes in terms of ensuring social benefits and economic rights. Civil Appeal No.1049/2011 etc. -: 12 :- Therefore these payments are not a privilege or a service rendered, rather they are tantamount to a right. Additionally, a vested right had been created in favour of the beneficiaries. Further, the employers are contributors to the welfare of the State [on behalf of the general public including the employees] and therefore it has become a common burden. Moreover, the State can contribute as per Section 9 of the Act of 1976 hence the levy/contribution is a tax and not a fee. She relied upon the judgments reported as Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another Vs. Durrani Ceramics and others (PLD 2015 SC 354), Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another Vs. Durrani Ceramics and others (2014 SCMR 1630), Mir Muhammad Idris and others Vs. Federation of Pakistan through Secretary Ministry of Finance and others (PLD 2011 SC 213), Sindh High Court Bar Association through its Secretary and another Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Collector of Customs and others Vs. Sheikh Spinning Mills (1999 SCMR 1402), Messrs Elahi Cotton Mills Ltd and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Sheikh Muhammad Ismail & Co. Ltd, Lahore Vs. The Chief Cotton Inspector, Multan Division, Multan and others (PLD 1966 SC 388), Flying Cement Company Vs. Federation of Pakistan and others (2015 PTD Lah 1945), Tata Textile Mills Ltd through Authorized Attorney/Representative, Karachi and 57 others Vs. Federation of Pakistan through Secretary, Revenue Division/FBR, Islamabad and another (2013 PTD Kar 1459), Shahbaz Garments (supra), Messrs Civil Appeal No.1049/2011 etc. -: 13 :- Mutual Funds Association of Pakistan (MUFAP) Vs. Federation of Pakistan through Secretary, Ministry of Finances, Government of Pakistan and another [2010 PLC (Lab) Kar 306], Syed Nasir Ali and 33 others Vs. Pakistan through Secretary Ministry of Law, Islamabad and 3 others (2010 PTD 1924), Messrs Fatima Enterprises Ltd Vs. The Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others (1999 MLD 2889), Messrs Saif Textile Mills Limited Vs. Pakistan through Secretary, Finance (Finance Division), Islamabad and 3 others (PLD 1998 Pesh 15), Sind Glass Industries Limited Vs. Chief Controller of Import and Export, Islamabad (1990 CLC 638) and Trustees of the Port of Karachi Vs. Gujranwala Steel Industries and another (1990 CLC 197). From the Indian jurisdiction, learned counsel relied upon the judgments reported as Calcutta Municipal Corporation and others Vs. Shrey Mercantile Pvt. Ltd and others (AIR 2005 SC 1879), City Corporation of Calicut Vs. Thachambalath Sadasivan and others (AIR 1985 SC 756), The Chief Commissioner, Delhi and another Vs. The Delhi Cloth and General Mills Co. Ltd and others (AIR 1978 SC 1181), The State of Maharashtra and others Vs. The Salvation Army, Western India Territory (AIR 1975 SC 846), The Secretary, Government of Madras, Home Department and another Vs. Zenith Lamp and Electrical Ltd. (AIR 1973 SC 724), The Delhi Cloth and General Mills Co. Ltd Vs. The Chief Commissioner, Delhi and others (AIR 1971 SC 344) and The Comissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sir Shirur Mutt. (AIR 1954 SC 282). 7. Mr. Mir Afzal Malik, learned counsel for the Workers’ Welfare Fund submitted that the levy/contribution in the Ordinance of 1971 is Civil Appeal No.1049/2011 etc. -: 14 :- also in the nature of a tax and not a fee, therefore the amendments have been validly brought about by Money Bills. He argued that although both tax and fee are compulsory extractions, tax is not related to a particular service but is intended to meet the expenses of the State, whereas a fee is meant to compensate the Government for expenses incurred in rendering services to the person from whom the fee is collected. Further, the money received in the Workers’ Welfare Fund is for the benefit of the workers and not for the payers, i.e. industrial establishments, therefore such levy/contribution does not fall within the definition of fee. He referred to various constitutional provisions including Articles 70(4), 73, 77, 142(b) and (c), 143, 165A and 260(1) and Entry No.52 of Part I of the Fourth Schedule of the Constitution. He relied upon the judgments reported as Shahbaz Garments (supra), Mutual Funds Association (supra), Collector of Customs (supra), Abdul Majid and another Vs. Province of East Pakistan and others (PLD 1960 Dacca 502), The Commissioner, Hindu Religious Endowments, Madras (supra), Pakistan Burmah Shell Limited and another Vs. Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others (1998 PTD 1804), Muhammad Ismail (supra), Messrs Khyber Electric Lamps Manufacturing Limited and others Vs. Chairman, District Council, Peshawar and another (1986 CLC 533), Rahimullah Khan and 65 others Vs. Government of N.W.F.P. through Secretary Agricultural Forest and Co-operation Department, Peshawar and 5 others (1990 CLC 550), PLD 1997 Kar 604, 1990 CLC 638, Calcutta Municipal Corporation (supra), The Hingir-rampur Coal Co. Ltd and others Vs. The State of Orissa and others (AIR 1961 SC 459), Mahboob Yar Khan and Civil Appeal No.1049/2011 etc. -: 15 :- another Vs. Municipal Committee, Mian Channu and 2 others (PLD 1975 Lah 748) and Elahi Cotton (supra). 8. Mr. Rehman Ullah, learned counsel for the appellants in Civil Appeals No.107 to 114 and 755/2016 submitted that the subject levies/contributions were in the nature of tax, not fee. Mr. Hafiz S. A. Rehman, learned counsel for the appellant in Civil Petition for Leave to Appeal No.1767/2012, submitted that the amendments made in several labour laws through the Finance Act of 2007 were lawful for the reasons enumerated in the Full Bench judgment of the High Court of Sindh which (judgment) he fully supported. Mr. Malik Jawwad Malik, learned counsel for the appellant in Civil Petition for Leave to Appeal No.1005/2016 adopted the arguments of Mr. Hafiz S. A. Rehman, learned ASC. 9. The second set of arguments is of those counsel who oppose the view that the levies/contributions in question are in the nature of a tax, rather it is their stance that they are in the nature of a fee, hence, the amendments brought in the respective statutes through Money Bills, i.e. different Finance Acts, were made without lawful authority. 10. Mr. Rashid Anwar, learned counsel for the appellants in Civil Appeals No.923 to 930, 937 and 938/2013, identified two main issues:- firstly, with respect to the scope of Article 73 of the Constitution pertaining to Money Bills, and secondly, whether the Ordinance of 1971 levies a tax or a fee. He briefly discussed the history and origins of the concept of Money Bills and how it became a part of our constitutional structure. He made reference to the Parliament Act, 1911 according to which in case there is a conflict between the House of Commons and the House of Lords regarding a Money Bill, when the Speaker of Parliament certifies a bill as a Money Bill, the word of the House of Commons will Civil Appeal No.1049/2011 etc. -: 16 :- prevail: according to him this principle is reflected in our Constitution too. Generally, all bills should be passed by both houses of Parliament, i.e. the National Assembly and the Senate. The Senate can be bypassed only to the extent permitted by the Constitution, that is, in respect of matters which fall strictly within the definition of a Money Bill, as provided in Article 73 supra. He submitted that the amendments made by the Finance Act of 2006 and 2008 did not fall within the definition of a Money Bill and hence such amendments were invalid. He then moved on to the question of whether the levy/contribution in the Ordinance of 1971 was a tax or a fee. In this regard he referred to the Durrani Ceramic’s case (supra) and submitted that there are two tests to answer such a question, first, we ought to examine whether any benefit is being provided to any class, particular individuals, community or a specific area and if/where the benefit cannot be measured in exactitude, so long as the levy is to the advantage of the payers, consequential benefit to the community at large would not render the levy a tax. Further, where there is ambiguity, reference can be made to the stance of the Government itself, because the budget documents are prepared by the Government and if it classifies the levy/contribution as non-tax revenue then that is conclusive proof that it is not a tax. In this respect he referred to certain documents according to which the Accountant General Pakistan Revenues has taken a categorical position that the Workers’ Welfare Fund receipts are accounted for under the heads of account of ‘non-tax receipts’. Learned counsel by referring to the Preamble and Section 6 of the Ordinance of 1971 stated that this law is meant to provide facilities to workers, and according to judgments of the Supreme Court, a fee should confer some benefit on the contributor directly or indirectly. When an employer makes contributions to the Civil Appeal No.1049/2011 etc. -: 17 :- Workers’ Welfare Fund it directly benefits the worker but also indirectly benefits the employer in that the worker is enabled to be more productive. He further submitted that as a general rule, tax revenues go to the national exchequer and are disbursed by it to meet the Government’s budgetary requirements and the same cannot be done by statutory bodies which are not the Government. 11. Mr. Hashmat Ali Habib, learned counsel for the appellant in Civil Appeal No.919/2013 argued that the levy/contribution is in the nature of a fee and not a tax. The same argument(s) were put forward by Mr. Ishaq Ali Qazi, learned ASC and Mr. Mehmood Abdul Ghani, learned ASC (while responding to Ms. Asma Jehangir’s arguments), the latter of whom relied upon the judgments reported as Kohinoor Chemical Co. Ltd and another Vs. Sind Employees’ Social Security Institution and another (PLD 1977 SC 197), (NLR 2004 Labour 10), Government of North-West Frontier Province through Secretary Agriculture and others Vs. Rahimullah and others (1992 SCMR 750), Muhammad Ashraf Tiwana and others Vs. Pakistan and others (2013 SCMR 836), Mir Muhammad Idris (supra), Messrs Azgard Nine Ltd Vs. Pakistan through Secretary and others (PLD 2013 Lah 282), Messrs Quetta Textile Mills Limited through Chief Executive Vs. Province of Sindh through Secretary Excise and Taxation, Karachi and another (PLD 2005 Kar 55) and Niaz Ahmed Khan Vs. Province of Sind and others (PLD 1977 Kar 604). 12. Mr. Raheel Kamran, learned counsel for the petitioners in Constitutional Petitions No.5 to 8/2016 submitted that after the 18th Constitutional Amendment the concurrent legislative lists were abolished and the subjects devolved upon the Provinces. He argued that there is an order dated 14.1.2016 passed by the learned Single Judge of the High Civil Appeal No.1049/2011 etc. -: 18 :- Court of Sindh stating that the Full Bench (of the High Court of Sindh) has declared such a levy to be a tax, and the outcome of this is that as a tax, it would fall within Entry 47 of the Federal Legislative List which is tax on income, therefore the Provinces can neither legislate on this subject nor collect the levy. 13. Heard. The Constitution has provided the legislative procedure for the introduction and passing of Bills by Parliament. Generally, all Bills (pertaining to matters in the Federal Legislative List) though they may originate in either house, i.e. National Assembly or Senate, must be passed by both houses after which the Bill receives the Presidential Assent. However there is an exception provided by the Constitution. According to Article 73 of the Constitution, Money Bills are to originate in the National Assembly and can be passed by the Assembly whilst bypassing the Senate. What constitutes a Money Bill has been set out in Article 73(2) of the Constitution, and Article 73(3) specifically sets out what shall not constitute a Money Bill. The relevant portions of Article 73 are reproduced below for ease of reference:- 73. Procedure with respect to Money Bills.—(1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly: Provided………………………………………………………… (1A) ……………………………………………………………… (2) For the purposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:— (a) the imposition, abolition, remission, alteration or regulation of any tax; Civil Appeal No.1049/2011 etc. -: 19 :- (b) the borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of that Government; (c) the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund; (d) the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge; (e) the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys; (f) the audit of the accounts of the Federal Government or a Provincial Government; and (g) any matter incidental to any of the matters specified in the preceding paragraphs. (3) A Bill shall not be deemed to be a Money Bill by reason only that it provides– (a) for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or payment of a licence fee or a fee or charge for any service rendered; or (b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (4) ……………………………………………………………… (5) ……………………………………………………………… Civil Appeal No.1049/2011 etc. -: 20 :- Therefore any Bill which does not fall within the purview of Article 73(2) of the Constitution would not constitute a Money Bill and cannot be passed under the legislative procedure (mandate) provided by Article 73, by bypassing the Senate, rather the regular legislative procedure under Article 70 would be required to be followed. In the instant matters, the relevant sub-article is (2)(a) of Article 73, which pertains to the imposition, abolition, remission, alteration or regulation of any tax, read with sub- article (2)(g) which relates to any matter incidental to any of the matters specified in sub-articles (2)(a) to (f). Thus we must consider whether the levies/contributions in question under the various laws are in the nature of a tax: which would render the amendments thereto through the Finance Acts valid and lawful. 14. Whether the various levies/contributions in the instant matter constitute a tax as opposed to a fee depends on whether they possess the characteristics of a tax or not. The key characteristics of a ‘tax’ and a ‘fee’ have been the subject of much debate in our jurisprudence. In the judgment reported as Government of North-West Frontier Province through Secretary Agriculture and others Vs. Rahimullah and others (1992 SCMR 750) it was held that:- “The distinction between "tax" and "fee" lies primarily in the fact that a tax is levied as a part of common burden while a fee is paid for a special benefit or privilege.” This Court in the more recent judgment reported as Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another Vs. Durrani Ceramics and others (2014 SCMR 1630), after Civil Appeal No.1049/2011 etc. -: 21 :- taking into account considerable case law from our jurisdiction and abroad, came to the following definitive conclusion:- 19. Upon examining the case-law from our own and other jurisdictions it emerges that the 'Cess' is levied for a particular purpose. It can either be 'tax' or 'fee' depending upon the nature of the levy. Both are compulsory exaction of money by public authorities. Whereas 'tax' is a common burden for raising revenue and upon collection becomes part of public revenue of the State, 'fee' is exacted for a specific purpose and for rendering services or providing privilege to particular individuals or a class or a community or a specific area. However, the benefit so accrued may not be measurable in exactitude. So long as the levy is to the advantage of the payers, consequential benefit to the community at large would not render the levy a 'tax'. In the light of this statement of law it is to be examined whether the GIDC is a 'tax' or a 'fee'. [Emphasis supplied] There are no two opinions about the fact that a tax is basically a compulsory exaction of monies by public authorities, to be utilized for public purposes. However its distinguishing feature is that it imposes a common burden for raising revenue for a general as opposed to a specific purpose,#; the latter being one of the key characteristics of a fee. Now let us examine each of the subject levies/contributions in light of the above touchstone. 15. According to the Preamble of the Ordinance of 1971, it was passed to provide for the establishment of a Workers’ Welfare Fund, in order to provide residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto. The Workers’ Welfare Fund is constituted under Section 3 of the Ordinance of 1971 Civil Appeal No.1049/2011 etc. -: 22 :- which, amongst other things, consists of contributions by industrial establishments. ‘Industrial establishments’, as defined in Section 2(f) of the Ordinance of 1971, are liable to pay to the Workers’ Welfare Fund a sum equal to two percent of their total income per year, provided that the total income of which [in any year of account commencing on or after the date specified by the Federal Government in the official gazette in this behalf] is not less than five lakh rupees. Section 7 pertains to the creation of the Governing Body of the Workers’ Welfare Fund to whom the management and administration whereof shall be entrusted. According to Section 10, amongst other things, the function of the Governing Body shall be:- (a) to allocate funds, in accordance with the principles laid down under section 9, to the Provincial Governments, any agency of the Federal Government and any body corporate for any of the purposes mentioned in clauses (a) and (b) of section 6; [Emphasis added] Section 6 provides for the purposes to which monies in the Workers’ Welfare Fund may be applied. It reads as follows:- “6. Purposes to which moneys in the Fund may be applied.—Moneys in the Fund shall be applied to – (a) the financing of projects connected with the establishment of housing estates or construction of houses for the workers; (b) the financing of other welfare measures including education training, re-skilling and apprenticeship for the welfare of the workers; Civil Appeal No.1049/2011 etc. -: 23 :- (c) the meeting of expenditure in respect of the cost of management and administration of the Fund; (d) the repayment of loans raised by the Governing Body; and (e) investment in government, government guarantees, non-government securities and Real Estate.” Going further, Section 10A provides that:- 10A. Vesting of money allocated from the fund.—Any money allocated under clause (a) of section 10 shall be a grant-in-aid and shall vest in the Government, agency or body corporate, to whom it is allocated under that clause, but it shall not be applied to any purpose other than that for which it is allocated, or permitted, by the Governing Body. [Emphasis added] From the above it is clear that the Governing Body of the Workers’ Welfare Fund, established to manage and administer the said fund, is supposed to do so in light of the exhaustive purposes enumerated in Section 6 ibid. Further, the Governing Body can only allocate funds to the Provincial Government, or any agency of the Federal Government and any Body Corporate for the purposes mentioned in Section 6(a) and (b) and for no other purpose, and any funds so allocated to any such body cannot be used for any purpose other than that for which they are allocated or as permitted by the Governing Body. This clearly establishes two things: that the Government has no control over the Workers’ Welfare Fund, and that the funds can only be used for very specific purposes as stated exhaustively in the Ordinance of 1971 itself, and not for general or undefined purposes. This particular feature of the Civil Appeal No.1049/2011 etc. -: 24 :- contribution(s) made in terms of the Ordinance of 1971 automatically preclude them from being classified as a tax. 16. Besides there are certain other features of the contributions made to the Workers’ Welfare Fund that suggest they are not in the nature of a tax. In this regard, Section 4(7) of the Ordinance of 1971 is important which reads as follows:- “4(7) The payment made by an industrial establishment to the Fund under sub-section (1) shall be treated as an expenditure for purposes of assessment of income-tax. Section 4(7) basically states that the payments made by industrial establishments to the Workers’ Welfare Fund under the Ordinance of 1971 are to be considered as expenditure while assessing income tax. It is a necessary corollary that the contributions to the Workers’ Welfare Fund cannot be a tax if they are to be considered as an expenditure while assessing income tax. This argument is bolstered by Section 60A in Part IX of Chapter III of the Income Tax Ordinance, 2001 (Ordinance of 2001) which reads as follows:- “60A. Workers’ Welfare Fund.—A person shall be entitled to a deductible allowance for the amount of any Workers’ Welfare Fund paid by the person in tax year under Workers’ Welfare Fund Ordinance, 1971.” A deductible allowance has been defined in Section 2(16) of the Ordinance of 2001 as “an allowance that is deductible from total income under Part IX of Chapter III”, meaning thereby that any contributions made by a person under the Ordinance of 1971 will be deducted from the total income of that person. Civil Appeal No.1049/2011 etc. -: 25 :- This also suggests that the contributions are not a tax, as they are being deducted from the total income, as opposed to being considered as a tax credit, in which case the contributions would be subtracted from the total tax to be paid. In the light of the foregoing, we are of the view that the contributions made to the Workers’ Welfare Fund are not in the nature of a tax. 17. We now advert to the levies/contributions made under the Act of 1976. According to the Preamble of the Act of 1976, it is a law relating to old-age benefits for the persons employed in industrial, commercial and other organisations and matters connected therewith. The Employees’ Old-Age Benefits Institution was set up under Section 4 of the Act of 1976; the Institution is to be generally directed and superintended by the Board (see Section 6). The Employees’ Old-Age Benefits Fund was set up under Section 17 of the Act of 1976 into which all contributions made under the said Act are to be paid. The employer [defined in Section 2(c)] is required to make monthly payments or contributions to the Institution in respect of insured employees at the rate of five per cent of his wages (see Section 9). Section 3 provides that all employees in an industry or establishment [both of which terms have been defined in Section 2(g) and (e) of the Act of 1976 respectively] shall be insured in the manner prescribed by or under the Act of 1976. Under the said Act, the insured person is also required to make monthly contributions under Section 9B thereof at the rate of one per cent of his wages, from 1.7.2001. Section 17(4) of the Act of 1976 is important, it provides that “the assets of the Institution shall be utilized solely for the purposes of this Act”. The various benefits available under the Act of 1976 are old-age pension (Section 22), old-age grant (Section 22A), survivors’ pension (Section 22B) and invalidity pension (Section 23). Thus the scheme of the Act of 1976 clearly suggests that the contributions are to be used for specific purposes Civil Appeal No.1049/2011 etc. -: 26 :- pertaining to employees’ old-age benefits, as opposed to general purposes. Again this feature of the subject contribution removes it from the ambit of a tax. 18. Coming to the five different labour laws amended by the Finance Act of 2007; one of them was the Act of 1976 which we have discussed in the preceding paragraph hence is not required to be addressed again. The Preamble to the Workmen’s Compensation Act, 1923 states that it was passed to provide for the payment of compensation for injury by accident by certain classes of employees to their workmen. According to Section 3 of the Act of 1923, an employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the said Act if personal injury is caused to a workman by accident arising out of and in the course of his employment. The Act of 1923 contains very comprehensive details of the amount of compensation to be paid (Section 4), the method of calculation of wages (Section 5) and the distribution of compensation (Section 8), etc. The scheme under the Act of 1923 is a form of insurance, providing compensation to workers (or their dependents in case of a fatal accident if the Commissioner thinks fit) injured in the course of employment in exchange for relinquishment of the employee’s right to take legal action against the employer (see Section 3(5) of the Act of 1923). In the light of the above it is manifest that the compensation payments made under the Act of 1923 are not a common burden exacted to meet the general expenses of the State, rather they are particular payments made for a very specific purpose, i.e. to compensate workmen injured in the course of employment, therefore they cannot be said to be in the nature of a tax. 19. The same is the case with the payments made under the Ordinance of 1968 which provides for the regulation of the conditions of Civil Appeal No.1049/2011 etc. -: 27 :- the employment of workmen and other incidental matters in industrial or commercial establishments in accordance with the Standing Orders in the Schedule to the said Ordinance (See section 3). The Ordinance of 1968 is quite extensive, however we are only concerned with the contributions which have been amended by the Finance Act of 2007, as it is the said Act which has been called into question as being unlawful. The provision which was amended by the Finance Act of 2007 is Clause (6) of Standing Order 12 which broadly provides for payment of gratuity by the employer in case a workman resigns from service or his services are terminated by the employer for any reason other than misconduct. The proviso that was added by the Finance Act of 2007 reads as follows:- “Provided further that if through collective bargaining the employer offers and contributes to an “Approved Pension Fund” as defined in the Income Tax Ordinance, 2001 (XLIX of 2001), and where the contribution of the employer is not less than fifty per cent of the limit prescribed in the aforesaid Ordinance, and to which the workman is also a contributor for the remaining fifty per cent or less, no gratuity shall be payable for the period during which such contribution has been made.” The subject contribution is gratuity payments. What is gratuity? Basically it is a lump sum payment made by the employer to an employee at the end of his service (either by retirement or termination for reasons other than misconduct) as a mark of recognition for the latter’s service. In other words it is a defined benefit plan. These payments made by employers are very specific as opposed to having a generic purpose to meet the State’s expenses and can therefore by no stretch of imagination be referred to as a tax. Civil Appeal No.1049/2011 etc. -: 28 :- 20. The Act of 1968 provides for companies [defined in Section 2(b)] to which the Act applies to establish a Workers’ Participation Fund and to make annual payments of five per cent of its profits during that year to the said Fund (see Section 3) to provide benefits that accrue from it to the eligible workers of the company. Employees may voluntarily choose to contribute to the Workers’ Participation Fund as per Clause 7 of the Schedule of the Act of 1968. The Workers’ Participation Fund is to be managed and administered by a Board of Trustees in accordance with the provisions of the Act of 1968, the scheme and any rules made in this behalf [see Section 4(5)]. The Workers’ Participation Fund is basically a profit-sharing plan that gives employees a share in the profits of a company, with the primary aim to give the employees a sense of ownership and greater participation in the company. These contributions too, are for a specific purpose, i.e. a plan for the benefit of employees, much like other investment plans, and therefore do not qualify as a tax. 21. Finally, according to the Preamble of the Ordinance of 1969, it was enacted to fix the minimum rates of wages for unskilled workers employed in certain commercial and industrial establishments [defined in Section 2(b) and (f) respectively]. Such responsibility was pinned on commercial and industrial establishments under Section 4 of the Ordinance of 1969. Not only was this statute enacted for the aforementioned specific purpose, we fail to understand as to how the requirement of payment of minimum wages to unskilled workers can be construed as a tax, thereby permitting any amendments made to the Ordinance of 1969 to be effected through a Money Bill. 22. As we have established from the discussion above that none of the subject contributions/payments made under the Ordinance of Civil Appeal No.1049/2011 etc. -: 29 :- 1971, the Act of 1976, the Act of 1923, the Ordinance of 1968, the Act of 1968 and the Ordinance of 1969 possess the distinguishing feature of a tax, i.e. a common burden to generate revenue for the State for general purposes, instead they all have some specific purpose, as made apparent by their respective statutes, which removes them from the ambit of a tax. Consequently, the amendments sought to be made by the various Finance Acts of 2006, 2007 and 2008 pertaining to the subject contributions/payments do not relate to the imposition, abolition, remission, alteration or regulation of any tax, or any matter incidental therto (tax). We would like to point out at this juncture that the word ‘finance’ used in Finance Act undoubtedly is a term having a wide connotation, encompassing tax. However not everything that pertains to finance would necessarily be related to tax. Therefore merely inserting amendments, albeit relating to finance but which have no nexus to tax, in a Finance Act does not mean that such Act is a Money Bill as defined in Article 73(2) of the Constitution. The tendency to tag all matters pertaining to finance with tax matters (in the true sense of the word) in Finance Acts must be discouraged, for it allows the legislature to pass laws as Money Bills by bypassing the regular legislative procedure under Article 70 of the Constitution by resorting to Article 73 thereof which must only be done in exceptional circumstances as and when permitted by the Constitution. The special legislative procedure is an exception and should be construed strictly and its operation restricted. Therefore, we are of the candid view that since the amendments relating to the subject contributions/payments do not fall within the parameters of Article 73(2) of the Constitution, the impugned amendments in the respective Finance Acts are declared to be unlawful and ultra vires the Constitution. Civil Appeal No.1049/2011 etc. -: 30 :- 23. There is another aspect of the matter which requires due attention. No doubt the feature of having a specific purpose is a characteristic of a fee, which the subject contributions/payments possess as discussed in the preceding portion of this opinion. However, there are certain other characteristics of a fee, such as quid pro quo, which must be present for a contribution or payment to qualify as a fee. This was the main argument of the learned counsel who categorized the subject contributions in the nature of a tax, that they (the contributions) lacked the element of quid pro quo or in other words the benefit of the contribution did not go the payers. The industrial establishments or employers etc. were liable to pay the contribution but they were not the beneficiaries of the purpose for which such contributions were being made; the beneficiaries were their employees or workers etc. Mr. Rashid Anwar attempted to argue that the benefit need not be direct and can be indirect, therefore although the employees were directly benefited by contributions made to the Employees’ Old-Age Benefit Fund as they received the disbursements, the employers received an indirect benefit in that this results in happier employees which ultimately leads to greater productivity. Whilst this may be true, albeit a strained argument, the attempt of the learned counsel challenging the legality of the amendments in the Finance Acts has all along been to categorize the contributions/payments as a fee, which would mean that they were not a tax. While a fee is obviously not a tax, there was absolutely no need to try and squeeze the contributions/payments into the definition of a fee, when all that is required is to take them out of the ambit of a tax. We may develop this point further; although Article 73(3)(a) of the Constitution states that a Bill shall not be a Money Bill if it provides for the imposition Civil Appeal No.1049/2011 etc. -: 31 :- or alteration of a fee or charge for any service rendered, this does not mean that if a particular levy/contribution does not fall within Article 73(2) it must necessarily fall within Article 73(3). Sub-articles (2) and (3) are not mutually exclusive. There may very well be certain levies/contributions that do not fall within the purview of Article 73(3) but still do not qualify the test of Article 73(2) and therefore cannot be introduced by way of a Money Bill, and instead have to follow the regular legislative procedure. The discussion above that the subject contributions/payments do not constitute a tax is sufficient to hold that any amendments to the provisions of the Ordinance of 1971, the Act of 1976, the Act of 1923, the Ordinance of 1968, the Act of 1968 and the Ordinance of 1969 could not have been lawfully made through a Money Bill, i.e. the Finance Acts of 2006 and 2008, as the amendments did not fall within the purview of the provisions of Article 73(2) of the Constitution. 24. In light of the foregoing, the instant matters are disposed of in the following manner:- (a) Civil Appeals No. 1049 to 1055/2011, 24 to 26/2013, 64 to 66/2013, 1266 to 1299/2014, 1364 to 1379/2014, 72 to 74/2015, 316 to 321/2015, 388/2015, 583 to 585/2015, 107 to 114/2016, 755/2016, 1022/2016, 1341/2016, and Civil Petition for Leave to Appeal No.1005/2016 are dismissed; (b) Civil Petition for Leave to Appeal No.1767/2012 is dismissed. Besides, the noted CPLA is barred by 586 days and no sufficient cause for condonation of delay

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.104-L, 106-L AND 107-L OF 2015 (Against the judgment dated 17.2.2015 of the Lahore High Court, Lahore passed in R.F.A. No.779/2010) 1. Al-Meezan Investment Management Company Ltd. …in C.A.104-L/2015 2. Soneri Bank Limited …in C.A.106-L/2015 3. National Fertilizer Corporation of Pakistan (Pvt.) Ltd. through its Chairman …in C.A.107-L/2015 …Appellant(s) VERSUS WAPDA First Sukuk Company Limited, Lahore etc. …Respondent(s) (in all appeals) For the appellant(s): Mr. Uzair Karamat Bhandari, ASC Mrs. Tasneem Amin, AOR (in C.A.104-L/2015) Mr. Shehryar Kasuri, ASC (in C.A.106-L/2015) Mr. Asad Javed, ASC Mr. Mahmudul Islam, AOR (in C.A.107-L/2015) For the respondent(s): Ms. Ayesha Hamid, ASC Syed Fayyaz A. Sherazi, AOR (for respondents No.1 & 2 in all appeals) Mr. Asad Javed, ASC Mr. Mahmudul Islam, AOR (for respondent No.3 in C.As.104-L & 106-L/2015) Mr. Uzair Karamat Bhandari, ASC Ms. Tasneem Amin, AOR (for respondent No.4 in C.A.106-L/2015 and for respondent No.3 in C.A.107-L/2015) Mr. Fayyaz A. Sherazi, AOR (for respondent No.6 in C.As.106-L & 107-L/2015) Mr. Shehryar Kasuri, ASC (for respondent No.5 in C.As.104-L & 107-L/2015) Date of hearing: 10.10.2016 … Civil Appeal No.104-L/2015 etc. - 2- JUDGMENT MIAN SAQIB NISAR, J.- Through this order we will decide three civil appeals bearing Nos.104-L, 106-L and 107-L of 2015 which arise out of the common judgment dated 17.2.2015 passed by the Lahore High Court whereby it set aside the order dated 21.5.2010 of the Trial Court rejecting the plaint of the Respondent Nos. 1 and 2. For the purposes of this common judgment we will treat Civil Appeal No.104-L of 2015 as the main appeal. The appellant therein, Al-Meezan Investment Management Company Limited will be referred to as the appellant. The factual background of these appeals is that WAPDA/respondent No. 2 wanted to raise funds for its various projects and to this end the Wapda First Sukuk Company/respondent No.1 was incorporated, which is a public limited company wholly owned by respondent No.2, which is a statutory authority constituted under the Pakistan Water and Power Development Authority Act, 1958. In terms of the Declaration of Trust dated 15.11.2005 the respondent No.1 issued sukuk certificates having a value of Rs.8,000,000,000/- (rupees eight billion) (388 physical certificates worth Rs.3,374,500,000/- and the remaining with Central Depository System governed by Central Depository Act 1997) due and payable in 2012. In terms of the Purchase Agreement dated 15.11.2005 respondent No.1 purchased and respondent No.2 sold 10 turbines at the Mangla Hydel Power Station which became the trust assets owned by respondent No.1. Through the Purchase Undertaking dated 15.11.2005 respondent No.2 undertook to buy back the 10 turbines at the time of the dissolution/maturity of the sukuk certificates in 2012. As per Ijara Agreement dated 15.11.2005 between respondent Nos.1 and 2 and MCB Bank Limited as the delegate of the Trustee viz respondent Civil Appeal No.104-L/2015 etc. - 3- No.1, the rental payments in respect of these sukuk certificates were to be made on the 22nd of April and the 22nd October of each year upto and including 22nd October 2012 [the maturity date]. Through Agency Agreement dated 15.11.2005 executed by respondent No.1, Citibank NA, Lahore Branch was the Paying Agent, Jahangir Siddique & Company Limited was the Reference Agent and the WAPDA Bonds Cell of respondent No.2 was the Registrar, Transfer Agent and Replacement Agent. 2. The National Fertilizer Corporation [hereinafter the “NFC”] [the appellant in Civil Appeal No.107-L of 2015] purchased 300 physical certificates of the value of Rs.750,000,000 (rupees seven hundred and fifty million). On receipt of a letter dated 12.2.2009 purportedly issued by the Deputy General Manager Accounts of NFC to the effect that NFC had sold certificates of the value of Rs.180,000,000 (rupees one hundred and eighty million) out of its holding of Rs.750 million to Swift Engineering Solutions and surrender of 72 physical certificates of aforesaid value of Rs.180 million for transfer to said Swift Engineering Solutions, the Wapda Bonds Cell of the respondent No. 2 issued/substituted 6 physical certificates of the value of Rs.180 million to Swift Engineering Solutions. The appellant purchased the said 6 certificates from the Swift Engineering Solutions on 6.3.2009. Thereafter request was received by respondent Nos. 1 and 2 from the appellant to transfer the 6 physical sukuk certificates to the Central Depository System which was done by respondent No.2’s Bond Cell on 17.3.2009. 3. During the course of April 2009, when NFC received profit for only Rs.57 million sukuk certificates from Citibank (the Paying Agent) against its holding of Rs.750 million, it raised this issue with Civil Appeal No.104-L/2015 etc. - 4- respondent Nos. 1 and 2. NFC informed respondent Nos. 1 and 2 that it had not sold its sukuk certificates to Swift Engineering Solutions and in time the apparent fraud was revealed. NFC informed respondent Nos. 1 and 2 that the purported letter dated 12.2.2009 was fake and had not been signed by Deputy General Manager (Accounts) of NFC and that any transaction made by respondent Nos. 1 and 2 on basis of said letter was illegal and fraudulent. Respondent No.2 informed the Central Depository Company (hereinafter the “CDC”) (respondent No.6) that further transfer/transaction of subject sukuk certificates be stopped till further instructions. Despite aforesaid instructions sukuk certificates were further sold by the appellant and CDC gave effect to the said sales. Presently the subject sukuk certificates are variously owned by BankIslami (respondent No.4) and Soneri Bank (appellant in Civil Appeal No.106-L of 2015) and Meezan Bank (in respect of whom an application under Order 1 Rule 10 CPC was pending before the Trial Court when the plaint was rejected vice order dated 21.5.2010). 4. At this stage inquiry No.76/2009 dated 12.5.2009 was registered with FIA Crimes Circle, Lahore by respondent No.2. FIA inquired into the matter and on basis of their inquiry FIR No.28/2009 dated 5.8.2009 was lodged and separate criminal proceedings on the basis thereof are at varying stages before the competent courts of law, the fate whereof does not concern us in these civil proceedings; it is sufficient that fraud was prima facie established in respect of the “sale” of sukuk certificates of the value of Rs.180 million from NFC to Swift Engineering Solutions. 5. Upon becoming aware of the doubtful transaction of the sale of the sukuk certificates to the appellant, respondent Nos. 1 and 2 sought a refund of the rental ijara payment made to the appellant Civil Appeal No.104-L/2015 etc. - 5- in April 2009. On 22.10.2009 the appellant filed Suit No. 1497 of 2009 titled “Al-Meezan Investment Management Company Ltd and Central Depository Company Vs. Wapda First Sukuk Company Ltd and 3 others” before the Sindh High Court at Karachi [hereinafter “Suit No.1497/2009”] claiming, inter alia, that it was the rightful owner of the sukuk certificates valuing Rs.180 million at all material times and seeking a declaration that it was entitled to the rental profit of Rs.13,640,900/- paid in April 2009. In addition NFC claimed the rental on the sukuk certificates valuing Rs.180 million from the respondent Nos.1 and 2 and insists that it is the rightful/lawful owner thereof and claimed further rentals/profits on said certificates. Similar claims to be the rightful/lawful owners of the sukuk certificates valuing Rs.180 million were put forward by BankIslami, Soneri Bank and Meezan Bank, alongwith claims to rental ijara payments on the basis of their holding in respect of said certificates. 6. In view of the conflicting claims to the sukuk certificates valuing Rs.180 million, on 12.12.2009 respondent Nos.1 and 2 filed an interpleader suit under Section 88 CPC before the Civil Court at Lahore [hereinafter the “Interpleader suit”] stating that they claim no title in the certificates valuing Rs.180 million and are ready to pay the rental profits, and ultimately in October 2012 the principal amount, to whoever is determined to be the true owner by the learned court. It is pertinent to mention that initially pursuant to order passed by the learned Civil Court at Lahore in the Interpleader suit and later in compliance with orders dated 19.7.2010 and 10.10.2012 passed by the learned High Court in RFA No.779/2010 allowing the respondents’ applications to that effect, the respondent Nos.1 and 2 deposited the rental ijara payments for the sukuk certificates valuing Civil Appeal No.104-L/2015 etc. - 6- Rs.180 million and finally the encashment value of Rs.180 million at the time of maturity into an account maintained by the Civil Court for said purpose. 7. NFC filed a written statement in the Interpleader suit wherein it raised certain preliminary objections on the basis whereof the learned Civil Court rejected the plaint vide order dated 21.5.2010 holding that the Interpleader suit was not maintainable in terms of Order 35 Rule 5 CPC and in terms of the proviso to Section 88 CPC and lastly on the basis of the ratio of G. Hari Karmarkar Vs. J. A. Robin and others (AIR 1927 Rangoon 91). Respondent Nos.1 and 2 challenged the said order through RFA No.779/2010 which was accepted vide the order dated 17.2.2015 passed by the Lahore High Court, impugned in these appeals. 8. Mr. Uzair Bhandari, learned counsel for the appellant apprised us of the detailed facts set out hereinabove. He stated that the appellant is a bona fide purchaser without notice and its title to the sukuk certificates valuing Rs.180 million is duly recorded in the Central Depository Register and is not liable to be rectified by virtue of Section 11 of the Central Depositories Act, 1997. He stated that the various claimants to the sukuk certificates valuing Rs.180 million are not claiming the same debt but two different and distinct debts and respondent Nos.1 and 2 are liable to satisfy both claims viz those of the NFC and of the appellant and those who claim title on the basis of the appellant’s title. He sought to persuade us that the relationship of the appellant and respondent No.1 is that of principal and agent. Respondent No.1 acts as the agent of the appellant in respect of the trust assets and conducts transactions on behalf of the appellant with respect thereto in its capacity as agent; this Civil Appeal No.104-L/2015 etc. - 7- relationship precludes respondent No.1 from filing an Interpleader suit because Order 35 Rule 5 CPC specifically bars the agent from bringing an interpleader suit against his principal. He also relied on the proviso to Section 88 CPC to argue that as Suit No.1497/2009 was filed prior in time and the pith and substance of the controversy can be adjudicated therein, therefore the Interpleader suit is not maintainable. He submitted that the Interpleader suit was not filed through an authorized person as the documents establishing his authority were not placed on the record of the Civil Court. He submitted that respondent Nos.1 and 2 had not approached the court with clean hands and that the Interpleader suit was simply a device to transfer the loss caused by the fraud onto the appellant and those parties who claim title from it. He in support of his contention has cited judgments from the foreign jurisdiction such as:- Conley et al. Vs. Alabama Gold Life Insurance Company [(1880) 67 Ala. 472], National Life Ins. Co. Vs. Pingrey and others [(1880) 141 Mass. 411], Sablicich Vs. Russell [(1866) 2 EC 441], Ann Dalton Vs. The Midland Railway Company [(1852) 138 ER 985], Farmers Irrigating Ditch Reservoir Company Vs. Nick Kane, et al. [(1988) 845 F.2d 229], Atoka Coal & Min. Co. Vs. Hodges et al. [(1894) 59 FR 836], Finn Vs. Missouri State Life Ins. Co. [(1931) 222 Ala. 413] and Great American Insurance Company, a Corporation Vs. Bank of Bellevue and American Home Assurance Company [(1966) 366 F.2d 289]. 9. Learned counsel for appellant in Civil Appeal No.106-L of 2015 concurred with the grounds urged by Mr. Uzair Bhandari and submitted that respondent Nos.1 and 2 had accepted indemnity from the NFC and the same constituted a violation of the provisions of Civil Appeal No.104-L/2015 etc. - 8- Order 35 Rule 1(c) CPC and therefore the Interpleader suit was not maintainable. Learned counsel for the NFC urged the same grounds before us. 10. Ms. Ayesha Hamid, learned counsel for respondent Nos. 1 and 2 submitted that respondent Nos.1 and 2, faced with the adverse claims of the NFC, the appellant, BankIslami, Soneri Bank and Meezan bank were entitled to file an Interpleader suit in order for the Civil Court to determine the lawful ownership of the sukuk certificates valuing Rs.180 million. Respondent Nos.1 and 2 claimed no interest in the disputed sukuk certificates and this was proved by the fact that all rental ijara payments and the final encashment value of the disputed certificates had been deposited with the Civil Court since institution of the interpleader suit and it was for the said Court to release the amount to the rightful owner. She stated that the respondent No.1 was a trustee in respect of the trust assets and the certificate holders were the beneficiaries; there was no relationship of agent and principal betwixt them as respondent No.1 could not bind NFC to third parties and nor was it bound to render accounts to the certificate holders. Reliance in this regard was placed on the case cited as Bolan Beverages Pvt Ltd Vs. Pepsico Inc. (PLD 2004 SC 860), which lays down the tests for establishing the relationship of agent and principal. Ms. Ayesha Hamid stated that the Interpleader suit is not hit by the proviso of Section 88 CPC for the reason that all the claimants to the disputed sukuk certificates are not party to the Suit No.1497/2009 before the Sindh High Court, notably Soneri Bank, BankIslami and Meezan Bank are missing from the array of defendants and the prayer in the said suit is not for the Court to determine the ownership of the disputed sukuk certificates but Civil Appeal No.104-L/2015 etc. - 9- rather to declare that at all material times the appellant was the rightful owner thereof and is entitled to retain the rental payment received in April 2009. Therefore, the rights of all parties could not properly be decided in Suit No.1497/2009. She provided us with a list of cases relating to the disputed sukuk certificates pending before the Sindh High Court in addition to Suit No. 1497/2009; Suit No. 726/2012 filed by Meezan Bank, Suit No. 1269/2010 filed by Soneri Bank and Suit No.1086/2013 filed by the appellant. In addition NFC has also filed Suit No.40163/2015 before the Civil Court at Lahore [hereinafter collectively referred to as the “other suits”]. She relied on the case cited as Abdul Karim Vs. Florida Builders (Pvt) Ltd (PLD 2012 SC 247) to argue that the objections as to the Interpleader suit not being filed by duly authorized person, or as to the motivations or purpose for filing the Interpleader suit do not fall within the parameters laid down by this Court for rejection of plaint and hence the Interpleader suit was maintainable. 11. Heard. The instant appeals have raised rather interesting and intriguing questions of law before us as there is no precedent in our jurisprudence with respect to Interpleader suits. In this context we feel it would be useful to examine the origins of this law. The law of Interpleader comes from the laws of England. Halsbury’s Laws of England1 explains the same in the following terms:- “Where a person, for example an enforcement officer who has levied a writ of execution, is in possession of property or its proceeds of sale and he is, or expects to be, sued in respect thereof by two or more persons making adverse 1 Halsbury’s Laws of England/Civil Procedure (Volume 12(2009) 5th Edition, Paras 1109-1836, para 1586. Civil Appeal No.104-L/2015 etc. - 10- claims thereto, he may apply to the court for an order requiring the claimants to litigate their differences and to abide by the court’s final order in respect thereof. He is thereafter safeguarded by being able to act in respect of the property or its proceeds of sale consistently with, or as may be directed by, the court’s final order. In these circumstances he is said to apply to the court for relief by way of interpleader.” Further elucidation for the scope and the description of interpleader suit is found in Black’s Law Dictionary, which reads as under:- “1. A suit to determine a right to property held by a usu. disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership. Typically, a stakeholder initiates an interpleader both to determine who should receive the property and to avoid multiple liability…2. Loosely, a party who interpleads. – Also termed (in civil law) concursus. “Interpleader is a form of joinder open to one who does not know to which of several claimants he or she is liable, if liable at all. It permits him or her to bring the claimants into a single action, and to require them to litigate among themselves to determine which, if any, has a valid claim. Although the earliest records of a procedure similar to interpleader were at common law, it soon became an equitable rather than a legal procedure.” Charles Alan Wright, The Law of Federal Courts § 74, at 531 (5th ed. 1994).” The law relating to interpleader was originally codified in the sub- continent in the Code of Civil Procedure, 1882 at Sections 470 to Civil Appeal No.104-L/2015 etc. - 11- 476. It is now contained in Section 88 and Order 35 of our Code of Civil Procedure, 1908. The law of Interpleader may have its origins in equity but since it is now codified in our statute, equity must yield to law. Section 88 and Order 35 Rules 1, 3 and 5 CPC are reproduced below for ease of reference. “88. Where interpleader suit may be instituted.-- Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted. Order XXXV 1.Plaint in interpleader suits.---In every suit of interpleader the plaint shall, in addition to other statements necessary for plaints, state— (a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs; (b) the claims made by the defendants severally; and (c) that there is no collusion between the plaintiff and any of the defendants. 3. Procedure where defendant is suing plaintiff.- Where any of the defendants in an inter-pleader suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is Civil Appeal No.104-L/2015 etc. - 12- pending shall, on being informed by the Court in which the inter-pleader suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the inter-pleader suit. 5. Agent and tenants may not institute interpleader suit.- Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or the landlords. Illustrations (a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader suit against A and C. (b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader suit against A and C.” 12. There are certain conditions precedent which are required to be satisfied before an Interpleader suit can be competently filed. Firstly, there must be rival claimants. Secondly, the same debt, sum of money or other property, moveable or immoveable must be claimed by two or more claimants. Thirdly, the person from whom such debt, sum of money etc. is being claimed Civil Appeal No.104-L/2015 etc. - 13- must claim no interest in the same. These conditions are set out in Section 88 CPC and reinforced by Order 35 Rule 1 CPC. 13. There is no quibbling with the fact that respondent Nos.1 and 2 are faced with several rival claimants. The appellant, NFC, Soneri Bank, BankIslami and Meezan Bank are calling on respondent Nos.1 and 2 to make good for various amounts in respect of rental ijara payments as well as laying claim to differing sums of money on account of the encashment value of the disputed sukuk certificates on the basis of their holding of the said certificates. Therefore, the first condition precedent stands satisfied in the present circumstances. 14. Do the disputed sukuk certificates of the value of Rs.180 million which are claimed by NFC on the one hand and by the appellant and those who claim to derive title from them, represent the same debt, sum of money or other property? It is an admitted fact that the disputed sukuk certificates were originally purchased by the NFC. It is an admitted fact by all parties to the present appeals that the onward “sale” of the sukuk certificates of the value of Rs.180 million from NFC to Swift Engineering Solutions was effected through apparent fraud. At whose door such apparent fraud is to be laid is the subject of separate criminal proceedings and does not concern us for the moment. At the time of the fraudulent “sale” of the disputed sukuk certificates, apparently 72 forged physical sukuk certificates were surrendered to the Wapda Bonds Cell and instead of the surrendered certificates the Wapda Bonds Cell issued/substituted 6 physical sukuk certificates. Because the substituted 6 physical sukuk certificates were not forged or fake, the appellant disingenuously claims that it is a bona fide purchaser without notice Civil Appeal No.104-L/2015 etc. - 14- and that the 6 new physical sukuk certificates represent a different debt/sum of money being claimed from the respondent Nos. 1 and 2. We are not convinced that this is so: the substitution of the 72 physical sukuk certificates by the 6 physical sukuk certificates does not give rise to a new debt. The appellant and those who claim to derive title from it and NFC on the other hand are rivals claimants for the same debt/sum of money. Section 11 of the Central Depositories Act, 1997 cannot override fraud if it is once established as it is settled law that fraud vitiates the most solemn of proceedings and a superstructure built on a foundation of fraud must fall like a house of cards. 15. Do respondent Nos.1 and 2 claim an interest in the disputed sukuk certificates? Ms. Ayesha Hamid, learned counsel for the respondent Nos.1 and 2 stated categorically that respondent Nos.1 and 2 have divested themselves of the entire amount to be paid on account of the disputed sukuk certificates and have deposited the rental ijara payments alongwith the encashment value of the disputed sukuk certificates with the learned civil court. This establishes the bona fides of the respondent Nos.1 and 2. At the time the rental ijara payment was made to NFC in October 2009 respondent Nos.1 and 2 sought and obtained an indemnity from NFC to the effect that “It is hereby undertaken that NFC will remit back to WAPDA Rs.13,640,900/- if it is found that NFC had actually transferred certificates worth Rs.180 million to the Swift Engineering Solution. NFC will also extend full cooperation to the investigation Agency for further probe into the matter.” This undertaking is altogether different from the ‘indemnity’ referred to in G. Hari Karmarkar’s case [relied on by the learned Civil Court in its order dated 21.5.2010 rejecting the plaint] in terms of which the plaintiff filing an Civil Appeal No.104-L/2015 etc. - 15- interpleader suit had entered into an agreement with one of the parties whereby he would have to pay very much less to said party if it succeeded. On those facts it was held that it could not be said that the plaintiff in the suit had no interest in the result of the proceedings initiated by him. An Indemnity is a collateral contract or assurance, by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person2. In the present circumstances does this undertaking indemnify the respondent Nos. 1 and 2 against anticipated claims by the appellant or those who claim to derive title from the appellant? Patently not. The aforesaid “indemnity” is no more than an assurance by NFC to return a particular ijara rental payment to the respondent Nos.1 and 2 in case it is found disentitled to the same. When interpreting Section 88 CPC’s requirement that the plaintiff “claims no interest” in the debt/sum of money etc in dispute and Order 35 Rule 1(c) CPC’s requirement that, “that there is no collusion between the plaintiff and any of the defendants” in an interpleader suit, we must first look to the text of the statute, its history, traditions, precedent, purpose and consequences. The purposive interpretation of the provisions ibid lead us to conclude that what is to operate as a bar to an interpleader suit is collusion; collusion between the plaintiff and one or more of the defendants that would destroy the neutrality of the plaintiff in an interpleader suit. An indemnity per se is not barred under the relevant provisions. Collusion is a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for 2 Black’s Law Dictionary Civil Appeal No.104-L/2015 etc. - 16- some evil purpose, as to defraud a third party of his right: a secret arrangement between two or more persons, whose interests are apparently conflicting, to make use of the forms and proceedings of law in order to defraud a third person, or to obtain that which justice would not give them, by deceiving a court or its officers.3 It was not argued before us by any of the appellants that the “indemnity” obtained from NFC by the respondent Nos.1 and 2 was the outcome of some deceitful arrangement or some secret negotiations. If the respondent Nos.1 and 2, on account of the so-called indemnity were more interested in the appellant succeeding or NFC for that matter there may be some remote possibility that their neutrality was compromised in some manner. But if NFC were to be declared the rightful owner they would retain the rental ijara payment made to them under the aegis of the so-called indemnity, respondent Nos.1 and 2 would not be entitled to the said payment. If, suppose, the appellant or some party deriving title from the appellant were to be declared the rightful owner, respondent Nos.1 and 2 would, on the basis of the so-called indemnity, be entitled to the return of the rental ijara payment, only for the same to be paid onwards to the declared rightful owner. In neither of these two scenarios is it the case that respondent Nos.1 and 2 are more interested, financially, if one party succeeds over another. In the circumstances of the present appeals we do not find that the undertaking obtained by respondent Nos.1 and 2 from the NFC is tantamount to either collusion with a party to the Interpleader suit or an interest in the suit property i.e. the disputed sukuk certificates. 3 Black’s Law Dictionary. Civil Appeal No.104-L/2015 etc. - 17- 16. Let us now address the question of the purported bar of Order 35 Rule 5 CPC; all the learned counsels for the three different appellants variously argued that the relationship inter se respondent Nos.1 and 2 and the certificate holders was that of agent and principals respectively and on account thereof respondent No.1 in particular was barred from filing an Interpleader suit. Why is an agent precluded from interpleading his principal? Again, a purposive construction of the statute is our best guide. An agent owes a duty of care to his principal. An agent is accountable to his principal. Indeed, he has a fiduciary duty to his principal, having been entrusted with the care of the principal’s property or funds. In these circumstances the agent cannot absolve himself of his responsibility to be held accountable to his principal by suing him and compelling him to interplead with another party (other than a person who claims through the principal). This rule is based upon the sound legal principle that an agent cannot be allowed to dispute the authority of his principal. Similarly, the tenant is barred from filing a suit of interpleader against his landlord as he is not to dispute the title of his landlord during the subsistence of tenancy (other than a persons who claims through the landlord). The Declaration of Trust dated 15.11.2005 clearly defines the role of respondent No.1 as Trustee with respect to certificate-holders, as defined in the Trust Act 1882. In any event, in the Bolan Beverages case (supra) this Court has clearly set out the parameters of the relationship of agent and principal. It was held at paragraph 15 that:- “We hold in the light of the above discussion as well as the law, that an agent is a hyphen that joins and a buckle that Civil Appeal No.104-L/2015 etc. - 18- binds the relation between the principal and the third party. Where an agent is not a link between the principal and a third party, the institution of agency is not created. Where a person is not liable to the principal for the submission of accounts such person cannot be dubbed as agent.” Describing the essentials for the relationship of agency in the judgment of the Lahore High Court reported as Concentrate Manufacturing Company of Ireland and 3 others versus Seven-Up Bottling Company (Private) Limited and 3 others (2002 CLD 77) it has been held:- “From the above, it is clear that in effect an agent is the connecting link between the principal and third person---a sort of conduit pipe or an intermediary. This intermediary has the powers to create legal relationship between the principal and third party. He has competence to make the principal responsible to the third person. He is an imperative bridge by crossing which, the third person can reach the principal to enforce his legal right or vice versa. The principal is liable to the third person for all the act and deeds performed, within the authority of agency, by his agent, as if those were personally performed by him. The agent necessarily and the principal in certain circumstances are liable to each other for accounts. If a so-called agent is not liable to the so-called principal for the submission of accounts, such as the profit and loss, he cannot be termed as agent.” The provisions of Order 35 Rule 5 are not attracted to the facts of the Interpleader suit. In any event it cannot be assumed that the agent/principal relationship existed between respondent No.1 and Civil Appeal No.104-L/2015 etc. - 19- certificate holders, including the appellants, without framing an issue thereon and recording evidence. 17. Now let us address the question of the proviso to Section 88 CPC; does the pendency and prior filing of Suit No.1497/2009 of the appellant bar the Interpleader suit? It is admitted by the appellant at ground VIII of its memorandum of appeal that subsequent purchasers of the disputed sukuk certificates are not impleaded in its Suit No. 1497/2009 pending before the Sindh High Court, Karachi. In juxtaposition the Interpleader suit brings all claimants to the disputed sukuk certificates before the civil court at Lahore and respondent Nos.1 and 2 had filed an appropriate application under Order 1 Rule 10 CPC before the Civil Court at Lahore in the Interpleader suit with respect to Meezan Bank Ltd to implead it as respondent No.6 when the suit was rejected vide order dated 21.5.2010. Still further, as is evident from a bare perusal of the plaint filed by the appellant in its Suit No.1497/2009 for declaration, injunction and damages, the matters in issue in the two suits are not the same, and it is only in respondent Nos.1 and 2’s Interpleader suit that it can be definitively decided as to who is the true and original owner of the disputed sukuk certificates of the value of Rs.180 million. We are not convinced that the respondent Nos.1 and 2 could be non-suited on the basis of the proviso to Section 88 CPC. 18. Whether or not the person filing the Interpleader suit on behalf of respondent Nos.1 and 2 was duly authorized to do so is an issue that can only be proved through evidence if and when the trial court deems it appropriate to frame an issue in respect thereof. Other objections raised by the learned counsels for the appellant, such as the motivation(s) of the respondent Nos.1 and 2 in filing the Civil Appeal No.104-L/2015 etc. - 20- Interpleader suit are not germane to the question of rejection of a plaint on the touchstone of Order 7 Rule 11 CPC. This Court in the case cited as Haji Abdul Karim and others Vs. Messrs Florida Builders (Pvt.) Ltd (PLD 2012 SC 247) has comprehensively discussed the scope and parameters of Order 7 Rule 11 CPC and has set out the following guidelines for interpretation thereof:- “Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint …………. Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect…….. Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded to its normal judicial power………” The said judgment also defines the scope of Order 7 Rule 11(d) CPC: suffice it to say that the question of whether a suit is maintainable or not is moot with respect to whether or not a plaint is to be rejected as being barred by law. Both are a different species altogether and it may well be that a plaint is not rejected in terms of Order 7 Rule 11 CPC but the suit is dismissed eventually as not maintainable for a possible host of reasons. 19. For the aforesaid reasons we uphold the impugned order dated 17.2.2015 and dismiss the appeals. Before parting we would like to note with appreciation the able assistance rendered by Mr. Uzair Bhandari and Ms. Ayesha Hamid. We also note with concern that the Interpleader suit is pending before the Civil Court at Lahore Civil Appeal No.104-L/2015 etc. - 21- since 2009 and is still at a preliminary stage: given that the entire eventual decretal amount is already deposited with the learned Civil Court, the learned Civil Court at Lahore is directed to proceed with the Interpleader suit on day to day basis and decide the same as soon as possible but no later than 3 months from receipt of this order. No order as to costs. JUDGE JUDGE JUDGE Bench-I Lahore, the 10th October, 2016 Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1050 OF 2009 (Against the judgment dated 17.2.2009 of the Peshawar High Court, Peshawar passed in Custom Reference No.24/2007) Collector of Customs, Peshawar …Appellant(s) VERSUS Wali Khan etc. …Respondent(s) For the appellant(s): Mr. Muhammad Habib Qureshi, ASC Mr. M. S. Khattak, AOR For the respondent(s): Mr. Isaac Ali Qazi, ASC (respondent No.1) Nemo (respondent No.2 and 4) Ex-parte (respondent No.3) Date of hearing: 19.01.2017 … ORDER MIAN SAQIB NISAR, CJ.- This appeal with the leave of the Court entails the facts that the customs authorities seized certain goods, i.e. cloth and black tea both of foreign origin, belonging to respondents No.3 and 4 (the owners) along with the transportation vehicles belonging to respondents No.1 and 2, under Sections 2(s), 16 and 157 of the Customs Act, 1969 (the Customs Act) read with Section 3(1) of the Imports and Exports (Control) Act, 1950 (the Imports and Exports Act) punishable under Sections 156(1), (8), (89) and 164 of the Customs Act. After investigation and issuance of show cause notices to the respondents, the Additional Collector Customs passed an order-in- original dated 14.2.2007 according to which the goods and vehicles Civil Appeal No.1050 of 2009 -: 2 :- were outrightly confiscated. Aggrieved, the respondents filed an appeal which was allowed by the Collector Customs (Appeals) vide order dated 12.3.2007 and the order-in-original was modified to the extent that the confiscated goods were allowed to be redeemed upon payment of a redemption fine of 30% of the customs value of the goods in addition to payment of the duties/taxes leviable subject to production of an NOC from the concerned Trial Court where the criminal proceedings were taking place and imposition of a personal penalty of Rs.100,000/- each upon the owners of the goods. This order was challenged by both the sides and the Customs, Federal Excise & Sales Tax Appellate Tribunal (the Tribunal) while dismissing the appeal of the appellant-department and accepting that of the respondents, through an order dated 27.6.2007, reduced the redemption fine on cloth from 30% to 15% and remitted in full the personal penalty upon the owners of the goods. The appellant’s reference before the learned High Court was dismissed. Leave in this case was granted on 21.7.2009 to consider the following questions:- “i) Whether provision of Section 2(s) of the Customs Act, 1969, was correctly interpreted and applied by the Tribunal and the High Court; ii) Whether imposition of fine in lieu of confiscation of goods is not in addition to any other penalty in terms of Section 181 of the customs Act, 1969; and iii) Whether the redemption fine of 15% is in violation of SRO 574(1)/2005 dated 06.06.2005.” 2. Learned counsel for the appellant submitted that the goods could only have been outrightly confiscated, as the option of redemption of goods upon payment of fine under Section 181 of the Customs Act was not available to the respondents in view of SRO No.574(I)/2005 dated 6.6.2005 (SRO No.574). He further argued that assuming that this Civil Appeal No.1050 of 2009 -: 3 :- option was available to the respondents, then the redemption fine could not be less than 30% as provided by Column 3 of the Table of the said SRO. He stated that the respondents have admitted that the cloth was smuggled, whereas black tea is notified under SRO No.566(I)/2005 dated 6.6.2005 (SRO No.566) and both goods were smuggled in terms of Section 2(s) of the Customs Act as they were brought into Pakistan in breach of a prohibition/restriction and the respondents had evaded payment of customs duties/taxes leviable thereupon. In support of his submissions, learned counsel relied upon the judgment of this Court dated 30.9.2014 passed in Civil Appeal No.112/2005 titled “Muhammad Saeed & another Vs. Collector Customs & Central Excise Peshawar”. 3. Contrarily, learned counsel for respondent No.1 argued that the goods were freely importable as there was no law that prohibits or restricts them from being brought into Pakistan and therefore they did not fall within the purview of smuggling. While arguing that the law treats smuggled goods and non-duty paid goods differently, he conceded that duty was leviable upon such goods as they were being brought through an unauthorized route. Learned counsel stated that there was a difference between Clauses 89 and 90 of the table under Section 156 of the Customs Act, and that the respondents’ case fell within the latter. 4. Heard. In order to resolve the proposition at hand, we find it expedient to reproduce the relevant provisions of law which read as under:- The Customs Act, 1969 “2. Definitions.- In this Act, unless there is anything repugnant in the subject or context:- (s) “smuggle” means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or en route Civil Appeal No.1050 of 2009 -: 4 :- pilferage of transit goods or evading payment of customs-duties or taxes leviable thereon,- (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed one hundred and fifty thousand rupees in value; or (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly; 16. Power to prohibit or restrict importation and exportation of goods.- The Federal Government may, from time to time, by notification in the official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land. 156. Punishment for offences.-(1) Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against that offence in column 2 thereof:- TABLE Offences Penalties Section of this Act to which offence has reference (1) (2) (3) 89.(i) If any person without lawful excuse, the such goods shall be liable to General Civil Appeal No.1050 of 2009 -: 5 :- proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods in respect to which there may be reasonable suspicion that they are smuggled goods; confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and, where the value of such goods exceeds three hundred thousand rupees, he shall further be liable, upon conviction by a Special Judge, to imprisonment for a term not exceeding six years and to a fine not exceeding ten times the value of such goods 90. If any person, without lawful excuse the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods, not being goods referred to in clause 89, which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the such goods shall be liable to confiscation, and any person concerned shall also be liable to a penalty not exceeding ten times the value of the goods. General Civil Appeal No.1050 of 2009 -: 6 :- time being in force under or by virtue of this Act has been contravened, or if any person is in relation to any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods; 181. Option to pay fine in lieu of confiscated goods.- Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: Provided further that………………………………… Explanation.- Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods.” The main controversy is whether Section 2(s) of the Customs Act was correctly interpreted and applied by the Tribunal and the learned High Court in that the confiscated goods, i.e. cloth and black tea, are smuggled goods entailing the consequences of Clause 89 or non-duty Civil Appeal No.1050 of 2009 -: 7 :- paid items covered by Clause 90 of the table given in Section 156 of the Customs Act. 5. In order to resolve the controversy, we first have to ascertain the meaning of the phrase “smuggled goods” as provided in the Customs Act. The definition of “smuggle” provided in Section 2(s) of the Customs Act can be broken down as follows:- (a) to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force; OR (b) en route pilferage of transit goods; OR (c) evading payment of customs-duties or taxes leviable thereon; OF (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; OR (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed one hundred and fifty thousand rupees in value; OR (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods. Some restricted goods are mentioned in Section 2(s) of the Customs Act [see Clauses (i) and (ii) thereof]. However, the Federal Government is empowered under Section 16 of the Customs Act to prohibit or restrict, by notification, the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land. Section 3 of the Imports and Exports Act also authorizes the Government to “prohibit, restrict or otherwise control the import and export of goods of any specified description.” In this context, the Federal Government, in exercise of the powers conferred by Sections 2(s)(ii) and 156(2) of the Customs Act vide SRO No.566, notified certain goods to be prohibited/restricted for the purpose of the said sections. This notification held the field when the goods in question Civil Appeal No.1050 of 2009 -: 8 :- i.e. cloth and black tea, were recovered from the respondents on 06.01.2007. Item No.35 of SRO No.566 is “Black Tea (except Op-Pekoe)”, thus black tea is a restricted/prohibited item and falls within the meaning of smuggled goods in terms of Section 2(s) of the Customs Act. With regard to cloth, Item No.28 of SRO No.566 is “man-made fiber, man- made yarn and fabric”. According to the learned counsel for the appellant, the cloth recovered from the respondents squarely falls within this item, whereas the learned counsel for the respondents contended that the same applies only to man-made cloth and not to the cloth confiscated in this case. It would be expedient at this juncture to interpret the scope of the item ibid in conjunction with the other items. The other relevant items are that of No.27, 29 and 42 of SRO No.566 provide for “Cotton, cotton yarn and fabric”, “Wool, woolen yarn and fabric” and “Natural silk, natural silk yarn and fabric” respectively. Thus, cotton, wool, natural silk and their yarn and fabric on one hand and man-made fiber, yarn and fabric on the other have been dealt with separately. It is important to note that while both categories of yarn and fabric involve some mechanical process for its making, the distinction between both the categories lies in the fact that Items No.27, 29 and 42 refer to naturally occurring materials including cotton, wool and silk, whereas Item No.28 pertains to man-made or synthetic fibers/fabric. By way of example, the latter category can include polyester, acrylic, nylon etc. The cloth in question has been referred to A/S cloth in the orders of the forums below, which stands for artificial silk cloth and is undoubtedly a man-made fabric as it comprises of synthetic fiber and thus is squarely covered by Item No.28 of SRO No.566. Hence the cloth from foreign origin is a restricted/prohibited item as per Item No.28 of SRO No.566 and falls within the meaning of smuggled goods in terms of Section 2(s) of the Customs Act. Civil Appeal No.1050 of 2009 -: 9 :- 6. Adverting now to the applicability of Clause 89 or 90 of the table in Section 156 of the Customs Act, it is to be noted that Section 156 ibid provides for the punishment against any contravention of the Customs Act. Clause 89(i) of the table in Section 156 ibid provides that any person who, without any lawful excuse, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods in respect to which there may be reasonable suspicion that they are smuggled goods, he shall be liable for the punishment detailed in Column 2 thereof. A few salient features need to be pointed out. First, Clause 89(i) deals with smuggled goods as well as those goods regarding which there is reasonable suspicion that they are smuggled. Secondly, a person is permitted to acquire possession etc. of such goods only with lawful excuse, the burden of proof of which lies on such person, and in case he fails to do so, it would be presumed that the goods were smuggled entailing the consequences provided in Column 2 of Clause 89 ibid. On the other hand, Clause 90 contained in the table under Section 156 of the Customs Act deals with “any goods, not being goods referred to in clause 89.” This makes it abundantly clear that the said clause deals with goods that are not smuggled and regarding which there is “fraudulent evasion or attempt at evasion of any duty chargeable thereon.” In this eventuality too, the burden lies on the person involved in such activities to prove the contrary, in the absence of which it will be presumed that the goods were non-duty paid in terms of Clause 90 ibid. In this regard, first the department has to show that the goods which are of a foreign origin could only be imported on payment of duty or under a license or their import is prohibit or restricted. It will then be for the possessor of such goods to show that they were lawfully imported either before any restrictions/prohibitions were imposed or in Civil Appeal No.1050 of 2009 -: 10 :- accordance with such restrictions/prohibitions.1 As held above in paragraph 5, the foreign cloth and black tea are notified items in terms of SRO No.566, therefore, they are restricted/prohibited goods and therefore fall within the ambit of smuggled goods as defined in Section 2(s)(ii) of the Customs Act. Resultantly, it is Clause 89 of Section 156 of the Act that deals with smuggled goods which is applicable to the instant case and not Clause 90 thereof. 7. The confiscated goods were admittedly of foreign origin and there was no proof that they were lawfully imported into Pakistan (by an authorized importer under a valid license and through an authorized route), the burden of which, according to Clause 89 as mentioned above, was on the respondents. When confronted, learned counsel for the respondents failed to provide any concrete evidence except contending that these goods are easily available in the market and can be purchased from anywhere. Thus, the respondent has failed to prove that the confiscated goods were not smuggled goods. Therefore the forums below have erred in holding that the confiscated goods were not notified and thus do not fall within the purview of Section 2(s) of the Customs Act. 8. We would now like to discuss the question as to whether the option to pay a fine in lieu of confiscation of goods, in addition to any other penalty, could be given or not. Section 181 of the Customs Act allows an officer passing an order for confiscation of goods to give the owner of the goods an option to pay a fine in lieu of such confiscation. However, according to the first proviso to Section 181 ibid, the Board may by an order specify the goods or class of goods where such option shall not be given. The Board in exercise of the powers conferred by Section 181 has issued SRO No.574 which provides, inter 1 Messrs S. A. Haroon and others Vs. The Collector of Customs, Karachi and the Federation of Pakistan (PLD 1959 SC (Pak) 177) and Sikandar A. Karim Vs. The State (1995 SCMR 387). Civil Appeal No.1050 of 2009 -: 11 :- alia, that “no option shall be given to pay fine in lieu of confiscation in respect of… (i) smuggled goods falling under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969) or (ii) conveyance including packages and containers found carrying offending goods of section 2(s) of the Customs Act, 1969…” Thus, the imposition of redemption fine at 30% by the Collector Customs (Appeals) and 15% by the learned Tribunal is in violation of Section 181 of the Customs Act and SRO No.574 issued thereunder. 9. In the light of the above, this appeal is allowed and the impugned judgments of the learned High Court, the Tribunal and the Collector Customs (Appeals) are set aside. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 23.2.2017 at Islamabad Approved For Reporting Waqas Naseer/* CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali, CJ. Mr. Justice Mian Saqib Nisar. Mr. Justice Amir Hani Muslim. Mr. Justice Iqbal Hameedur Rahman. Mr. Justice Khilji Arif Hussain. CIVIL APPEAL NO. 1072/2005. (On appeal against the judgment dated 29.12.2003 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 6(P)/CS/2003) Chairman, Pakistan Railway, Government of Pakistan, Islamabad, etc. Appellant(s) Versus Shah Jehan Shah Respondent(s) AND CIVIL APPEAL NO. 686/2012. (On appeal against the judgment dated 09.04.2012 passed by the KPK Service Tribunal, Peshawar, in Appeal No. 1539/2009) Mst. Robina Shaheen Appellant(s) Versus Director Education (E &SE), KPK, Peshawar, etc. Respondent(s) For the Appellant(s) (in C. A. 1072/2005): Hafiz S. A. Rehman, Sr. ASC (in C. A. 686/2012): Mr. Riaz Sherpao, ASC Mir Adam Khan, AOR For the Respondent(s) (in C. A. 1072/2005): Mr. Abdur Rehman Siddiqui, ASC For Respondent No. 5 (in C. A. 686/2012): Mr. Ijaz Anwar, ASC Mr. M. S. Khattak, AOR On behalf of KPK: Mr. Waqar Ahmed Khan, Addl. AG Date of Hearing: 14.03.2016 and 15.03.2016 … Civil Appeals No.1072/2005 & 686/2012. -2 - JUDGMENT MIAN SAQIB NISAR, J:- These appeals, by leave of the Court, involve a similar question of law, hence are being disposed of together. The key question involved herein is whether persons who have rendered more than five years’ service in a temporary establishment are entitled to the grant of pensionary benefits within the meaning of Article 371-A of the Civil Service Regulations (CSR), and a re-visitation of the judgment of this Court reported as Mir Ahmad Khan v. Secretary to Government and others (1997 SCMR 1477). Civil Appeal No.1072/2005: 2. This appeal entails the facts in that the respondent was appointed as an Assistant Executive Engineer (BPS-17) in Pakistan Locomotive Factory Risalpur, Pakistan Railways on 11.7.1989 on an ad hoc basis whereafter his employment was converted into a contract employment for two years with effect from 1.7.2000. Subsequently, due to the respondent’s failure to qualify for regularization before the Federal Public Service Commission, his services were terminated on 4.9.2002. He filed a departmental appeal on 8.10.2002 for the grant of pensionary benefits which (departmental appeal) was dismissed vide order dated 9.1.2003. Subsequently, the respondent approached the learned Federal Service Tribunal (Tribunal) challenging not the termination of his services or the conversion of services from ad hoc to contractual, rather only non-payment of pensionary benefits. The learned Tribunal while relying upon the case of Mir Ahmad Khan (supra) accepted the respondent’s service appeal on 29.12.2003 through the impugned judgment holding as follows:- Civil Appeals No.1072/2005 & 686/2012. -3 - “7. In view of the clear provision available in Civil Service Regulations as CSR 371-A(i) and in the light of the judgment of Honourable Supreme Court, reproduced below, there is no ambiguity that the Appellants who have put in more than 10 years of uninterrupted service were entitled to pension as per rules……… 9. In view of the rulings of Honourable Supreme Court, we accept the appeals, set aside the impugned orders and direct the respondents to give pension to the Appellants as admissible to them under CSR 371-A (i). They are also entitled to receive their other legal dues like General Provident (GP) Fund etc. However, Respondents would be at liberty to detect any valid/legal dues outstanding against them from amount payable to them.” Aggrieved of the above order, the appellants approached this Court, and leave was granted on 15.9.2005 in the following terms:- “………Since interpretation of a number of provisions of Civil Service Regulations as to entitlement to pension of the government servants, which will have impact on a large number of cases, is involved leave is granted to consider whether temporary service rendered by the three respondents qualified for pension”?” Subsequently, this Court on 21.2.2012 was of the view that a larger bench should hear the matter for the following reason(s):- “………The learned counsel for the appellant states that admittedly respondent is not a Civil Servant and he Civil Appeals No.1072/2005 & 686/2012. -4 - cannot claim pensionary benefits thus the judgment in the case of Mir Ahmed Khan (ibid) needs to be revisited in that if such wide interpretation is given to Regulations 371-A all contractual and temporary employees working in the Government Department would become entitled to pensionary benefits on termination of their employment, without being regularly employed. Since Mir Ahmed Khan’s case was decided by three members’ Bench, the matter be placed for consideration of the Hon’ble Chief Justice for placing the case before a larger Bench.” 3. The basic argument of the learned counsel for the appellants was that Article 371-A was an enabling, as opposed to charging provision, and that the use of the word “count” in Article 371-A of the CSR, as opposed to “eligible” or “qualify”, does not mean that government servants who have rendered more than five years’ continuous temporary service in a temporary establishment are entitled to the grant of pension, rather that such period of service would be only be counted/added for the purposes of calculating pension, which the government servant has to nevertheless qualify for by fulfilling the three conditions of qualification for pension as provided in Article 361 of the CSR. In support of his arguments, he made reference to various Articles of the CSR and Fundamental Rules (FR). Learned counsel attempted to buttress his submissions by drawing an analogy with the judgment reported as Federation of Pakistan and others v. Rais Khan (1993 SCMR 609), in which it was held that the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion or move-over in the next higher scale, thus in the same manner, the period of temporary service Civil Appeals No.1072/2005 & 686/2012. -5 - of more than five years would be counted towards pension if it was followed by regular service. 4. On the other hand learned counsel for the respondent argued that the word “count” can be used interchangeably with “qualify” or “eligible”, and in fact “count” is more often than not the precise word used for the purposes of pensionary benefits. Further, the appellants’ interpretation of Article 371-A of the CSR that the period of temporary service of more than five years would be counted towards pension if it was followed by regular service would only be true if the said article specifically provided “temporary followed by permanent service”, but this is not the case. Further, the words “except as otherwise provided” in Article 368 of the CSR gives sanction to the grant of pensionary benefits to temporary employees. In support of his arguments, learned counsel placed reliance upon two office memorandums issued by the Ministry of Finance at Serial No.5 and 6 of Chapter V of Section VI of the Compendium of Pension Rules and Orders. 5. Heard. Before resolving the proposition at hand, we find it expedient to reproduce the relevant articles of the CSR which read as under:- “361. Except as otherwise provided in these Regulations, the service of an officer does not qualify for pension unless it conforms to the following three conditions:- First.- The service must be under Government. Second.- The employment must be substantive and permanent. Third.- The service must be paid by Government. Civil Appeals No.1072/2005 & 686/2012. -6 - These three conditions are fully explained in the following Section. 368. Except otherwise provided in these Regulations services does not qualify unless the officer holds a substantive office on a permanent establishment. 369. An establishment, the duties of which are not continuous, but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed, qualifies; but the concession of counting as service the period during which the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re- employed. 370. An officer transferred from a temporary to a permanent appointment can count his service in the temporary office, it, though at first created experimentally or temporarily, it eventually becomes permanent. 371. An officer without a substantive appointment officiating in an office which is vacant, or the permanent incumbent of which does not draw any part of the pay or count service, may, if he is confirmed without interruption in this service, count his officiating service. 371-A. Notwithstanding anything contained in Articles 355(b), 361, 368, 370 and 371 of these Regulations, temporary and officiating service, in Civil Appeals No.1072/2005 & 686/2012. -7 - the case of Government servants who retired on or after the 1st January, 1949, or who joined service thereafter, shall count for pension according to the following rule:- (i) Government servants borne on temporary establishments who have rendered more than 5 years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and (ii) Continuous temporary and officiating service of less than five years immediately followed by confirmation shall also count for gratuity or pension, as the case may be.” (Emphasis supplied) We begin with the basics. The CSR pertains to salary, leave, pension and travelling allowance of those serving in the civil departments. Despite the nomenclature used, i.e. Civil Service Regulations, the application of the CSR is not restricted to “civil servants” as defined in the Civil Servants Act, 1973 (Act), but also applies to “government servants”. Interestingly, “government servants” has neither been specifically defined in the Act nor in the CSR. However, we are not treading those waters, rather leaving it for an appropriate case, as the applicability of the CSR to the respondent is not disputed in the instant matter. Although we would like to observe that whether or not a particular article of the CSR applies only to a civil servant or extends to the broader pool of government servants would ultimately depend on the particular wording of the article under consideration. The CSR Civil Appeals No.1072/2005 & 686/2012. -8 - classifies pension into four basic types:- compensation pension, invalid pension, superannuation pension and retiring pension. In order to be able to claim pensionary benefits, one must fulfill the three conditions of qualifying service for pension stipulated in Article 361 of the CSR:- (i) the service must be under the Government; (ii) the employment must be substantive and permanent; and (iii) the service must be paid by the Government. An interpretation of the provisions pertaining to the second condition is relevant to the matter at hand. Article 368 of the CSR provides that the officer must hold a substantive office on a permanent establishment. Articles 370 and 371 of the CSR in essence allow for temporary and officiating services respectively, to be counted towards an officer’s service if such service (temporary or officiating) becomes permanent. 6. Article 371-A(i) allows for governments servants who have rendered temporary service for more than five years at a temporary establishmentto count such service for the purposes of their pension (or gratuity), but the temporary service must be continuous, and excludes broken periods of temporary service rendered previously. By way of example, Article 371-A(i) would attract to a government servant who rendered continuous temporary service at a temporary establishment for six years and was subsequently confirmed at the end of his temporary service, those six years would be counted towards his service for the purposes of pensionary benefits. The said article would also encompass the situation where a government servant rendered continuous temporary service at a temporary establishment for six years but was not confirmed at the end of his temporary service, rather two years after his temporary service ended he was taken back and Civil Appeals No.1072/2005 & 686/2012. -9 - confirmed, then again those six years would be counted towards his service for the purposes of pensionary benefits, excluding the broken period of two years (the interregnum). On the other hand, Article 371-A(ii) provides that government servants who have rendered temporary and officiating service for less than five years immediately followed by confirmation shall also count for gratuity or pension (as the case may be), which (service) must also be continuous. By way of illustration, where a government servant rendered continuous temporary or officiating service for three years and was subsequently immediately confirmed, those three years would be counted towards his service for the purposes of pension. However, due to the inclusion of the word “immediately” and the omission of the words “excluding broken periods of temporary service” in clause (ii) of the Article 371-A, in a situation where a government servant rendered continuous temporary or officiating service for three years but was not confirmed at the end of his temporary service, rather two years after his temporary service ended he was taken back and subsequently confirmed, then those three years would not be counted towards his pensionary benefits. However, it is important to note that Article 371-A presupposes that such a government servant, whether falling under clause (i) or (ii), is otherwise entitled to pension (or gratuity, as the case may be). In other words, Article 371-A cannot be used as a tool to bypass the conditions for qualifying service of pensionary benefits, and such government servant has to fulfill the minimum number of years for grant of pension. This is due to the use of the word “count” as opposed to “qualify” or “eligible”, as rightly argued by the learned counsel for the appellant. As per the settled rules of interpretation, when a word has not been defined in the Civil Appeals No.1072/2005 & 686/2012. -10 - statute, the ordinary dictionary meaning is to be looked at. Chambers 21st Dictionary defines “count” as “to find the total amount of (items), by adding up item by item; to include”. Oxford Advanced Learner’s Dictionary of Current English (7th Ed.) defines “count” as “to calculate the total number of people, things, etc. in a particular group; in include sb/sth when you calculate a total; to consider sb/sth in a particular way; to be considered in a particular way”. Thus in light of the above, service rendered for more than five years as contemplated by Article 371-A would only be added, included, or taken into account for the purposes of pensionary benefits, and not make such government servant qualify for pension per se. This interpretation is bolstered by logic, reason and common sense. If we were to accept the reasoning of the learned Service Tribunal in the impugned judgment and the arguments of the learned counsel for the respondents, it would create a bizarre and anomalous situation, where a government servant who has rendered temporary service in a temporary establishment for, let us say, seven years, would be entitled to pensionary benefits, and on the other hand, a government servant rendering services as a regular employee for fifteen years would not (yet) have completed the requisite number of years to qualify for grant of pension. It is absurd, ludicrous and inconceivable that a government servant, who is in regular employment, would become entitled to pension after serving the minimum years of qualifying service as prescribed by the law, whereas while interpreting Article 371-A, a government servant who has served as a temporary employee could be given preference over a regular employee, and after a minimum service of only five years would automatically become entitled to pension. Holding so would be against the object and spirit of the concept of pension which has been Civil Appeals No.1072/2005 & 686/2012. -11 - discussed by this Court in Regarding pensionary benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as Judges (PLD 2013 SC 829) as follows:- “…pension is not the bounty from the State/employer to the servant/ employee, but it is fashioned on the premise and the resolution that the employee serves his employer in the days of his ability and capacity and during the former's debility, the latter compensates him for the services so rendered. Therefore, the right to pension has to be earned and for the accomplishment thereof, the condition of length of service is most relevant and purposive.” (Emphasis supplied) Thus, we are not inclined to interpret Article 371-A in such a way so as to render the provisions stipulating minimum years for grant of pensionary benefits superfluous and redundant. As far as the provisions of Article 371-A are concerned, which is a non-obstante clause to Articles 355(b), 361, 368, 370 and 371 stipulated therein, suffice it to say that such article by itself does not provide for the entitlement for the purposes of pension, rather, at the cost of repetition, it is restricted to the counting of the period of a minimum of five years which has been rendered by the temporary employee that once he is appointed on a permanent basis, such period shall be taken into account for the object of calculating his entitlement to pension with respect to the requisite minimum period under the law. Therefore we are not persuaded to hold the words “Notwithstanding anything contained in Articles 355(b), 361, 368, 370 and 371 of these Regulations…” in Article 371-A Civil Appeals No.1072/2005 & 686/2012. -12 - to allow those who do not fulfill the requisite conditions for qualifying for pension to bypass such conditions, so as to render the articles of the CSR providing for such conditions unnecessary and surplus. Therefore, we are of the candid view, that Article 371-A of the CSR would not ipso facto or simpliciter allow government servants rendering temporary service in a temporary establishment for more than five years to be entitled to grant of pension, rather such period would only be counted towards such government servants’ pension if otherwise entitled to pension. 7. It is not disputed that the respondent rendered continuous temporary serviceand that his length of service was continuous and for more than five years. However, the question that needs to be answered is whether he was working in a “temporary establishment” or not. “Temporary establishment” has not been defined in the CSR, the Fundamental and Supplementary Rules issued by the Government of Pakistan, the ESTA Code or the Compendium of Pension Rules and Orders. In this context Article 369 of the CSR mentions temporary establishment but only explains what it is not and thus is not very helpful. Therefore as mentioned earlier in the opinion, as per the settled rules of interpretation, the dictionary meaning of the words has to be resorted to. The Concise Oxford Dictionary (6th Ed.) has defined “temporary” as “lasting, meant to last, only for a time”, and “establishment” as an “organized body of mean maintained for a purpose”. Chambers 21st Century Dictionary defines “temporary” as “lasting, acting or used, etc for a limited period of time only”, and “establishment” as “a public or government institution”. Oxford Advanced Learner’s Dictionary of Current English (7th Ed.) defines “temporary” as “lasting or intended to last or be used only for a short Civil Appeals No.1072/2005 & 686/2012. -13 - time; not permanent” and “establishment” as “an organisation, a large institution…” In light of the above dictionary meanings, “temporary establishment” can be said to mean an organisation or institution which is not permanent, rather effective for a certain period only. Admittedly the respondent was serving in Pakistan Locomotive Factory Risalpur, Pakistan Railways, which does not in any way fall within the meaning and purview of “temporary establishment”. Thus the respondent could not reply upon Article 371-A of the CSR. Besides, if hypothetically speaking Pakistan Locomotive Factory Risalpur was a temporary establishment, even then the respondent would not be able to take the benefit of Article 371-A (supra) as he otherwise does not qualify for pensionary benefits having not been subsequently taken into permanent employment, which is sine qua non for the grant thereof. 8. Adverting to the law laid down in the case of Mir Ahmad Khan (supra) wherein it was held:- “Admittedly the appellant put in more than ten years’ temporary service before his services were terminated he was, therefore, entitled to pensionary benefits under Regulation 371-A(i) of Civil Service Regulations.” In light of the discussion in paragraph No.6, the judgment delivered in Mir Ahmad Khan’s case (supra) is declared to be per incuriam. 9. In view of the foregoing, we find that the respondent was not entitled to the grant of pensionary benefits in terms of Article 371-A of the CSR, and the learned Service Tribunal had erroneously allowed him pension by wrongly relying upon the case of Mir Ahmad Khan (supra) which is declared to be per incuriam. Civil Appeals No.1072/2005 & 686/2012. -14 - 10. The above are the detailed reasons for our short order of even date whereby the appellants’ appeal was accepted and the impugned judgment was set aside, which reads as follows:- “We have heard the arguments of learned ASCs for the parties. For the reasons to be recorded later, this appeal is allowed, the impugned judgment of the Federal Service Tribunal dated 29.12.2003 is set aside and the service appeal preferred by the respondent is dismissed.” Civil Appeal No.686/2012: 11. The brief facts of the instant appeal are that the appellant was a Professional Teaching Certification (PTC) Teacher in the Commissionerate for Afghan Refugees, Peshawar (Commissionerate), from 28.2.1987 to 17.1.2005, i.e. approximately 18 years. During her employment at the Commissionerate, she applied for two months leave on 20.1.2004, after which she was appointed as a PTC Teacher in the Schools and Literacy Department, Government of Khyber Pakhtunkhwa (department) and she assumed charge of her post on 25.11.2004 and tendered her resignation with the Commissionerate on 10.1.2005. Thereafter she filed a departmental appeal to respondent No.1 claiming that her 18 years’ service with the Commissionerate be counted for the purposes of her pension, which (departmental appeal) was accepted vide order dated 24.6.2008. However, the said order stated that her 10 years’ service be counted towards calculation of her pension, as opposed to 18 years, which the appellant was dissatisfied with thus she filed a corrigendum application for correction of the said mistake. However, in response, the department on 20.7.2009 informed the appellant that her Civil Appeals No.1072/2005 & 686/2012. -15 - prior service with the Commissionerate could not be counted towards her pension. Aggrieved, the appellant filed an appeal before the learned Khyber Pakhtunkhwa Service Tribunal which was dismissed vide the impugned judgment dated 9.4.2012 whereafter she approached this Court. Leave was granted on 5.7.2013 in the following terms:- “………Prima facie, it is difficult to understand that admittedly when the petitioner had served for a period of about 18 years in the Commissionerate and thereafter joined the Education Department and initially the Education Department had also accepted her claim allowing computing of her previous service for the purpose of pension then what prevailed with the department subsequently in disallowing continuity. In view of the judgment cited by the learned counsel in the case of Zafar Shah (2003 SCMR 686) in such like circumstances, continuity for the purpose of extending the benefit of pension is permissible. 3. Inter alia, to examine this aspect of the case, leave to appeal is granted in this case………” Subsequently on 19.9.2013, it was decided that this case was to be heard along with Civil Appeal No.1072/2005 before the larger bench as they both involved similar questions of law. 12. Learned counsel for the appellant primarily submitted that the time spent at the Commissionerate is to be counted towards her pension in terms of Article 371-A of the CSR. 13. On the other hand, learned counsel for the respondents stated that due to the special facts and circumstances prevalent at that time, the decision rendered in the case of Mir Ahmad Khan (supra) is Civil Appeals No.1072/2005 & 686/2012. -16 - good law, however in the instant matter, the appellant is not entitled to inclusion of the period she spent as an employee of the Commissionerate for the purposes of pensionary benefits for the reason that she was in fact a project employee of a non-governmental organisation called Basic Education for Afghan Refugees (BEFARe), and not an employee of the Federal Government, and that she had resigned from the Commissionerate on 10.1.2005 after which she joined the department. 14. Learned Additional Advocate General, KPK adopted the arguments of Mr. Hafiz S. A. Rehman, learned counsel for the appellants in Civil Appeal No.1072/2005. 15. Heard. The appellant’s main grievance is that the eighteen years she spent at the Commissionerate be counted towards her service at the department for the purposes of the grant of pensionary benefits as per Article 371-A of the CSR, suffice it to say that the Commissionerate for Afghan Refugees does not in any way fall within the meaning of “temporary establishment” as defined in Civil Appeal No.1072/2005 above to mean an organisation or institution which is not permanent, rather effective for a certain period only as described. Even otherwise, the appellant’s service with the department was temporary and on a contract basis, and there is nothing on the record which suggests that she was subsequently confirmed or made permanent within the department. Therefore keeping in view the interpretation of Article 371-A of the CSR explained above with regard to Civil Appeal No.1072/2005 in that the said article would not ipso facto allow government servants rendering temporary service in a temporary establishment for more than five years to be entitled to grant Civil Appeals No.1072/2005 & 686/2012. -17 - of pension, rather such period would only be counted towards such government servants’ pension if otherwise entitled to pension, we are of the opinion that the appellant is not entitled to pensionary benefits as claimed by her. 16. In light of the above, we find no infirmity in the impugned judgment warranting interference by this Court, therefore this appeal is dismissed as being devoid of merit. Chief Justice Judge Judge Judge Judge Announced in open Court At Islamabad on 14-4-2016 Approved for reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1074 OF 2009 (Against the judgment dated 20.3.2009 of the Lahore High Court, Lahore passed in W.P.No.11983/2005) Federation of Pakistan through Secretary Revenue Division, Islamabad etc. …Appellant(s) VERSUS M/s Sahib Jee etc. …Respondent(s) For the appellant(s): Mr. Khalid Abbas Khan, ASC For respondent No.1: Nemo For respondents 2 & 3: Ex-parte Date of hearing: 19.01.2017 … ORDER MIAN SAQIB NISAR, CJ.- On a complaint filed by respondent No.1 (respondent) against the appellant-department, the Federal Tax Ombudsman passed an order and made a recommendation in favour of the respondent which (order) was not assailed by the appellant by way of a representation in terms of Section 32 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 (the Ordinance). Instead the appellant filed a review petition in terms of Section 14(8) of the Ordinance which was dismissed vide order dated 26.1.2004. This order was then challenged by the appellant through a representation under Section 32 of the Ordinance which was accepted by the President on 9.6.2005. Aggrieved, the respondent challenged the order through a constitution petition which was allowed by the learned Civil Appeal No.1074 of 2009 -: 2 :- High Court through the impugned judgment. Leave was granted by this Court in the following terms:- “Leave is granted to consider whether the petitioners had the remedy of representation before the President of Pakistan against the order passed in review by Federal Tax Ombudsman.” 2. Heard. The Ordinance is a comprehensive legislative instrument and a complete code in itself in consonance with its objects. The powers of the Federal Tax Ombudsman are enunciated by Section 14 of the Ordinance. Section 10 of the Ordinance sets out the procedure to deal with complaints or grievance petitions and the process of collecting and recording of evidence. Section 11(1) of the Ordinance prescribes “If the Federal Tax Ombudsman is of opinion that the matter considered amounts to mal-administration, he shall communicate his finding with a recommendation to the Revenue Division within a period of sixty days from the date of receipt of the complaint, reference or motion, as the case may be (emphasis supplied)”. It is further provided by Section 11(2) that “The Revenue Division shall, within such time as may be specified by the Federal Tax Ombudsman, inform him about the action taken on his recommendations or the reasons for not complying with the same”. Be that as it may, recourse against any recommendation made pursuant to Section 11, is provided by means of a representation to the President as prescribed by Section 32 of the Ordinance which reads as under:- 32. Representation to President.– The Revenue Division or any person aggrieved by a recommendation of the Federal Tax Ombudsman may, within thirty days of the recommendation, make a representation to the Civil Appeal No.1074 of 2009 -: 3 :- President who may pass such order thereon as he may deem fit.” In addition, the Federal Tax Ombudsman is also empowered by Section 14(8) to exercise the power of review. The provision reads as under:- “The Federal Tax Ombudsman shall have the power to review any finding communicated or recommendation made or any order passed by him”. 3. From the above noted provisions of the Ordinance, particularly Section 32 thereof, it is abundantly clear that when the Revenue Division or any person is aggrieved of a recommendation made by the Federal Tax Ombudsman in terms of Section 11 of the Ordinance, it/he may file a representation to the President of Pakistan within 30 days of such recommendation. This remedy of representation, though not stricto sensu akin to an appeal, is nevertheless a statutory remedy and, therefore, the provision must be strictly construed and applied, meaning thereby that a representation is only available to either the Revenue Division or an aggrieved person as against a recommendation of the Federal Tax Ombudsman within 30 days’ time. Section 32 of the Ordinance does not envisage a representation against an order passed by the Federal Tax Ombudsman which is not in the nature of a recommendation. However, as mentioned earlier, Section 14(8) of the Ordinance empowers the Federal Tax Ombudsman to review “any finding communicated or recommendation made or any order passed by him”. This power of review either invoked on behalf of an aggrieved person or the Revenue Division (note:- perhaps even under the exercise of suo motu powers, but as this is not a moot point before us therefore no definitive opinion is being expressed) has a wider scope and three kinds of decisions can be reviewed Civil Appeal No.1074 of 2009 -: 4 :- by the Federal Tax Ombudsman:- (i) the findings which were communicated in terms of Section 11; (ii) a recommendation made by him; or (iii) any other order passed by him. If, whilst exercising this power of review, the Federal Tax Ombudsman sets aside his earlier decision, irrespective of whether it was a recommendation or not, and passes a new recommendation in the order of review, then this (new recommendation) shall have been passed pursuant to Section 11(1) ibid and a representation would be competent against it. Conversely, where a recommendation earlier made by the Federal Tax Ombudsman is not set aside while exercising the power of review, the order dismissing the review petition would not be tantamount to a fresh recommendation in terms of Sections 11 and 32 of the Ordinance against which a representation could be competently filed. In light whereof, we do not find any merit in this appeal which is hereby dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 19th January, 2017 Approved For Reporting Waqas Naseer/*

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Maqbool Baqar Mr. Justice Faisal Arab Mr. Justice Ijaz ul Ahsan Mr. Justice Sajjad Ali Shah C.As.No.1076 to 1089/2019 [Against the judgment dated 20.02.2018, passed by the High Court of Balochistan, Quetta in W.Ps.No.288-292, 296-297 of 2012 ] Martin Dow Marker Ltd., Quetta. (in CAs No.1076-1082) Asadullah Khan. (in CA No.1083) Naeem Khan. (in CA No.1084) Muhammad Shamrez Khan. (in CA No.1085) Noor ur Rehman. (in CA No.1086) Rizwan Ali Bukhari. (in CA No.1087) Muhammad Aslam. (in CA No.1088) Banaras Khan. (in CA No.1089) …Appellant (s) Versus Asadullah Khan & others. (in CA No.1076) Muhammad Aslam & others. (in CA No.1077) Banaras Khan & others. (in CA No.1078) Noor ur Rehman & others. (in CA No.1079) Muhammad Shamrez & others. (in CA No.1080) Rizwan Ali Bukhari & others. (in CA No.1081) Naeem Khan & others. (in CA No.1082) Merck (Private Ltd.), Quetta & others. (in CAs No.1083-1089) …Respondent(s) For the Appellant (s) (in CAs No.1076-1082) and For the Respondent (s) (in CAs No.1083-1089) : Mr. Shahid Anwar Bajwa, ASC Mr. Habib ur Rehman, Head of Admn, Martin Dow. For the Respondent (s) (in CAs No.1076-1082) and For the Appellant (s) (in CAs No.1083-1089) : Mr. Muhammad Sajid Khan, ASC Mr. Ayaz Khan Swati, Addl.A.G. Balochistan Date of Hearing : 05.12.2019 J U D G M E N T GULZAR AHMED, J. — The private respondents in C.As.1076 to 1082 of 2019 and appellants in C.As.1083 to 1089 of C.As.No.1076 to 1089/2019 - 2 - 2019 (the respondents) were employed by the Martin Dow Marker Limited/appellant-company in C.As.1076 to 1082 of 2019 and Merck Private Ltd. (whose operations were acquired by Martin Dow Marker Limited)/respondent-company in C.As.1083 to 1089 of 2019 (the appellant). Some of the respondents were employed directly as officers and others were promoted as officers. Vide letter dated 22.05.2009, the services of all the respondents were terminated on the ground that their services were no longer required by the appellant-company. The respondents challenged the termination orders by filing grievance petitions before the Labour Court. Such grievance petitions were allowed by the Labour Court vide judgment dated 29.06.2011 with the direction to the appellant to reinstate the respondents in service with full back benefits. The appellant filed appeals before the Labour Appellate Tribunal, which were dismissed vide judgment dated 17.04.2012. Thereafter, the appellant filed Constitution Petitions before the High Court of Balochistan at Quetta. The High Court, through the impugned judgment dated 20.02.2018, disposed of these petitions, maintaining the relief of reinstatement in service of the respondents as granted by the Labour Court and upheld by the Labour Appellate Tribunal but disallowed back benefits to the respondents. The appellant as well as the respondents have challenged the said judgment of the High Court by filing separate appeals before this Court. 2. Learned counsel for the appellant has contended that the respondents were not workmen but were appointed or C.As.No.1076 to 1089/2019 - 3 - promoted as officers. He states that they were being paid the salaries of officers and that the work assigned to them was also that of officers. Additionally, the respondents were not members of the workers’ union and those who were promoted as officers, had their names removed from the membership of the workers’ union. He has contended that all the forums below, have in this regard misread the evidence on the record and have based their findings merely on oral assertions made by the respondents and not on any written material. He has further contended, that the respondents’ conduct throughout the proceedings has been aimed at keeping the appellant entangled in the litigation without demonstrating their bona fides to work as employees, and that this is well reflected by the fact that they are using the Court and its proceedings as a tool for their enrichment without doing any work whatsoever for the appellant. He has referred to a letter dated 26.02.2018, issued by the appellant to each of the respondents where all the respondents were reinstated in service and asked to report for duty, however, none of the respondents replied to such letter nor reported for duty uptill now, rather oral objection of the respondents heard by the appellant was that they should be reinstated as officers and not as workmen, despite the fact that they were offered salary of officers, similar to the one they were drawing at the time of their termination or rather more than that. Learned counsel has further contended that the respondents have conducted themselves in such a manner, where their very approach appears to be not bona fide, rather it appears that they are pursuing these cases with unclean hands, and hence, equity C.As.No.1076 to 1089/2019 - 4 - does not entitle them to any relief; more so, the relief of reinstatement granted to the respondents by the forums below ought to be refused to them. 3. On the other hand, learned counsel appearing for the respondents has contended that so far as the question, as to whether the respondents were workmen or not, is concerned, the same has been established before the Labour Court through evidence and the Labour Court has accepted such position of the respondents and declared them to be workmen. Such finding of the Labour Court was upheld by the Labour Appellate Tribunal, so also by the High Court and now at this stage, such concurrent finding of the three forums below cannot be interfered with by this Court. 4. Learned counsel for the respondents was confronted with the letter dated 26.02.2018, sent by the appellant, whereby the respondents were reinstated in service, he admitted that such letter was issued by the appellant to all the respondents but the respondents did not accept the same for the reason that they were being reinstated as workmen and not as officers, which was the job they were undertaking at the time of their termination. 5. We have considered the submissions of the learned counsel for the parties and have also gone through the record of the case. 6. The question about respondents being workmen or not need not detain us for long for the reason that such question has C.As.No.1076 to 1089/2019 - 5 - already been considered by the Labour Court so also by the Labour Appellate Tribunal and there is concurrent finding of fact that the respondents are workmen and such concurrent finding has also been upheld by the High Court by the impugned judgment. For displacing such concurrent finding of fact, upheld by the High Court exercising writ jurisdiction under Article 199 of the Constitution, learned counsel for the appellant was required to show and establish misreading of evidence and wrongful exercise of jurisdiction by the forums below in holding that the respondents were workmen. Incidentally, no evidence from record was shown to us, which may lend support to the submissions of the learned counsel for the appellant that the respondents were not workmen. Thus, we are not persuaded to disturb the finding of the forums below on this question. 7. As regards further submission of the learned counsel for the appellant that the respondents were issued letter dated 26.02.2018 by the appellant by which the respondents were reinstated in service by the appellant but none of the respondents have reported for duty uptill now needs some serious consideration. 8. After having succeeded in the three forums below, the respondents were issued respective letter of reinstatement in service dated 26.02.2018 by the appellant, a copy whereof is available at page 191 of the record of Civil Appeal No.1076 of 2019. The learned counsel for the respondents admitted issuance of this letter of reinstatement to all the respondents and also admitted C.As.No.1076 to 1089/2019 - 6 - that pursuant to this letter none of the respondents have joined duty with the appellant. Learned counsel for the respondents was asked to give reasons as to why the respondents have not complied with the order of reinstatement contained in the letter dated 26.02.2018, he stated that the respondents were employed as officers, however, by this letter of reinstatement they were not given employment as officers but that of a workman. Learned counsel for the respondents was also asked whether any of the remunerations and dues were reduced by the appellant by this letter of reinstatement dated 26.02.2018, his reply was in negative. This scenario, before this Court, obviously, created a serious issue regarding the bona fide of the respondents. The very bona fide of the respondents in pursuing their remedies before the Courts of law seeking their reinstatement in service of the appellant, becomes doubtful, in that, the contention of the learned counsel for the appellant that the respondents are pursuing these cases only for obtaining monetary benefits and have no intention, desire or will, to work as workmen in the establishment of the appellant, seems convincing, more so, when it was not seriously disputed by learned counsel for the respondents. 9. This development before us, led us to take a step back and ponder on the very bona fide of the respondents in pursuing these cases before the Courts of law, for that, through letter dated 26.02.2018, they were reinstated but admittedly till date, none of them have joined duty with the appellant. We have asked the learned counsel for the respondents to show that any written C.As.No.1076 to 1089/2019 - 7 - communication by the respondents to the appellant in response to the letter of reinstatement dated 26.02.2018 was made, he replied in the negative, meaning thereby that the respondents have not objected to the letter of reinstatement. Non objection to the letter of reinstatement and also non reporting for duty reflect gravely on the part of the respondents. 10. We may note that the appellant in the letter of reinstatement has given two days’ time to the respondents to join duty, failing which they will be marked absent and appropriate action will be taken. It is obvious that neither the respondents reported for duty nor action was taken by the appellant. We have tried to balance this very aspect of the matter and have resolved the same by reasoning that the respondents had no reason or justification at all nor any was shown to us for their none reporting for duty on their reinstatement in service by letter dated 26.02.2018. 11. On the other hand, there being three judgments of the forums below in favour of the respondents on the point of reinstatement and appellant having filed these appeals, which being pending, the appellant in deference did not take action against the respondents for the none reporting for duty, rather placed the copy of letter of reinstatement on record of their appeals and left the matter to be dealt with by this Court, which in our view, was the fair and correct conduct of the appellant. Further, if the appellant had taken action against the respondents, multiple C.As.No.1076 to 1089/2019 - 8 - litigation would have arisen and there would be no end to the dispute. 12. There is no denial of the fact that under Standing Order 15 of the Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, non-obeying of a reasonable order of the employer by the employee and remaining absent from duty for more than 10 days constitute misconduct on the part of an employee, the penalty for which includes dismissal from service. Here in this case, the respondents have not obeyed the order of reinstatement of their employer, the appellant, and have also remained absent from duty for more than one year and nine months and the respondents have given no reason whatsoever for not complying with the letter of reinstatement in service dated 26.02.2018, except an oral assertion that they were offered reinstatement as workmen and not as officers. This assertion, on the part of the respondents itself is contradictory, for that, they have themselves approached the Labour Court claiming to be workmen and the Labour Court and the Labour Appellate Tribunal having given concurrent finding of fact that the respondents were workmen and such concurrent finding of fact having being upheld by the High Court vide the impugned judgment, it was altogether unbecoming on the part of the respondents to claim their reinstatement as officers and such desire of the respondents, by no means, can be considered to be a reasonable one. This Court under Article 187(1) of the Constitution has the power to issue such directions, orders or decrees, as may be necessary for doing C.As.No.1076 to 1089/2019 - 9 - complete justice and in doing so, the Court is also empowered to look at the changed circumstances of the case as it has appeared before it and also to mould relief as is just and proper for meeting the ends of justice. Reference in this regard is made to the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan and 9 others [PLD 2017 SC 265]; Muhammad Zahid v. Dr. Muhammad Ali [PLD 2014 SC 488]; DOSSANI Travels (Pvt) Ltd. & others v. M/s Travels Shop (Pvt) Ltd. & others [PLD 2014 SC 1]; Mst. Amatul Begum v. Muhammad Ibrahim Shaikh [2004 SCMR 1934]; and Imam Bakhsh & 2 others v. Allah Wasaya & 2 others [2002 SCMR 1985]. 13. We may note that in exercising the jurisdiction to do complete justice and to issue directions, orders or decrees, as may be necessary, this Court is not bound by any procedural technicality when a glaring fact is very much established on the record and even stand admitted. Reference in this regard is made to the case of Muhammad Shafi v. Muhammad Hussain [2001 SCMR 827]; Gul Usman & 2 others v. Mst. Ahmero & 11 others [2000 SCMR 866]; and S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance & others [1999 SCMR 1904]. 14. This Court does not wish to go on the premise that the respondents have committed misconduct of non-obedience of reasonable order of their employer or have remained absent from duty for more than ten days, in terms of Standing Order 15 ibid, but takes a simplistic view of the matter, as has unfolded before it that of respondents own making, showing no regard to the orders C.As.No.1076 to 1089/2019 - 10 - of the three forums below, which they have obtained on their own grievance petitions, by which they were reinstated in service and such reinstatement was granted by the appellant. Thus, it appears that the respondents themselves abandoned the relief they had obtained from the forums below. Nothing was shown to us by the learned counsel for the respondents that the findings of the High Court, not allowing the back benefits to the respondents, could be found to be suffering from any misreading of the record or wrongful exercise of jurisdiction. 15. In this view of the matter, the appeals filed by the respondents (Civil Appeals No.1083 to 1089 of 2019), are dismissed. 16. So far as the appeals filed by the appellant are concerned, the same have been filed challenging the impugned judgment, whereby the respondents have been granted reinstatement in service only. It is already observed above that the respondents have themselves abandoned the relief of reinstatement in service granted to them as is established from the fact that as back as on 26.02.2018, they were given letter of reinstatement in service by the appellant, which reinstatement in service was not accepted by the respondents as they remained absent from duty. During the course of hearing before the Court, the learned counsel for the respondents did not at all mention that the respondents are willing and prepared to report for duty and work in the establishment of the appellant. Thus, where the respondents themselves are not willing and prepared to work in the C.As.No.1076 to 1089/2019 - 11 - establishment of the appellant and this conduct of the respondents is apparently, based upon the fact that they are not going to get any monetary benefit pursuant to the impugned judgment and also the letter of reinstatement, for that, the impugned judgment has not allowed back benefits to them and such also stands refused by this Court. The respondents seem to be content and satisfied with their current situation, whatever it may be. In this view of the matter, the only conclusion which could be arrived at is none other than that of allowing the appeals filed by the appellant. Consequently, the appeals filed by the appellant (Civil Appeals No. 1076 to 1082 of 2019) are allowed and the impugned judgment dated 20.02.2018 passed by the learned Division Bench of the High Court allowing the reinstatement in service of the respondents is set aside. No order as to costs. JUDGE JUDGE JUDGE JUDGE JUDGE Larger Bench-II ISLAMABAD 05.12.2019 Approved for reporting. Rabbani*/

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO.1079 OF 2011 AND C.M.A.2273/2013 (Against the judgment dated 08.08.2011 of the High Court of Sindh, Karachi passed in C.P. No.1337/2010) Collector of Customs (Export) and others …Appellant(s) VERSUS Saifuddin …Respondent(s) For the appellant(s): Mr. Shakeel Ahmed, ASC For the respondent(s): Sardar Muhammad Aslam, ASC Ch. Akhtar Ali, AOR Date of hearing: 17.5.2017 … JUDGMENT MIAN SAQIB NISAR, CJ.- The facts of this appeal are that the respondent (seller) entered into various contracts dated 7.7.2009 with a British buyer for the export of copper, aluminum and brass scrap. The customs authorities charged regulatory duty at the rate of 25% ad valorem on such export vide notification dated 13.03.2010 (the notification) issued by the Federal Government in terms of Section 18(3) of the Customs Act, 1969 (the Act) which was to remain in force till 30.6.2010. The respondent successfully challenged the notification and the imposition of regulatory duty through a constitution petition before the learned High Court which held that irrespective of the notification, the respondent was not liable to pay regulatory duty. Leave was granted on 7.12.2011 “to consider whether the High Court erred in law to hold that Section 31 and 31-A excludes application of Section 131 of the Customs Act, 1969 for the purpose of calculation of duty and taxes for export purpose.” CIVIL APPEAL NO.1079 OF 2011 -: 2 :- 2. Heard. To answer the key question as to whether the respondent was liable to pay regulatory duty upon the goods he exported, it must be seen whether regulatory duty was leviable under the law. In this regard, Section 18 of the Act is relevant which reads as under:- 18. Goods dutiable.- (1) ……………………………………… (1A) …………………………………………………………… (2) No export duty shall be levied on the goods exported from Pakistan. (3) The Federal Government may, by notification in the official Gazette, levy, subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the goods imported or exported, as specified in the First Schedule at a rate not exceeding one hundred per cent of the value of such goods as determined under section 25 or, as the case may be, section 25A. (4) The regulatory duty levied under sub-section (3) shall– (a) be in addition to any duty imposed under sub- section (1) or under any other law for the time being in force; and (b) be leviable on and from the day specified in the notification issued under that sub-section, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day. (5) ………………………………………………………… (6) ………………………………………………………… [Emphasis supplied] Section 18 of the Act is a charging section and sub-section (2) thereof provides that no export duty shall be levied on the goods exported from Pakistan. However, under sub-section (3) thereof, the Federal Government is authorized, by notification in the official Gazette, to levy a CIVIL APPEAL NO.1079 OF 2011 -: 3 :- regulatory duty on all or any of the goods exported, as specified in the First Schedule, subject to such conditions, limitations or restrictions as it may deem fit. Furthermore, the rate of the duty would not be more than one hundred per cent of the value of such goods, as determined under Section 25 or 25A of the Act. According to sub-section (4), the regulatory duty so levied, would be in addition to any duty imposed under sub-section (1) or under any other law for the time being in force and would be leviable on and from the day specified in the notification, notwithstanding the fact that it was published at any time after that day. 3. In this regard learned counsel for the respondent argued that allowing the Federal Government to impose regulatory duty on exports under Section 18(3) of the Act would render sub-section (2) thereof redundant, and that the notifications issued by the Federal Government under Section 18(3) supra constitute subordinate legislation and would thus be subservient to sub-section (2) from which the intention of the legislature is clear, in that no export duty is to be levied on the goods exported from Pakistan. This is also the finding of the learned High Court in the impugned judgment. We disagree. It is worthy to note that sub-sections (2) and (3) of Section 18 of the Act are part of the same provision (Section 18) and were introduced at the same time, i.e. in 2005 vide Finance Act, 2005 (VII of 2005) when the erstwhile Section 18 was substituted. Therefore, neither of the sub-sections could be said to be subordinate to the other. What is important is the intention of the legislature, which is to be gathered from a holistic reading of Section 18 of the Act. While adopting the rule of harmonious interpretation of statutes, we find that sub-section (2) provides the general rule that all goods exported from Pakistan shall not be charged with export duty, whereas sub-section (3) provides the exception to such general rule, in that it specifically authorizes the Federal Government to impose a CIVIL APPEAL NO.1079 OF 2011 -: 4 :- regulatory duty, by notification in the official Gazette, on all or any of the goods imported or exported. A combined reading of both the sub-sections makes it abundantly clear that neither do they conflict with each other nor does either have supremacy over the other. ‘Regulatory duty’ has been examined in the judgment reported as Messrs Sh. Abdur Rahim, Allah Ditta Vs. Federation of Pakistan and others (PLD 198 SC 670) wherein the rationale for conferring the power to impose such duty was discussed. This Court held in the judgment (supra) that regulatory duty is meant to remove/check distortions in the market and to ensure stability, and that the Federal Government was validly delegated with the power/discretion to impose the same (regulatory duty). Therefore, the two sub-sections are consistent. Hence, the notification issued by the Federal Government under Section 18(3) of the Act imposing a regulatory duty on certain export items is valid and legal and such duty would be chargeable from the date of the notification, i.e. 13.3.2010 till 30.6.2010. 4. In order to answer the question as to whether regulatory duty was in fact payable by the respondent, we need to examine the relevant date for determination of the rate of duty on exported goods. In this regard, Section 31 of the Act is relevant which reads as under:- 31. Date for determination of rate of duty on goods exported.- The rate and amount of duty applicable to any goods exported shall be the rate and amount chargeable at the time of the delivery of the goods declaration under section 131: Provided that where the export of any goods is permitted without a goods declaration or in anticipation of the delivery of such a declaration, the rate and amount of duty applicable shall be the rate and amount chargeable on the date on which loading of the goods on the outgoing conveyance commences: Provided further that the Federal Government may, by notification in the official Gazette, for any goods or CIVIL APPEAL NO.1079 OF 2011 -: 5 :- class of goods, specify any other date for determination of the rate of duty. [Emphasis supplied] As per this Section, the relevant time for determination of the rate of duty on goods exported is the date of the delivery of the goods declaration under Section 131 of the Act, which reads as below:- 131. Clearance for exportation.- (1) No goods shall be loaded for exportation until- (a) the owner of any goods to be exported has made a declaration in such form and manner as prescribed by the Board, by filing a goods declaration to Customs containing correct and complete particulars of his goods, and assessed and paid his liability of duty, taxes and other charges, if any; (b) the claim of duty drawback, if any, has been calculated and reflected in the declaration filed for export through Customs Computerized System; (c) Customs has, on the receipt of goods declaration under clause (a), satisfied itself regarding the correctness of the particulars of export, including declaration, assessment, and payment of duty, taxes and other charges and verified the admissibility of the duty drawback claimed as specified in clause (b); and (d) the appropriate officer has permitted passenger‘s baggage or mail bags, to be exported notwithstanding clauses (a), (b) and (c). (2) ………………………………………………………… [Emphasis supplied] Section 131 ibid deals with the clearance of goods for exportation for which there are various elements [parts (a) to (d) of sub-section (1)] out of which one, i.e. sub-section (1) part (a), is that no goods shall be loaded for exportation until the owner has made a declaration by filing a goods declaration to the customs authorities. This is the sole element which Section 31 ibid refers to. From a plain reading of both Sections 31 and CIVIL APPEAL NO.1079 OF 2011 -: 6 :- 131 [particularly sub-section (1)(a)] of the Act, it is manifest that the common feature is that of goods declaration and therefore duty shall be charged at the rate applicable on the date when the goods declaration is delivered or filed. 5. In this context, as regards the goods for which the declarations were filed on or after the date of the notification, i.e. 13.3.2010, in the light of the above discussion on Sections 31 and 131 of the Act, we find that such export goods were liable to regulatory duty as envisaged by the notification. In juxtaposition, those goods for which the declarations were filed prior to the issuance of the notification, such export were goods were not liable to regulatory duty under the notification. However, the learned counsel for the appellant submitted that with respect to the latter category of goods, though the declarations were filed prior to the issuance of the notification, they too were liable to regulatory duty as they (goods declarations) were subsequently amended after the date of the notification. In this regard it is pertinent to note that the instant appellant raised this objection before the learned High Court but the respondent explained that the amendments to the goods declarations were necessitated due to the change of the vessel on which the scrap was to be exported. The learned High Court accepted this explanation on the ground that as long as the ‘particulars of the goods’, required to be correct and complete as per Section 131(1)(a) of the Act, remained the same, then any subsequent substitution, amendment of revision in respect of any other information to be contained in the declaration, is immaterial for the purpose of Section 31 of the Act. We find that the view taken by the learned High Court in this regard is correct and uphold the same. 6. It is the respondent’s case that the contracts for the sale of goods to be exported had been entered into on 7.7.2009 before 13.3.2010 CIVIL APPEAL NO.1079 OF 2011 -: 7 :- which is the date of the notification. Therefore, on the basis of the judgment reported as Al-Samrez Enterprise Vs. The Federation of Pakistan (1986 SCMR 1917) no duty can be imposed and collected from the respondent. It is the case of the appellants that the respondent is not entitled to the benefit of the law laid down in Al-Samrez’s case (supra) which has been nullified by the legislature through the insertion of Section 31A in the Act according to which, for the purposes of Section 30, 30A and 31, the rate of duty applicable to any goods shall include: (a) any amount of duty imposed under Section 18, 18A and 18C; and (b) the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty; whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. Thus, according to the learned counsel for the appellant, the time of conclusion of the contract becomes irrelevant and thus the respondent would be liable to pay regulatory duty upon his export goods. For ease of reference, Section 31A is reproduced hereunder:- 31A. Effective rate of duty.- (1) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of section 30 69, 30A and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under section 18, 18A and 18C and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. (2) …………………………………………………………… 7. As mentioned in the earlier portion of this opinion, according to Sections 31 and 131 of the Act, the only relevant factor is that of CIVIL APPEAL NO.1079 OF 2011 -: 8 :- delivery of the goods declaration. It is worthy to note that the two said sections make no reference whatsoever to the date of entering into or conclusion of contract. This Court in Al-Samrez’s case (supra) held that if a binding contract was concluded between the parties (importer and the foreign exporter) or steps were taken by the importers creating a vested right under the existing notification granting exemption, the benefit of an exemption could not be taken away and destroyed in modification of the earlier one. In order to overcome the said decision, Section 31A supra was inserted in the Act, wherein the legislature used the words “before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit”. However, we find that this has absolutely no nexus to the issue at hand for which “delivery of the goods declaration” is relevant as per Sections 31 and 131 of the Act, as mentioned above. Thus, as the decisive factor remains to be delivery of the goods declaration, Section 31A ibid would have no relevance or application to the instant case. 8. In the light of the above, this appeal is partly allowed. It is dismissed to the extent that where the goods declarations were filed before the date of the notification, i.e. 13.3.2010, no regulatory duty was payable by the respondent. However, where the goods declarations were filed on or after such date, the respondent was liable to pay regulatory duty as envisaged by the notification and to this extent, the appeal is allowed. C.M.A. No.2273/2013 9. As we have heard the learned counsel for the respondents, therefore this application is disposed of accordingly. 10. The foregoing are the reasons for our short order of even date which reads as under:- “For the reasons to be recorded later, this appeal is partly allowed, in that it is dismissed to the extent of the Goods CIVIL APPEAL NO.1079 OF 2011 -: 9 :- Declaration (GD) filed by the respondent for export of his goods before the imposition of Regulatory Duty on 13.03.2010, and is allowed to the extent that the GD was filed, and even if not filed, on or after 13.03.2010.” CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 17th May, 2017. Approved for reporting Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT Mr. Justice MaqboOI Baqar ML Justice Qazi Muhammad Amin Ahmed Civil IN s . 1079 and 1080 of 2015 (Against the judgment doted 22.05.2015 of the Islamabad High Court, Islamabad passed in CR Nos. 475 & 552/2001) Intelligence Bureau Employees Cooperative Housing Society thr. its Secretary Versus Shabbir Hussain & others Appellant(s) Respondent(s) For the Appellate(s) Syed Noyab Hassan Gardezi, ASC Mr. Ahmed NawaZ Ch. AOR Malik Attat Hussain Awan, ASO Mr. Agha Muhammad All, ASC Syed Rifaqat Hussain Shah, AOR Ex-parte 10 .06 .202 1 For Respondent No. 1 For respondent No-6 Others Date of Hearing JIJDGMENJ Maabool BaciaLJ. The instant appeal with leave of the Court has arisen out of judgment dated 22.05.2015 of the Islamabad High Court, whereby the learned Judge in Chambers dismissed the Civil Revisions filed by the appellant and maintained the judgment and decrees of the fora below. 2. The respondent No. 1, Shabbir Hussain, on 27.06.1990, brought a suit for declaration, possession and permanent injunction against Muhammad Aslam, the respondent No. 2, and Mst. Channo Bibi, the predecessofrmnlnterest of respondent Nos. 3 & 4. He claimed that his maternal grandfather, Niaz All owned and possessed, 50% of lands, bearing various khasra numbers, as I CA-L079 10e0115 2 mentioned in the plaint, in the revenue estates of village Lohibher, village Panwal and village Phokar ("the suit lands"). It was averred that the only child of Niaz Ali, Mst. Ghori, who was the mother of respondent No. 1, passed away in the year 1953. Niaz Ali also expired in the year 1970, and on 14.04.1970, respondent No. 2, who was the father of respondent No. 1, and was also the nephew of Niaz Ali, and Mst. Channo Bibi, who was sister of Niaz AU, got the mutation of succession of the suit lands recorded in their favour to the exclusion of respondent No. L of which mutation, respondent No. 1 came to know two months before filing of the suit, whereupon he requested the said two respondents to transfer the suit lands to him, as he being the grandson of Niaz All, was legally entitled to the same. However, they refused to comply and thus the respondent No. I was constrained to file the suit. 3. Muhammad Aslam, the respondent No. 2 filed a conceding written statement, whereas Mst. Channo Bibi, through her written statement contested the suit on the ground of its being barred by limitation. It was contended that the suit was bad for misjoinder of different causes of action and was mob fide. 4. There is no denying the fact that the suit lands were owned by Niaz Au. It has also not been disputed that Niaz Ali was the maternal grandfather of Respondent No.1. It is also an admitted fact that Mst. Ghori, the only child of Niaz Ali and the mother of respondent No.], died in the year 1953. It is also a S common ground between the parties that upon demise of Niaz All in the year 1970, the only persons left behind to succeed to the estate of the deceased were respondent No.1, 2 and Mst. Channo Bibi. The respondent No.1 being the son of the pie- deceased daughter of the deceased, which daughter was his only child, was, under the relevant law, entitled to inherit 1/2 share of the estate of the deceased at the time of his succession. However, through mutations dated 14.4.1970, the succession of the lands were recorded in favour of respondent No.1 and Mst. Chanoo Bib!, to the exclusion of respondent No.1. 5. The respondent No.1, even if his age is counted from the year 1953, when his mother died, was of 17 years when the impugned mutation entries dated 14.4.1970, were recorded. He became a major the very next year i.e. in the year 1971. The lands in dispute, as came to light before the trial Court, during the testimony of DW-1, the attorney of Mst. Chanoo on 10.3.1996, were subsequently sold by respondent No.2 to the appellant society. However it was as late as on 27.06.1990, that the respondent No.1 filed the suit, and that too just in respect of the inheritance mutations dated 14.4.1970 and against respondent No.2 and Mst. Chanoo Bibi only. It was only after the factum of sale of the lands came to fore as noted above, that the respondent No.1, on 31.5.1997, filed the amended plaint challenging the sale mutations in respect of the suit lands in favour of the appellant, i.e. almost 10 years after the impugned -I CA 1079 & wee/is 4 sales, the lands, as noted in detail hereunder, having been sold in the years 1986 and 1987. 6. The appellant society through their written statement raised various preliminary objections to the maintainability of the suit. It was, inter alia, contended that the suit was hopelessly barred by limitation. They denied the claim as set up by respondent No.] in the plaint, it was averred that the appellant had purchased, 11 Kanals and 7 Marlas of the suit lands from respondent No.2, through registered sale deed dated 01.1.1987, and from Mst. Chanoo Bibi, land measuring 3 Kanals and 7 Marlas, through registered sale deed dated 03.11.1986, respectively. The appellant claimed that they had, before purchasing the Iands,verified the vendor's title from the relevant revenue record. It was alleged that the suit has been filed just to blackmail the appellant. 7. After conclusion of evidence, the Civil Judge, decreed the suit as prayed. The appeals against the said judgment and decree were dismissed. Revision filed by the appellant and the legal heirs of Mst. Chanoo Bibi, were dismissed through the impugned judgment. 8. As noted earlier also the respondent No.] was at least 17 years of age when the impugned inheritance mutations were recorded in favour of his father, the respondent No.2 and his grandmother, Mst. Chanoo Bibi, the sister of late Niaz Ali. The address of the respondent No.], in the record throughout is the same as that of his father, the respondent No.2. Mst. Chanoo Bibi, -J CA 1079 & 10601IS 5 also lived in the some village. The suit lands are situated where the respondent No.1 has lived throughout. As noted earlier, the respondent No.] attained majority at the most, a year after the impugned inheritance mutations were recorded. Even at the time of impugned mutations, he was, by all accounts, of a sensible age. In any event if the said respondent was truly and genuinely aggrieved by the said impugned mutations, he ought to have challenged the same within three years of his attaining majority. However he filed the suit as late as on 27.06.1990. Although in his plaint, the respondent No.] claimed that he came to know about the inheritance mutations only a month before filing of the suit. However, neither has he disclosed as to on what date, how, and through whom he acquired the knowledge as claimed. He further claimed that having known about the mutations, he requested the respondent No.2 and Mst. Chanoo Bibi, to transfer the suit land in his favour, but they refused. However in that regard also neither has he given any details, nor produced any evidence or material. In fact the attorney of respondent No.], namely, lftikhar Ahmed, the PW-1, who appeared as his sole witness, has not even claimed that the respondent No.], received any information regarding the inheritance mutations at all. It has come in the evidence that the subject lands, after being sold to the appellant society, have, way back in the year 1988, been developed into a housing society, and the plots so created have been allotted to the members of the society, who have built their houses/buildings IMI CA 1079 &ESQLLS thereon. It has also gone unrebutted that roads have been built and basic amenities have been provided in the housing society so developed. The respondent No.1 did not even plead that he remained away from his house/village anytime during the relevant period. 9. In view of the foregoing, it is difficult to believe that respondent No.1, throughout the long period of about 20 years, remained ignorant of the impugned inheritance mutations, and came to know about them only a month before filing the suit that he filed on 27.06.1990. In fact there is not even a verbal utterance by the plaintiff's witness in this regard at all. It is equally difficult to believe that respondent No.1 remained ignorant of the impugned sales till the time he filed the amended plaint, impleading the appellant society as defendant, more so, when throughout the relevant period he lived in the same village with his father, and by the time the lands were sold, the respondent No.1 has attained the age of about 33 years. It is inconceivable that living in the some village where the lands are situated, the respondent No.1 would not have noticed the fact that not only the physical possession of the lands were delivered to the appellants but the appellants also changed the usage/status of the land from agricultural to residential/commercial, and developed them into a housing society, with necessary infrastructure and amenities, and that the lands were sold/allotted to the members of the society who raised construction of their houses/buildings therein. U.S cAJQ72_& 1080/15 7 10. However the respondent No.] concealed the impugned sales from the Court and sought amendment in the plaint with regard thereto only after DW-1, the attorney of Mst. Chanoo Bibi, deposed about the sale before the trial Court on 10.3.1996, and filed the amended plaint challenging the sale mutations for the first time on 31.5.1997. H. It is not the case of the respondent No.] that he was not aware that Niaz Ali has left behind the suit lands and/or that he (the respondent No.1) was entitled to 50% share therein, (although even the plea of ignorance of his entitlement would not have been of any avail), he however neither objected to the inheritance mutations dated 14.4.1970, nor made any efforts to seek amend, and for the entries to be corrected to represent his 50% share in the lands till filing of the suit on 27.6.1990, although the respondent No.1 attained majority in the year 1971 within about one year of the date of impugned mutations, and had become legally capable and competent to seek enforcement of his legal rights. The respondent No.1 has also not pleaded any circumstance which may have mislead him into believing that his title/rights in the land were secure, and were not jeopardized. He did not claim that he ever remained in possession of the lands, actual or constructive, and/or he was getting his share in the produce of the lands. The lands were sold by respondent No.2 and Mst. Chanoo Bibi, for valuable, consideration through registered sale deeds in the year 1986 and 1987, respectively, it hardly needs any mention that the registration of a sale deed is a 1 caJQzWQflA notice of the sale embodied therein to the whole world. The respondent No.1 has also not explained as to how and why he failed to notice the delivery of physical possession of the lands to the appellant society and as to how he lost sight of the appellant society converting the status of the lands from agricultural to residential/commercial, and its development into a housing society with necessary infrastructure and amenities, and then of allotting the plots so created to its members, who raised construction thereon. It is really difficult, nay impossible to imagine someone not noticing the above occurrences and development in his very lands situated in his vicinity over a long period of about 10 years, the respondent No.1's inaction, I indifference and indolence in the circumstances cannot be interpreted as anything but his acquiesce in the respondent No.2's and Mst. Chanoo Bibi's title in the suit lands and manifestation of waiver of his rights in respect of the suit lands. The following judgments of this Court may well be referred to in this regard, At to Muhammad v. Mou!a Bokhsh (2007 SCMR 1446), Mst. Grano v. Sahib Komala Bibi (RID 2014 SC 167), Dilbor Jan v. .Sohrab Khan (1992 SCMR 743) and Lai Khan v. Mohammad Yousaf (RID 2011 SC 657). 12. The appellant society, as noted earlier, purchased the suit lands from respondent No.2 and Mst. Chanoo Bibi, in the years 1986 and 1987 respectively. The suit lands were unabatedly standing in the revenue record in the name of the said vendors. The appellant's claim that they purchased the land after verifying T 9 the vendor's Ow nership from the revenue record has not been rebutted. In terms of section 52 of the West Pakistan Land Revenue Act 1967, Presumption of truth is attached to the land revenue record Judgment of this Court in the cases of Muhammad Shamim v. Mst. Nisar Fatima (2010 SCMR 18), La/ Khan v. Muhammad Yousaf (PED 2011 SC 657), Msf thr.LR5 Phaphan V. Muhammad Bakhsh (2005 SCMR 1287), may be referred to in this regard. 13. The learned counsel for the appellant Society submitted that since section 4 of the Muslim Family Ordinance, 1981, which enabled the children of the Predeceased children of a Propositus to i nherit from the propositus like their father or mother. would have received had he/she been alive at the time of opening Of the succession; has been declared against the tenants and inj unctions of Islam by the Federal Shariat Court in its judgment in the case of Allah Rakha and others v. Federation of Pakistan and Other (riD 2000 Sc 1), the respondent No.1 Was/is not entitled to any share in the suit lands and Was thus rightly excluded from succeeding to the same 14. No doubt section 4 ibid has been declared repugnant to Shariah however, since an appeal is Pending against the said Judgment before the Shoriat Appellate Bench of this Court the judgment,in t erms of the provisions of Article 203-0(2) of the Constitution, cannot be given effect until the some is upheld by this Court and in that eventuality also, it shall, as specified in the judgment itself, take effect from 31.2.2000, [the date, it may be noted Was so specified in consonance with the provisions of Article and th erefore in any event cannot effect the previous I CA I 019& 060/15 10 operation of law or a succession taking place before the said date. Reliance in this regard is placed on the judgments of this Court in the cases of Mahmood Shah v. Syed Khalid Hussain Shah (2015 SCMR 869), Mst. Samia Naz v. Sheikh Pervaiz Afia! (2002 SCMR 164) and Mst. Sawar Jan v. Mukhtar Ahmed (PID 2012 SC 217) 15. However the contention of Mr. Gardezi, that the suit is a collusive endeavour of respondent Nos. 1 & 2, the father and the son, in the facts and circumstances of the case seems to be plausible. This view gains strength also by the fact that respondent No. 2, the father, has filed a conceding written statement in the suit. In almost similar circumstances in the case of Dilbar Jan (supra), where the sale of a property owned by the sons of the vendor by virtue of its purchase by the vendor father in their name, when they were minors, was, after ten years of the sale, challenged by the sons on the ground that since at the time of the impugned sale they had attained majority, it was only them, and not their father, who could have lawfully sold the property, this Court, whilst observing that since the impugned sale was affected through a registered sale deed, of which the plaintiff sons are presumed to have the knowledge, but they failed to challenge the same for a long period of ten years and filed the suit ten years after the impugned sale, held the suit to be collusive. 16. The learned counsel further submitted that since respondent No. 1 by his conduct permitted respondent No. 2 and Mst. Channo Bibi to hold themselves out as the real owners, the appellant's Society, who has purchased the land for valuable consideration in good faith, has acquired a good title to the land CA 1079 & 1080/15 1 against respondent No. 1, and the transaction cannot be voided on the ground that respondent No. 1 has not explicitly authorized to make it. The learned counsel further submitted that the impugned sales and transfer of the lands in the circumstances is protected under and in terms of the provisions of section 41 of the Transfer of Property Act, 1882. 17. Indeed, section 41 of the Transfer of Property Act, 1882, provides an exception to the rule as embodied in the maxim, he gives not who hath not, and thus, nobody can transfer to or confer upon another a right or a title better than he himself possesses. Generally, a purchaser cannot take more than the vendor has to sell however, section 41 of the Transfer of Property Act provides an exception to the rule. It underpins the principle of equity that whenever one of the two innocent person has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it, or where one of the two innocent person suffer from the fraud of thirty party, the loss should fall on him who has created, or could have prevented the opportunity for fraud. However in order to invoke the protection of the provisions of section 41, a transferee is essentially required to demonstrate that (a) the transferor is the ostensible owner (b) He was so by consent, express or implied, of the real owner (c) The transfer is for consideration (d) The transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Whereas in the facts and circumstances of the present case as discussed hereinbefore, -- C CAIO79& 1080/15 12 one can clearly see that all the above ingredients are available to the appellant to seek protection of the impugned transactions. 18. The respondent No.] having acquiesced in the title of respondent No. 2 and of Mst. Ohanno Bibi, the predecessor-in- interest of respondent Nos.3 and 4, and having waived his right to the lands, leading the appellants to believe that the said vendors were in fact the owners of the lands. The appellant society thus having purchased the lands for valuable consideration, without I knowledge of respondent No. I's purported entitlement were/are entitled to protection under section 41 of the Transfer of Property Act. We would therefore allow these appeals, and set aside the impugned judgment rendered by the High Court No order as to cost. -fl Announced in open Court at Islamabad on ftO— "APPROVED FOR REPORTING (Aemir Sb.) - - '1

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL APPEAL NO.1083 OF 2017 (On appeal from order dated 20.6.2017, passed by the Election Commission of Pakistan, in Case No.7(4)/2016-Law) AND CIVIL PETITION NO.3148 OF 2017 (On appeal from judgment dated 28.7.2017, passed by the Islamabad High Court in W.P. No.2604/2017) Raja Shaukat Aziz Bhatti (in both cases) … Appellant (s)/ Petitioner (s) Versus Major (R) Iftikhar Mehmood Kiani (in CA.1083/2017) Major (R) Iftikhar Mehmood Kiani and another (in CP.3148/2017) … Respondent (s) For Appellant (s)/ Petitioner (s) : Malik Waheed Anjum, ASC with Syed Rifaqat Hussain Shah, AOR (in both cases) For Respondent No.1 (in both cases) : Sardar M. Latif Khan Khosa, Sr. ASC with Syed Iqbal Hussain Gillani, ASC assisted by Sardar Shahbaz Ali Khan Khosa, Adv. Rai Muddassur Iqbal, Advocate Mr. Naz Gul Shah, Advocate Ch. Akhtar Ali, AOR For HEC : Mian Muhammad Hanif, ASC with Raja Abdul Ghafoor, AOR For ECP : Malik Mujtaba Ahmad, Additional Director General CA.1083/2017, etc. 2 For the Federation On Court Notice : Mr. Sajid Ilyas Bhatti, DAG assisted by Barrister Minaal Tariq Mirza Nassar Ahmad, DAG Dates of Hearing : 07.02.2018, 19.02.2018, 20.02.2018, 06.03.2018, 07.03.2018, 13.03.2015 and 15.03.2018 JUDGMENT SH. AZMAT SAEED, J.- Through this common judgment, it is proposed to decide Civil Appeal No.1083 of 2017 and Civil Petition for Leave to Appeal No.3148 of 2017 inter se the same parties and involving common questions of law and fact. The aforesaid Civil Appeal bearing No.1083 of 2017 under Section 103-AA of the Representation of the People Act, 1976 (RoPA) is directed against the Order dated 20.06.2017, passed by the Election Commission of Pakistan (ECP); and the above titled Civil Petition for Leave to Appeal bearing No.3148 of 2017 under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment dated 28.07.2017, passed by the learned Islamabad High Court, in Writ Petition No.2604 of 2017. 2. The brief facts necessary for adjudication of the lis at hand are that the Appellant/Petitioner contested the elections for the Provincial Assembly of CA.1083/2017, etc. 3 the Province of the Punjab from PP-4, Rawalpindi-IV, held in May, 2013, and was declared as the Returned Candidate. An application was field by the Respondent [Major (R) Iftikhar Mehmood Kiani] before the Election Commission of Pakistan praying that the Appellant/Petitioner be de-notified as a Member of the Provincial Assembly as he (the present Appellant/Petitioner) had used false testimonials and made a mis-declaration while contesting the elections for the seat of the Provincial Assembly held in 2008. On the basis of the aforesaid application and purportedly in pursuance of an inquiry conducted on the orders of this Court dated 15.06.2010 passed in C.M.A. No.1624 of 2010 in Civil Appeal No.409 of 2010 reported as Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) the ECP concluded that, in fact, the Appellant/Petitioner had contested the elections in the year 2008 by using false testimonials and vide impugned Order dated 20.06.2017, the Notification in favour of the Appellant/Petitioner as a Returned Candidate was withdrawn and follow up actions were directed to be taken. CA.1083/2017, etc. 4 3. The Civil Appeal No.1083 of 2017 has been filed by the Appellant purportedly under Section 103- AA(4) of RoPA against the impugned Order dated 20.06.2017. 4. The said impugned Order dated 20.06.2017 passed by the ECP was also challenged before the learned Islamabad High Court by the Appellant/Petitioner through Writ Petition No.2604 of 2017, which was dismissed vide judgment dated 28.07.2017 and the same has been challenged before this Court through the instant Civil Petition for Leave to Appeal No.3148 of 2017. 5. It is contended by the learned counsel for the Appellant/Petitioner that the impugned Order of the ECP dated 20.06.2017, is wholly without jurisdiction. It is his case that the elections were conducted in May, 2013 wherein the Appellant/Petitioner was declared as a Returned Candidate and a Notification, in this behalf, was issued by the ECP on 22.05.2013. In terms of Section 103-AA sub-section 4 of RoPA, the ECP is conferred with the jurisdiction to declare the elections null and void for the reasons mentioned in the said provisions. However, such powers could only be CA.1083/2017, etc. 5 exercised within 60 days of the issuance of the Notification declaring the result, whereafter, the ECP becomes functus officio. In the instant case, the impugned Order has been passed by the ECP purportedly under Section 103-AA of RoPA more than three years after the issuance of the Notification, declaring the Appellant/Petitioner as a Returned Candidate, hence, is wholly without jurisdiction and non-est in the eye of law. 6. It is further contended that upon the allegations that the Appellant/Petitioner had used false and fake educational testimonials to support his candidature in the elections of 2008, an FIR was registered at the behest of the ECP against the present Appellant/Petitioner and the conclusion drawn by the Investigating Officer was that no crime had been committed and the allegations are false and fictitious. In this backdrop, a report under Section 173 Cr.P.C. was filed before the concerned Magistrate by the police recommending cancellation of the case. The Magistrate concurred with the findings of the police and cancelled the case. The ECP challenged the said Order before the learned Lahore High Court and a Constitution Petition CA.1083/2017, etc. 6 filed, in this behalf, was dismissed. Whereafter, the jurisdiction of this Court was invoked by filing Criminal Petition for Leave to Appeal bearing No.111 of 2013 in which leave was granted vide Order dated 10.07.2013. However, the Criminal Appeal bearing No.152 of 2013 arising therefrom was disposed of as having become infructuous. Contemporaneously, the ECP instituted a criminal complaint against the Appellant/Petitioner on the same allegations. Such criminal complaint was dismissed and the ECP has challenged the said Order before the learned Lahore High Court which matter is pending, however, to-date not even a notice has been issued to the Appellant/Petitioner. In the above circumstances, it is contended by the learned counsel that on the allegations from which the Appellant/Petitioner has been exonerated by the Court of competent jurisdiction through an acquittal and separately by cancellation of the FIR, the ECP could not return a finding to the contrary and de-notify the Appellant/Petitioner by holding that his educational testimonials are fake. In this behalf, it is also urged that the findings recorded in the impugned Order dated 20.06.2017, even otherwise, are not sustainable in law CA.1083/2017, etc. 7 as the original record was not available with the ECP which could form the basis of any such findings. It is added that the impugned Order of the ECP hinges upon an inquiry report of the Additional District and Sessions Judge, Gujar Khan. The said report is available on the file which is in two different formats with two different sets of contents. Thus, the report of the said Additional District and Sessions Judge referred to by the ECP is at least unreliable, if not, forged. 7. It is further contended that even if it is assumed that the proceedings have been initiated on the instructions of this Court contained in the judgment reported as Muhammad Rizwan Gill (supra), a perusal of the above-said judgment would indicate that a de-notification could only follow a guilty verdict in proceedings initiated by the ECP before a Criminal Court in pursuance of the direction of this Court. In the instant case, the Appellant/Petitioner has been acquitted, hence, the question of de-notification did not arise. 8. Without prejudice to above, it was further contended that the ECP by way of the impugned Order CA.1083/2017, etc. 8 dated 20.06.2017 has presumed that in the elections of 2008, the Appellant/Petitioner had claimed his educational qualification to be B.A. In fact, the Appellant/Petitioner never claimed to be a B.A nor submitted a Degree of B.A from any Pakistani University but only claimed to have a qualification equivalent to B.A. Thus, in the circumstances, the question of the Appellant/Petitioner having appended a fake B.A. Degree from the University of the Punjab did not arise, hence, he could not be panelized for such imaginary act especially when the two learned Courts of competent jurisdiction have held to the contrary. It was added that the Appellant/Petitioner in fact had been awarded Diplomas from the Victoria College of Technology and E-Commerce, United Kingdom, which as per his understanding was equivalent to B.A. It is nobody case that such Diplomas were forged or fabricated. Even if it has now been discovered that the said Diplomas are not equivalent to B.A., at best, this fact would impact the elections of 2008, where the minimum educational qualification was prescribed but it would be irrelevant for the elections held in May, 2013 in view of the change in law. In support of his CA.1083/2017, etc. 9 contention, the learned Counsel placed reliance upon the judgments of this Court reported as (1) Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others (PLD 2018 SC 1), (2) Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189), (3) Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265), (4) Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad (PLD 2009 SC 107), (5) Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 SC 730), (6) Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1) and (7) Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684). 9. The learned counsel for the Respondent No.1 controverted the contentions raised on behalf of the learned counsel for the Appellant/Petitioner by contending that this Court in the case of Muhammad Rizwan Gill (supra) had categorically directed the ECP CA.1083/2017, etc. 10 to verify the educational testimonials of all the Parliamentarians. In pursuance of the aforesaid judgment of this Court, the ECP embarked upon an exercise as directed, in this behalf. The educational testimonials submitted by the Appellant/Petitioner with his Nomination Papers while contesting the elections held in the year 2008, were sent by ECP to the HEC for verification, which concluded that the Appellant/Petitioner had claimed himself to be a holder of B.A. Degree and a copy whereof had been appended with his Nomination Papers. On verification from the University concerned, it transpired that the said Degree had been issued in favour of one Shaukat Aziz Sheikh son of Abdul Aziz and obviously such a Degree was not awarded to the said Appellant/Petitioner. Consequently, for contesting the elections of 2008, a Degree awarded to someone else had been used and pressed into service by the present Appellant/Petitioner, who thereby used unfair means to get elected and was, therefore, rightly de-notified by the ECP. 10. It was further contended that the powers exercised by the ECP while passing the impugned CA.1083/2017, etc. 11 Order were in compliance of the judgment of this Court in the case reported as Muhammad Rizwan Gill (supra), hence, the said order cannot be said to be without jurisdiction. Even otherwise, it is contended, that in terms of Article 218 (3) of the Constitution, it is the duty of the ECP to ensure free and fair elections and guard against disqualified persons from trespassing into the Parliament. The provisions of Article 218 (3) of the Constitution cannot be ignored and in fact a more dynamic interpretation needs to be given to it and the other Articles of the Constitution, including Article 225 must be read in harmony therewith. Furthermore, it is contended, the sub- Constitutional provision of RoPA, 1976 cannot control or limit the scope or amplitude of Article 218 (3) of the Constitution. 11. In the alternative, it was contended, that it is now settled law that in case a person suffering from a pre-election disqualification or lack of qualification slips through the net at the time of the scrutiny of the Nomination Papers, and no application having been filed with the ECP immediately after the elections and thereafter, no Election Petition filed after the elections CA.1083/2017, etc. 12 before the learned Election Tribunal, it does not mean that the disqualification has been cured or that the missing qualification has been acquired by the flux of time. It is further contended that for the last more than a half century, this Court has repeatedly held that in such an eventuality the Constitutional jurisdiction of the learned High Court under Article 199 of the Constitution and of this Court under Article 184(3) of the Constitution can always be invoked and exercised to implement the law and determine the lack of qualification or disqualification of a Member of the Parliament. In the instant case, the obvious lack of qualification of the Appellant/Petitioner is self-evident on the record and cannot be ignored by this Court. Furthermore, no technical barrier can be erected to restrain this Court from exercising its jurisdiction, in this behalf. Such jurisdiction has been repeatedly exercised by this Court in a host of different circumstances. Furthermore, it is added that this Court can always exercise one jurisdiction even if another has been invoked by converting the proceedings. CA.1083/2017, etc. 13 12. It was next contended by the learned counsel for the Respondent No.1 that in the Nomination Papers submitted by the Appellant/Petitioner while contesting the elections of 2008, he had shown his educational qualification as B.A. Subsequently, interpolation was made in the Nomination Papers and it was scribed B.A. "ﺮﺑاﺮﺑ ﮯﮐ". The copies of both such documents, one with and the other without the interpolation are available on the file, leaving no manner of doubt that the said Nomination Papers have been tempered with. It is added that the Appellant/Petitioner relied upon the B.A. Degree, which admittedly was found not awarded to him having been earned by one Shaukat Aziz Sheikh. Conveniently the original record has disappeared and the Appellant/Petitioner is trying to take unfair advantage thereof. In the alternative, it is added that the Appellant/Petitioner has now relied upon the Diplomas from the Victoria College of Technology and E-Commerce, United Kingdom. This Court inquired about its equivalence from the Higher Education Commission (HEC) and it has come on record that Victoria College of Technology and E- Commerce has not been accredited nor can award an CA.1083/2017, etc. 14 educational degree equivalent to B.A. recognized by the HEC. In the circumstances, there can be no escape from the fact that the Appellant/Petitioner had made a false declaration in his Nomination Papers in the elections of 2008 by claiming to possess educational qualification of B.A. or B.A. "ﺮﺑاﺮﺑ ﮯﮐ". Thus, in terms of the law as settled by this Court in its various pronouncements, the Appellant/Petitioner having made a false declaration in his Nomination Papers was neither honest nor ameen, and, therefore, not qualified in terms of Article 62(1) of the Constitution. In the circumstances, it is contended, that not to dismiss the Petition and the Appeal would perpetuate an illegality and in fact an un-Constitutional act. In support of his contentions, the learned counsel for Respondent No.1 has relied upon the judgments of this Court reported as (1) Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265), (2) Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), (3) Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and CA.1083/2017, etc. 15 others (PLD 2012 SC 1089), (4) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) and (5) Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98). 13. Heard. Available record perused. 14. The grievance of the Appellant/Petitioner arises out of the Order of the ECP dated 20.06.2017 whereby the Notification in his favour as a Returned Candidate to the Provincial Assembly of the Province of the Punjab was withdrawn. The Appellant/Petitioner has directly challenged the said Order before this Court purportedly under Section 103-AA(4) of RoPA through Civil Appeal bearing No.1083 of 2017. It appears that by way of abundant caution the Appellant/Petitioner also challenged the said Order of the ECP dated 20.06.2017 through a Constitutional Petition i.e. Writ Petition bearing No.2064 of 2017 before the learned Islamabad High Court, which was dismissed vide judgment dated 28.07.2017, and has been challenged before this Court through Civil Petition for Leave to Appeal No.3148 of 2017. 15. At the very outset, the Appellant/Petitioner called into question the jurisdiction of the ECP to pass CA.1083/2017, etc. 16 the impugned Order de-notifying him as a Member of the Provincial Assembly. In pith and substance, it is the case of the Appellant/Petitioner that with regard to an alleged pre-election disqualification or lack of qualification of a candidate or an illegality in the conduct of the elections, the jurisdiction of the ECP to pass orders under Section 103-A of RoPA can only be exercised prior to the expiry of 60 days from the notification of the result of the elections. In the instant case, it is contended, that the impugned Order of the ECP has been passed several years after the original Notification declaring the Appellant/Petitioner as an elected Member of the Provincial Assembly was issued. 16. A perusal of the impugned Order of the ECP dated 20.06.2017 reveals that pursuant to the judgment of this Court reported as Muhammad Rizwan Gill (supra) the ECP and the HEC inquired into the validity and authenticity of the educational qualification of the Members of the Parliament and the Provincial Assemblies. It is in pursuance to the aforesaid directions of this Court that the ECP conducted the requisite inquiries and purportedly passed the impugned Order dated 20.06.2017. The CA.1083/2017, etc. 17 aforesaid is clear and obvious from paragraph 2 of the Order of the ECP dated 20.06.2017. Thus, it appears that the contentions of the learned counsel for the Appellant/Petitioner pertaining to the assumption of jurisdiction of the ECP after the lapse of 60 days may not be strictly applicable as the ECP was purportedly acting in compliance of the directions of this Court. 17. Furthermore, it is the case of the Respondents and as is also evident from the Order of the ECP dated 20.06.2017 that Article 218(3) of the Constitution must necessarily be read and interpreted in its broadest amplitude thereby conferring jurisdiction on the ECP to pass appropriate orders at any stage unfettered by technical restrictions imposed by any sub-Constitutional legislation pertaining to the conduct of elections including RoPA. In this behalf, Article 225 of the Constitution must also be read in harmony with Article 218(3) of the Constitution. The ECP, in this behalf, also referred to the judgments of this Court including the judgment reported as (1) Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), (2) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) and (3) Syeda CA.1083/2017, etc. 18 Waheeda Shah v. Election Commission of Pakistan through Chief Election Commissioner and 4 others (PLD 2013 Sindh 117). However, the question of jurisdiction of the ECP to pass such order de-notifying the Member of the Parliament or the Provincial Assembly on account of a pre-election disqualification or lack of qualification after a lapse of 60 days from the original Notification is not free from difficulty. 18. Be that as it may, this Court when confronted with the issue of jurisdiction, the ECP with regard to pre- election disqualification or lack of qualification in its judgment dated 23.02.2018 passed in Civil Petition No.3131 of 2017, after examining various judgments of this Court, including the judgments reported as (1) Muhammad Jibran Nasir and others Vs. The State and others (PLD 2018 SC 351), (2) Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114), (3) Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189), (4) Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265), (5) Khawaja Muhammad Asif v. Federation of Pakistan and CA.1083/2017, etc. 19 others (PLD 2014 SC 206), (6) Mian Najeeb-ud-Din Owaisi and another v. Amir Yar Waran and others (PLD 2013 SC 482), (7) Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), (8) Air Marshal (Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), (9) Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), (10) Muhammad Azhar Siddiqui v. Federation of Pakistan and others (PLD 2012 SC 774), (11) Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), (12) Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), (13) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (14) Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), (15) Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 SC 730), (16) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), (17) Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), CA.1083/2017, etc. 20 (18) Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), (19) Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56), (20) Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), (21) Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858), (22) Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), (23) Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/o Law Justice and Parliamentary Affairs and others (2013 SCMR 1328), (24) Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others (2013 SCMR 1271), (25) Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80), (26) Suo Motu Case No. 10 of 2009 (Complaint regarding establishment of Makro-Habib Store on playground) (2010 SCMR 885), and (27) Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684), concluded as follows: “27. An overview of the afore-quoted provisions of the Constitution, as interpreted by this Court through its various juridical pronouncements referred to and reproduced herein above leads to an irresistible and irrefutable conclusion that our Constitutional dispensation is erected upon the democratic principle that the authority vest with the people of Pakistan can only be CA.1083/2017, etc. 21 exercised through their chosen representatives. Such authority, including the power of law making and control over the public exchequer is to be conferred upon the chosen representatives by way of trust and the trust can only be reposed upon those who are worthy thereof. 28. In the above context, the qualification and disqualification of persons, entitled to act as the chosen representatives of the people and to act on their behalf as Members of the Majlis-e-Shoora and the Provincial Assemblies are set forth in the Constitution itself, more particularly, in Articles 62 and 63 thereof as well as other sub- Constitutional legislation. An elaborate process and procedure has been prescribed by law to filter out those who are disqualified or not qualified to contest the elections to the Majlis-e-Shoora and the Provincial Assemblies as is apparent primarily from the provisions of ROPA of 1976. With regard to pre-election disqualification, such process includes objections before the Returning Officer at the time of filing of the Nomination Papers, an application to the ECP under Section 103-A of ROPA of 1976. And subsequently, an Election Petition before the Election Tribunal established under Article 225 of the Constitution. If no objection is raised or challenge thrown or relevant proceedings initiated before the appropriate forum at the appropriate time, the disqualification of a candidate is not cured nor an abscent qualification acquired. 29. Consequently, where a disqualified or unqualified person slips through the cracks sneaks into the Majlis-e-Shoora or the Provincial Assemblies, his presence in the said House can always be challenged through exercise of the Constitutional jurisdiction of this Court under Article 184(3) of the Constitution and before the learned High Court under Article 199 of the Constitution by way of a Writ in the nature of quo warranto. Even where a matter comes before this Court regarding the qualification or disqualification of a Member of the Majlis- e-Shoora or the Provincial Assemblies otherwise by way of proceedings other than under Article 184(3) of the Constitution, this Court not only has the jurisdiction to convert CA.1083/2017, etc. 22 such proceedings to proceedings under Article 184(3) of the Constitution but is bound to do so, as to permit an unqualified or disqualified person to continue to defile and desecrate the Majlis-e-Shoora or the Provincial Assemblies and masqulate as a chosen representative of the people would amount to frustrating the Constitutional provisions. In such an eventuality, if this Court looks other way, it would perhaps constitute a failure to protect and preserve the Constitution. Thus, we find ourselves unable to decline the prayer of the Petitioner to examine the merits of the case so as to determine on the basis of the material available on record whether Respondent No.1 was qualified or disqualified from being a Member of the Provincial Assembly, KPK. Any refusal on our part to avoid or evade such an exercise would constitutes a departure from the law as laid down by this Court and perhaps would even amount to a betrayal of the Constitution. Hence, we convert these proceedings into Suo Motu proceedings under Article 184(3) of the Constitution.” 19. In view of facts and circumstances narrated above and as the settled law referred to above we cannot abdicate our responsibility by brushing the issues floating on the surface under the carpet. Hence, we have no other option but to convert the instant proceedings into suo moto proceedings under Article 184(3) of the Constitution so as to examine the cases of the parties on the basis of the material available on record so as to examine the Order of the ECP dated 20.06.2017 by determining as to whether the Appellant/Petitioner was CA.1083/2017, etc. 23 disqualified or not qualified for being a Member of the Provincial Assembly under the Constitution. 20. It was perhaps being aware of its own original Constitutional jurisdiction under Article 184(3) of the Constitution, this Court during the course of hearing of the instant cases vide its Order dated 17.08.2017 issue the following directions to the HEC: “3. Appellant is directed to provide to HEC all the original of testimonials, degree etc. including Diploma in Business Administration from “Victoria College of Technology and E-Commerce”, UK dated 30.05.2007, statedly annexed with his nomination papers, within seven days from today. HEC in turn shall examine the authenticity and obtain verification of the above noted testimonials, degree and Diploma from the respective institutions and noted college. Once the authenticity and verification is made, HEC shall also provide equivalence certificate/qualification status, before next date. 4. Let HEC produce the original letter, which is allegedly issued by the appellant, as reproduced in the order of this Court dated 10.07.2013. HEC shall also produce all the documents in connection with any inquiry conducted by it in relation to verification of the testimonials/degrees/diplomas of the appellant. The entire record of ECP pertaining to the inquiry, etc., of the appellant’s testimonials/degrees/diplomas should also be requisitioned. The appellant is also required to produce his original testimonials/degrees/diplomas, which he admittedly claims to be in his possession.” 21. The Appellant/Petitioner contested the General Elections held in 2008 for a seat of the Provincial Assembly of the Province of the Punjab. At that point of CA.1083/2017, etc. 24 time, it was the requirement of the law that a candidate must be a graduate to be eligible to contest the elections. The Appellant/Petitioner submitted his Nomination Papers. Though, it is the case of the private Respondent and the ECP that the Appellant/Petitioner claimed to possess the requisite educational qualification on the basis of a B.A. Degree issued by the University of the Punjab and it was such Degree which was appended with the Nomination Papers and pursuant to the orders of this Court in the case reported as Muhammad Rizwan Gill (supra) the copies of the said B.A. Degree allegedly appended with the Nomination Papers were sent by the ECP to the HEC for verification. It is common ground between the parties that the said Degree sent to the HEC in fact had been earned by and awarded to one Shaukat Aziz Sheikh and not to the present Appellant/Petitioner. Conveniently for the Appellant/Petitioner the original record pertaining to his Nomination Papers of 2008 has gone missing. The Officers of the ECP summoned at the behest of the Appellant/Petitioner confirmed that the said record has been lost and the proceedings initiated against some employees of the ECP, in this behalf. The aforesaid statement on behalf of the ECP stands reflected CA.1083/2017, etc. 25 in the Order of the Court dated 13.03.2018. The claim of the Appellant/Petitioner that the Nomination Papers of the elections 2008, he had not relied on the B.A. Degree issued by the University of the Punjab but Diploma issued by the Victoria College of Technology and E- Commerce, UK is not confidence inspiring. 22. However, we cannot loose sight of the fact that the criminal proceedings on the same allegations were initiated against the present Appellant/Petitioner in which he has been acquitted. The Orders of such acquittal today’s holds the field. Thus, perhaps, it would be unsafe to hold that the Appellant/Petitioner claimed his educational qualification was B.A. while contesting the elections of 2008 and in support of his contentions he submitted a B.A. Degree from the University of the Punjab, which was found to be earned by one Shaukat Aziz Sheikh and not the Appellant/Petitioner. 23. The Appellant/Petitioner vehemently has taken up a plea before us that in the Nomination Papers submitted for the elections in 2008 he held specifically stated that his educational qualification was B.A. ﺮﺑاﺮﺑ ﮯﮐ and he had made available copies of the Diplomas issued by the Victoria College of Technology CA.1083/2017, etc. 26 and E-Commerce, UK. As note above, the original record of the Nomination Papers as submitted by the Appellant/Petitioner in the election of 2008 have conveniently been lost. 24. This Court has passed an Order dated 17.08.2017 and the relevant portion has been reproduced herein above seeking a Report from the HEC, in this behalf. Such report has been received and filed before this Court through Civil Misc. Application bearing No.6369 of 2017. The said Report makes interesting reading and is reproduced herein below in its entirety: “Raja Shaukat Aziz wrote a letter to Mr. Rashid Muhammad, Section Officer (Confd). Election Commission of Pakistan (ECP) which was reproduced in the Honorable Supreme Court of Pakistan order dated July 10, 2013 passed in criminal petition number 111 of 2013. HEC did not possess the original letter as it was addressed to the Election Commission of Pakistan (ECP) by the Appellant. However, photo copy of the same letter is attached (Annex-I). 2. The BA degree held by Raja Shoukat Aziz Bhatti from Punjab University, Lahore in 1992 under Registration No.89-RP-162 was forwarded by the ECP to HEC for its verification from Punjab University (Annex- II) the Punjab University verified vide letter number 4111-CA dated August 27, 2010 that “Copy of degree provided by HEC was verified for Shaukat Aziz s/o Abdul Aziz caste Sheikh by the University of the Punjab. The supporting documents/evidence for the purpose (Admission Form) is attached please” (Annex-III). This was conveyed by HEC vide its letter No.Ref.5- 3/HEC/A&A/2010/680 dated September 2, CA.1083/2017, etc. 27 2010 (Annex-IV) to Mr. M. Rashid Bhatti, Section Officer, Election Commission of Pakistan. 3. Raja Shoukat Aziz through his representative Mr. Tauseef Mubarik submitted photocopies of following documents for equivalence of foreign diplomas obtained from Victoria College of Technology and E-Commerce, U.K. along with the following documents: (Annex-IV A) Qualification Year Institution Original Documents Matric 1982 BISE, Rawalpindi Not submitted 1-year Diploma in Commerce 1996 Sindh Board of Technical Education, Karachi Not submitted BBA 2000 Al-Khair University (AJK) Not submitted Diploma in Business Administration 2005 Victoria College of Technology and E- Commerce, UK Submitted Advanced Diploma in Business Administration 2006 Victoria College of Technology and E- Commerce, UK Submitted PGD in Business Administration 2007 Victoria College of Technology and E- Commerce, UK Submitted The original Degree of BA obtained from The University of the Punjab which was sent by Election Commission of Pakistan to HEC for verification was not produced before this Commission on August 24, 2017, while submitting aforementioned documents for equivalence. 4. The ‘Victoria College of Technology and E-Commerce’ is not accredited degree awarding Institution of U.K. Therefore, Diploma, Advanced Diploma and PGD held by the appellant obtained from this non- accredited institution are Not recognized by HEC. The HEC has also informed the same to appellant vide letter No.8 (50)HEC/A&A/2017 dated September, 15, 2017, copy attached (Annex-V) 5. As regard photocopy of BBA degree obtained by the appellant from Al-Khair University in the session 1998-2000, submitted along with above documents was attested by HEC on 7th October, 2015 as the credentials reflected place of study as “Bhimber: AJ&K, on the BBA degree along CA.1083/2017, etc. 28 with signatures of Controller of Examination and Chancellor of the University. 6. Due to the grave irregularities found in the academic operations of Al-Khair University, the admissions at all levels have been stopped w.e.f Fall 2016 and the verification of the degrees has also been suspended. University was also asked to provide the lists of all its graduates from the date of inception. It was revealed during the scrutiny of the lists of graduates provided by the Al-Khair University that the appellant has not obtained BBA degree through its authorized main Campus i.e. from Bhimber (AJK) as reflected on the Degree. The degree was actually obtained through College of Global Technologies, Rawalpindi as confirmed from the list provided by the University of HEC (Annex-VI). As such this college is not recognized by HEC. The matter relating to the attestation of degrees obtained though unrecognized colleges of Al- Khair University is under consideration of the Commission for an appropriate decision.” The above leaves no manner of doubt that the Diplomas from the Victoria College of Technology and E-Commerce, UK are not equivalent to B.A. Degree issued by any University in Pakistan. In this view of the matter, even if, the contentions raised on behalf of the Appellant/Petitioner, in this behalf, are accepted as the gospel truth, the Appellant/Petitioner did not possess the requisite educational qualification of being graduate or equivalent thereof to be elected as a Member of the Provincial Assembly in accordance with the law as was applicable at the time when he filed his Nomination Papers for the elections held in 2008. The said CA.1083/2017, etc. 29 Nomination Papers included his affidavit, as required by law, that the Appellant/Petitioner was qualified to contest the elections. In the absence of the requisite educational qualification required at that point of time, the affidavit of the Appellant/Petitioner with his Nomination Papers submitted that he was qualified and did suffer from any disqualification under the law was false. 25. A similar matter came up before this Court where a candidate for the General Elections of 2008 filed his Nomination Papers supported by an affidavit that he possessed the requisite qualification and did not suffer the disqualification as set forth in the Constitution and the law and it was subsequently discovered that he did not have the requisite educational qualification. In the said case reported as Abdul Ghafoor Lehri (supra) this Court held as follows: “12. Since the Sanad produced by the appellant while contesting election, 2002 has been declared not equivalent to B.A. degree for the reasons mentioned in the preceding paragraphs, therefore, appellant was not at all qualified to contest election. Now the question arises as to whether the appellant is disqualified to contest election, 2013 or not. In this regard it is noticed that while producing aforesaid Sanad, the appellant sworn an affidavit to the effect that the Sanad produced by him was issued to him by a recognized institution and equivalent to CA.1083/2017, etc. 30 a bachelor degree made false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not righteous, sagacious, non- profligate, honest and Ameen within the meaning of Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, as such, was not qualified to be elected or chosen as a member of Majlis-e-Shoora.” In view of the law laid down and reproduced herein above which has been reiterated repeatedly by this Court it is clear and obvious that the Appellant/Petitioner having filed a false affidavit with his Nomination Papers for the elections held in 2008 could not be deemed to be honest and ameen, hence, was not qualified in terms of Article 62(1)(f) of the Constitution. 26. Adverting now to the argument of the learned counsel for the Appellant/Petitioner that lack of educational qualification, if any, would be relevant only for the General Elections 2008 and not to subsequent elections including the elections held in May, 2013. Such contention cannot be accepted as has been held by this Court in the judgment reported as Malik Iqbal Ahmad Langrial (supra) that as a consequence of the false affidavit having been filed by a candidate with his Nomination Papers in the elections of 2008 such person would loose the qualification of being honest also for the subsequent elections and would not be entitled to CA.1083/2017, etc. 31 contest such elections or be a Member of the Parliament or the Provincial Assembly. A similar view was also taken by this Court in the case reported as Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45). 27. The upshot of the above discussion is that the Appellant/Petitioner had given a false affidavit with his Nomination Papers while contesting the elections held in 2008. Filing of an affidavit with the Nomination Papers was the requirement of the law (RoPA) and the motive for filing of false affidavit was to enter the Provincial Assembly by unfair means by making false representation regarding the required educational qualification. Thus, the Appellant/Petitioner was not honest and ameen in terms of Article 62(1)(f) of the Constitution and such lack of qualification continuous, so as to disentitle the Appellant/Petitioner from being a candidate for or being a Member of the Parliament or the Provincial Assembly. 28. In this view of the matter, no exception can be taken to the Order dated 20.06.2017 of the ECP de- notifying the Appellant/Petitioner as a Member of the Provincial Assembly and there is no occasion for interference therewith. CA.1083/2017, etc. 32 29. Consequently, the titled Civil Appeal is dismissed as well as the Civil Petition for Leave to Appeal is also dismissed and leave declined. Judge Judge ‘APPROVED FOR REPORTING’ Mahtab H. Sheikh Judge Announced on 22nd May 2018 at Islamabad. Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE TARIQ PARVEZ CIVIL APPEALS NO.1084 TO 1098/2008, 1481 TO 1529/2009, 254 AND 255/2011, 310/2012, 1235 TO 1270/2015 AND CIVIL PETITIONS NO. 2595 AND 2596/2009 (Against the judgments dated 10.4.2008, 27.5.2009, 17.2.2009, 31.3.2010, 24.12.2014, 19.11.2014, 27.5.2009 of the Lahore High Court, Lahore passed in PTR Nos.12, 13, 14, 15 & 16/2004, ITA Nos. 242, 246 & 601/1999, 268 & 806/2000, 294, 295 & 296/1999, 49/2000, 82/2002, PTR Nos.402/2003, 117/2000, 403 & 404/2003, 216 & 217/2005, 59, 60, 153, 154, 155, 156, 187, 188, 246 & 588/2006, 589, 19, 20, 67, 86, 88, 87, 89, 90, 234, 277, 278, 295, 401, 515, 516 & 621/2007, W.P.No.1654/2009, PTR No.7991/2002, W.P.Nos.8317, 10124 & 10125/2002, PTR Nos.91/2007, 103/2005, 194, 195, 236 & 247/2006, 373, 417, 319, 400, 326 & 327/2007, ITA No.357/1998, PTR Nos.303/2014, 1947, 467, 468, 469, 470, 471, 152, 557, 558, 559, 560, 561, 372, 242, 448, 446, 447, 376, 377, 378, 379 & 380/2012, 202, 324 & 203/2013, 381, 382, 383, 384, 205, 213, 363, 364, 393 & 159/2012 and W.P.Nos.17139 & 17659/2008) C.A.1084/2008: Commissioner of Income Tax Legal Division Lahore Vs. Khurshid Ahmad C.A.1085/2008: Commissioner of Income Tax Legal Division Lahore Vs. Khurshid Ahmad C.A.1086/2008: Commissioner of Income Tax Legal Division Lahore Vs. Khurshid Ahmad C.A.1087/2008: Commissioner of Income Tax Legal Division Lahore Vs. Khurshid Ahmad C.A.1088/2008: Commissioner of Income Tax Legal Division Lahore Vs. Khurshid Ahmad C.A.1089/2008: Commissioner of Income Tax Legal Division Tax Office Lahore Vs. M/s Punjab Oil Products (Pvt.) Ltd. Faisalabad C.A.1090/2008: Commissioner of Income Tax Legal Division Lahore Vs. M/s Madni Ghee Mills (Pvt.) Ltd. C.A.1091/2008: Commissioner of Income Tax Legal Division Lahore Vs. M/s Tuff Tiles (Pvt.) Ltd. C.A.1092/2008: Commissioner of Income Tax Legal Division Lahore Vs. M/s S. K. Spinning Mills (Pvt.) Ltd. C.A.1093/2008: Commissioner of Income Tax Lahore Vs. M/s Ravi Plastic Industry (Pvt.) Ltd. C.A.1094/2008: Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s Dawn Sports (Pvt.) Ltd. C.A.1095/2008: Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s Anwar Khawaja Industries (Pvt.) Ltd. C.A.1096/2008: Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s Grays of Cambridge (Pvt.) Ltd. Civil Appeals No.1084 to 1098/2008 etc. -: 2 :- C.A.1097/2008: Commissioner of Income Tax (Legal Division) Lahore Vs. M/s Star Mughal Industries (Pvt.) Ltd. C.A.1098/2008: Commissioner of Income Tax (Legal Division) Lahore Vs. M/s Continental Banking Industries (Pvt.) Ltd. C.A.1481/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar Mills & Distillery Ltd. Lahore C.A.1482/2009: Commissioner of Income Tax/Wealth Tax, Lahore Vs. M/s Transtel International (Pvt.) Ltd. C.A.1483/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar Mills Ltd. C.A.1484/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar Mills Ltd. C.A.1485/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Shazor Feed (Pvt.) Ltd. C.A.1486/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Shazor Feed (Pvt.) Ltd. C.A.1487/2009: Commissioner of Income Tax Lahore Vs. M/s Sutlaj Security Services (Pvt.) Ltd. C.A.1488/2009: Commissioner of Income Tax Lahore Vs. M/s Sutlaj Security Services (Pvt.) Ltd. C.A.1489/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Jute Products (Pvt.) Ltd. C.A.1490/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Jute Products (Pvt.) Ltd. C.A.1491/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Jute Products (Pvt.) Ltd. C.A.1492/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Crescent Jute Products (Pvt.) Ltd. C.A.1493/2009: Commissioner of Income Tax Lahore Vs. M/s Olympia Textile Mills Ltd. C.A.1494/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Olympia Textile Mills Ltd. C.A.1495/2009: Commissioner of Income Tax Lahore Vs. M/s Imran Spinning Mills Ltd. C.A.1496/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Hira Textile Mills Ltd. C.A.1497/2009: Commissioner of Income Tax Lahore Vs. M/s Hira Textile Mills Ltd. C.A.1498/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Suleman Spinning Mills Ltd. C.A.1499/2009: Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s Civil Appeals No.1084 to 1098/2008 etc. -: 3 :- Suleman Spinning Mills Ltd. C.A.1500/2009: Commissioner of Income Tax Lahore Vs. Pak Kuwait Textile Mills Ltd. C.A.1501/2009: Commissioner of Income Tax Lahore Vs. Ramzan Buksh Textile Mills Ltd. C.A.1502/2009: Commissioner of Income Tax Lahore Vs. Ramzan Buksh Textile Mills Ltd. C.A.1503/2009: Commissioner of Income Tax Lahore Vs. Ramzan Buksh Textile Mills Ltd. C.A.1504/2009: Commissioner of Income Tax Lahore Vs. Aruj Textile Mills Ltd. C.A.1505/2009: Commissioner of Income Tax Lahore Vs. Aruj Textile Mills Ltd. C.A.1506/2009: Commissioner of Income Tax Lahore Vs. Aruj Textile Mills Ltd. C.A.1507/2009: Commissioner of Income Tax Lahore Vs. M/s Darson Securities (Pvt.) Ltd. C.A.1508/2009: Commissioner of Income Tax Lahore Vs. Ali Akbar Spinning Mills Ltd. etc. C.A.1509/2009: Commissioner of Income Tax Lahore Vs. Ali Akbar Spinning Mills Ltd. C.A.1510/2009: Commissioner of Income Tax Lahore Vs. M/s Sargodha Mills Ltd. C.A.1511/2009: Commissioner of Income Tax Lahore Vs. Haseeb Waqas Sugar Mills Ltd. C.A.1512/2009: Commissioner of Income Tax Lahore Vs. M/s Arain Textile Mills Ltd. C.A.1513/2009: Commissioner of Income Tax Lahore Vs. M/s Arain Textile Mills Ltd. C.A.1514/2009: Commissioner of Income Tax Lahore Vs. M/s Crescent Ujala Ltd. C.A.1515/2009: Commissioner of Income Tax Lahore Vs. M/s Yahya Textile Mills Ltd. C.A.1516/2009: Commissioner of Income Tax Lahore Vs. M/s Azam Textile Mills Ltd. C.A.1517/2009: Commissioner of Income Tax Lahore Vs. M/s Taj Textile Mills Ltd. C.A.1518/2009: Commissioner of Income Tax Lahore Vs. M/s Fawad Textile Mills Ltd. C.A.1519/2009: Commissioner of Income Tax Lahore Vs. M/s Fawad Textile Mills Ltd. Civil Appeals No.1084 to 1098/2008 etc. -: 4 :- C.A.1520/2009: Commissioner of Income Tax Lahore Vs. M/s Kashmir Edible Oils Ltd. C.A.1521/2009: Commissioner of Income Tax Lahore Vs. M/s Himont Pharmaceutical (Pvt.) Ltd. C.A.1522/2009: Commissioner of Income Tax Lahore Vs. M/s Hilal Dyes (Pvt.) Ltd. C.A.1523/2009: Commissioner of Income Tax Lahore Vs. M/s Hilal Dyes (Pvt.) Ltd. C.A.1524/2009: Commissioner of Income Tax Lahore Vs. M/s Hira Textile Mills Ltd. C.A.1525/2009: Commissioner of Income Tax Lahore Vs. M/s Imran Spinning Mills Ltd. C.A.1526/2009: Commissioner of Income Tax Lahore Vs. M/s Arain Textile Mills Ltd. C.A.1527/2009: Commissioner of Income Tax Lahore Vs. M/s Margalla Textile Mills Ltd. C.A.1528/2009: Commissioner of Income Tax Lahore Vs. Haseeb Waqas Sugar Mills Ltd. C.A.1529/2009: Commissioner of Income Tax Lahore Vs. Haseeb Waqas Sugar Mills Ltd. C.A.254/2011: Commissioner of Income Tax Vs. M/s Crescent Sugar Mills C.A.255/2011: Commissioner of Income Tax Legal Taxpayer Unit Lahore Vs. M/s Crescent Sugar Mills, Lahore C.A.310/2012: Commissioner of Income Tax Vs. M/s Babar Flour Mills C.A.1235/2015: Commissioner Inland Revenue, Zone, Lahore Vs. Resham Textile Industries Limited, Lahore C.A.1236/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Imperial Electric Company (Pvt.) Ltd, National Tolwer, Egerton Road, Lahore C.A.1237/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Total Parco Pakistan Limited C.A.1238/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Total Parco Pakistan Limited C.A.1239/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Total Parco Pakistan Limited C.A.1240/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Total Parco Pakistan Limited C.A.1241/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Total Parco Pakistan Limited C.A.1242/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Taj Textile Mills Limited, Lahore Civil Appeals No.1084 to 1098/2008 etc. -: 5 :- C.A.1243/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd, Monno House, 3-Montgomery Road, Lahore C.A.1244/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd. C.A.1245/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd. C.A.1246/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd, Monno House, 3-Montgomery Road, Lahore C.A.1247/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd., Lahore C.A.1248/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Crescent Sugar Mills Ltd., New Lahore Road, Nishatabad, Faisalabad C.A.1249/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. Lahore Textile & General Mills Ltd., Lahore C.A.1250/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race View, Jail Road, Lahore NTN.1158022-4 C.A.1251/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race View, Jail Road, Lahore NTN.1158022-4 C.A.1252/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race View, Jail Road, Lahore NTN.1158022-4 C.A.1253/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A, Anand Road, Upper Mall, Lahore NTN.0658194 C.A.1254/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A, Anand Road, Upper Mall, Lahore NTN.0658194 C.A.1255/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A, Anand Road, Upper Mall, Lahore NTN.0658194 C.A.1256/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A, Anand Road, Upper Mall, Lahore NTN.0658194 C.A.1257/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A, Anand Road, Upper Mall, Lahore NTN.0658194 C.A.1258/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Pak Electron Limited, 17-Aziz Avenue, Canal Bank, Gulberg-V, Lahore C.A.1259/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Hashir Textile Mills Limited, Main Market, Civil Appeals No.1084 to 1098/2008 etc. -: 6 :- Gulberg, Lahore C.A.1260/2015: Commissioner Inland Revenue, Zone-1, Regional Tax Office, Lahore Vs. M/s Pak Electron Limited, 17-Aziz Avenue, Canal Bank, Gulberg-V, Lahore C.A.1261/2015: Commissioner Inland Revenue, Zone-II, Large Taxpayers Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore C.A.1262/2015: Commissioner Inland Revenue, Zone-II, Large Taxpayers Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore C.A.1263/2015: Commissioner Inland Revenue, Zone-II, Large Taxpayers Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore C.A.1264/2015: Commissioner Inland Revenue, Zone-II, Large Taxpayers Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore C.A.1265/2015: Commissioner Inland Revenue Zone-I, Regional Tax Office, Faisalabad Vs. M/s Chen One Stores Limited c/o Chenab Ltd. Nishatabad Faisalabad C.A.1266/2015: Commissioner Inland Revenue Zone-I, Regional Tax Office, Faisalabad Vs. M/s Aizad Corporation (Pvt.) Ltd. Universal House, West Canal Road Farooqabad, Faisalabad C.A.1267/2015: Commissioner Inland Revenue Zone-I, Regional Tax Office, Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model Town, Lahore C.A.1268/2015: Commissioner Inland Revenue Zone-I, Regional Tax Office, Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model Town, Lahore C.A.1269/2015: Commissioner Inland Revenue Zone-I, Regional Tax Office, Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model Town, Lahore C.A.1270/2015: Commissioner Inland Revenue, Zone-3, LTU, Tax House, Lahore Vs. M/s Total Parco Pakistan Limited, Lahore etc. C.P.2595/2009: Commissioner of Income Tax (Audit Division) RTO Faisalabad Vs. M/s Chen One Stores (Pvt.) Faisalabad & another C.P.2596/2009: Commissioner of Income Tax (Audit Division) RTO Faisalabad Vs. M/s Best Exports (Pvt.) Ltd. & another For the Appellant(s): Mr. Sarfraz Ahmed Cheema, ASC (in C.As.1485, 1486, 1489 to 1492, 1495, 1503, 1515 & 1525/2009) Mr. Ibrar Ahmed, ASC (in C.As.1235 to 1249, 1258, 1259 & 1270/15, 1488, 1507 & 1520/09) Mr. Muhammad Nawaz Waseer, ASC (in C.As.1250 to 1257/2015 & 1496 to 1499/2009) Mr. Muhammad Aamir Malik, ASC (in C.As.1501, 1502, 1493 to 1495 & 1527/2009 & 1084 & 1089/08) Civil Appeals No.1084 to 1098/2008 etc. -: 7 :- Dr. Ishtiaq Ahmed, Commissioner Inland Revenue Mr. Muhammad Iqbal Bhawana, Chief Legal, FBR Mr. Habib Qureshi, ASC For the Respondent(s): Mr. Salman Akram Raja, ASC (in C.A.1089/2008) Mr. M. Iqbal Hashmi, ASC (in C.As.1493, 1494/2009 & 1235/2015) Mr. M. Ajmal Khan, ASC (in C.As.1507, 1521 & 1527/2009) On Court’s call: Dr. Ikramul Haq, ASC Date of hearing: 26.01.2016 & 27.01.2016 * * * * * * * * * * JUDGMENT MIAN SAQIB NISAR, J:- These appeals, by leave of the Court, and petitions involve similar question(s) of law, hence are being disposed of together. The key questions involved herein are:- (i) whether the minimum tax payable under Section 80D of the Income Tax Ordinance, 1979 (Ordinance of 1979) is leviable on the aggregate of declared turnover from all sources including receipts covered by Sections 80C and 80CC of the Ordinance of 1979; (ii) whether the minimum tax payable under Section 113 of the Income Tax Ordinance, 2001 (Ordinance of 2001), as it existed prior to its omission by the Finance Act, 2008, is leviable on the aggregate turnover from all sources including receipts covered by the Presumptive Tax Regime or upon which the tax payable/paid is a final discharge of tax liability (note:- the subsequent Section 113 re- inserted vide Finance Act, 2009 has no bearing on the present matters as no tax year after re-insertion of the said section is involved thus all references to the ‘Ordinance of 2001’ are to as it existed prior to the amendments brought by the Finance Act, 2008, unless stated otherwise); Civil Appeals No.1084 to 1098/2008 etc. -: 8 :- (iii) whether ‘services rendered’ pursuant to execution of a contract would fall within the Presumptive Tax Regime by virtue of Section 80C(2)(a)(i) of the Ordinance of 1979, whereas Section 50(4)(a) deals with ‘services rendered’ and ‘execution of contracts’ as separate categories alongwith ‘supply of goods’; and (iv) whether cash purchase and/or purchase of raw material falls within the purview of ‘supply of goods’ as envisaged by Section 50(4)(a) of the Ordinance of 1979? Out of the total of 105 cases (103 civil appeals and 2 civil petitions), 53 cases (Civil Appeals No.1481 to 1529/2009, 254 and 255/2011 and Civil Petitions No.2595 and 2596/2009) pertain to question No.(i); 36 cases (Civil Appeals No.1235 to 1270/2015) relate to question No.(ii); 5 cases (Civil Appeals No.1084/L to 1088/L/2008) pertain to question No.(iii); and 10 cases (Civil Appeals No.1089 to 1098/2008) pertain to question No.(iv). During the analysis portion of this opinion, questions No.(i) and (ii) shall be dealt with together as they are interlinked. 2. For the sake of convenience and brevity, one case for each of the categories shall be taken to be the lead case for the purposes of explaining the factual background. With respect to question No.(i), the brief facts of Civil Appeal No.1482/2009 are that the Deputy Commissioner of Income Tax assessed the total income and determined the tax payable by the respondent-company under Section 80D without taking into consideration Section 80C. The assessment order was challenged by the respondent which (appeal) was accepted by the Commissioner of Income/Wealth Tax (Appeal) holding that income even though liable to tax under Section 80C should be taken into consideration by the Income Tax Officer while calculating the turnover for the purposes of Section 80D. Aggrieved, the appellants approached the Income Tax Appellate Tribunal which vide order dated 18.11.1999 Civil Appeals No.1084 to 1098/2008 etc. -: 9 :- dismissed the appeal. Thereafter the appellants challenged such order before the learned High Court in an Income Tax Appeal which was dismissed vide order dated 27.5.2009 for the same reasons as enunciated in the judgment reported as Commissioner of Income Tax/Wealth Tax Companies Zone, Faisalabad Vs. Messrs Masood Textile Mills Ltd., Faisalabad (2009 PTD 1707) after which they approached this Court. For the purposes of question No.(ii) the facts of Civil Appeal No.1235/2015, are that the respondent-company filed its Income Tax Return for the Tax Year 2006 which was treated to be an assessment in terms of Section 120 of the Ordinance of 2001. The amended assessment order passed under Section 122 of the said Ordinance and the subsequent order dated 23.10.2012 passed by the Commissioner of Inland Revenue, Appeals were successfully challenged by the respondent before the Appellate Tribunal Inland Revenue which vide order dated 15.9.2014 held that the minimum tax under Section 113 of the Ordinance of 2001 was to be calculated and charged on the basis of the aggregate turnover from all sources, including export receipts. Aggrieved, the appellants filed a reference petition under Section 133 of the said Ordinance before the Lahore High Court which upheld the decision of the Appellate Tribunal Inland Revenue vide order dated 24.12.2014 and decided it in the same terms as the judgment reported as Commissioner Inland Revenue Vs. Imperial Electric Company (Pvt.) Ltd. (2015 PTD 884). The order dated 24.12.2014 has been impugned before this Court. In respect of question No.(iii), the concise facts of Civil Appeal No.1084/L/2008 are that the respondent was a sanitation contractor of the Capital Development Authority, Islamabad (CDA) who filed a return under Section 55 of the Ordinance of 1979 which though initially assessed under Section 59A, was subsequently revised and an order was Civil Appeals No.1084 to 1098/2008 etc. -: 10 :- passed by the Additional Commissioner under Section 66A to the effect that the payments received by the respondent from CDA were to be governed by the Presumptive Tax Regime of Section 80C which would be full and final discharge of tax liability. The order was successfully challenged by the respondent before the Income Tax Appellate Tribunal, subsequently the appellant filed applications under Section 136(1) of the said Ordinance before the Income Tax Appellate Tribunal which (applications) were dismissed. Thereafter, the appellant’s tax reference before the learned High Court was also dismissed while holding, inter alia, that income derived from ‘services rendered’ was not subject to the Presumptive Tax Regime of Section 80C which stands specifically excluded from such section, hence the instant appeal. Finally with regard to question No.(iv), the facts of Civil Appeal No.1089/2008 are that the respondent was deriving income from the manufacturing and sale of vegetable oil and ghee items. The Assessing Officer found the respondent to be in default under Section 52 of the Ordinance of 1979 on the basis that the respondent failed to deduct tax under Section 50(4) on account of certain purchases. The respondent’s appeal before the Commissioner Income Tax (Appeals) was accepted after which the appellant’s appeal before the Income Tax Appellate Tribunal and their reference before the learned High Court were both dismissed primarily on the ground that on-the-spot cash purchases did not fall within the term ‘supply of goods’ as used in Section 50(4)(a) of the said Ordinance, thus the respondent was not in default in terms of Section 52, thus the appellants approached this Court. 3. Dr. Ishtiaq Ahmed, Commissioner Inland Revenue, appearing on behalf of the appellants/petitioners argued against the impugned judgments. With respect to questions No.(i) and (ii), he submitted that the phrases ‘turnover from all sources’ and ‘aggregate of Civil Appeals No.1084 to 1098/2008 etc. -: 11 :- declared turnover’ provided in Section 80D encompass income from all sources. He bifurcated the tax law regimes into the Presumptive Tax Regime and the Normal Tax Regime. The crux of his argument was that tax under the Presumptive Tax Regime is a final discharge of the tax liability of the taxpayer and thus should not be included for the purposes of calculation of ‘turnover’ in terms of Section 80D of the Ordinance of 1979. To bolster the above submission, he drew our attention to the fact that a statement under Section 143B is to be filed regarding income chargeable inter alia under Sections 80C and 80CC, i.e. the Presumptive Tax Regime, as opposed to a return under Section 55 which is for the Normal Tax Regime. He also made reference to Sections 168 and 169 of the Ordinance of 2001 to support his arguments. He referred to and read out extensively the relevant provisions of the Ordinance of 1979 and quoted numerous practical examples as illustrations of tax calculation. 4. On the other hand, the crux of the submissions of the learned counsel for the respondents was that the income taxable under Sections 80C and 80CC should not be excluded from ‘turnover’ under Section 80D which (word) has been specifically defined in the explanation to Section 80D(2) to mean gross receipts derived from the sale of goods, or from rendering, giving or supplying services or benefits or from execution of contract; and that there is nothing in Section 80D which allows for tax on income under Sections 80C and 80CC to be adjusted or for such income to be excluded from the ‘aggregate of declared turnover’, so far as it falls within the definition of ‘turnover’. Learned amicus curiae, Dr. Ikramul Haq, provided written submissions upon the Court’s request and his arguments shall reflect in the course of this opinion. However, it may be briefly mentioned at this stage that he argued to the same effect as the respondents with respect to the interpretation of Sections 80C, 80CC and 80D. He further Civil Appeals No.1084 to 1098/2008 etc. -: 12 :- submitted that it was not the intention of the Legislature to include sales made to walk-in customers within the purview of ‘supply of goods’ as contemplated by Section 50(4)(a) of the Ordinance of 1979, as evidenced by Section 153(1)(a) of the Ordinance of 2001. 5. Heard. We intend to address questions No.(i) and (ii) (together) first. Under tax law, there are various taxation methods, including the two involved in the instant matters, i.e. presumptive and minimum tax. The nature, scope and raison d’être of the said two types of tax find apt and elaborate mention in the judgment reported as Messrs Elahi Cotton Mills Ltd and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) a relevant extract from which is reproduced herein below, in order to appreciate the analysis in the later part of this opinion:- “34. ……………In our view, sections 80-C and 80-CC of the Ordinance fall within the category of presumptive tax as under the same the persons covered by them pay a pre-determined amount of presumptive tax in full and final discharge of their liability in respect of the transactions on which the above tax is levied. Whereas section 80-D of the Ordinance is founded on the theory of minimum tax which has been elaborately dealt with in the treatises, the relevant portions of which have been quoted in extenso hereinabove. 40. Adverting to the impugned newly-added section 80- D, it may be stated that we have already pointed out hereinabove that sections 80-C and 80-CC cannot be equated with section 80-D as the same is founded on different basis. It may again be observed that section 80-D is based on the theory of minimum tax. It Civil Appeals No.1084 to 1098/2008 etc. -: 13 :- envisages that every individual should pay a minimum tax towards the cost of the Government………………” (Emphasis added) The above quoted passage makes it clear that the taxes under Section 80D on the one hand and Sections 80C and 80CC on the other are distinct from each other. In order to answer questions No.(i) and (ii), the meaning and scope of the term ‘turnover’ needs to be examined. ‘Turnover’ as mentioned in the provisions of Section 80D of the Ordinance of 1979 and Section 113 of the Ordinance of 2001 has not been defined in the definition clause of the Ordinances. However, in the Ordinance of 1979, ‘turnover’ has been assigned a meaning in the explanation to Section 80D itself. Section 80D of the Ordinance of 1979 reads as follows:- “80D. Minimum tax on income of certain persons. (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, where no tax is payable or paid by a company or a registered firm, an individual, an association of persons, an unregistered firm or a Hindu undivided family which, not being a company, does not qualify for assessment under the self assessment scheme under sub-section (1) of section 59 resident in Pakistan or the tax payable or paid is less than one-half per cent of the amount representing its turnover from all sources, the aggregate of the declared turnover shall be deemed to be the income of the said company or a registered firm, an individual, an association of persons, an unregistered firm or a Hindu undivided family which, not being a company, does not qualify for assessment under the self assessment scheme under sub-section (1) of section 59 and tax thereon shall be charged in the manner specified in sub-section (2). Civil Appeals No.1084 to 1098/2008 etc. -: 14 :- Explanation.- For the removal of doubt, it is declared that the expression "where no tax is payable or paid" and "or the tax payable or paid" apply to all cases where tax is not payable or paid for any reason whatsoever including any loss of income, profits or gains or set off of loss of earlier years, exemption from tax, credits or rebates in tax, and allowances and deductions (including depreciation) admissible under any provision of this Ordinance or any other law for the time being in force. (2) The company or a registered firm, an individual, an association of persons, an unregistered firm or a Hindu undivided family which, not being a company, does not qualify for assessment under the self assessment scheme under sub-section (1) of section 59 referred to in sub- section (1) shall pay as income tax- (a) an amount, where no tax is payable or paid equal to one-half per cent of the said turnover; and (b) an amount, where the tax payable or paid is less than one-half per cent of the said turnover, equal to the difference between the tax payable or paid and the amount calculated in accordance with clause (a). Explanation: For the removal of doubt it is declared that "turnover" means the gross receipts, exclusive of trade discount shown on invoices or bills, derived from the sale of goods or from rendering, giving or supplying services or benefits or from execution of contracts. (3) ……………………………………………………………” (Emphasis supplied) Civil Appeals No.1084 to 1098/2008 etc. -: 15 :- What is the worth of an explanation to a section in a statute and how is it to be interpreted? An explanation is appended to a section of an enactment to stipulate the meaning of a word, term, or phrase, and becomes part and parcel of the enactment. Its function is to clear the ambiguity and explain the meanings of the words used in the section to which it is appended.1 It is an intrinsic aid available to the reader to understand and appreciate the statute and particularly the section to which such explanation has been affixed. A plain reading of the meaning assigned to ‘turnover’ in the explanation to Section 80D of the Ordinance of 1979 clearly indicates that it (turnover) means gross receipts derived from: (i) the sale of goods; or (ii) rendering, giving or supplying services or benefits; or (iii) execution of contracts, and nothing more. That the meaning assigned to ‘turnover’ is comprehensive and does not include anything beyond what has been specified therein is bolstered by the fact that the explanation begins with the phrase “For the removal of doubt it is declared…” rendering the explanation a declaratory provision, and it is well-established that the very purpose of declaratory provisions or declaratory statutes is to remove doubts which exist, or may exist, in the meaning or effect of a provision or statute, as the case may be. Thus the phrases ‘turnover from all sources’ and ‘aggregate of declared turnover’ in Section 80D are to be necessarily read in conjunction with the explanation to Section 80D(2) of the Ordinance of 1979 for the purposes of determination of minimum tax liability. We find it relevant at this juncture to refer to the judgment reported as Nazir Hussain Shah Vs. The State (PLD 1965 SC 139) wherein, dilating upon the explanation appended to Section 6(5) of the Pakistan Criminal Law (Amendment) Act (XL of 1958), a five member 1 Naveed Textile Mills Ltd. Vs. Assistant Collector (Appraising) Custom House, Karachi and others (PLD 1984 SC 92), Chief Administrator of Auqaf, Punjab, Lahore Vs. Koura alias Karam Ilahi and another (PLD 1991 SC 596). Civil Appeals No.1084 to 1098/2008 etc. -: 16 :- bench of this Court held that it was not open to the Court to read into the said section a limitation which was not there by reference to extraneous circumstances. In similar vein, we are of the view that the word ‘turnover’ specifically defined in Section 80D cannot be interpreted in a way so as to widen or enlarge the scope of the said section by interpreting ‘turnover’ to include income from all sources as has been argued by the appellants/petitioners. 6. Now adverting to the meaning of ‘turnover’ in Section 113 of the Ordinance of 2001, which (meaning) has neither been provided in the definition clause of the said Ordinance or by way of explanation to the said section, instead a separate and exclusive sub-section, i.e. (3) of Section 113 has been dedicated to it, which (section) reads as under:- “113. Minimum tax on the income of certain persons.- (1) This section shall apply to a resident company where, for any reason whatsoever, including the sustaining of a loss, the setting off of a loss of an earlier year, exemption from tax, the application of credits or rebates, or the claiming of allowances or deductions (including depreciation and amortisation deductions) allowed under this Ordinance or any other law for the time being in force, no tax is payable or paid by the person for a tax year or the tax payable or paid by the person for a tax year is less than one-half per cent of the amount representing the person’s turnover from all sources for that year. (2) Where this section applies– (a) the aggregate of the person’s turnover for the tax year shall be treated as the income of the person for the year chargeable to tax; Civil Appeals No.1084 to 1098/2008 etc. -: 17 :- (b) …………………………………………………… ………. (c) …………………………………………………… ………. Provided that…………………………………………… (3) In this section, “turnover” means– (a) the gross receipts, exclusive of sales tax and Federal excise duty or any trade discounts shown on invoices or bills, derived from the sale of goods; (b) the gross fees for the rendering of services or giving benefits, including commissions; (c) the gross receipts from the execution of contracts; and (d) the company’s share of the amounts stated above of any association of persons of which the company is a member.” (Emphasis supplied) Where the legislature defines, in the same statute, the meaning of a word used therein, such definition most authoritatively expresses its intent which definition and construction is binding on the courts.2 When a word has been defined to mean such and such, the definition is prima facie restrictive and exhaustive.3 Upon a plain reading of the definition of ‘turnover’ provided in Section 113(3) of the Ordinance of 2001 it is manifest that it (turnover) means: (i) gross receipts derived from the sale of goods; (ii) gross fees for the rendering of services or giving benefits, 2 Interpretation of Statutes (11th Ed.) by N. S. Bindra. 3 Vanguard Fire & General Insurance Co. Ltd., Madras Vs. Fraser & Ross (AIR 1960 SC 971). Civil Appeals No.1084 to 1098/2008 etc. -: 18 :- including commissions; (iii) gross receipts from the execution of contracts; and (iv) the company’s share of the amounts stated above of any association of persons of which the company is a member. The meaning in the said sub-section has been assigned to the word ‘turnover’ used in Section 113 and therefore the phrase ‘turnover from all sources’ in sub-section (1) is to be read in conjunction with such definition which is exhaustive in nature and nothing further can be added thereto, thus the argument of the appellants/petitioners’ that ‘turnover’ covers all sources under various heads of income is not tenable in law. 7. In light of the above discussion, the aggregate of the declared turnover as defined in Section 80D of the Ordinance of 1979 from the sale of goods, rendering, giving or supplying of services or benefits or execution of contracts has to be taken into account for determining the minimum tax liability of 0.5% of the turnover. If no tax, for whatever reason, is payable/paid, then the amount worked out at the rate of 0.5% of the turnover will be the minimum tax payable. If the tax payable/paid is less than 0.5% of the turnover, then the minimum tax payable will be the difference/balance between the tax payable/paid and 0.5% of the turnover. A similar analysis will apply to Section 113 of the Ordinance of 2001, where the aggregate of the taxpayer’s turnover from the sale of goods, rendering of services or giving of benefits including commissions and the execution of contracts has to be taken into account in order to determine the minimum liability of 0.5% of the turnover for each tax year (or 1% of the turnover for each tax year, depending on the tax year involved; as Section 113 was subsequently amended vide Finance Act, 2013 and the percentage of minimum liability prescribed therein was increased to 1%). 8. We now move on to consider the argument of the appellants/petitioners that tax payable/paid upon income under the Presumptive Tax Regime is a final discharge of tax liability and thus such Civil Appeals No.1084 to 1098/2008 etc. -: 19 :- income is liable to be excluded from the aggregate turnover under Sections 80D and 113 of the Ordinance of 1979 and 2001 respectively (collectively referred to as the Ordinances). As mentioned in the earlier portion of this opinion, ‘turnover’ has been clearly and comprehensively defined in the explanations to Section 80D(2) and Section 113(3) ibid. It is well settled that a strict and literal approach is to be adopted while interpreting fiscal or taxing statutes, and that the Court cannot read into or impute something when the provisions of a taxing statute are clear. These principle(s) have been reiterated by this Court in a number of judgments reported as Pearl Continental Hotel and another Vs. Government of N.W.F.P. and others (PLD 2010 SC 1004), Star Textile Ltd. and 5 others Vs. Government of Sindh through Secretary Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others (2002 SCMR 356), Aslam Industries Ltd., Khanpur Vs. Pakistan Edible Corporation of Pakistan and others (1993 SCMR 683), Messrs Mehran Associates Limited Vs. The Commissioner of Income-Tax, Karachi (1993 SCMR 274), A & B Food Industries Limited Vs. Commissioner of Income-Tax/Sales, Karachi (1992 SCMR 663), Collector of Customs (Preventative) and 2 others Vs. Muhammad Mahfooz (PLD 1991 SC 630) and Messrs Hirjina & Co. (Pakistan) Ltd., Karachi Vs. Commissioner of Sales Tax Central, Karachi (1971 PTD 200). A five member bench of this Court in Hirjina & Co. (supra) while interpreting the definition of ‘Provincial Excise Duty’ held:- “Apart from this, we are unable to read the earlier definition in the manner suggested by the Department. It was said in the course of argument that notwithstanding the amendment it must be assumed that the previous definition of ‘sale price’ included Provincial Excise Duty. The previous definition however, does not Civil Appeals No.1084 to 1098/2008 etc. -: 20 :- expressly say so. We may here observe that interpreting the taxing statute the Courts must look to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency. On the other hand the fact that the Legislature made an express provision for including the excise duty indicates that the unamended definition of the ‘sale price’ did not include the provincial excise duty.” (Emphasis supplied) At the cost of repetition, Section 80D of the Ordinance of 1979 includes within its ambit receipts, exclusive of trade discount shown on invoices or bills, derived from the sale of goods or from rendering, giving or supplying services or benefits or from execution of contracts, whether or not such receipts fall under the Presumptive Tax Regime or Normal Tax Regime. In similar vein, Section 113 of the Ordinance of 2001 includes within its ambit receipts, exclusive of sales tax and Federal excise duty or any trade discounts shown on invoices or bills, derived from the sale of goods, rendering of services or giving of benefits including commissions, or from the execution of contracts, whether or not such receipts fall under the Presumptive Tax Regime or Normal Tax Regime. There is nothing in the wording of Sections 80D and 113 of the respective Ordinances to suggest that for the purposes of calculating the turnover for the said sections receipts of income subject to the Presumptive Tax Regime are excluded. Furthermore, Section 153(1)(c) of the Ordinance of 2001 provides that receipts from the execution of contracts would be subject to presumptive tax which would be final, and at the same time Section 113(3)(c) of the said Ordinance clearly includes gross receipts from the execution of contracts within ‘turnover’ for the purposes of Civil Appeals No.1084 to 1098/2008 etc. -: 21 :- determination of minimum tax under Section 113. Thus it certainly cannot be said that receipts of income subject to presumptive tax would automatically fall outside the scope of Section 113 (for the tax years up to 2009, prior to re-insertion of Section 113 by the Finance Act, 2009). 9. In furtherance of the above analysis, there was nothing to prevent the Legislature from expressly providing that such receipts (under the Presumptive Tax Regime) would be excluded while calculating the aggregate turnover under the said sections. This interpretation is augmented by the fact that the new Section 113 of the Ordinance of 2001, as re- inserted by the Finance Act, 2009 (new Section 113)4, specifically excluded from its domain the amounts subjected to the Presumptive Tax Regime, which (section) reads as below:- “113. Minimum tax on the income of certain persons.- (1) This section shall apply to a resident company where, for any reason whatsoever allowed under this Ordinance, including any other law or for the time being in force– (a) loss for the year; (b) the setting off of a loss of an earlier year; (c) exemption from tax; (d) the application of credits or rebates; or (e) the claiming of allowances or deductions (including depreciation and amortization deductions) no tax is payable or paid by the person for a tax year or the tax payable or paid by the person for a tax year is less than one-half per cent of the amount representing the person’s turnover from all sources for that year: Provided that…………………………………………… (2) Where this section applies: 4 The new Section 113 reproduced in this opinion is as it was originally re-inserted by the Finance Act, 2009. Civil Appeals No.1084 to 1098/2008 etc. -: 22 :- (a) …………………………………………………………… (b) …………………………………………………………… (c) …………………………………………………………… Provided that…………………………………………… (3) “turnover” means,- (a) the gross receipts, exclusive of Sales Tax and Federal Excise duty or any trade discounts shown on invoices, or bills, derived from the sale of goods, and also excluding any amount taken as deemed income and is assessed as final discharge of the tax liability for which tax is already paid or payable; (b) the gross fees for the rendering of services for giving benefits including commissions; except covered by final discharge of tax liability for which tax is separately paid or payable; (c) the gross receipts from the execution of contracts; except covered by final discharge of tax liability for which tax is separately paid or payable; and (d) the company’s share of the amounts stated above of any association of persons of which the company is a member.” (Emphasis supplied) The underlined portions in the new Section 113(3) show the additions made to the said sub-section specifically excluding from its purview the amounts treated as deemed income and assessed as final discharge of tax liability for which tax is paid/payable, i.e. those falling under the Presumptive Tax Regime. These additional phrases inserted into the new Section 113 (underlined above) are missing from the earlier Sections 80D and Civil Appeals No.1084 to 1098/2008 etc. -: 23 :- 113 of the respective Ordinances which patently suggests that the minimum tax payable under Section 80D is leviable on the aggregate of declared turnover from all sources including receipts covered by Sections 80C and 80CC of the Ordinance of 1979, and that the minimum tax payable under Section 113 is leviable on the aggregate turnover from all sources including receipts and tax under the Presumptive Tax Regime of the Ordinance of 2001. The above analysis also draws support from the insertion of the explanation to the new Section 113(1) of the Ordinance of 2001 by the Finance Act, 2012 which reads as follows:- “Explanation.- For the purpose of this sub-section, the expression “tax payable or paid” does not include tax already paid or payable in respect of deemed income which is assessed as final discharge of the tax liability under section 169 or under any other provision of this Ordinance.” The absence of this explanation from the old Section 113 (prior to its omission by the Finance Act, 2008) clearly suggests that the Legislature did not intend that tax already paid/payable in respect of deemed income which was assessed as final discharge of the tax liability under section 169 or under any other provision of the Ordinance of 2001 would be excluded from the purview of ‘tax payable or paid’, because the Legislature did not expressly provide so and as mentioned above, fiscal statutes are generally to be interpreted strictly, without imputing anything that is not manifest from the express wording of such statute. Thus in light of the ratio decidendi of Hirjina & Co. (supra) it is clear that the exclusion of amounts treated as deemed income and assessed as or covered by final discharge of tax liability for which tax is separately paid/payable from the term ‘turnover’ cannot be implied in the Civil Appeals No.1084 to 1098/2008 etc. -: 24 :- provisions of Sections 80D and 113 of the respective Ordinances, as the same has not been so expressed. The appellants/petitioners’ argument that failure to exclude amounts which are covered by final discharge of tax liability from the ‘turnover’ results in numerous taxpayers essentially crossing the threshold provided in the said sections thereby rendering them not liable to payment of minimum tax as envisaged by the said sections, and thus depriving the appellants/petitioners of well-deserved revenue, is not a justification to read into the provisions of Sections 80D and 113 something which is not there “so as to support assumed deficiency”5, as there can be no equitable construction of taxing statutes.6 10. With regard to the appellants/petitioners’ reference to the statement under Section 143B of the Ordinance of 1979, suffice it to say that mere filing of a statement under the said section (as opposed to a return under Section 55 which is for the Normal Tax Regime) for income falling under the Presumptive Tax Regime (i.e. Sections 80C, 80CC etc.) is not a reason to bring them out of the definition of ‘turnover’ when the law, i.e. the explanation to Section 80D(2), expressly provides otherwise. The same applies to the corresponding provisions of the Ordinance of 2001, in that mere filing of a statement under Section 115(4) of the Ordinance of 2001, which (section) is pari materia to Section 143B of the Ordinance of 1979, does not mean that the income contained in such statement would automatically fall outside the scope of ‘turnover’ provided by Section 113. If such income falling under the Presumptive Tax Regimes of both the Ordinances was to be excluded from the ambit of ‘turnover’ as provided in Sections 80D and 113 of the respective Ordinances, the Legislature would have explicitly mentioned it, as it had done by excluding amounts/receipts which are 5 Hirjina & Co. (supra) and Bindra (supra note 2). 6 Understanding Statutes (2008 Ed.) by S. M. Zafar; see also the case of Star Textile Ltd. And 5 others Vs. Government of Sindh through Secretary Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others (2002 SCMR 356). Civil Appeals No.1084 to 1098/2008 etc. -: 25 :- final discharge of tax liability in the new Section 113 re-inserted into the Ordinance of 2001 by the Finance Act, 2009. 11. The appellants/petitioners have relied upon Section 168(3) of the Ordinance of 2001 to contend that income subject to the Presumptive Tax Regime falls outside the scope of Section 113 of the said Ordinance. Section 168(3) opens with the phrase “no tax credit shall be allowed for any tax collected or deducted that is a final tax…”; suffice it to say that tax credit has no role whatsoever to play in determining the minimum tax liability with respect to the term ‘turnover’ as defined in Section 113 of the Ordinance of 2001. We fail to understand how Section 168(3) supra can be construed to mean that the receipts of income falling under the Presumptive Tax Regime are to be excluded from the purview of ‘turnover’ for the purposes of determination of minimum tax under Section 113. 12. In light of the foregoing, we are of the view that given the definition of ‘turnover’ provided in Sections 80D and 113 of the Ordinances, the minimum tax payable is leviable on the aggregate of turnover from all sources including receipts covered by Sections 80C and 80CC of the Ordinance of 1979, and by the Presumptive Tax Regime under the Ordinance of 2001, respectively. We do not find any infirmity in the impugned judgments relating to this issue calling for interference by this Court, and therefore, these appeals and petitions are accordingly dismissed. 13. Now adverting to question No.(iii), the relevant provisions (parts) of Sections 50(4) and 80C of the Ordinance of 1979 read as follows:- “50. Deduction of tax at source.- (4) Notwithstanding anything contained in this Ordinance,- Civil Appeals No.1084 to 1098/2008 etc. -: 26 :- (a) any person responsible for making any payment in full or in part (including a payment by way of an advance) to any person, being resident, (hereinafter referred to respectively as "payer" and "recipient"), on account of the supply of goods or for service rendered to, or the execution of a contract with the Government, or a local authority, or a company or a registered firm, or any foreign contractor or consultant or consortium shall, deduct advance tax, at the time of making such payment, at the rate specified in the First Schedule............ 80C. Tax on income of certain contractors and importers.- (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, where any amount referred to in sub-section (2) is received by or accrues or arises or is deemed to accrue or arise to any person, the whole of such amount shall be deemed to be income of the said person and tax thereon shall be charged at the rates specified in the First Schedule. (2) The amount referred to in sub-section (1) shall be the following namely:- (a) Where the person is a resident,- (i) the amount representing payments on which tax is deductible under sub-section (4) of section 50, other than payments on account of services rendered;” (Emphasis supplied) A plain reading of Section 50(4)(a) of the Ordinance of 1979 clearly provides for deduction of tax at source in three situations: (i) supply of goods; (ii) for service rendered; and (iii) execution of a contract. Whereas Section 80C(2)(a)(i) provides that the income of a person for the Civil Appeals No.1084 to 1098/2008 etc. -: 27 :- purposes of tax under the said section, shall include payments on which tax is deductible under Section 50(4) excluding payments on account of services rendered. Logic suggests that all services rendered would necessarily be pursuant to execution of a contract, i.e. as long as there is a meeting of the minds or consensus ad idem. Thus to say (as is the appellants’ stance) that though services are being rendered, since it is pursuant to execution of a contract, it would not fall within the exception contained in Section 80C(2)(a)(i) and instead the income derived from such execution of contract would be liable to be charged with presumptive tax under Section 80C would, in our opinion, render the exception in Section 80C(2)(a)(i) completely superfluous and redundant. Such intention cannot be attributed to the Legislature and neither can we, while following the salutary and well-established principles of statutory interpretation, construe the said section in such a way. In fact, the very selection of words, i.e. ‘supply of goods’, ‘service rendered’ and ‘execution of contract’ suggests that the wide phraseology of ‘execution of contract’ pertains to residual contracts, other than those (contracts) involving supply of goods and/or rendering of services. This interpretation is strengthened by clause (i) of Section E of Part I of the First Schedule to the Ordinance of 1979 which reads follows: “E. Rate for collection of income tax under sub-section (4) of section 50,- (i) Where the payment is made to a resident assessee holding a National Tax Number, on account of- (a) execution of contracts, other than those mentioned in sub-clauses (b), (c) and (d) … (i) where the value of the contract five per cent of Does not exceed thirty million such income. Civil Appeals No.1084 to 1098/2008 etc. -: 28 :- rupees, (ii) Where the value of contract six per cent of exceeds thirty million rupees, such income. (b) supply of rice, cotton, one and one- cotton seed or edible oils; half per cent of the amount of payment. (c) supply of goods other than three and one those referred to in sub- half per cent of paragraph (b); and the amount of payment. (d) services rendered. five per cent of the amount of payment.” (Emphasis supplied) We would like to point out here that a schedule to a statute can be used as an intrinsic aid to interpret its (statute’s) provisions, which (schedule) is as much a part of the statute, and is as much an enactment as any other part.7 Thus the above extract of the said schedule also indicates that services rendered necessarily flow from execution of a contract, but execution of a contract would not necessarily result in rendering of services. In other words, where services are being rendered, prior execution of a contract would not per se attract the presumptive tax under Section 80C, rather it would be excluded by virtue of the exception in Section 80C(2)(a)(i). Thus there can be no question of taxing the same under the Presumptive Tax Regime. Hence, we are inclined to answer question No.(iii) in the negative, thereby affirming the view point of the learned High Court in the impugned judgments in this regard. 7 Zafar (supra note 6). Civil Appeals No.1084 to 1098/2008 etc. -: 29 :- 14. Finally, with respect to question No.(iv), in which the issue relates to the meaning and connotation of the word ‘supply’, and whether or not it encompasses on-the-spot cash purchases. The learned High Court in the impugned judgments in this regard has held that ‘supply of goods’ as used in the said Ordinance does not include on-the-spot cash purchases which fall within ‘sale’ as opposed to ‘supply’, the latter being associated with a continuing relationship existing over a certain period of time. In order to resolve the fourth proposition, the term ‘supply of goods’ as provided for in Section 50(4)(a) needs elucidation. Since the said term has not been specifically defined in the Ordinance of 1979, as per the settled canons of statutory interpretation, the ordinary and natural meaning of the phrase needs to be examined. However, ‘supply of goods’ also qualifies as a technical term as it is part of a statute falling within the special technical subject of taxation which is associated with business, economics and accounts, therefore its contextual parlance and phraseology needs to be examined. Before embarking upon such examination, we would like to expound certain rules of statutory interpretation in this regard. First, where an enactment uses a term which has both an ordinary and a technical meaning, the question as to which meaning the term is intended to have is determined by the context. If the context is technical, the presumption is that the technical meaning of the term is intended to be used; otherwise the ordinary meaning is taken as meant.8 Secondly, words used in a statute relating to a particular trade, business or transaction are to be construed as having the meaning which everybody conversant with that trade, business or transaction knows and understands.9 This is particularly so in construing the meaning of words in taxing statutes, as has been held 8 Statutory Interpretation (4th Ed.) by F. Bennion. 9 Messrs Asbestos Cement Industries Ltd Vs. Lahore Municipal Corporation and others (1994 SCMR 262). Civil Appeals No.1084 to 1098/2008 etc. -: 30 :- by the Indian Supreme Court,10 which (view) we have no hesitation in subscribing to:- “…in determining the meaning or connotation of words and expressions describing an article in a tariff Schedule, one principle which is fairly well-settled is that those words and expressions should be construed in the sense in which they are understood in the trade by the dealer and the consumer. The reason is that it is they who are concerned with it, and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention.” In ordinary parlance, ‘supply’ means to “make (something needed) available to someone; provide with something needed; the act of supplying”,11 “to provide or furnish (something believed to be necessary)”12 and “to provide something that is wanted or needed, often in large quantities and over a long period of time”13, whereas ‘sale’ has been defined as “the act or practice of selling; the exchange of anything for a specified amount of money”14 and “the exchange of a commodity for money; the process of selling something”.15 Applying the contextual approach to meaning, ‘supply’ is associated with a ‘supplier’ and ‘sale’ with ‘seller/vendor’. A supplier is one who supplies goods (or services) to another, the latter often is not the end-consumer. The consumer is directly associated with the seller/vendor who sells/vends goods to customers. In the supply chain, the supplier more often than not appears somewhere in the beginning or middle, whereas the seller/vendor is often the last person involved and is therefore at the end of the supply chain who obtains goods from a supplier and sells/vends them to consumers/clients. Every supply 10 Indian Aluminium Cables Ltd. Vs. Union of India and others (AIR 1985 SC 1201). 11 Concise Oxford English Dictionary (11th Ed.). 12 Chambers 21st Century Dictionary (1999 Ed.). 13 Cambridge Dictionaries Online. 14 Chambers (supra note 12). 15 Oxford (supra note 11). Civil Appeals No.1084 to 1098/2008 etc. -: 31 :- involves a sale (as there is provision of goods in exchange for consideration), however every sale does not necessarily involve supply, for e.g. a shopkeeper/seller/vendor selling goods at his shop to walk-in customers cannot be described as the equivalent of ‘supplying’. Thus in technical terms, ‘supply’ as understood in its proper milieu would not encompass on-the-spot cash purchases. 15. The above interpretation is supported by the fact that the term ‘supply of goods’ was dispensed with in Section 153(1)(a) of the Ordinance of 2001 which is pari materia to Section 50(4) of the Ordinance of 1979, and instead the phrase ‘sale of goods’ was used. The relevant provisions of Section 153 read as follows:- “153. Payment for goods, services and contracts.– (1) Every prescribed person making a payment in full or part including a payment by way of advance to a resident person or – (a) for the sale of goods; (b) for the rendering of or providing of services; (c) on the execution of a contract, including contract signed by a sportsperson but not including a contract for the sale of goods or the rendering of or providing services, shall, at the time of making the payment, deduct tax from the gross amount payable (including sales tax, if any) at the rate specified in Division III of Part III of the First Schedule. (Emphasis added) The departure in the wording of Section 153(1) from that of Section 50(4) is significant, as established above, the words ‘sale’ and ‘supply’ are neither synonymous nor interchangeable. This divergence speaks volumes to the intent of the Legislature, which was that sales by Civil Appeals No.1084 to 1098/2008 etc. -: 32 :- sellers/vendors to their walk-in customers or on-the-spot cash purchases were not to be included within the purview of ‘supply of goods’, thereby subjecting such walk-in/on-the-spot cash purchases to the withholding provisions. This intention is also manifest from a bare reading of Section 50(4)(a) of the Ordinance of 1979 (reproduced in the earlier part of this opinion) which can in no way be said to be designed to levy such a tax on consumers for payments made on the spot or window purchases. However, an explanation was inserted into Section 50(4)(a) of the Ordinance of 1979 through the Finance Act, 1998 which reads as under:- “Explanation.- For the purposes of clause (a) the expression “supply of goods” includes both cash and credit purchases of goods by the payer, whether under a contract or not, on credit or in cash;” The Peshawar High Court in Al-Khair Gadoon Ltd Vs. Commissioner of Income-Tax [2004 PTD 2467] and the High Court of Sindh in Commissioner of Income-Tax, Karachi Vs. Messrs Nazir Ahmed and Sons (Pvt.) Ltd., Karachi (2004 PTD 921) have interpreted the explanation to Section 50(4)(a) to determine whether or not it (explanation) would have retrospective effect. However, the controversy involved in those cases was not related to sales to walk-in customers or on-the-spot cash purchases, nevertheless their ratio may effectively mean that any purchase, be it on-the-spot, would fall within the purview of ‘supply of goods’. As established above, ‘supply’ necessarily includes a purchase, and in our opinion, the said explanation was included to clarify that such purchase would not only be those made in cash, but also by way of credit payment. As highlighted in the earlier part of this opinion, an explanation cannot be read so as to extend the scope of the provision to Civil Appeals No.1084 to 1098/2008 etc. -: 33 :- which it is appended, thus we are not inclined to extend ‘supply of goods’ in Section 50(4) to include ‘sale of goods’ by sellers/vendors at their retail outlets to walk-in customers merely by virtue of the use of the word ‘purchase’ in the said explanation. In this respect, we find it expedient to reproduce an extract from a judgment of the Lahore High Court reported as Commissioner of Income Tax/Wealth Tax Vs. Messrs Ellcot Spinning Mills Ltd. (2008 PTD 1401) which reads as follows:- “For all practical purpose it is the definition of ‘supply of goods’ which would decide or clinch the issue. The term supply has not been defined in Income Tax Ordinance at all. However, it has already been considered as a part of sale but every sale is not a supply. Supply presupposes the existence of a regular arrangement based upon some permanence involving order identification and determination of the items, its quality and the considerations. It can obviously be cash as well as a credit and this did not require any further explanation as has been added in section 50(4) above. The fear of the respondents and the claim of the department that the explanation after proviso in subsection (a) of section 50(4) which defines supply of goods has not brought anything new, is baseless. The explanation in fact has confused the situation as it says that the purchase of goods by the payer whether under a contract or not, on credit or in cash shall be a part of the supply. However, the same does not add anything new except that it can be either under a contract or not under a contract. The draftsman is totally ignorant that once a transaction is done the existence of a contract is obvious. However, the term supply even after the above explanation would not cover a window purchase of casual sale purchase transactions like of daily goods in open market.” Civil Appeals No.1084 to 1098/2008 etc. -: 34 :- The judgment reported as Messrs Bilz (Pvt.) Ltd Vs. Deputy Commissioner of Income-Tax, Multan and another (2002 PTD 1) relied upon by the appellants has no relevance to the precise question of law at hand, thus needs no further discussion. In light of the above, question No.(iv) is answered in the negative, in that, on-the-spot cash purchases do not fall within the purview of ‘supply of goods’ as envisaged by Section 50(4)(a) of the Ordinance of 1979. In light of the above discussion, the appeals of the department in this regard are dismissed and the impugned judgment(s) of the learned High Court are sustained. 16. To recapitulate, in light of the above, all the appeals (excluding Civil Appeal No.310/2012) and petitions are dismissed. As far as Civil Appeal No.310/2012 is concerned, the same involves the question regarding lease and buyback, and since the related matters were dismissed as withdrawn by the department vide order dated 27.1.2016, therefore we have refrained from commenting on the merits of the said case which is accordingly dismissed. Before valediction, we would like to express our gratitude towards the invaluable assistance rendered by the learned amicus curiae, Dr. Ikramul Haq. JUDGE JUDGE JUDGE Announced in open Court on 5.4.2016 at Islamabad Approved For Reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE SAJJAD ALI SHAH Civil Appeal No.1085 of 2017 (On appeal from the order dated 18.4.2017 passed by the Peshawar High Court, Peshawar in W.P. No.1230-P/2017) Chairman NAB …Appellant VERSUS Muhammad Usman and others ….Respondents For the appellant(s): Mr. Arshad Qayyum, Special Prosecutor For respondents No.1 & 2: Mr. Shumail Butt, ASC Date of hearing: 21.9.2017 JUDGMENT Dost Muhammad Khan, J:- This appeal with the leave of the Court is against the judgment of the Peshawar High Court dated 18.4.2017. The Accountability Court, Peshawar vide order dated 9.3.2017 declined request of the respondents for summoning 33 prosecution witnesses, who were already examined and cross-examined, however, it was set aside through the impugned judgment. C.A No.1085/17 2 We have heard the learned ASC for the appellant and the learned ASC for the respondents-accused and have gone through the relevant provisions of law and also the case-laws cited at the bar. 2. The respondents were charged for collecting huge money from several persons, wanted to perform “Hajj”, however, they allegedly misappropriated the same and did not perform their promise. 3. Initially, cognizance of the case was taken by the FIA, Peshawar but then it was transferred to the NAB. The latter after conducting inquiry, converted it into investigation and at the conclusion thereof, Reference No.2 was filed in the Accountability Court, Peshawar. At the conclusion of the prosecution evidence, the respondents accused submitted a long list of defence witnesses including 33 witnesses of the prosecution, they wanted to examine as defence witnesses, albeit these witnesses were earlier examined by the Prosecution and were cross- examined, however, no reason much less plausible was shown for such a venture. 4. The learned Division Bench of the High Court in paras 6 & 7 of the impugned judgment has held as under:- “Under the provisions of sections 265-F and 540 Cr.P.C the trial Court has wide powers and the respondent accused/defence has a right to produce any witness already examined by the Prosecution and this right cannot be denied to the accused-respondent.” To know the true meaning and import of the two provisions of law, same are reproduced as follows: - “S.265-F. Evidence for prosecution: (1)…………………………………(not relevant) (2)…………………………………(not relevant) C.A No.1085/17 3 (3)…………………………………(not relevant) (4)…………………………………(not relevant) (5)…………………………………(not relevant) (6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence; (7) If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.” “S.540. Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.” 6. Under the former provision of Cr.P.C, it is the Prosecution to produce and examine its witnesses, who are necessary to place before the Court the true version of a case, while the accused/defence has a right to cross-examine them, which opportunity on all the 33 witnesses was fully availed by the accused-respondents. 7. The latter provision i.e. section 540 Cr.P.C. empowers the Court to examine any witness, present in Court or to produce any document in his possession or to summon and re-examine any person/witness already examined and it shall summon and examine any such witness, if it is of the view that its evidence or further evidence is C.A No.1085/17 4 necessarily required to reach at a just conclusion by securing the ends of justice. 8. The production and examination of witnesses has also been explained by various provisions contained in Chapter 10 of the Qanun-e- Shahadat Order, 1984. This provision in unequivocal terms prescribes the mode and manner of examination of witnesses. The prosecution witnesses or any party calling and examining the witnesses is called, ‘examination-in-chief’ while examination of the same witnesses by the opposite party is called, ‘cross-examination’. Subsequent examination of the same witnesses by the party calling it, is called ‘re-examination’. The latter exercise is conducted with the permission of the Court whenever any ambiguity or vacuum is created in the testimony of witness/witnesses during the course of cross-examination to explain the same and not for dishonest improvement. 9. The Courts are required to guard and protect the witnesses against undue harassment and undesirable cross-examination, not relevant to the fact in issue but directed against the witnesses by way of bush-beating, putting them to unnecessary strain and stress so that something is brought about from their mouth after they are exhausted through such undue process. 10. The famous Jurist on the law of evidence, “Wigmore” has placed the status of the witnesses on high pedestal and has described them ‘engines and machines/essential tools’, without whose assistance and evidence the Courts would be unable to do justice or to reach at a correct conclusion therefore, he suggests that it is the primary duty of the Court to safeguard the interest of the witnesses in a reasonable manner and they are to be protected from undue harassment. C.A No.1085/17 5 11. The 3rd category of witnesses is called ‘Court witnesses’, who are examined or re-examined by the Court, when at trial, the Court is of the view that their evidence is essential for the just and fair decision of the case in discovering the truth. These powers have been conferred on the Court with the only object that justice is not slipped out of the hands of the Court nor it get out of its domain because doing justice in each case is the primary obligation of every Court and not the party in an adversarial system of justice. The role of the Court under the provision of S.540 Cr.P.C is inquisitorial where it endeavours to discover the truth, suppressed by both or one party to the case to incapacitate the Court to reach at a just conclusion. The role of the Judge does not undergo change because in exercising inquisitorial powers, the law has imposed obligation on it to discover the truth and to secure the ends of justice. 12. From the entire scheme of above provisions of Cr.P.C. and of the provisions of the Qanun-e-Shahadat Order, 1984, it becomes clearer than crystal that the two categories of witnesses i.e. the prosecution witnesses and the defence witnesses are distinctly placed pole apart and both cannot and shall not be intermingled. 13. The words used, Vexation, causing delay in the trial or defeating the ends of justice are of vital connotation and discretion is vested in the Trial Court to refuse the summoning or examining any witness by the Defence if the purpose is to defeat such ends. 14. There may be very rare and exceptional cases, where, the prosecution has dropped any material witness whose evidence, if given, may have a direct bearing on the end result of the case, in that event, the Court is blessed with unfettered powers to summon and examine such C.A No.1085/17 6 witness only for the purpose of discovery of truth, for the purpose of doing complete justice however, such powers are not to be exercised at random and without application of proper judicial mind with reasonable depth to the facts of each case. Unmistakenly, in view of the provision of S.540 Cr.P.C. the witnesses are examined as ‘court witnesss’ and not for prosecution or defence, therefore, none of the parties to a case can claim such a right. These powers shall only be exercised to put justice into correct channels. 15. The discretion so vested in the Trial Court ordinarily cannot be questioned and that too in extraordinary constitutional jurisdiction unless it is shown and established that exercise of such powers by the Trial Court or by not exercising the same, has resulted into a grave miscarriage of justice, therefore, calling the witness of the other party as its own witness, even in criminal trials, already examined, is not acknowledged by the law on the subject, therefore, it is neither desirable nor such a practice can be approved. In exceptional cases, where material witness has been dropped by the prosecution in the circumstances discussed above, the Court may exercise powers with due care and caution. However, in that case too, the prosecution witness/witnesses cannot be examined as defence witnesses but court witness/witnesses and for that, a written request is made to the Court showing cogent and convincing reasons for calling and examining any witness of the prosecution, not examined or has already been examined to be re-examined as court witness. 16. If the witnesses of the prosecution already examined in bulk like in this case, are called as defence witnesses u/s 265-F Cr.P.C. this would defeat the ends of justice besides corrupting the system of justice C.A No.1085/17 7 through intrigues. In case they make improvement in favour of the defence, making radical departure from their earlier statements, they would compromise their integrity and would also expose themselves to criminal prosecution on the charge of perjury therefore, such a course shall be avoided in all circumstances to streamline the process and to ensure that trials are not delayed and course of justice is not thwarted by such tactics and tricks. 17. It is the bedrock principle of law that discretion once exercised by the Court vested in it by law, shall in no manner be disturbed or set aside by the courts superior in rank. This principle shall apply more vigorously in constitutional jurisdiction of the High Court under Article 199 thereof, which shall be exercised sparingly and considerable restraints should be exercised in this regard. 18. As held time and again that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge’s hands however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner. The following case law is reproduced for the guidance of the learned Judges of the High Court for future course of action:- (i) Brig.(Rtd.) Imtiaz Ahmed v. Government of Pakistan, through Secretary, Interior Division, Islamabad (1994 SCMR 2142) (ii) Shahnaz Begum v. The Hon’ble Judges of the High Court of Sindh and Baluchistan (PLD 1971 SC 677) (iii) Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani C.A No.1085/17 8 (PLD 1994 SC 281) 19. In our considered view, the learned Division Bench of the Peshawar High Court through the impugned judgment has certainly overstepped its jurisdiction vested in it under Article 199, probably due to lack of proper assistance at the bar, however, one cannot ignore the fundamental principle relating to administration of justice that law is written on the sleeves of the Judges and it is the primary duty of a Judge to apply the correct law to a case before it and even the party is not bound to engage a counsel for telling the Court how a particular law is to be applied and how the jurisdiction is to be exercised thus, the impugned judgment being not sustainable in law, is set at naught. According, this appeal is allowed and the impugned judgment of the Peshawar High Court dated 18.4.2017 is set aside while that of the Accountability Court is restored. Judge Judge Judge Islamabad, the 21st September, 2017 Nisar /- ‘Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1086 OF 2009 (On appeal against the order dated 29.1.2009 passed by the Peshawar High Court, Peshawar in T.R. No. 48/2007) Commissioner of Income Tax, Peshawar … Appellant VERSUS M/s Islamic Investment Bank Ltd … Respondent For the Appellant: Mr. Ghulam Shoaib Jalley, ASC For the Respondent: Syed Mudassar Ameen, ASC Date of Hearing: 16.12.2015 JUDGMENT FAISAL ARAB, J.- The controversy in this appeal relates to the income tax return that was filed by the respondent for the income year that ended on 30.6.2001. Corresponding to such income year, the assessment year was 2001-02. The assessment on the tax return was finalized by the taxation officer on 14.05.2003 under the provisions of Section 62 of the repealed Income Tax Ordinance, 1979, on the strength of Section 239(1) of the Income Tax Ordinance, 2001, which states “in making any assessment in respect of any income year ending on or before the 30th day of June, 2002, the provisions of the repealed Ordinance ….shall apply as if this Ordinance had not come into force.” We may mention here that the Income Tax Ordinance, 1979 was repealed with effect from 30.06.2002 and replaced by Income Tax Ordinance, 2001 which came into operation on 01.07.2002. CIVIL APPEAL NO. 1086 OF 2009 2 2. When the Additional Commissioner, Income Tax, Range II, Companies Zone, Peshawar considered the assessment order in question to be prejudicial to the interest of the revenue, so he, in order to amend it, served a notice dated 23.08.2004 on the respondent under Section 122(5A) of the Income Tax Ordinance, 2001. After hearing the respondent, the original assessment order was amended vide order dated 08.04.2005 whereby the income earned by the respondent from the sale of membership card of Islamabad Stock Exchange was enhanced by two million rupees. The respondent preferred appeal against such order which was dismissed on 30.10.2006 by the Commissioner, Income Tax (Appeals), Peshawar. He held that notice under Section 122(5A) of the Income Tax Ordinance, 2001, was illegal and vacated the same on the ground that the original assessment was finalized on 14.05.2003 i.e. at a time when Section 122 (5A) had not been inserted in the Income Tax Ordinance, 2001, therefore, it cannot be applied retrospectively. While reaching at such decision, the Commissioner (Appeals) placed reliance on the case of Honda Shahrah-e-Faisal Association of Persons, Karachi Vs. Regional Commissioner of Income Tax, Karachi (2005 PTD 1316). In the said case, the Division bench of the Sindh High Court had held as follows:- “the provisions contained in sub section (5-A) of Section 122 of the Income Tax Ordinance, 2001, inserted with effect from 1.7.2003, is not retrospective in operation. Consequently, the assessments finalized before CIVIL APPEAL NO. 1086 OF 2009 3 1.7.2003 cannot be reopened/revised/amended in exercise of jurisdiction under the above provisions. Admittedly, all the notices impugned in these petitions are in respect of the assessments finalized before 1.7.2003, and consequently all the impugned notices are without jurisdiction, illegal, therefore, hereby quashed along with proceedings in pursuance thereof. The petitions are allowed accordingly.” 3. The order of the Commissioner Income Tax (Appeals) was challenged by the department through the Commissioner Income Tax before the Income Tax Appellate Tribunal, Peshawar. The tribunal also concurred with the decision of the Commissioner Income Tax (Appeals) and dismissed the appeal vide order dated 08.02.2007. In doing so it also placed reliance on the case of Honda Shahrah-e-Faisal. The concerned Commissioner, Income Tax then filed Tax Reference No. 48 of 2007 before the Peshawar High Court, which too was dismissed vide impugned order dated 29.01.2009. The Peshawar High Court also placed reliance on the case of Honda Shahrah-e-Faisal apart from placing reliance on judgments of the Lahore High Court reported in PTD 2008 Lahore 1420 and of the Peshawar High Court rendered on 22.10.2008 in Tax Reference No. 61/2007. The tax department being aggrieved by the impugned decision of the Peshawar High Court dated 29.01.2009 filed CPLA No. 432/2009 before this Court, following which leave was granted on 05.01.2009 and the petition was converted into present appeal. While granting leave, this Court observed that where the Commissioner has been given the power to amend an assessment order, in case he considers the same to be erroneous to the extent CIVIL APPEAL NO. 1086 OF 2009 4 that it was prejudicial to the interest of the revenue, then how could such a provision be held to be only prospective in nature? 4. Learned counsel for the appellant argued that the assessment order was rightly amended by the Additional Commissioner Income Tax Range-II, Company Zone, Peshawar, on the basis of Section 239 (1) of the Ordinance of 2001, however on appeal filed by the respondent, the very notice issued under the provisions of Section 122(5A) of the Income Tax Ordinance, 2001, was considered to be unlawful and this decision was maintained up to the Peshawar High Court. He contended that the main reason for rejection of appellant’s notice was the decision of the Sindh High Court rendered in Honda Shahrah-e-Faisal’s case, a decision which has also been affirmed by this Court in the case of Commissioner of Income Tax Vs. Eli Lilly Pakistan (Pvt) Ltd (2009 SCMR 1279). Appellant’s counsel next contended that as Section 239(1) of the Income Tax Ordinance, 2001, provides that for the purpose of assessing any income year ending on or before the 30.6.2002, the provisions of the repealed Income Tax Ordinance, 1979, shall apply as if the Income Tax Ordinance, 2001, had not come into force, therefore, even if the issuance of notice dated 23.8.2004 under the provisions of Section 122(5A) of the Income Tax Ordinance, 2001, is regarded as not maintainable, such notice, on the strength of Section 239(1) of Income Tax Ordinance, 2001, ought to have been treated as notice under Section 66A of the repealed Income Tax Ordinance, 1979, instead of its outright rejection. Based on this argument, he submitted that this Court may treat the notice in question as notice under Section 66A of the Income Tax Ordinance, CIVIL APPEAL NO. 1086 OF 2009 5 1979, and remand the matter back to the Commissioner (Appeal) for his decision on merits. 5. In rebuttal, learned counsel for the respondent contended that the issuance of notice under Section 122(5A) of the Income Tax Ordinance, 2001, was rightly declared as illegal as Section 122(5A) was incorporated in the Income Tax Ordinance, 2001 on 01.07.2003 whereas the assessment of the tax return of the respondent was finalized on 14.05.2003, hence the provisions of Section 122(5A) were not even part of the Statute at the relevant time and thus could not have been invoked for any matter relating to a date prior to 01.07.2003. In addition to this argument, counsel for the respondent also contended that the respondent Company has gone into liquidation and in terms of Section 316 of the Companies Ordinance, 1984, before initiating any legal proceedings, permission ought to have been obtained from the Company Judge that is seized of the winding up proceedings. He submitted that this appeal may be dismissed. 6. When a Statute repeals an earlier Statute and it is an unqualified repeal, then the effect of such repeal is that the earlier Statue gets repealed in its entirety. However, where the Legislature intends to preserve any power or inchoate right in relation to the repealed Statute, then a saving clause is incorporated in the repealing Statute whereby certain provisions are preserved from getting repealed to the extent and with regard to the subject mentioned in the saving clause. The provisions of the repealed law that are so preserved are to be regarded as if the repealed Statute CIVIL APPEAL NO. 1086 OF 2009 6 was still in operation. Now the Income Tax Ordinance, 1979, stood repealed with effect from 30.06.2002 and was replaced by the Income Tax Ordinance, 2001, which came into operation immediately thereafter i.e. with effect from 01.07.2002. Section 239 (1) of the Income Tax Ordinance, 2001, provides that any assessment that was to be made for the income years ending on or before 30.06.2002, the same had to be made under the provisions of the repealed Income Tax Ordinance, 1979, as if Income Tax Ordinance, 2001, has not come into force. The question that arose before the forum below was whether the Commission Income Tax was justified in revising an assessment order relating the period covered under the repealed Income Tax Ordinance, 1979, by invoking the provisions of Section 122 (5A) of the Income Tax Ordinance, 2001, that was inserted on 01.07.2003 i.e. one year after the Income Tax Ordinance, 2001, came into operation. As per the interpretation put on Section 122 (5A) by the Sindh High Court in the case of Honda Shahrah-e-Faisal, the department could not have revised the assessment order in question by invoking Section 122 (5A) of Income Tax Ordinance, 2001, that was inserted on 01.07.2003 and being prospective in nature cannot be given retrospective application. In Honda Shahrah-e-Faisal case it was further held that as the provisions of Section 66A of the repealed Income Tax Ordinance, 1979, were also not saved under the Saving Clause i.e. Section 239 of the Income Tax Ordinance, 2001, the same also could not be applied to reopen the assessment order in question. CIVIL APPEAL NO. 1086 OF 2009 7 7. When the Income Tax Ordinance, 2001, came into operation on 01.07.2002, Section 239(1) read as “239. Savings- (1) The repealed Ordinance shall continue to apply to the assessment year ending on the 30th day of June 2003”. On 01.07.2003, Section 239 (1) was substituted by the Finance Act of 2002. It then onwards read “239. Savings- (1) Subject to sub-section (2), in making any assessment in respect of any income year ending on or before the 30th day of June, 2002, the provisions of the repealed Ordinance, in so far as these relate to computation of total income and tax payable thereon shall apply as if this Ordinance had not come into force. A bare reading of the original provisions of Section 239(1) would show that it was confined to only one assessment year that ended on 30.6.2003, which corresponds to the income year that ended on 30.6.2002. On the other hand the expression “any income year” in the amended Section 239(1) covers more than one income year that had ended on or before 30.06.2002. In other words, the amended Section 239(1) covered all assessment years ending on or before 30.6.2003 instead of just one assessment year ending on 30.6.2003 as provided in the original provisions of Section 239 (1). The expression “any income year” in the amended Section 239(1) clearly covers all assessment years that fall within the ambit of the repealed Income Tax Ordinance, 1979, which was not the case under the original provisions of Section 239(1) as under the original provisions the income tax department was not empowered to reopen any income year for scrutiny that fell prior to the income year that ended on 30.06.2002. As the lawmakers were not satisfied with this limited application of the original provision of Section 239 (1), hence they took corrective measure and altered it to the extent mentioned in the amended Section 239(1) whereby its scope, as discussed CIVIL APPEAL NO. 1086 OF 2009 8 above, was made much larger than the original provisions of Section 239(1). We shall now proceed to examine whether Section 239(1) as amended on 01.07.2003 on the basis of which notice under Section 122 (5A) was issued is prospective in its application or has retrospective application. 8. Section 239 of the Income Tax Ordinance, 2001, by its very nature, being a saving clause, was intended to preserve certain powers and procedures contained in the repealed Income Tax Ordinance, 1979. Several procedures for the correct assessment of income and determination of tax liability were devised in the repealed Income Tax Ordinance, 1979. These procedures are applied at various stages so that no income may escape from taxation on account of non-disclosure or miscalculation. When the amended Section 239 (1) of the Income Tax Ordinance, 2001, states “the provisions of the repealed Ordinance, in so far as these relates to computation of total income and tax payable thereon shall apply as if this Ordinance had not come into force”, it in fact saves the entire set of procedures prescribed under the repealed law through which the exercise of reaching at the correct calculation of total income and the tax payable thereon can be undertaken with regard to the periods covered under the repealed Income Tax Ordinance, 1979. Section 2(7) of the Income Tax Ordinance, 1979, describes the term assessment thus “assessment" includes re-assessment and additional assessment and the cognate expressions shall be construed accordingly”. Thus Section 239 (1) encompasses within its ambit all types of assessments that can be made to a tax return. In simple terms, assessment is relatable to all stages of assessments CIVIL APPEAL NO. 1086 OF 2009 9 that could be made to a tax return under the provisions of the repealed Income Tax Ordinance, 1979. The replacement of old law with a new one was never intended to affect the right of the department to revise an assessment order that had been made under the provisions of the repealed Income Tax Ordinance, 1979, but was intended only to devise a new method and mechanism to determine income and the tax payable for the post repeal era. Hence, the whole purpose of incorporating Section 239 was to preserve certain powers and procedures laid down in the repealed Income Tax Ordinance, 1979, so that it can be subsequently enforced in the post repeal era only in matters that relate to the period covered under the repealed Income Tax Ordinance, 1979. Thus the provisions of Section 239 are purely procedural in nature. When a provision is incorporated in any statute through an amendment that is procedural in nature then the retrospective rule of construction is to be applied to such provision. Such a provision has to be construed as if it was incorporated on the date when the main enactment reached the statute book. Merely because the amended Section 239(1) was inserted in the Income Tax Ordinance, 2001, on 01.07.2003 instead of 01.07.2002 when the parent statute came in operation, it cannot be said that a vacuum was created in giving effect to it from the date when the main enactment came into operation. By virtue of the amended Section 239(1), the powers or inchoate rights relating to income years covered under repealed Income Tax Ordinance, 1979, to the extent mentioned in Section 239 of the Income Tax Ordinance, 2001, were to continue to be exercised/enforced on the basis of the procedures prescribed in the repealed law as if the repealed Ordinance, 1979 is still in operation. CIVIL APPEAL NO. 1086 OF 2009 10 We are, therefore, of the opinion that the provisions of Income Tax Ordinance, 2001, cannot be interpreted in a manner so as to take away the powers of the Taxing Authority to revise, within the prescribed period of time, any assessment order that was passed under the provisions of the repealed Income Tax Ordinance, 1979. This intention of the legislature was not given primacy by the Sindh High Court while deciding the case of Honda Shahrah-e-Faisal. The learned Judges were simply swayed by the reasoning contained in CBR’s Circular No.1 (48) IT-I/79, dated 17.02.1981 and thus failed to apply the provisions of amended Section 239(1) retrospectively. 9. In the case of Commissioner of Income Tax vs. Asbestos Cement Industries Ltd (1993 SCMR 1276) which was delivered in a tax matter almost in similar circumstances, this Court in paragraph 8 stated as follows:- “8. A further aid to interpretation is available in the form of Explanation to section 136(1) of the Ordinance. That was added on 1-7-1985 by Finance Act I of 1985. It (the Explanation) reads as hereunder:---- "The period of ninety days within which an application is to be made shall apply notwithstanding that the application relates to an assessment year prior to the assessment year beginning on the first day of July, 1979, if such application is made on or after the first day of July, 1979." This Explanation is not a substantive enactment but declaratory. A declaratory legislation has always a retrospective effect. In Balaji Singh v. Chakka Gangamma and another AIR 1927 Mad. 85 the following principle was, enunciated on good authority for construing such Acts:--- "In Attorney-General v. Bugett (2 Price 381 = 146 Eng. Rep. 130), it was held that an Act of Parliament made to correct an error by omission in a former statute of the same session, has relation back to the time when the first Act was passed. Even when mistakes in legislative CIVIL APPEAL NO. 1086 OF 2009 11 enactments are corrected by a later amending Act, the amending Act should be read as part of the Act which it was intended to correct. Though the Act is not called a declaratory or explanatory Act, if from the words used in the Act the Court can come to the conclusion that it is a declaratory or an explanatory Act, retrospective effect will be given to such Act." This Court in the case of Commissioner of Income Tax vs. Asbestos Cement Industries Ltd (1993 SCMR 1276) has also held that the provisions of law which are procedural in nature are retrospective in their application. A passage from the said judgment of this Court is reproduced as under:- “4. The first legal proposition not open to question is that the law of limitation is by and large and substantially a procedural law. It was so held in S.M. Junaid v. President of Pakistan PLD 1981 SC 12. The other principle equally well established is that a procedural law has a retrospective application and is attracted forthwith to the pending proceedings. The Supreme Court of Azad Jammu & Kashmir also in the case of Fazal dad Vs. Mst. Sakina Bibi and another (1997 MLD 2861) retrospectively applied procedural law after holding as follows:- “5. We have given our due consideration to the arguments raised at the Bar. There is no quarrel with the proposition that the law of limitation is a procedural law and generally it is given retrospective effect even if it is not so provided by the statute itself. However, there is one exception to it; if such retrospectively takes away, destroys or nullifies the vested rights of a litigant, the old law of limitation would govern the matter and new statute or provision of law introduced by an amendment or otherwise, would not affect the vested rights of a litigant. Even, the authorities relied upon by the learned counsel for the appellant support the aforesaid view. A CIVIL APPEAL NO. 1086 OF 2009 12 reference may also be made to a case reported as Joshi Maganlal Kunverji v. Thacker Mulji Budha (AIR 1951 Kutch 15). While dealing with the proposition, it has been observed as under:-- "(4) ………………………… In the present case the plaintiff had a vested right under the repealed Limitation Act to bring his suit when the new Limitation Act was applied. The effect of the new Limitation Act was to destroy it outright. In such circumstances unless the Legislature has stated in unequivocal terms that the new enhancement should destroy the vested right it cannot be applied retrospectively so as to prevent the plaintiff from exercising his right to bring a suit which he had under the repealed Act. " 10. There is no denying the fact that had the Income Tax Ordinance, 2001, not come into existence, the assessment in question could have been revised under the repealed Income Tax Ordinance, 1979, within five years of its finalisation i.e. within five years from 14.5.2003, when the initial assessment order in the present case was passed. This right to revise the assessment in question could be exercised under the provisions of the repealed Income Tax Ordinance, 1979, uptill 13.05.2008 which right was never given up under any provision of the Income Tax Ordinance, 2001. It does not appeal to reason that the Legislature would intend to let go persons whose incomes for any reason have escaped taxation under the repealed Income Tax Ordinance, 1979, but would still pursue the persons who are liable to file tax returns under the Income Tax Ordinance, 2001, so that they may not escape the correct tax liability. As already discussed, the Income Tax Ordinance, 2001, has preserved the powers of the tax authorities to revise assessments orders pertaining to the period falling under the repealed Income Tax Ordinance, 1979, and for CIVIL APPEAL NO. 1086 OF 2009 13 such purpose Section 239(1) was incorporated in the Income Tax Ordinance, 2001. In the present case, on the strength of Section 239(1), the machinery provided under Section 122 (5A) the Income Tax Ordinance, 2001, was brought into play for the assessment year in question. This, in our view, was only a technical mistake because in terms of Section 239 (1) of the Income Tax Ordinance, 2001, notice for reopening the assessment in question could have been issued under Section 66A of the repealed Income Tax Ordinance, 1979. 11. From the above discussion it thus appears that the decision in the case of Honda Shahrah-e-Faisal was erroneous as it proceeded on the assumption that the right to revise an assessment made under the repealed law stands extinguished merely for the reason that the provisions of Section 122 (5A) of Income Tax Ordinance, 2001, were inserted with effect from 01.07.2003 and being prospective in nature cannot be applied retrospectively. This resulted in destroying the department’s right to revise, or amend or reopen an assessment order made under the repealed Income Tax Ordinance, 1979, irrespective of the fact that the time to revise such assessment under the repealed law had not even expired. 12. At the time of seeking leave before this Court, the appellant’s counsel had referred to the case of Commissioner of Income Tax Vs. Eli Lilly Pakistan (Pvt) Ltd (2009 SCMR 1279) in order to point out that it has upheld the decision given in the case of Honda Shahra-e-Faisal. We therefore feel inclined to discuss the Eli CIVIL APPEAL NO. 1086 OF 2009 14 Lilly case in some detail. This Court in paragraph 57 of the Eli Lilly case had held as follows:- “57. In the light of the above discussion, we uphold view of the Sindh High Court taken in Honda Shahra-e-Faisal and followed by the other High Courts as also the Income Tax authorities that the provisions of section 122 of the Ordinance are prospective in their application and do not apply to the assessment of a year ending on or before 30th June, 2002. On that account the appeals are bound to fail and the impugned judgments would be upheld. However, the learned High Courts have not adverted to the question of treatment of assessments of the period preceding the enforcement of the Ordinance. As already noted, section 65 of the repealed Ordinance provided a period of five years for additional assessment and such assessments were to be dealt with under the said provision in accordance with original section 239(1) of the Ordinance. The learned High Courts failed to take into consideration this aspect of the matter and did not direct that the assessments completed under the repealed Ordinance would be subject to the provisions of the said Ordinance, as originally provided in un-amended section 239(1), but not clearly and properly provided in the Ordinance at the amendment stage. We fill this lacuna in the impugned judgments and direct that the assessment of any year ending on or before 30th June, 2002 would be governed by the repealed Ordinance and shall be dealt with as if the Ordinance had not come into force. In taking this view, we are fortified by a passage from the Maxwell on Interpretation of Statutes, 10th Edition (1953), p. 228, which reads as under:- "Where rights and procedure are dealt with together, the intention of the legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by the new procedure." CIVIL APPEAL NO. 1086 OF 2009 15 13. In Eli Lilly case referred to above this Court held that the assessment order under the repealed Income Tax Ordinance, 1979, could have been reopened only under the provisions of Section 239(1) which were originally incorporated but as the same were substituted through amendment on 01.07.2003, the amended provision being prospective in its application cannot be applied to income years ending on or before 30.06.2002 thus concurred with the decision of the Sindh High Court in the case of Honda Shahra-e- Faisal. In Honda Shahra-e-Faisal case, procedural provisions of Section 122(5A) of Income Tax Ordinance, 2001, were interpreted to be prospective in their application, such determination is contrary to the plethora of decisions of this Court wherein it has been held that where procedural provisions are incorporated through amendment then the same have retrospective application. We therefore treat such finding as per incuriam. In the case of Application by Abdul Rehman Farooq Pirzada and Begum Nusrat Ali Gonda Vs. Federation of Pakistan (PLD 2013 SC 829) the legal term per incuriam was extensively discussed in its paragraph 4 and applied to an earlier decision of this Court in the case of Accountant General Sindh Vs. Ahmed Ali U. Qureshi (PLD 2008 SC 522). 14. We may also point out here that it was also observed in Eli Lilly case that Honda Shahrah-e-Faisal case has failed to address the question as to how the assessments relating to periods prior to Income Tax Ordinance, 2001, can be enforced. After observing so, it took the view that there was a lacuna which needed to be filled and this was done by holding that all assessments relating to the CIVIL APPEAL NO. 1086 OF 2009 16 periods prior to Income Tax Ordinance, 2001, coming into force are to be undertaken in accordance with original provision of Section 239(1) of the Income Tax Ordinance, 2001. Thus this Court in Eli Lilly case reached at the same conclusion, which we have reached in this case, albeit on a different set of reasoning. 15. Apart from holding that provisions of Section 239(1) of the Income Tax Ordinance, 2001, have retrospective application, the controversy in the present case can also be looked at from distinct prospective. The tax laws are a body of rules and regulations under which the State has a claim on the taxpayers so that they may pay to the State a part of their incomes at the specified rates. This liability to pay income tax accrues on the taxpayer on the last day of the income year/accounting year, though the tax becomes payable after it is quantified in accordance with the procedures laid down in the Income Tax law. Thus a charge in favour of the State is created at the end of each accounting year, though the exercise of (i) making an assessment on the basis of ascertainable data of income and expenditure, or (ii) revising an assessment order where it is found that there is sufficient material to hold that the original assessment was prejudicial to the interest of the revenue, takes place at some later stage. These procedural exercises are undertaken only with the object of reaching at the correct calculation of yearly income but the real liability to pay tax had already accrued on the last day of the income year i.e. on the last day of the accounting year thereby creating a charge in favour of the State. It may be understood as an expense that has already accrued but is payable later. Reference can also be made to Section 9 of the Income Tax Ordinance, 1979, CIVIL APPEAL NO. 1086 OF 2009 17 with regard to the creation of the charge on the basis of income year. Thus seeking revision of a tax return at any subsequent stage has nothing to so with the creation of charge on the tax-payer that has become absolute on completion of the income year/accounting year. 16. In this regard reference can also be made to cases from Indian jurisdiction. In the case of Chatturam Vs. Commissioner of Income Tax (AIR 1947 FC 32) and in the case of Williams Vs Henry Williams Ltd it was held that the liability of Income Tax was definitely and finally created by the charging section and the provisions of assessment etc. were machinery provisions only for the purpose of quantifying the liability. In the case of Wallace Brothers & Co. Ltd. Vs Commissioner of Income Tax (AIR 1948 PC 118) also it was held ".... the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed." The Indian Supreme Court in the case of Kalwa Devadattam v. Union of India (AIR 1964 SC 880) also held the same in these words- “Under the Indian Income-tax Act liability to pay income-tax arises on the accrual of the income, and not from the computation made by the taxing authorities in the course of assessment proceedings; it arises at a point of time not later than the close of the year of account." CIVIL APPEAL NO. 1086 OF 2009 18 17. In light of the discussion undertaken in the preceding paragraph, it is clear that charge is created on the last date of accounting year which under the repealed Income Tax Ordinance, 1979, was created up till 30.06.2002. The power to recover tax cannot be taken away, even if there had been no saving clause in the Income Tax Ordinance, 2001. Such power gets automatically protected under the provisions of the general law i.e. Section 6 of the General Clauses Act, 1897. This claim on the basis of the charge already created could have been taken away if a specific provision to that effect had been incorporated in the Ordinance, 2001 but that is not the case in the present matter. Thus irrespective of any accounting discrepancy that is sorted out on the basis of the procedural provisions of the income tax law at any subsequent stage, the charge of income tax on the taxpayer stands established on the last day of the income year/accounting year. In the present case, the last day of the last income year covered under the repealed Income Tax Ordinance, 1979, was 30.6.2002, therefore, on all income years that ended on or before 30.6.2002 the charge to recover tax had already been created on or before such date. In the case of Muhammad Arif Vs. State (1993 SCMR 1589) it was held as follows:- “From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be CIVIL APPEAL NO. 1086 OF 2009 19 imposed as if the law had not been repealed. This is so, inter alia, because of section 6 of the General Clauses Act, 1897 (which corresponds to section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute.” 18. Following passages from Indian jurisdiction in the case of State of Punjab Vs. Mohar Singh Pratap Singh (AIR 1955 Supreme Court 84) can also be referred with considerable advantage:- “Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.” CIVIL APPEAL NO. 1086 OF 2009 20 19. Thus the charge on the income of an assessee that accrues on the last date of an income year is also protected independently under the provisions of general law i.e. Section 6 of the General Clauses Act and no dependence on saving clause was required. 20. In so far as the contention of the counsel for the respondent that leave was not obtained from the Court which is seized of the winding up proceedings, suffice is to state that Section 316 of the Companies Ordinance, 1984, is attracted when winding up order is passed or provisional manager is appointed. In the present case, it has not been demonstrated that such an order has been passed. Mere filing of winding up proceedings does not attract the provision of Section 316. Even otherwise, we have decided the question of jurisdiction and propose to remand the case back to the Commissioner Income Tax (Appeals), Peshawar, for adjudication of the respondent’s appeal on merits. Hence, at this stage no useful purpose would be served to go into the question of whether the leave of the court that is seized of the winding up proceedings was to be sought first before proceeding further in the matter. 21. In view of what has been discussed above, we are of the considered opinion that it was never intended by the lawmakers, even at the time of promulgating the Income Tax Ordinance, 2001, to destroy the charge on incomes that accrued under the provisions of repealed Income Tax Ordinance, 1979, in so far as such charge related to correct computation of total income and the tax payable CIVIL APPEAL NO. 1086 OF 2009 21 thereon. Such a claim arising under the repealed law, which had not extinguished by afflux of time, was specifically made enforceable through legal fiction created in Section 239(1) as if the Income Tax Ordinance, 1979, had not been repealed. This was the sole object of incorporating Saving Clause in the form of Section 239(1) in the Income Tax Ordinance, 2001. Therefore, it cannot be said that the income years which relate to the period covered under the repealed Income Tax Ordinance, 1979, cannot be brought under scrutiny under its provisions after 30.06.2002 on the strength of Section 239 (1) of the Income Tax Ordinance, 2001. Additionally, this could be done even on the strength of the provisions of Section 6 of the General Clauses Act as the charge of tax stood created on or before 30.06.2002. As to the validity of the notice sent to the respondent under the label Section 122 (5A) of the Income Tax Ordinance, 2001, suffice is to state that merely because the notice was so labelled instead of Section 66A of the Income Tax Ordinance, 1979, it does not follow that it was invalid under the law. By virtue of Section 6 of the General Clauses Act as well as under Section 239(1) of the Income Tax Ordinance, 2001, powers under Section 66A could have been exercised to take same action as was contemplated in the notice in question. We therefore, treat the notice dated 23.8.2004 issued under Section 122(5A) to be notice issued under Section 66A of the Income Tax Ordinance, 1979. For the foregoing reasons, the impugned order is set-aside. Resultantly, the appeal of the respondent filed before the Commissioner, Income Tax (Appeals), Peshawar stands revived. Let the Commissioner, Income Tax (Appeals), Peshawar after issuing due CIVIL APPEAL NO. 1086 OF 2009 22 notice of hearing to the parties decide respondent’s appeal afresh on merits. Needless to mention that his decision shall be governed by this decision with regard to the retrospective application of Section 239(1) of the Income Tax Ordinance, 2001. Let a copy of this judgment also be dispatched to the Chairman, Federal Board of Revenue for its implementation in cases involving similar controversy. 22. The above are the detailed reasons of our short order dated 16.12.2015. JUDGE JUDGE Islamabad, the JUDGE 16th of December, 2015 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1086 OF 2014 (Against the judgment dated 7.8.2014 of the Election Tribunal, Karachi passed in Election Petition No.7/2013) Syed Hafeezuddin …Appellant(s) VERSUS Abdul Razzaq etc. …Respondent(s) For the appellant(s): Mr. Afzaal Ahmed Siddiqui, ASC For respondent No.1: Mr. Tariq Mehmood, Sr. ASC Mr. M. S. Khattak, AOR Date of hearing: 19.11.2015 … ORDER MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the Representation of People Act, 1976 (the Act) is directed against the judgment of the learned Election Tribunal, Karachi dated 7.8.2014 whereby the election of the appellant (returned candidate) was set aside and the respondent No.1/election petitioner (runner up) was declared to be the returned candidate. 2. The brief facts of the case are:- elections in PS-93 Karachi were held on 11.5.2013 for which twenty-nine candidates contested, including the appellant and respondent No.1 (respondent). The appellant, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.5.2013, obtained 15,432 votes, while the respondent, securing 10,960 votes, was the runner up, and another candidate, namely, Bashir Jan (at third position) scored 9,664 votes. The difference between the number of votes obtained by the appellant and the Civil Appeal No.1086 of 2014 -: 2 :- respondent is 4,472. The respondent filed an election petition on the ground that massive rigging had taken place in the elections and that illegal and corrupt practices were resorted to on account of which the election of the appellant be declared as void and the respondent be accordingly declared as the returned candidate. It may be pertinent to mention here that according to the contents of the election petition, this massive rigging etc. has been alleged and restricted to nine polling stations, i.e. 2, 18, 23, 29, 32, 55, 68, 71 and 77, but subsequently the respondent confined himself to only seven polling stations, i.e. 2, 18, 23, 29, 32, 55 and 68. It may also be added that the case of the respondent was that the Returning Officer and the Presiding Officer of these polling stations manipulated the results. After obtaining a reply from the appellant, the learned Tribunal framed the following issues:- “1. Whether the petition is maintainable in accordance with the law. 2. Whether the petitioner had obtained the votes as mentioned by him in his petition in paragraphs no.15(c) and 15(d)? 3. Whether the Presiding Officers of polling stations no.29, 32, 68, 71 and 77 of the constituency had issued statements of count (Form-XIV) to the petitioner showing his votes as mentioned in paragraph 15(c) of the Petition? 4. Whether the respondent no.1 didn’t obtain the votes at polling station no.2, 18, 23, 29, 32, 55 and 68 of the constituency and consolidated statement of count (Form XVI) issued by the Returning officer in respect of these polling stations is not in accordance with the statements of count (Form XIV) issued by the Presiding Officers of these polling stations? 5. Whether the returning officer had failed to issue notices to the contesting candidates before the consolidation of the result in form XVI in accordance with the law? Civil Appeal No.1086 of 2014 -: 3 :- 6. Whether the Respondent No.1 or his agents have committed any act of illegal practice during the polling? 7. Whether the Presiding Officers of the above mentioned polling stations and the Returning Officer in connivance with each other committed illegal act or illegal practice to support the Respondent no.1 if yes, its effect? 8. Whether the election of the Respondent no.1 (The Returned Candidate) is fit to be declared as void and the petitioner to have been duly elected? 9. What should the order be?” Upon giving its findings on various issues, the learned Tribunal came to the conclusion that the respondent was not able to prove any illegal and corrupt practice vis-à-vis the noted seven polling stations except polling station No.29. In this context, it may be mentioned that though the case of the respondent is that there was rampant rigging in connection with polling station No.32, this plea of the respondent has been discarded and the respondent has not challenged the finding of the learned Tribunal before this Court (either by cross-objections or even orally). With regard to polling station No.29, suffice it to say that in the said polling station a total of 1,600 votes were cast out of which the appellant procured 1,400 votes while the respondent procured zero votes. The learned Tribunal, on account of the evidence, particularly the statement of Ms. Safia Sultana Malik and Ms. Saeeda Sagheer, the Presiding Officer and the Assistant Presiding Officer respectively of the said polling station, came to the conclusion that Ms. Malik had not counted the votes and committed grave illegalities in preparation of Form-XIV. 3. It has been argued by the learned counsel for the appellant that the difference of votes between the appellant and the respondent is Civil Appeal No.1086 of 2014 -: 4 :- 4,472 and even if 1,400 votes are excluded from the count, which were allegedly not properly and validly counted vis-à-vis polling station No.29, yet the appellant is a winning candidate with a margin of 3,072 votes. It is also argued that there was no evidence produced by the respondent vis-à- vis corrupt and illegal practices falling within the provisions of Sections 78 and 83 of the Act. Therefore, on account of lack of such evidence the appellant cannot be prejudiced by declaring him as having procured his election through massive rigging and corrupt and illegal practices. 4. On the contrary, learned counsel for the respondent has at the very outset drawn a distinction between Sections 68 and 69 on the one hand and Section 70 on the other, stating that the question of an election being “materially affected” only relates to the latter section, when considering declaration of an election as a whole void, whereas the former sections pertain to declaration of the election of the returned candidate as void on certain grounds enumerated therein, and in this respect he particularly relied upon Section 68(c) read with Section 68(2)(a), and Section 68(d). Furthermore, he justified and defended the judgment of the learned Tribunal by submitting that from the beginning of election till the counting of votes, there have been violations of law. In this context, it is argued that it was the duty of the Presiding Officer to have counted the votes and prepared the statement of count (Form-XIV) personally which, as per the statement of the Presiding Officer herself as also the Assistant Presiding Officer, was not so done, rather the form was filled up by the Assistant Presiding Officer and this is a glaring illegality which is apparent on the face of the record. It is also stated that the Presiding Officer of polling station No.29 signed the hand-written result and provided it to the polling agents of the respondent, which result is different from that reflected in Form-XIV, which plea is also supported by the Assistant Presiding Officer. Further, that the name of the respondent was not even contained in Form- Civil Appeal No.1086 of 2014 -: 5 :- XIV of polling station No.29. It is also submitted that the statement of count pertaining to the votes cast in favour of the candidate of the National Assembly is absolutely different from the votes of the Provincial Assembly which reflects that Ms. Malik had committed an illegality vis-à-vis the proper count and preparation of Form-XIV. Above all, it is argued that Ms. Malik had connived and colluded with the appellant because she, in ordinary course, should have been summoned through the learned Tribunal as an official witness, but in this case she not only appeared as a witness on behalf of the appellant rather it is a fact apparent on the record that she had provided him with her affidavit and that affidavit was produced before the learned Tribunal by the appellant himself meaning thereby that she had colluded with the appellant and such inference can be safely drawn. In support of his submissions, learned counsel for the respondent relied upon the case reported as Sardar Abdul Hafeez Khan v Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284). 5. Heard. The key questions involved in this matter are:- first, whether the election of the appellant, on account of the amiss which is pointed out by the learned counsel for the respondent and the proof of committing illegal and corrupt practices by the appellant in connivance with the Presiding Officer, can be declared to be void; and secondly, whether such illegality if committed falls within the purview of Section 70(a) of the Act and thus the election could be declared void as a whole but because the findings of the learned Tribunal vis-à-vis all other polling stations is in favour of the appellant and the only grouse is regarding one polling station, the difference of votes whereof is only 1,400, thus even if these votes are excluded, in that eventuality the election of the appellant would not be materially affected. In order to appreciate the above, the relevant provisions (parts) of Sections 68, 69, 70 and 83 are reproduced as below:- Civil Appeal No.1086 of 2014 -: 6 :- “68. Ground for declaring election of returned candidate void.–(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that– (a) ……………………………………………… or (b) ……………………………………………… or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2) The election of a returned candidate shall not be declared void on the ground– (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b) that any of the other contesting candidates was, on the nomination day not qualified for or was disqualified from, being elected as a member. 69. Ground for declaring a person other than a returned candidate elected.–The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. 70. Ground for declaring election as a whole void.– The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of– (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. Civil Appeal No.1086 of 2014 -: 7 :- 83. Illegal practice.–(1) A person is guilty of illegal practice if he– (a) …………………………………………………… (b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate; (c) …………………………………………………… (d) …………………………………………………… (e) …………………………………………………… (f) ……………………………………………… or (g) knowingly induces or procures any person to do any of the aforesaid acts. (2) Any person guilty of illegal practice shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to five thousand rupees.” 6. Before answering the two aforementioned questions, we find it expedient to understand the legal framework of Sections 68, 69 and 70 of the Act. These sections can be broadly divided into two parts:- (i) Sections 68 and 69 stipulate the grounds for declaring the election of a returned candidate void and declaring a person other than the returned candidate as elected, respectively; and (ii) Section 70 governs the grounds for declaring the election as a whole void. Once any of the grounds enumerated in Section 68 have been established through such quality evidence which has been prescribed by various dicta of the apex Court in this behalf; the obvious consequence as per the law shall thus be to declare the election of such returned candidate as void. While passing such order the Tribunal under Section 69 ibid though is duly empowered to declare the election petitioner or any of the contesting respondents as the returned candidate, it Civil Appeal No.1086 of 2014 -: 8 :- may make such declaration only if a claim in this regard has been set out by them. Furthermore, such declaration shall not be made as a matter of course or a right or ipso facto rather only in the circumstances of the case where the election petitioner or the respondent of the election petition is able to substantiate and make out a case qua his entitlement to the satisfaction of the Tribunal. This entitlement shall be dependant on the facts and circumstances of each case; the reasons set out and proof for the entitlement thereof; in this context the guiding principles have been propounded in the case reported as Syed Saeed Hassan v Pyar Ali and 7 others (PLD 1976 SC 6). Thus the grant of relief to the election petitioner or any other respondent in the election petition under the provisions of Section 69 of the Act must be proved on the strength of their own entitlement to get elected in place of the returned candidate, as has been laid down by this Court in Dr. Sheela B. Charles v Qaisar Ifraeem Soraya and another (1996 SCMR 1455). While considering the parameters of Section 69, particularly with respect to a runner up (and not any of the other candidates) and where the returned candidate has been found to be disqualified and his election has been declared as void, as has been consistently held by this Court in a line of cases reported as Rashid Ahmad Rahmani v (1) Mirza Barkat Ali, (2) Master Fazal Elahi and (3) The Additional Commissioner, Lahore (PLD 1968 SC 301); Lal Muhammad v Muhammad Usman and others (1975 SCMR 409); Pyar Ali; Muhammad Ilyas v The Returning Officer etc. (1981 SCMR 233); Junaid Ahmad Soomro v Haji Mehboob Ali Bhayo and others (PLD 1986 SC 698); Sahibzada Tariqullah v Haji Amanullah Khan and others (PLD 1996 SC 717); Engr. Iqbal Zafar Jhagra and others v Khalilur Rehman and 4 others (2000 SCMR 250); Ellahi Bakhsh v District and Sessions Judge, Rajanpur/Election Tribunal, Dera Ghazi Khan and others (PLD 2003 SC 268); Mian Ahmed Saeed Civil Appeal No.1086 of 2014 -: 9 :- and others v Election Tribunal for Kasur at Okara and 7 others (2003 SCMR 1611); Sh. Amjad Aziz v Haroon Akhtar Khan and 10 others (2004 SCMR 1484); Bashir Ahmed Bhanban and another v Shaukat Ali Rajpur and others (PLD 2004 SC 570); Shaukat Ali and another v District Returning Officer and another (PLD 2006 SC 78); Imtiaz Ahmed Lali v Ghulam Muhammad Lali (PLD 2007 SC 369); and Chaudhry Muhammad Munir and others v Election Tribunal, Mandi Bahauddin and others (2009 SCMR 1368), it is not the case that the votes of the returned candidate (who has been disqualified and whose election as a returned candidate has been declared to be void under Section 68) are to be simply disregarded or discarded on the doctrine of throw away votes and the runner up is to be automatically declared as the duly elected returned candidate by virtue of having secured the next highest number of votes; rather the notoriety of the disqualification amongst the voters at the time of polling has to be examined and if the disqualification is found to be notorious (apparent or known to the public), only then can the votes of a winner of an election be thrown away, and the runner up be declared to be the duly elected returned candidate. If the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then the runner up cannot be declared to be the duly elected returned candidate, as the possibility cannot be ruled out that any of the other candidates could have won the elections, hence the election must be declared to be void as a whole and fresh elections must take place (as per the law enunciated in the cases of Rashid Ahmed, Pyar Ali, Lal Muhammad, Muhammad Ilyas and Ahmed Saeed). It may be pertinent to mention here that a runner up is required to prove the notoriety of disqualification of the successful candidate at the time of polling through positive evidence. It is also worthy to point out that though notoriety is with respect to disqualification, the test is essentially that of the validity (or otherwise) Civil Appeal No.1086 of 2014 -: 10 :- of the votes in question, which exercise was taken by this Court in the case of Pyar Ali, where there were allegations of illegal and corrupt practices as opposed to disqualification. Whether or not the principle of ‘throw away votes’ can be invoked in cases other than that of disqualification would ultimately depend upon the facts and circumstances of each case, the nature of the allegations leveled in the election petition and the quality of evidence produced before the election tribunal. The upshot of the above discussion is that Sections 68 and 69 of the Act constitute a two-prong test, both limbs of which must be satisfied by any election petitioner or respondent to a petition challenging the election of the returned candidate, if any of them wish to be declared duly elected in place of such returned candidate. Now coming to Section 70 of the Act, the provisions of which pertain to declaration of the election as a whole void (as opposed to the election of the returned candidate only), such a declaration can only be so made if there is a failure of any person to comply with the provisions of the Act or Rules or there is prevalence of extensive corrupt or illegal practice at the election, either of which must materially affect the result of the election. 7. The first question which requires deliberation is whether the lapses in the election pointed out by the learned counsel for the respondent constitute illegal practices within the purview of the law and consequently the election of the appellant can be declared to be void. It may be pertinent to mention here that the evidence led by the respondent, the findings of the learned Tribunal and the submissions of the learned counsel for the respondent do not fall within the realm of “corrupt practices” (defined in Section 78), thus we do not find it necessary to refer to the same, rather we have confined ourselves to the relevant issue of “illegal practices” (defined in Section 83). A perusal of the election petition indicates that the thrust of the respondent’s allegations is that the appellant colluded and connived with Civil Appeal No.1086 of 2014 -: 11 :- the election staff, particularly the Presiding Officers of polling stations No.2, 18, 23, 29, 32, 55 and 68 (the respondent discarded his allegations vis-à-vis polling stations No.71 and 77 during the trial of the election petition), who have fabricated, forged and manipulated the count in a manner which has illegally increased the votes of the appellant and decreased that of the respondent. The learned Tribunal held that the respondent could not prove his allegations vis-à-vis polling stations No.2, 18, 23, 55 and 68. With respect to polling station No.32, the minor discrepancy in the votes was admitted by the Presiding Officer of the said polling station to be a bona fide mistake on his part, thus in essence the respondent’s allegations of collusion and connivance and illegal practice also did not stand to be proved vis-à-vis polling station No.32. The only contentious polling station that remained was that of No.29, with respect to which learned counsel for the respondent confined his arguments to before us. We find it beneficial to reproduce the relevant portions of the learned Tribunal’s findings vis-à-vis polling station No.29: “Issues No.2,3 and 4. Now coming to the count in respect of Polling Station No 29 which is the most controversial count from the petitioner’s point of view. Its Presiding Officer, Mst. Safia Sultana Malik was examined as exhibit O-5 and was cross examined by both the learned advocates for the parties. As per her evidence the returned candidate had obtained 1400 votes which were mentioned in her official statement of count, Form XIV, exhibit O-5/3. However, admittedly in this statement of count even the name of the petitioner was not mentioned as she was completely ignorant of the fact that he too had contested the election from the said constituency. This statement of count does not provide the other required details as far as the names of all the contesting candidates and the votes polled by them are concerned. Section 38(9) of the Act directs the Presiding Officer of polling station that immediately after the count he shall prepare statement of count in such form as may be prescribed (Form-XIV) showing therein the numbers of valid votes polled by each contesting candidate and the Civil Appeal No.1086 of 2014 -: 12 :- ballot papers excluded from the count. There are other unexplained discrepancies also in the same including corrections, overwriting and miscalculation in counting. The violation of the above provision of law has made the statement highly doubtful and requires further objective scrutiny before reaching to any firm conclusion as far its legal effects are concerned. For this the conduct and neutrality of the Presiding Officer will be the most important factor. In this regard the act of filing of her own affidavit in evidence, exhibit O-5/1, voluntarily in support of he returned candidate show her bias in favour and is sufficient to hold that she did not act fairly and independently while performing her duties as polling official for whom it was incumbent under the Act to discharge her duties honestly within the contemplation of its provisions. This finding gets full support from the consideration of the total votes cast at the corresponding Polling Station No 159 of National Assembly constituency, NA-241 in comparison with the total votes cast at polling station no. 29. The total votes cast at polling station no. 159 were 148 (as per exhibit P-5/17, consolidated result which is an admitted document) whereas the total votes cast at polling station no. 29 of this constituency were 1440 and there is no logical reason of such a huge difference when each voter is required to cast his vote to the contesting candidate of his choice for the National Assembly and Provincial Assembly. The Presiding Officer during her cross avoided to reply the questions in this regard showing her ignorance. The total votes polled at the polling station no. 149 of NA-241 corroborates the evidence of the polling agent of the Petitioner, Mst. Sajida, exhibit P-11, in which she has deposed that as per official count, the votes polled by the Petitioner and the returned candidate as furnished by the Presiding Officer were 117 and 83 respectively and the total votes cast at these two polling stations for both the constituencies were 117 and 111, exhibit P-11/1, This statement is bearing the purposed signature of the Presiding Officer, Ms. Safia Malik. Without going into the genuineness of this signature by comparing with her admitted signatures on exhibit, O-5/2 to O-5/5 but on the basis of quality evidence produced by the petitioner which is fully corroborated with the circumstantial evidence it is held at polling station no 29 the petitioner polled 117 votes and the returned candidate 83 votes. … To sum up the above discussion it is suffice to say that except for the polling station no. 29 and 32 the petitioner has failed to prove the statements of count relied upon by Civil Appeal No.1086 of 2014 -: 13 :- him showing the figures of votes polled by him or by the returned candidate. The issue is decided accordingly. … Issue Nos 6 and 7 … Since it has been admitted that the returned candidate has obtained the assistance of the Presiding Officer to further his own election as a candidate, but for this it is to be examined whether the said presiding officer is in the service of Pakistan. … Applying the above principle the Presiding Officer Ms. Safia Sultana Malik was admittedly employed as school teacher in Sindh Welfare Board, Govt. of Sindh, as admitted by her in her evidence therefore she is in the service of Pakistan. The returned candidate has therefore committed an act of illegal practice within the ambit of Sec. 83(b) of the Act on account of obtaining her illegal assistance to further his election as a candidate. … In this case the connivance between Mst. Safia Malik, the Presiding Officer and the returned candidate is also floating on the surface of the record as discussed in detail in the relevant issues and there cannot be any doubt that the act of mentioning 1400 votes polled by the returned candidate illegally was nothing but to procure her assistance to further his election as candidate. Hence he has committed an act of illegal practice within the contemplation of the section 83(b) of the Act.” Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged, as held been held by this Court in the cases reported as Muhammad Saeed and 4 others v (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Civil Appeal No.1086 of 2014 -: 14 :- Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91); Mian Jamal Shah v (1) The Member Election Commission, Government of Pakistan, Lahore, (2) The Returning Officer, Constituency of the National Assembly of Pakistan No. NW-II, Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan Muhammad Yusuf Khan Khattak v S. M. Ayub and 2 others (PLD 1973 SC 160) and Pyar Ali. Therefore let us examine whether in this case there is evidence to the effect that illegal practices in terms of the law as provided for in Section 83 of the Act have been committed and so proved. Learned counsel for the respondent submitted that the Presiding Officer of polling station No.29, Ms. Malik, did not fill up the statement of count, that the respondent’s name was not mentioned in the statement of count and that she signed hand-written results and provided them to the polling agents of the respondent in which the count is different from that in Form-XIV. However, a perusal of Ms. Malik’s evidence suggests that she admits to overwriting on figures in Form-XIV to make corrections; admits to writing the figure 1,600 on one page of Form-XIV of polling station No.29 and the figure 1,700 on the other page; admits to the errors in calculation while attributing it to absence of a calculator and lack of sufficient light due to a power breakdown; admits that the Form-XIV was not entirely prepared by her, in that the candidates’ names were written by the Assistant Presiding Officer, but the rest including her name and signature are in her own handwriting; and that she attributed the absence of the respondent’s name from the Form-XIV to the fact that she was not aware that he was contesting from the said constituency. Be that as it may, we are of the candid view that even if such lapses occurred, they certainly do not fall within the definition of “illegal practice” contained in Section 83(b) (the other sub-clauses are not relevant in the instant matter) as they do not constitute “obtaining or procuring or attempting to obtain or procure the assistance of any person in the service of Civil Appeal No.1086 of 2014 -: 15 :- Pakistan to further or hinder the election of candidate”. With regard to the argument that she had prepared her affidavit in the appellant’s office and did not appear as an official witness which fact indicates connivance and collusion with the appellant, we are of the view that these are mere inferences, which are neither positive nor conclusive evidence of the fact that she colluded and connived with the appellant, and that the appellant “obtained” or “procured” the assistance of the Presiding Officer to secure his election as a returned candidate. The learned Tribunal has erred gravely in drawing such inference and concluding that this suggests that Ms. Malik was biased in favour of the appellant. The argument regarding the difference between the statements of count of the National and Provincial constituencies which, according to the learned counsel for the respondent, also suggests illegal practice by Ms. Malik also fails on the count of being a plain inference, not backed by sufficient evidence of the same. Furthermore, the record, particularly her evidence, does not suggest that Ms. Malik was ever confronted with the document relied upon by the learned Tribunal in this regard, i.e. P-11/1. In fact, the learned Tribunal has itself stated “without going into the genuineness of this signature by comparing with her admitted signatures on exhibit…” indicating that it undertook a handwriting comparison analysis which we find, anyone other than a handwriting expert, is not competent to carry out. Learned counsel for the respondent has conceded that there is no evidence to directly prove that there was connivance between the appellant and the Presiding Officer but on account of inferences which should be necessarily drawn in this case because of the conduct of the Presiding Officer identified above, it should be held that the Presiding Officer acted in collusion with the appellant and thus the latter’s election should be declared to be void. Reliance placed upon Abdul Hafeez Khan’s case by the learned counsel for the respondent in this regard is misconceived (the said Civil Appeal No.1086 of 2014 -: 16 :- case may be more relevant to Section 70 of the Act and shall be discussed below). Even if an inference is to be drawn, it can only be so done where there is only one possible conclusion that can be reached, warranting proof through circumstantial as opposed to direct evidence. The fact that certain lapses/anomalies were committed by the Presiding Officer of polling station No.29 will not automatically lead to the conclusion that such was done in connivance or collusion with or on the instructions of the returned candidate/appellant. There is the possibility that the lapses committed by the Presiding Officer Ms. Malik were bona fide mistakes or due to lack of proper skill and adequate knowledge or expertise as to how to do the needful, or as a result of miscalculation of votes or lack of sufficient light due to a power breakdown. The possibility cannot be ruled out that any one of the candidates in an election colluded with the election staff at one polling station and had certain violations of the election law committed such as the wrong filling up of Form-XIV and by taking premium and advantage of their own fraud ultimately used this as a tool for having the election of the returned candidate declared as void. Since there is more than one possibility as to what could have happened on the day of election vis-à-vis counting of votes and preparation of statement of count, we cannot draw such inferences as suggested by the learned counsel for the respondent. A bare perusal of the findings of the learned Tribunal vis-à-vis polling station No.29 as reproduced above clearly suggests that it has concluded that the evidence indicates committal of illegal practices in connivance and collusion with the appellant based on pure inference and conjecture, without ruling out all the possibilities in light of the circumstantial evidence and without correctly appreciating the evidence and properly applying the law on the matter. The learned Tribunal appears to have acted upon the assumption that the respondent’s case stood sufficiently proved on mere probability, as opposed to the strict positive Civil Appeal No.1086 of 2014 -: 17 :- evidence that the respondent was required to produce in order to prove its serious allegations of illegal practice against the appellant. The evidence clearly suggests that there was doubt with respect to proof of the allegations of illegal practice and connivance and collusion, the benefit of which should have been given to the appellant. To hold, in the circumstances, that the appellant had “obtained” or “procured” the assistance of the Presiding Officer would be against the spirit of the law and against the settled norms of justice. Since we have found that the lapses pointed out by the learned counsel for the respondent do not constitute illegal practices as contemplated by the provisions of Section 83 of the Act, the election of the appellant as a returned candidate is not liable to be declared as void under Section 68 of the Act. Consequently, the question as to whether the respondent was able to prove, on the strength of his own evidence, that he should have been declared as the duly elected returned candidate in place of the appellant in terms of the provisions of Section 69, does not arise and thus needs no consideration. 8. Now coming to the second question involved in this matter, i.e. whether in this case the election can be declared to be void as a whole as per the provisions of Section 70 of the Act. Since we have established above that no illegal practices took place within the contemplation of Section 83 of the Act (and the question of “corrupt practices” is not relevant in this matter), hence Section 70(b) would not be relevant here, rather Section 70(a) which provides for declaration of the election as a whole void if there is a failure of any person to comply with the provisions of the Act or the Rules, provided that the election has been materially affected by such failure. The lapses/anomalies identified hereinabove may at best indicate a failure on behalf of the election staff, particularly the Presiding Officer of polling station No.29, to comply with the provisions of the Act, particularly Section 38(9) which Civil Appeal No.1086 of 2014 -: 18 :- provides for preparation of statement of count by the Presiding Officer, thus the test that there must be a failure of any person to comply with the provisions of the Act/Rules, may be satisfied. It is then to be seen whether the second part of the test, that such non-compliance must have materially affected the election, is satisfied. Since the findings of the learned Tribunal vis-à-vis all polling stations other than polling station No.29 is in favour of the appellant and the only grouse is vis-à-vis the said polling station, the difference of votes whereof is only 1,400, thus even if these votes are excluded from the total count of the appellant’s votes of 15,432, reducing it to 14,032, the appellant would still win by a margin of 3,072 votes. Therefore, as the election would not be materially affected, there is no occasion to declare the election as a whole to be void under Section 70(a) of the Act. It is here where Abdul Hafeez Khan’s case may be discussed, in which due to certain lapses committed by the election staff, the whole of the election was declared to be void under Section 70(a). However, the instant matter is distinguishable on the ground that the election has not been materially affected. Furthermore, in Abdul Hafeez Khan, there was found to be a general failure of the election machinery as there was widespread disregard of the law by the election staff, which is certainly not the case in the instant matter. 9. In view of the foregoing, we find that the respondent was unable to prove through positive evidence, the committal of illegal practices within the contemplation of Section 83 of the Act, and therefore declaration of the appellant’s election as the returned candidate as void under Section 68 of the Act was not warranted. The learned Tribunal had erroneously declared the election of the appellant as the returned candidate to be void and thereby wrongly declared the respondent as the duly elected returned candidate. Civil Appeal No.1086 of 2014 -: 19 :- 10. The above are the detailed reasons for the short order of even date whereby the appellant’s civil appeal was allowed, which reads as:- “For the reasons to be recorded later, this appeal is allowed and the impugned judgment dated 7.8.2014 passed by the learned Election Tribunal, Karachi is set aside.” JUDGE JUDGE JUDGE Islamabad, the 19th November, 2015 Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) MR. JUSTICE MUSHIR ALAM MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CIVIL APPEAL NO. 108 OF 2015 Against the judgment dated 22.4.2014 passed by High Court of Sindh Circuit Court, Hyderabad in 2nd Appeal No. 02 of 1990 Mst. Rehmat & others .Appellant(s) I VERSUS Mst, Zubaida Begum & others ... Respondent(s) For the Appellant(s): Mr. Muhammad Munir Paracha, ASC Syed Rifaqat Hussain Shah, AOR Syed Tahir Hussain, Husband of Appellant No.3 For Respondent No. l.(LRs) Mr. M. Ishtiaq Ahmad Raja, ASC Date of Hearing: 25.8.2020 JUDGMENT MUSHIR ALAM, J. Admitted facts giving rise to the instant Civil Appeal, arising out of leave granting order dated 9.2.2015, are that one, Mst. Ashfaq Jehan' being owner of the suit property, through her attorney Hamid Hussain Khan, entered into sale agreement dated2 April 1973 (Ex.91) with Mst. Zubaida Begum3 for a total sale consideration of Rs.45,000/, out of which Rs.500/- was paid as earnest money at the time of execution of the agreement. Balance 1 since decease (through her LRs) Appellant No.2 herein /Defendant No.1 2 Pages No. 127 to 129 of the paper book CA No. 0812015 since deceased through LR5/ Respondent No.1 herein! Plaintiff CML APPEAL NO, j080F2015 2 consideration was agreed to be paid before the registrar at the time of execution of sale deed. In terms of clause 4 of the sale agreement the vendor took upon herself, responsibility to obtain: i) Income Tax certificate; ii). NOC from Excise and Taxation Authority, Hyderabad, Certificate/ receipts showing payment of electricity and Water charges; and iv) Mutation in the City survey record kept in the city survey Office, Hyderabad, required to execute the sale deed. 2. It was admitted by Shaikh Muhammad .ShanffDW-1 4 on behalf of the Ashfaq Jehan that at her request, further sum of Rs.25,500/- and another sum of Rs.10,000/- were paid to the vendor, through her daughter in law, Mrs. Salma Waris, on 31.5.1973 and 11.12.1973 respectively through Cheques 5 being part payment towards balance sale consideration and, on payment of last-mentioned amount through cheque, Mst. Zahida Begum the vendee was put in possession of the subject property thereof. 3. From the record, it appears that instead of coming forward to execute sale deed, Shaikh Muhammad Sharif, despite being aware of the sale transaction, executed sale deed in respect of suit property in favour of his wife Ms. Rehmat (since deceased) 7. On coming to know such facts, the Plaintiff/ Respondent No.1 filed a FC suit No.144 of 1977 for specific performance of an agreement to sell dated April 1973, and for cancellation of a registered sale deed dated 24 th February 19778 executed by the attorney of said Ashfaq Jahan the Appellant No.2 in favour of his wife Appellant No.1 with respect to the suit property. Cross examination of DW-I paper book in CA No. 108/2015 page 123 Bank Certificate Ex.92 and 93 respectively ibid. the attorney of legal heirs of Mst, Ashfaq Jahan (since deceased) Trough LRs Appellant 1 (i) to (v) herein Pages No. 144 to 147 ibid i CIVIL APPEAL NO. 108 OF 2015 3 4. The said FC Suit No. 144 of 1977 was partially decreed by the learned trial court on 21st July 1988 by observing that Mst. Ashfaque Jehan (defendant No.1 of the suit) was liable to pay the sum of Rs.36.000/- received from respondent No.1 as part of sale consideration9. The judgment of the learned trial court dated 21st July 1988 was assailed by respondent No.1 before the Court of Additional District Judge Hyderabad, who vide his judgment dated 22nd November 1989 1 0 set aside the judgment and decree of the learned Trial Court and decreed the suit in favour of respondent No.1. The decision of the learned Additional District Judge was impugned by the appellant No.1 before the learned High Court in Second Appeal No.2 of 1990, which vide its short order dated 11 th December, 2000 and detailed judgment dated 26 th January, 2001 11 , set aside the judgment dated 22nd November, 1989 of the 1 81 Appellate Court. The said judgment was assailed by respondent No.1 in Civil Appeal No.2111 of 2001 before this Court and vide Order dated 02.04.2007 12, with the consent of parties, the judgment dated 26th January, 2001 was set aside and the case was remanded back to the learned High Court for re-consideration of the controversial questions of law and facts in the light of evidence on record. The learned bench of the High Court of Sindh, Circuit Court, Hyderabad vide its judgment dated 22.4.201413 impugned before us in this Civil Appeal No.108 of 2015 upheld the judgment dated 22.11.1989 passed by the 1st Appellate Court dismissing the Appeal No.2 of 1990. Pages No. 67 to 82 of CA No. 108/15 10 Pages No. 57 to 66 of CA No. 108/15. Pages No. 93 to 116 of CA No. 108/15 Pages 51 ofCMA 2694 13 Pages 20-46 of CA No. 108/is. CEVILAPPEAI. NO. 108 OF 2015 4 5. We have heard counsels for both the parties before us and A perused the record with their able assistance. The learned counsel for the Mst. Rehmat, Appellant No.1 argued that time was the essence of the contract to sell, executed between Mst. Ashfaq Jahan the Appellant No.1 and Mst. Zubaida Begum respondent No.1 was rightly rescinded and revoked as the respondent No.1 failed to perform her part of contract within time. He emphasized that the appellant No.1 purchased the suit property worth Rs.60,000/- after serving legal notice through registered post dated 02.12.1975 as well as publicized the notice through newspaper dated 11. 12.1975 upon the respondent No. 1. He further argued that before purchasing the suit property, the appellant No. 1 procured the clearance certificate through her son from the Sub-Registrar Hyderabad on 18.12.1976; and thereafter, the sale deed was duly registered through Sheikh Muhammad Sharif as 0 Attorney of the vendor on 24.02.1977. He contended that the appellant No.1 being the bona fide purchaser of the suit property rightly got the sale deed registered in her name after fulfilling all the legal formalities as such the impugned judgment of the learned bench of the High Court suffers from legal infirmities and liable to be set aside. 6. Conversely, the learned counsel for the respondents vehemently argued that the respondent No.1 purchased the suit property vide agreement executed in the year, 1973 and paid a sum of Rs. 36,000/- of the total sale consideration of Rs.45,000/-. He further argued that the remaining sum of Rs.9,000/- was payable on fulfilling the contractual obligations as mentioned in clause 4 of the agreement to sell dated April 1973, which Mst.Ashfaq Jahan failed to perform till date. He highlighted that the respondent No.1 was handed over the piWsical possession of the suit property on payment of further .1 CIVIL APPEAL NO. 108 OF 2015 5 - consideration of Rs.35,000/- as noted above and in part performance thereof on 11. 12.1973 by her attorney. He contended that the learned 1t Appellate Court had taken care of all the factual and legal aspects of the case in its judgment dated 22nd November, 1989 and the same was rightly upheld by the learned bench of the High Court vide the impugned judgment. 7. It transpires from the record that the litigation with respect to the suit property arose between the parties when Mst. Zubaida Begum respondent No.1 14, Mst. Rehmat l3ibi appellant No.1 15 and appellant No.2 Hamid Hussain, son of appellant No.2 and attorney of Mst. Ashfaq Jahan in agreement dated April, 1973 and Mohammad Sharif Sheikh husband and attorney of Mst. Rehmat Bibi appellant No.1 in registered sale dated 24111 February, 1977 were all alive. The seller as well as the original and subsequent purchasers of the suit property appeared through their respective attorneys before the Trail Court. One Muhammad Idrees the attorney and husband of Mst. Zubaida Begum, appeared as PW-1 16 and exhibited the agreement dated April, 1973 and other documents as Ex-91 to 103 in the Trial Court. Sheikh Muhammad Sharif, duly constituted attorney of Mst. Ashfaq Begum, Appellant No.2, appearing as DW-1 17 in the Trial Court specifically admitted the factum of sale transaction between the respondent No.1 and Mst. Ashfaq Jehan by deposing in cross examination that: £rMst Zubeida plaintiff had given cheques of Rs. 25,500 on 25.05.1973 and cheque of Rs. 10,000 on 11.12.1973. It is a fact that these cheques were given towards the part payment of consideration of sale." (Page No. 123 of paper book No. CA 108 of 2015). 14 Plaintiff in FC Suit No. 144 of 1977 Is Defendant No.2 in PC Suit No. 144 of 1977 16 ages 117-120 of CA No.108/15 122 -123 of CA No. 108/ 15 CIVIL APPEAL NO. 108 OF 2015 C 8. As to the possession, he admitted in his examination in chief that 'As Muhammad Idrees was my friend, therefore, I allowed him for temporary shelter but after two days; they backed out from their promises and have not yet vacated the house18'. He further admitted in his cross-examination as DW- 1 that 'It is a fact that since 1973 till today Mst. Zubeida is in possession, voluntarily says that possession is illegal19'. These admissions of DW-.l who is the attorney as well as the husband of appellant No.1 are sufficient enough to establish that the sale transaction was entered between Mst. Ashfaq Jehan and the Respondent No.1 in the year 1973 and the vendee paid a sum of Rs, 36,000/- in part performance of sale consideration while the possession was also delivered to her. It is an established principle of law that facts admitted need not be proved, reference can be made to Article 30 of the Qanoon-e-Shahadat Order 1984 and the case of Nazir Ahmed versus M. Muzaffar Hussain 20, wherein Paragraph No.8 of the judgment this Court observed that: 8. So far as the execution of agreement is concerned, the appellant Nazir Ahmad who appeared as D. IV 1 admitted the execution of the agreement for sale of the property in dispute for consideration of Rs. 50,000 and the execution of the agreement was further testified by Allah Ditta Scribe of the document who appeared as D. IV 4. The said wil ness appeared twice in the Court; firstly as P. IV .1 and secondly as D. IV 4 and admitted the thumb impression of Nazir Ahmad and signatures of Rashid Ahmad appellants on the agreement to sell 'ExkP. 1). It means that the execution of agreement is admitted not disputed and it is well settled proposition of law that the admitted facts need not to be proved. The admission has been defined in Article 30 of the Qanun-e-Shahadat Order, 1984 which reads as under:- "30. Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any 18 Page No. 123 of CA No. 108/ 15 19 Page No. 123 of of CA No. 108/15 2-2flDSCMR 1639 4 4 CIVIL APPEAL NO. 108 OF 2015 7 fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." 9. The Appellant, under facts and circumstances of the case, can neither claim nor could substantiate, that she is bona fide purchaser without notice to the earlier transaction. In a case Jaiwanti Bai v. Amir Corporation 21 in paragraph 19 and 20 it was held 'that the right of a person having established that they were equipped with unregistered instrument, which were prior in time, and were in possession of property in part performance of such instrument, would rank superior even against the subsequent registered instrument'. Therefore, in the instant case, the position of respondent No.1 being in possession of the suit house since 1973, having paid 80 % of the total sale consideration, much before time fixed in the sale agreement and much before performance of reciprocal obligations set out under clause 4 of the agreement, on the part of the Respondent No.2, is much stronger than that of the appellant No.1; more particularly the possession is specifically admitted by DW-1 in his statement in view of the Nazir Ahmed's case supra. 10. The crucial question that now requires consideration of this Court is as to whether the time is essence of the agreement dated April, 1973. Perusal of the said agreement reveals that the vendor Mst. Ashfaq Jahan sold the suit property as an absolute owner to the respondent No.1 Mst. Begum in lieu of Rs.45,000/-(Rupees Forty-Five Thousand Only), whereof as sum of Rs.500/- was paid as earnest money as mentioned in clause (1) of the said agreement. Clause 2 of the said agreement mentioned that 'The balance of the said sale price 21 PLD 2021 SC 434 CIVIL APPEAL NO. 108 OF 2015 that is, Ra44,5001- (Rupees Forty Four Thousand and Five Hundred) only shall be paid by the SECOND PARTY to the FIRST PARTY in cash before the Registrar Hyderabad, at the time of registration of sale deed in respect of the said property or if the parties agree, at any time before registration22.' It is pertinent to mention here that no cut-off date was given in the sale agreement for the payment of remaining sale consideration as it was settled between the parties that the remaining sum could be paid at the time of registration of sale deed or at any time before registration. Clause 4 of the said agreement made it mandatory for the 'First Party' that is the vendor Mst. Ashfaq Jahan to obtain all documents necessary for registration of the suit property in the following terms: "4) That the FIRST PARTY shall obtain all documents necessary for registration of the said property in the name of the SECOND PARTY , namely:- i) Income Tax clearance certificate. No objection certificate from the Excise & Taxation Authority, Hyderabad. Certificate/Receipt showing payment of electricity and water charges. iv) Mutation in the Cit!J survey record kept in the City Survey office, Hyderabad. -----" 11. Clause 4, of the agreement as reproduced above, reveals that the appellant No.2 while acting as an attorney of his mother Mst. Ashfaq Jahan was required to procure all the documents noted therein, before the execution of sale deed. These conditions manifest that the agreement dated April 1973 contained reciprocal promises on the part of vendor as well vendee and both the parties were required to perform their respective part of the contract in order to accomplish the sale geNo.127ofCANo.1O3/15 CIVIL APPEAL NO. 108 OF 2015 9 transaction; however, the vendor failed to perform her part of reciprocal obligations and did not procured requisite documents, except the Income Tax Clearance Certificate; which is also apparent from the perusal of notices Ex.9 1, Ex. 116, Ex. 11823. As the vendor Mst. Ashfaq Jahan herself failed to perform her part of contract, therefore, she Could not rescind and revoke the agreement dated April 1973, after the delivery of possession of the suit property to the respondent No.1 and the receipt of a sum of Rs. 36000/= i.e 80% of the total sale consideration in part performance of performance of sale transaction. It can safely be concluded that the time was never the essence of the agreement dated April 1973 and the failure on the part of the promisor/vendor to perform her part of contract could not put her into a position of rescinding or revoking the contract in terms of Section 51 of the Contract Act, 1872. Moreover Section 54 of the Contract Act, 1872 even makes the promisor liable to make compensation to the promisee for any loss suffered by him due to non- performance of a reciprocal promise on the part of promisor. Section 54 reads as follows: "54 Effect of default as to that promise which should be first performed. - In contract consisting of reciprocal promises. When a contract Consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last-mentioned fails to perform it, such Promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract" 23 Pages No. 130 to 137 of the paper book No. CA108/2015 CIVIL APPEAL NO. 108 OF 2015 10 12. We fully agree with the findings of the learned bench of the High Court given in paragraphs No 29 W 31 of the impugned judgment to this effect and the case laws mentioned therein. It may be observed that while granting leave on 9.2.2015, it was noted that the appellant on execution of sale deed dated 24.4.1977 in her favour by the attorney of the appellant No.2 had filed a suit for possession under section 8 of the Specific Relief Act, and question that required resolution was, which of the party was entitled to equitable relief under sections 8 and 27 of the Specific Relief Act, 1877, if any. It is noted that this Court on 15.4.2020 also directed the parties to file concise statement to show whether respondent No.1 had deposited balance sale consideration or otherwise. 13. CMA Nos.2694 of 2015 and 4737 of 2020 was filed by the learned counsel for the Appellant No.1 and Respondent No-1 respectively, which show that suit No.99 of 1997 24 was filed by the Appellant No.1, Mst. Rehmat Bihi, for possession under section 8 of Specific Relief Act, 1877 on the strength of sale deed dated 24.2. 1977, which suit remained pending for over seven years and eight months and, on failure of the plaintiff in suit to lead any evidence, it was dismissed under Order 9 Rule 8 CPC vide reasoned order dated 16 .4. 1986.25 It was pointed out by the learned counsel for the Respondent No.1 that after dismissal of her suit and during pendency of proceedings in the instant matter, Appellant No.1 dishonestly executed sale deed dated 20.12.2000 in favour of appellant No.3 Mst. Khurshid Jehan, who was later added as a party and being proceeded ex-parte. The earlier sale deed was executed by her husband (Sheikh U 24 Page 11 of CMA 4737/2020 Pages 14-15 of CMA 4737/20. CIVIL APPEAL NO. 108 OF 2015 11 1 Muhammad Sharif) as an attorney of the Vendor (Mst. Ashfaq Jahan). The appellant No.1 was fully aware of earlier transaction and delivery of possession to the Respondent No.1 in part performance of the agreement to sell. The Conduct of the Appellant No. 1, since deceased, smack foul, as during pendency of instant proceedings, she further executed sale deed dated 22 . 12 .200026 in favour of Appellant No.3 Khursheed Jehan, more so when there is nothing on record to show that appellant No.3-Khurshid Jahan had paid sale consideration to the Vendor at the time of obtaining sale deed in her favour. Said Respondent No.3 also filed a suit for possession under Section 8 of the Specific Relief Act, fate of which is not known. It may be observed that suit No. 99/197727 filed by the Appellant No.1 under Section 8 of the specific Relief Act was dismissed under Order 9 Rule 8 CPC on 16 .4 . 198628, to which no exception was taken by the Appellant, Respondent No.3 having stepped into shoes of the Appellant No.1 cannot claim better right and title than what was possessed by the Appellant No.1 and cannot be allowed to circumvent the consequence of dismissal of earlier suit by her predecessor as provided for under Order 9 Rule 9 CPC, which bars fresh suit in respect of same cause of action. 14. Since the Plaintiff was put in possession on 11 . 12 . 197329 on payment of 80% of the sale consideration in part performance of the sale agreement dated April 1973, Specific Performance is an equitable relief, Respondent No. 1, since represented by LRs, cannot be absolved of their obligations to pay the remaining balance sale consideration of 26 Pages 17-22 of CMA 4737/20 27 Page 11-13 of CMA No. 4737/2020 28 Page 14-15 ibid hen Rs. 10,000/ was paid through Cheque dated 11.12. 1973 (making total nsideration of 36000/- out of 45,000/-) CIVIL APPEAL NO. 108 OF 2015 12 .1 Rs.9000/,(being 20% of the total sale Consideration) which they were obliged to pay within reasDnable time from the date of sale agreement or at the latest on filing suit for specific performance. Contention of learned counsel for respondent No.1 that neither the appellate Court nor the High Court made any direction to deposit balance sale consideration. It may be observed that, a vendee seeking specific performance of an agreement to sell is essentially required to demonstrate that he is and was always ready and willing to perform his reciprocal obligation to pay balance sale consideration. If balance consideration is not offered or paid earlier, best time to demonstrate such "readiness and willingness to perfonn"30 is offering balance sale consideration at the time of filing suit for specific performance. In cases where contract consist of reciprocal promise such that one of them cannot be performed or that its performance cannot be claimed till the other has been performed 31 . Indeed in this case obligation to pay balance sale consideration was dependent and would occur on discharge of the obligation on the part of the Mst. Ashfaq Jahan/ vendor to procure documents as mentioned in clause 4 of the agreement, noted in paragraph 10 above, which apparently were not performed till filing of the suit. Since the respondent had paid 80% of the sale consideration before contingency agreed in the agreement to sell and was put in possession in part performance may not be entitled to claim compensation in terms of section 19 of Specific Relief Act read with section 54 of the Contract Act, Property subject matter of Sale Agreement Ex 91, being (Eastern Portion) of House No, 08, C.S No. A-34/27-28, Amil Colony, Hyderabad is now in the heart of City, 30 ee_eection 51 of the Contract Act 1 Section 54 Contract Act and implication for non performance of reciprocal obligation, in a sequence required to be performed I - -- CIVIL APPEAL NO. 108 OF 2015 t falls within category 132 Respondent/ Plaintiff is enjoying possession since on 11.12-1973,33withholding 20% of the balance sale consideration cannot be justified, it would just and equitable to direct the Respondent No.1 to deposit 20% of the balance sale consideration as per value of the suit properly in accordance with the prevalent valuation table in respect of suit property issued by the Federal Board of Revenue and or Authority, within a period of 30 days from the date of such determination by the learned Executing Court, on deposit of the amount and, which may be disbursed to the LRs of Mst. 1 Ashfaq Jahan/ vendor/ defendant No.1 in suit(since deceased) on determination and deposit of such amount, sale deed be executed in favoaur of legal heirs of respondent No.1 in accordance with Order 21 Rule 32 CPC. I 15. For what has been discussed above, the instant Civil Appeal No. 108 of 2015 stands dismissed with no order as to costs. The findings given by the learned bench of the High Court in the impugned judgment, subject to above are upheld with the observation that any sale transaction with respect to the suit property after the agreement in April, 1973 stands annulled and any subsequent transaction in respect of suit property from appellant No.1 is also hit by the principle of Us pendens and has to sink and swim with the appellant No.1 Mst. Rehmat Bibi; needless to observe that the Appellant No-1 and or 32 S.R.O. 0"3(1)/2019.- In exercise of the powers conferred by sub-section (4) of section 68 of the Income Tax Ordinance, 2001 (XLIX of 2001) and in supersession of its Notification No. S.R.O. 116(1)/2019 dated the 1st February, 2019 and or any other current valuation table in vogue on the date of this judgement, 33 When Rs. 10,000/ was paid through cheque dated 11. 12.1973 (making total consideration of 36000/- out of 45,000/-) 13 V .. - Judge I -- CIVIL APPEAL NO. 108 OF 2015 14 V S Appellant No.3 may well be within their right to claim damages for 1: wrongful transaction from their respective vendors. Announced at Islamabad. on _________ "Approved for Repo fling"

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA, CJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO. 1095-1097, 134-L, 1021- 1026, 1138, 1154-1158, 1486 AND 1487 OF 2018 AND CIVIL PETITIONS NO. 4475 AND 4476 OF 2018 AND 1362 OF 2019 AND CRIMINAL ORIGINAL PETITIONS NO. 14, 18, 25 AND 26 OF 2019 AND CIVIL REVIEW PETITIONS NO. 16, 17, 20, 37-49, 77, 127-133 OF 2019 AND CIVIL MISCELLANEOUS APPLICATIONS NO. 462, 465, 508, 686, 1085, 1970, 1974, 1976, 1982, 2050, 2619, 2623, 2659, 2660, 2664, 2875 AND 2880 OF 2019, AND 8466 AND 8806 OF 2018 Mohammad Imran (in C.A. No.1095/18) Rehan Ahmed (in C.A. No.1096/18) Kiran Nadeem (in C.A. No.1097/18) Govt. of the Punjab through its Minister of Education, Lahore, etc. (in C.A.No.134-L/18) BPS (Pvt) Ltd. and others (in C.A. No.1021/18) Bay View Academy (Pvt) Ltd, Karachi and others (in C.A. No.1022/18) Education Systems (Pvt) Ltd, Karachi and others (in C.A. No.1023/18) City Schools (Pvt) Ltd, Karachi (in C.A. No.1024/18) City Schools (Pvt) Ltd, Karachi (in C.A. No.1025/18) Shahrukh Shakeel Khan and others (in C.A. No.1026/18) All Private Schools Management and others (in C.M.A. No.8466/18) Civilizations (Pvt) Ltd, Karachi and others (in C.A. No.1138/18) City Schools (Pvt) Ltd., Karachi (in C.A. No.1154/18) City Schools (Pvt) Ltd., Karachi (in C.A. No.1155/18) Beacon house School System, Karachi (in C.A. No.1156/18) Civil Appeals No. 1095 of 2018, etc. -: 2 :- Beacon house School System, Karachi (in C.A. No.1157/18) Beacon house School System, Karachi (in C.A. No.1058/18) City Schools (Pvt) Ltd. through its Regional Director, Karachi (in C.P. No.4475/18) Asim Iftikhar Yakub and another (in C.P. No.4476/18) Foundation Public School (Pvt) Ltd Karachi and another (in C.A. No.1486/18) Origins School through its Partner Nahid Japanwala,Karachi and others (in C.A. No.1487/18) Muhammad Umeran Khokhar and others (in Crl.O.P. No.14/19) Ali Abbas (in Crl.O.P. No.18/19) Muhammad Imran (in Crl.O.P. No.25/19) Muhammad Imran (in Crl.O.P. No.26/19) Lahore Grammar School (Pvt) Ltd. and others (in C.R.P. No.16/19) LACAS (Pvt) Ltd and another (in C.R.P. No.17/19) Bay View Academy (Pvt) Ltd. and others (in C.R.P. No.20/19) Educational Systems (Pvt) Ltd. Karachi (in C.R.P. No.37/19) City Schools (Private) Ltd. (in C.R.P. No.38/19) City Schools (Private) Ltd. (in C.R.P. No.39/19) City Schools (Private) Ltd. (in C.R.P. No.40/19) City Schools (Private) Ltd. (in C.R.P. No.41/19) Beacon house School System, Karachi (in C.R.P. No.42/19) Beacon house School System, Karachi (in C.R.P. No.43/19) Beacon house School System, Karachi (in C.R.P. No.44/19) Foundation Public School (Pvt) Ltd Karachi and another (in C.R.P. No.45/19) City Schools (Private) Ltd. (in C.R.P. No.46/19) Mr. Asim Iftikhar Yakub and another (in C.R.P. No.47/19) City Schools (Private) Ltd. (in C.R.P. No.48/19) Education Services (Pvt) Ltd, Lahore and others (in C.R.P. No.49/19) Origins School thr. its Partner and others (in C.R.P. No.77/19) Lahore Grammer School (Pvt) Ltd and others (in C.M.A. No.462/19) LACAS (Pvt) Ltd and others (in C.M.A. No.465/19) Alliance Resource (Pvt) Ltd. (in C.M.A. No.508/19) Salamat School System (Pvt) Ltd, Lahore (in C.M.A. No.686/19) Lahore Grammer School (Pvt) Ltd and others (in C.M.A. No.1085/19) All Private Schools Management and others (in C.M.A. No.8806/19) City Schools (Private) Ltd. (in C.R.P. No.127/19) City Schools (Private) Ltd. (in C.R.P. No.128/19) Educational Systems (Pvt) Ltd. (in C.R.P. No.129/19) City Schools (Private) Ltd. (in C.R.P. No.130/19) City Schools (Private) Ltd. (in C.R.P. No.131/19) City Schools (Private) Ltd. (in C.R.P. No.132/19) City Schools (Private) Ltd. (in C.R.P. No.133/19) Alliance Resources (Pvt) Ltd. (in C.M.A. No.1970/19) Headstart School (Pvt) Ltd. (in C.M.A. No.1974/19) Al-Huda International Welfare Foundation (in C.M.A. No.1976/19) EPIC Islamic School and others (in C.M.A. No.1982/19) Salamat School System (Pvt) Ltd. (in C.M.A. No.2050/19) Origins School and others (in C.M.A. No.2623/19) Foundation Public School (Pvt) Ltd and another (in C.M.A. No.2619/19) Froebel’s (Pvt) Ltd. and another (in C.P. No.1362/19) …Appellant(s)/Applicant(s)/Petitioner(s) Civil Appeals No. 1095 of 2018, etc. -: 3 :- versus Province of Sindh through Chief Secretary and others (in C.A. No.1095/18, etc.) The City School (Pvt) Ltd. etc. (in C.A. No.134-L/18) The Province of Sindh through Secretary Education/Law and Parliamentary Affairs, Sindh (in C.A. No.1021/18) The Province of Sindh through the Secretary, Education and Literacy, Karachi and others (in C.A. No.1022/18, etc.) Taymur Mirza (in Crl.O.P. No.14/19) Major Noman Khan (in Crl.O.P. No.18/19) Dr. Farzana Feroz (in Crl.O.P. No.25/19) Kasim Kasuri (in Crl.O.P. No.26/19) Govt. of the Punjab thr. its Minister of Education, Lahore and others (in C.R.P. No.16/19, etc.) Muhammad Imran and others (in C.M.As. No.1974 & 1976/19) …Respondent(s) In attendance: Mr. Shahid Hamid, Sr. ASC Mr. Makhdoom Ali Khan, Sr. ASC Mr. Faisal Siddiqui, ASC Mr. Aftab Alam Yasir, ASC Mr. Hassan Nawaz Makhdoom, ASC Mr. Hamid Ali Shah, ASC Mr. Muhammad Ali Raza, ASC Ms. Ayesha Hamid, ASC Ms. Shireen Imran, ASC Mr. Rashid Mehmood Sindhu, ASC Syed Faisal Hussain Naqvi, ASC Mr. Shahzad Ata Elahi, ASC Mr. Salim-ur-Rehman, ASC Mr. Muhammad Ikram Ch., ASC Mr. Fauzi Zafar, ASC Mr. Taffazul Haider Rizvi, ASC Mr. Khurram Mumtaz, ASC Sardar Muhammad Ajaz Khan, ASC Mr. Zaheer Bashir Ansari, ASC Mr. Sharjeel Adnan Sheikh, ASC Mr. Abid Hussain Chatta, ASC Barrister Haroon Mumtaz, ASC Mr. Mudassar Khalid Abbasi, ASC Khawaja Ahmad Hosain, ASC Mr. Rashid Hanif, ASC Mr. Muhammad Imtiaz Khan, ASC Mr. Ejaz Mehmood Ch. ASC Mr. Maqbool Ahmed Sheikh, ASC Mr. Iqbal Javed Dhallon, ASC Mr. Riasat Ali Gondal, ASC Barrister Suleman Akram Raja, ASC Mr. Muhammad Azhar Siddique, ASC Ch. Hafeez Ullah Yaqoob, ASC Mr. Mehr Khan Malik, AOR Mr. Muhammad Sharif Janjua, AOR Mr. Muhammad Kassim Mirjat, AOR Civil Appeals No. 1095 of 2018, etc. -: 4 :- Mr. Ahmed Nawaz Ch., AOR Mr. Aman Naseer, Advocate Rana Shamshad Khan, Additional Advocate- General, Punjab Abdul Latif Khan Yousafzai, Advocate-General, Khyber Pakhtunkhwa Barrister Qasim Wadud, Additional Advocate- General, Khyber Pakhtunkhwa Mr. Salman Talib-ud-Din, Advocate-General, Sindh Barrister Shabbir Shah, Additional Advocate- General, Sindh Mr. Sajid Ilyas Bhatti, Deputy Attorney-General for Pakistan Mr. Arbab Tahir Kasi, Advocate-General, Balochistan Mr. Muhammad Ayaz Khan Swati, Additional Advocate-General, Balochistan Mr. Tariq Mehmood Jehangiri, Advocate- General, Islamabad Barrister Qasim Chohan, Additional Advocate- General, Punjab Mr. Zahid Yousaf Qureshi, Additional Advocate- General, Khyber Pakhtunkhwa Mr. Ahmed Hussain Rana, in person Mr. Jessam Ubaid, in person. Mr. Muhammad Javed Chohan, Law Officer (ED), Government of Punjab Qazi Shahid Pervez, Secretary Schools, Sindh Mr. Humayun Akhtar Sahi, Law Officer, Punjab Mr. Imtiaz Ali Qureshi, Chairman PEIRA Mr. Zubair Khan Shahid, D.S. Education, Lahore Mr. Muhammad Ikram Abbasi, L.O. Dr. Mansoob Hussain Siddiqui, D.G. Private Schools, Government of Sindh M/s Muhammad Tajasib Minhas and Umair Ahmed, representative of parents of the students from Lahore Mr. Athar Hussain, father of a student, Islamabad Date of Hearing: 09.05.2019 ORDER IJAZ UL AHSAN, J.- For the reasons to be recorded later, the instant matters are decided as follows:- i. Civil Appeal No. 134-L/2018 is allowed and the judgment of the learned Division Bench of the Lahore High Court, Lahore in Writ Petition No. 29724/2015 delivered on 05.04.2018 titled City School Private Civil Appeals No. 1095 of 2018, etc. -: 5 :- Limited v Government of the Punjab and others (PLD 2018 Lahore 509) is set aside; ii. Civil Appeals No.1021 to 1026 and 1095 to 1097/2018 are allowed and the judgment of the learned Division Bench of the High Court of Sindh, Karachi in Constitution Petition No. D-5812/2015, etc. delivered on 05.03.2018 titled Shahrukh Shakeel Khan and 2 others v Province of Sindh through Chief Secretary, Government of Sindh and 4 others (PLD 2018 Sindh 498) to the extent of declaring Rule 7-A of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 (“Rules of 2005”) is set aside. The said judgment in so far as it declares Rule 10 of the Rules of 2005 as intra vires is upheld; iii. Civil Miscellaneous Application No. 8466/2018 and Civil Appeals No. 1138, 1154 to 1158, 1486 and 1487/2018 are dismissed and the judgment of the learned Full Bench of the High Court of Sindh, Karachi in Constitution Petition No. D-6274/2017 etc., delivered on 03.09.2018 titled Bushra Jabeen and 367 others v Province of Sindh through Chief Secretary and others (2018 MLD 2007) is affirmed and upheld; and iv. Civil Petitions No. 4475 and 4476/2018 filed against the order dated 19.11.2018 passed in Civil Miscellaneous Application No. 33322/2018 in Constitution Petition No. D-6274/2017, etc. are dismissed as having been rendered infructuous. 2. It is unanimously held and declared that Section 7-A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 is intra vires the Constitution of the Islamic Republic of Civil Appeals No. 1095 of 2018, etc. -: 6 :- Pakistan, 1973 (“the Constitution”) and does not violate Articles 18, 23, 24 or 25-A thereof. 3. It is unanimously held and declared that Rule 10 of the Rules of 2005 is intra vires the statute, i.e. Sindh Private Education Institutions (Regulation and Control) Ordinance, 2001, and the Constitution. 4. With a majority of two against one, we are not persuaded to interfere with Rule 7(3) of the Rules of 2005, with Faisal Arab, J. expressing the view that the restriction imposed by Rule 7(3) ibid is unreasonable and hence invalid. 5. Upon decision of the main appeals in the terms noted above, all interim orders passed during the pendency of the appeals (including the order dated 13.12.2018 passed in Civil Appeal No. 1095/2018 regarding reduction of fees by 20% as an interim measure) have ceased to be effective, subject to recalculation of fee by using the fee prevailing in 2017 as the base fee, in accordance with the provision(s) of the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 and onwards, for the Province of Punjab. For the Province of Sindh, fees may be recalculated using the fee prevailing on 29.06.2017 as the base fee and onwards, in accordance with the Rules of 2005 (gazetted on 29.06.2017). Provided that the schools shall not recover any arrears on account of the reduction in fee by reason of the interim order of this Court dated 13.12.2018 till the date of this judgment. Therefore, all the review petitions filed against the said interim order are disposed of in these terms. In view of the fact that these appeals/petitions are being finally decided, all criminal original petitions and civil miscellaneous applications are disposed of. 6. It is further directed that all schools shall collect the fee, strictly in accordance with the procedure and timeframe provided by the law, the rules and regulations including, but not limited to the Punjab Private Educational Civil Appeals No. 1095 of 2018, etc. -: 7 :- Institutions (Promotion and Regulation) Ordinance, 1984, as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 and the Rules of 2005. CHIEF JUSTICE (I consider Rule 7(3) of Rules of 2005 to be an unreasonable restriction and in this regard have appended my separate note herewith.) JUDGE JUDGE Announced in open Court On 12.06.2019 at Islamabad JUDGE APPROVED FOR REPORTING Civil Appeals No. 1095 of 2018, etc. -: 8 :- Faisal Arab, J.- After agreeing with Hon’ble Chief Justice and Ijaz ul Ahsan, J on the validity of Section 7A of Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, which allows 8% increase in tuition fee in an academic year, I respectfully differ on the reasonableness of Rule 7(3) of Sindh Private Educational Institutions (Regulations and Control) Rules, 2005 and wish to record my own opinion. 2. The parents of students coming from the whole range of middle class families approached the Courts, not because they wanted to challenge the tuition fee which the schools charged at the time of taking admissions but what agitated them was the periodical increases made in the tuition fees which proved to be an enormous burden on their purses. Hence a substantial raise in fees in comparison to the existing fees stirred agitation amongst the parents who invoked Rule 7(3) of the Sindh Private Educational Institutions (Regulations and Control) Rules, 2005 in Sindh and Section 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 in Punjab in order to seek reduction. 3. Section 15 of the Sindh Private Educational Institutions (Regulations and Control) Ordinance, 2001 gives rule making power to the provincial government, which inter alia states that rules shall provide for fixation of tuition fees and other sums to be realized from the students. Pursuant to this rule making power, the Sindh Private Educational Institutions (Regulations and Control) Rules, 2005 were framed. Rule 7 (2) and (3) provides that fee in an academic year can be increased only upto 5% subject to establishing proper justification before the Registering Authority. Hence while providing room for periodical increases, a cap of 5% was imposed which was given primacy over any reason that may justify raise in the tuition fees beyond such limit. It is because of this primacy that the private schools felt that this rule imposes unreasonable restriction as schools with such limited room for seeking increase in fees would not be able to cope with the corresponding increase in the cost of running of the schools which in turn would eventually put them out of business. Thus the case Civil Appeals No. 1095 of 2018, etc. -: 9 :- of the Schools is that the cap of 5% was arbitrarily determined by the functionaries of the government which militates against the freedom of doing business guaranteed under Article 18 of the Constitution. 4. In the last thirty years or so we have witnessed mushroom growth of educational institutions in the private sector as dependence of parents for educating their children in such institutions has grown phenomenally. This dependence is on account of pathetic quality of education in the government education system. Many government schools do not have proper buildings. Where there was once a proper running school building now it is in shambles. Most of the schools are without teachers and where there are any, they don’t take classes, remain mostly absent yet get paid from the exchequer. Most of the teachers do not even have requisite skills in the subjects which they teach though they on paper can demonstrate to be qualified teachers. Even where these teachers attend schools there is either no or little furniture and that too appears to be falling apart what to speak of other necessary facilities which the government has prescribed in the rules for private educational institutions. Thus on account of lack of capable and efficient teachers as well as lack of necessary facilities, many middle and lower middle class families, who a few decades ago used to send their children only to government schools, have utterly lost faith in the public education system. These families in their desire for better education for their children, have started seeking admissions in private schools where not very long ago only upper middle and rich class families used to send their children. This has resulted in prenominal growth of private schools. Now more than 50% of students as per some statistics study in private schools where the level of education as compared to government schools is quite high. The students qualified from private schools have qualitative edge over the students who pass out from government schools. An overwhelming number of teachers who teach in private school have themselves studied in private schools. They by far excel in their teaching skills than most of the teachers of government schools. Today one can notice the difference between those students who have studied in private Civil Appeals No. 1095 of 2018, etc. -: 10 :- schools and those in the government schools. That is the reason the students who complete their education from private education institutions get admissions in renowned universities abroad and capture a very big chunk of the job market and easily secure higher executive positions than those who are being churned out from government schools. It is for this reason that regardless of the cost, parents from the middle and lower middle class families are sending their children to private schools even though it has impacted their budget severely. Much of the blame for such burden is attributable to the government which has failed in running public education system successfully. This is also one of the reasons that the literacy rate of the country, which was 60% a few years ago, has now declined to 58% and is likely to decline further thanks to the government’s education policies which have proved to be worthless. 5. In the past few decades, we have seen that quite a few private school systems have earned a name, goodwill and reputation of imparting good quality education. The only alternative to such schools is to send children abroad for education, which costs much more than what these schools charge. Some of these schools with the quality of teaching faculty and facilities at their campuses charge handsome fees which only the affluent class can afford. These private schools can be classified as first tier schools. Application of Rule 7(3) on such schools would certainly have the effect of subsidizing the rich of the society. As for the children of upper middle and middle class families there are private schools which can be classified as second tier schools. Many of these schools also impart good quality education. Their tuition fees are comparatively affordable, however, for middle class families who send their children to these schools, their budget gets affected when the tuition fee is raised phenomenally in an academic year. Then there are private schools that can be classified as third tier schools where only lower middle class families send their children. The education level of these schools is much better than most of the present day government schools. Hence private schools can be classified in three tiers that Civil Appeals No. 1095 of 2018, etc. -: 11 :- charge tuition fee ranging from Rs.1,000 to Rs.60,000 per month or thereabouts. 6. The value of professional service in a particular field cannot be measured and priced in the same manner as the value of an essential edible item such as milk and flour are measured while fixing their prices under price control laws. The worth and value of any essential food item remains the same regardless of the fact as to who is selling or buying it. In contrast to this, there is a whole spectrum in which worth of professional service in a particular field can be evaluated and priced. It varies from person to person or institution to institution which dispenses it. It would be very harsh to evaluate professional services through a mechanism that does not fully take into consideration ground realities. The only object of the laws in question should be to check profiteering after students are admitted in schools. But when the fee of any particular service is regulated in a manner that has the potential of gradually eating-up legitimate margin of profit, it makes businesses compromise on their quality lest they would run into losses which in turn lead to layoffs or their eventual closure. For businesses such a regulation can prove to be worse than imposing heavy tax on income as atleast in that eventuality the burden of tax would be conditional upon making profits not otherwise. In the past we have experienced the negative impact of regulating the industrial sector of our country as the Board of Investment retained unbridled power to decide which industrial unit in private sector should be allowed to be set-up and which not. Such strict regulation had proved to be a discouragement to investment that retarded the industrial growth of the country. Any regulation that acts as a discouragement in making investment in any trade, business or industry, which is otherwise permissible in law, violates the freedom guaranteed under Article 18 of the Constitution. 7. The justification to raise school fee mainly depends upon two key factors i.e. rise in the cost of running a school on account of diminution in the value of Rupee and additional facilities made available by schools to the students as compared to Civil Appeals No. 1095 of 2018, etc. -: 12 :- the last academic year. There is a strong possibility that on account of 5% cap arbitrarily determined, many of the private schools in Sindh at a certain point in time may not be able to fully absorb the increase in the cost of running a school or the cost of the facilities provided to the students. As a consequence thereof the much needed growth of private schools is certainly going to be retarded. If that happens then it is very likely that private sector would be discouraged to fill the vacuum in Sindh left by government educational institutions. The existing private schools may start closing down or the number of their branches may dwindle which in turn would make it very difficult to cope with the ever increasing demand for good quality educational institutions, the only alternative to government’s dismal education system in the present times. Encouragement of investment in private sector has its own positive effects as it induces competition that in turn reduces margin of profit. Through growth of private schools, quality education has become more accessible. In the present case no one has argued that any cartel exists that does not leave much choice with the parents but to admit their children in a particular set of school systems only. So there exists no monopoly in the fixation of tuition fees, except that based on reputation and goodwill some of the schools charge hefty fees. 8. On one of the dates of hearing of this case Mr. Muhammad Tajassir Minhas and Mr. Umair Ahmad who sent their children to private schools of Punjab were present in court. At their request this court allowed them to place their point of view in their capacity as representatives of parents. They expressed their full satisfaction on the increase in the tuition fee in an academic year to the extent of 8% as provided in Section 7A of Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984. So let’s apply the 8% increase formula as an example in a given case. When tuition fee of a student is taken to be Rs.15,000/- per month at the time of admission, the total increase at a compound rate 8% for a five year period would result in an overall increase of Rs.5,308/- only i.e. from Rs.15,000/- per month fee payable in the first year the increase in the fifth year would Civil Appeals No. 1095 of 2018, etc. -: 13 :- take the fee to Rs.20,308/- per month. This 8% raise in every academic year is atleast much closer to setting-off the diminution in the purchasing power of Rupee that normally takes place in a span of five year period. Limiting the raise to 5% only under Rule 7(3) would be too harsh a financial restriction as it does not fully take care of the cost of running a school in comparison to the cost of its previous academic year. This is evident from the value which the Rupee has consistently been shedding in any five year period. Looking from that angle too, the arbitrarily determined cap of 5% imposed under Rule 7 (3) would certainly act as an unreasonable restriction on carrying on a lawful business. 9. The negative impact of Rule 7(3) does not stop here as it further requires that no raise in fee can be made unless Registering Authority first grants its approval. In this context it is important to note that there are said to be 17,000 private schools in Sindh and in order to seek any increase in tuition fee, each school has to apply to the Registering Authority which may take considerable period of time to process thousands of applications, that may leave a huge number of applications pending to be processed in the next academic year. Notwithstanding such pendency thousands of fresh applications in the next academic year are bound to pour in making it further difficult to timely process all applications. This inbuilt cumbersome process to seek increase in tuition fee under Rule 7(3) also amounts to unreasonable restriction. 10. No one can claim any right in any concession or exemption that is often granted in a statute like tax laws. But to allow increase in tuition fee is not something that is to be equated with some concession or benefit granted by the state as it is mainly intended to compensate for the diminution in the purchasing power of Rupee. In other words, revision in tuition fee should be solely intended to meet the ever increasing cost of running of a school and at the same time persevering reasonable margin of profit. Parents send their children to a particular school with the intention that they would complete their studies in a period which Civil Appeals No. 1095 of 2018, etc. -: 14 :- span over a number of years and it is neither convenient nor good for the student to change schools after every year or two. So once a student after his admission is committed to study for several years in a particular school, the only consideration for incorporating Rule 7(3) in Sindh Private Educational Institutions (Regulations and Control) Rules, 2005 ought to have been to compensate for diminution in the value of Rupee, provision of additional facilities for the students and to prevent profiteering while preserving reasonable margin of profit. However, where this rule, which is a product of delegated legislation, fails in fully taking into account these factors and is also cumbersome in its application, as it requires processing of thousands of applications each year by the Registering Authority in order to allow any increase in tuition fee in any academic year, no matter how insignificant it may be then it can be termed as unreasonable restriction being a discouragement to run a lawful business. In connected cases coming from the Province of Punjab, 8% increase in an academic year has already been validated. In my view that limit too should be made enforceable without recourse to Registering Authority. Raising the cap under Rule 7(3) to 8% would also create uniformity in its application in the provinces of Sindh and Punjab where overwhelming majority of children of this country get education. This uniformity is also a necessity as the private schools, whether in Punjab or Sindh, are subject to income tax on their profits at the same rate and the diminution in the value of Rupee affects the entire country equally being the common legal tender. Keeping all these considerations in mind, arbitrary cap of 5% can be raised to the level of 8% which looks much closer to ground reality i.e. having the effect of offsetting the depreciation in the value of Rupee to a greater extent which was also acceptable to the parents of the children of Punjab. In this regard reliance is placed on the case of Ahmed Hassan Vs. Government of Punjab (PLD 2004 SC 694) where it has been held that where a Rule has the effect of being an unreasonable restriction, it can be struck down. Raising the cap of 5% provided in Rule 7(3) to an automatic increase upto 8% in an academic year would bring it within the limits of reasonableness Civil Appeals No. 1095 of 2018, etc. -: 15 :- and should be so read with effect from the year in which the controversy in the present proceedings first started. 11. In view of what has been discussed above the arbitrarily determined cap of 5% imposed under Rule 7 (3) and the manner by which it is to be enforced is an unreasonable restriction on carrying on a lawful business. Increase upto 8% in an academic year without recourse to Registering Authority would be closer to the ground realities and at the same time save the department and the schools much of the inconvenience in the periodical revision of tuition fees. The Government of Sindh is directed to amend Rule 7(3) accordingly within a period of two months. 12. Civil Appeal Nos. 1095 to 1097, 1021 to 1026, 1138, 1154 to 1158, 1486, 1487 of 2018, Civil Petition Nos. 4475 & 4476 of 2018 stand disposed of in the above terms along with all pending Review Petitions/CMAs. (JUDGE) Announced on 12.06.2019 at Islamabad. Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Javed Iqbal Mr. Justice Nasir-ul-Mulk Mr. Justice Tariq Parvez Mr. Justice Amir Hani Muslim SUO MOTU CASE NO. 10 OF 2011 (Suo Motu action regarding brutal killing of a young man by Rangers in Karachi) On Court notice : Maulvi Anwar-ul-Haq, Attorney General for Pakistan. Mr. Shafi Ahmed Memon, Additional Adv. General Sindh. Mr. Qamar Zaman Chaudhry, Secretary Interior. Mr. Abdul Subhan Memon, Chief Secretary, Govt. of Sindh Mr. Fayyaz Ahmed Leghari, Provincial Police Officer Sindh. Mr. Muhammad Ejaz Chaudhry, Director General, Pak. Rangers. Mr. Muhammad Riaz-ud-Din, Acting Home Secretary Sindh Mr. Anwar Subhani, Acting AIG (Legal). Date of hearing : 10.06.2011. O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Pursuant to incident of murder of one Sarfraz Ahmed at the hands of Sindh Rangers in the vicinity of Benazir Park, Block-VI, Gate-II, SMC.10/2011 2 Karachi, video clips were shown by most of the prominent TV Channels, same have been watched in Court today, which prima facie establish that about 5/6 persons in uniform initially caught hold of Sarfraz Ahmed (deceased) from his hairs and thereafter one of them opened fire, due to which Sarfraz Ahmed sustained injuries and fell down, crying for his life, begging them that he should be removed to hospital. 2. Unfortunately, none of the police and Rangers officials present on the spot helped the deceased Sarfraz Ahmed (then injured) as a result whereof he succumbed to injuries in their presence. The manner, in which the death of Sarfraz Ahmed deceased has occurred, clearly indicates barbarism because once he had been overpowered, as it is evident from the video clips, he was not to be fired upon in any case and at the best the Rangers personnel could have handed him over to the police, if there was an allegation of his being involved in the commission of some offence. 3. In order to conceal/smokescreen the highhandedness of both i.e. Rangers and Police, with the connivance of each other, they registered FIR No. 225 of 2011, on 08.06.2011 at Police Station Boat Bason, District Town Clifton at 7.30 pm, against the incident that took place at 5.15 pm on the complaint of one Afsar Khan son of Gul Mohiuddin under Sections SMC.10/2011 3 393/353/324 PPC. As per the version of the complainant, a person armed with a pistol threatened one Alam Zeb and his wife, statedly in front of the complainant, to hand over whatever valuable they have got with them and during this, the Rangers posted at the place reached there; on seeing the Rangers the dacoit ( ) /deceased, opened fire with intention to commit their murder; therefore, the Rangers also opened fire in their self defence due to which the dacoit sustained injuries on his body and the pistol in his hand also fell down; his name was learnt to be Sarfraz. The complainant further stated that the injured dacoit was shifted to Jinnah Hospital in the CHEEPA Ambulance. His claim was that as the said Sarfraz had demanded money on gunpoint and had intervened in the official duty of the Rangers and had also extended threat to their life, as such case may be registered. 4. The above FIR was followed by another FIR No.226 of 2011 of same Police Station dated 08.06.2011 at 7.45 pm. under Section 13D of the Arms Ordinance, with regard to pistol, allegedly recovered from the deceased with magazine with three rounds and as the same was without licence, therefore, a separate case was registered against him. 5. After registration of these FIRs, on 09.06.2011 at 00.30 (midnight) FIR No.227 of 2011 was registered under SMC.10/2011 4 Section 302/34 PPC at the same Police Station on the complaint of Syed Salik Shah son of Khameen Shah, wherein he deposed that on coming to know that his brother Sarfraz Ahmed had a quarrel at Benazir Park, where the Police and Rangers were present, he went to Boat Bason Police Station and met Zulfiqar, SI, who informed him that his brother has been injured, therefore, he had been shifted to Jinnah Hospital; when he (the complainant) reached Jinnah Hospital, he found his brother’s dead body lying in the Emergency. According to the contents of this FIR, he named two persons i.e. Muhammad Afzal and Shahid Zafar alongwith their other colleagues and two unknown persons to have committed the murder of his brother; therefore, action according to law may be taken. 6. The narration of above facts regarding FIR are entirely contrary to the video clips played in Court, as it is evident therein that one person had got hold of Sarfraz who was empty handed; that person pushed Sarfraz towards the Rangers present near a vehicle parked over there; the Rangers present overpowered him and they directed him to face upward; during this course he was caught hold from his hairs and collar of the shirt, there was a commotion that “he is the same person” and he was then moved by pushing him towards the Rangers; in the meantime, one of the Rangers personnel fired upon him as a SMC.10/2011 5 result, he got injured and fell down and started crying, begging Rangers personnel that he should be shifted to the hospital but all the Rangers officials present over there had been watching him; meanwhile the blood started oozing out from his injuries and he succumbed to the injuries while lying in the pool of blood. 7. The Police although had registered the FIR No. 225 and FIR No. 226 of 2011 but have not stated a single word about the death of Sarfraz and in a clandestine manner stated that he had been shifted to Jinnah Hospital as injured. Even subsequent thereto, no case was registered about this murder by the police officials, until his brother Syed Salik Shah came to Police Station and got registered the case at 00:30 (midnight) on 09.06.2011 till such time the complainant had limited information about the occurrence as mentioned hereinabove. We may mention here that it was not only the duty of the police concerned but of the Provincial Police Officer as well as Director General Rangers, to take notice of the matter, as they must have learnt about the incident which was widely aired by the electronic media and there was a lot of hue and cry regarding this incident; furthermore the family of the deceased alongwith other citizens had also started raising voice against highhandedness of these law enforcing agencies. Surprisingly, when the case vide FIR No.227 of 2011 was registered, even then SMC.10/2011 6 except two persons, whose names were mentioned in the FIR lodged by the complainant, the custody of remaining persons, who were very much visible at the scene of crime, were not handed over nor the police demanded them for the purpose of investigation. As far as the awareness of the incident is concerned, it was very much available on all TV Channels. When we enquired from the DG Rangers, he admitted that because only two persons were nominated in the FIR, therefore, their custody was handed over; as far as the other Rangers personnel present on the spot are concerned, according to him, they are in the custody of the Rangers. This conduct on the part of the Police as well as Rangers does not seem to be above board. When such a heinous crime has been reported by the electronic media/TV Channels, they should have come forward with all fairness and should have got arrested all the persons, who were involved in the case. 8. We do not know about the status of investigation because the things have been mixed up deliberately by the Police while registering the FIRs in the manner as it has been discussed hereinabove and this is nothing but a device to save the persons, who are apparently seems to be involved in the commission of the offence. We do believe that under the Constitution of the Islamic Republic of Pakistan, it is the State who is responsible to SMC.10/2011 7 provide protection and safety to the life of all its citizens, but in the instant incident facts are other way round i.e. negation of Article 9 of the Constitution. 9. Accepting for the sake of argument that the deceased was involved in some criminal case, which apparently seems to be incorrect, the Rangers had no authority to open fire upon him. Reference in this behalf can be made to Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein this aspect of the case has been discussed by this Court by clearly stating that under Section 5(2)(i) of the Anti Terrorism Act, 1997, the Rangers have no authority to open fire. 10. Be that as it may, when we enquired from the Chief Secretary, Government of Sindh about the powers, which are to be exercised by the Rangers, conferred upon them by the Provincial Government for the purpose of acting in aid of the Police and civil administration, he produced a copy of the notification, which is not the original one but it seems to deal with extension, etc. of the tenure for which Rangers shall stay in aid of civil administration. In the meantime, the Chief Secretary had left for the meeting with the Prime Minister in some other matter. Before leaving for the meeting with the Prime Minister, the Chief Secretary stated that he admits that the present incident is a case of utter violation on the part of these law enforcing SMC.10/2011 8 agencies to enforce law and he surrenders before this Court for the incompetency of these law enforcing agencies in this regard. He assured that protection to the life and property of the cameraman of a private TV Channel “AWAZ”, who had prepared the original video of the incident, shall be provided. In view of his statement, we direct him to do the needful. Mr. Riazuddin, Acting Home Secretary, Government of Sindh, present in Court, had placed on record a copy of the notification dated 3rd February, 2010; however, this notification is silent about powers that have been conferred upon the Rangers and the manner in which the same has to be exercised. 11. When we enquire from the Provincial Police Officer about the progress of the case, surprisingly he gave reply that today remand of the two accused persons shall be taken and then the investigation will start; whereas the DG Rangers pointed out that two empties shell, fired from the service rifle by an accused, have been handed over to the police today at about 9.00 am alongwith his service rifle. Similarly, the custody of the two accused has been given yesterday at night whereas the custody of the remaining officials as well as the persons, who were Incharge of the Company has not so far been handed over. 12. From the above noted facts and circumstances, it is not difficult to visualize that how this incident had taken place and the manner in which both the high-ups i.e. of the Police and SMC.10/2011 9 the Rangers, had dealt with the same. It is a classical case of highhandedness of the law enforcing agencies and instead of feeling sense of responsibility and showing uprightness and honesty, they are, even today, concealing the facts while appearing before this Court. Therefore, under these circumstances, we apprehend that the investigation of the case would not be conducted properly and impartially, in presence of both these senior officers i.e. Mr. Fayyaz Ahmed Leghari, PPO Sindh and Mr. Muhammad Ejaz Chaudhry, DG Rangers (Sindh), as such through Attorney General for Pakistan, we direct that they should be posted out within a period of three days and in the meantime some alternate arrangements should be made. However, if after three days, the notifications in this regard are not issued, it is directed to withhold the salaries of above two officers as they would not be entitled for the same till the notification of their posting out is not issued. This part of our order shall be enforced/implemented by the Secretary Interior by proceeding according to relevant rules. Meanwhile, Mr. Sultan Khawaja, DIG Karachi, who is statedly a reputable officer, is directed to take over the charge of the investigation against all the culprits and complete the same within a period of seven days, by applying all appropriate provisions of law as the matter seems to attract prima facie Section 7 of the ATA, 1997, and shall send up challan before the Court of competent jurisdiction. He shall also submit progress report of his investigation to the Registrar of this Court for our perusal in Chambers. SMC.10/2011 10 13. The Court seized of the matter shall decide the same by conducing trial on day to day basis, by not taking more than 30 days, without being influenced in any manner from the instant proceedings. Ultimate result of the trial shall be communicated to the Registrar of this Court for our perusal in Chambers. This Suo Moto Case stands disposed of accordingly. CJ. J(1). J(3). J(10). J(14). Islamabad, 10.06.2011 Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN SUO MOTO CASE NO.10 OF 2018 Suo Moto Action regarding order passed by the Lahore High Court temporarily barring TV Channels from Broadcasting Anti-Judiciary Speeches. In Attendance: Mr. Ashtar Ausaf Ali, AGP. Mr. M. Waqar Rana, Addl. AGP. Mr. Salman Akram Raja, ASC for PEMRA Sardar Ahmed Nawaz Sukhera, Secy. M/o Information & Broadcasting. Mr. Ashfaq Jummani, Sr. Member, PEMRA. Date of Hearing: 17.04.2018 ORDER MIAN SAQIB NISAR, CJ-. We took Suo Motu Notice in this matter on account of media reports and panel discussions on various media channels based on an order dated 16.04.2018 passed by a Full Bench of the Lahore High Court, Lahore. A false impression was intentionally sought to be created amongst the general public by such news reports as well as panel discussions that Muhammad Nawaz Sharif (ex Prime Minister of Pakistan) and his daughter Ms. Maryam Safdar had been directed to be taken off air and Pakistan Electronic Media Regulatory Authority (PEMRA) had been directed to stop broadcasting of speeches made by the said persons. Further, it was categorically stated that the learned High Court had banned airing of anti judiciary speeches by a large number of persons including Muhammad Nawaz Sharif and Ms. Maryam Safdar. 2. A false impression was also sought to be created that the fundamental right to freedom of speech enjoyed by all citizens and guaranteed by the Constitution has been curtailed, restricted or diminished through the said order. SUO MOTO CASE NO.10 OF 2018 -: 2 :- 3. We have summoned the order of the learned High Court and carefully gone through the same. Perusal of the said order indicates that PEMRA which is a regulatory authority of broadcasters has been directed to implement the law in terms of Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Section 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and Section 2(j) of the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015. Further, PEMRA has been directed to decide various applications moved by a number of applicants for enforcement of law against hate speech within a period of 15 days. 4. There is nothing in the order which even remotely directs or obligates PEMRA to ban Muhammad Nawaz Sharif and Ms. Maryam Safdar or any body else. The media speculation, panel discussions and press reports appearing on various channels and media outlets and in various newspapers today are incorrect, baseless and unsubstantiated. The opinions, verbal or in writing have clearly and obviously been expressed without even reading the contents of the order of the High Court. 5. We have confronted the learned Attorney General for Pakistan as well as the learned counsel appearing on behalf of PEMRA if the order in question in any manner imposes a ban, embargo or restriction on Muhammad Nawaz Sharif and Ms. Maryam Safdar or any body else. They have frankly conceded that this is not the case and the contents of the order do not support any such conclusion. They agree and acknowledge without any reservation whatsoever that as guardians of the Constitution and custodians of fundamental rights the superior Courts of the country are mandated and obligated to ensure that fundamental rights are protected and enforced with full force and vigor with all their manifestations and strictly in accordance with the letter and spirit of the Constitution and the law. SUO MOTO CASE NO.10 OF 2018 -: 3 :- 6. We had also issued notices to Muhammad Nawaz Sharif and Ms. Maryam Safdar and had directed the learned Attorney General for Pakistan to convey the same to the said persons to enable them to arrange their representation. None has appeared on their behalf. However, learned counsel appearing on behalf of other Respondents and the Attorney General for Pakistan, after going through the order, agree that there is nothing in the order that can even remotely be interpreted to mean or imply that a ban has been imposed on the said persons or taking them off-air. All learned counsel unanimously agree that as the regulator for electronic media, it is the duty of PEMRA to enforce the law as provided in Section 27 of the Ordinance, 2002 read with Section 2(j) of the Code of Conduct ibid and the order in question merely reiterates the said position. 7. Having satisfied ourselves that the order of the learned High Court, referred to above, does not in any way curb, restrict, curtail or diminish the fundamental right of freedom of speech as enshrined in Article 19 of the Constitution and merely directs PEMRA to enforce the law which it is obliged to do and decide the applications pending before it relating to hate speech against any and all organs of the State, we are inclined to dispose of this Suo Motu Notice. Disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD, THE 17th April, 2018 ZR/* NOT APPROVED FOR REPORTING

tsuPBMt COURT 0LPAKISTAN (APPELLATE JURISDICTION) MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR AU AKBAR NAQV1 Civil A eats to 17-K of 2019 Against judgment dated 28.(n -2018 of Sindh Service Tribunal at Karachi, passed in Appeals No.1015, 1063, 1156 to 1159, 1161 81 1164 o12015. Sindh Irrigation & Drainage Authority, Appellant(s) Versus Government of Sindh & others Respondent(s) For the Appellant(s): Malik Naeem Iqbal, ASC Sh. Khurratfl Aziz, Secy, SIDA Altaf Hussain, Law Officer ,(V1 0 V•L. For the Respondent(s): Date of Hearing: Mr. Mukesh Kumar G. Karara, ASC Mr. Mansoor ul Haq Solangi, ASC Muhammad Ali Zardari, AWB, Ghotki Mr. Sibtain MehmoOd, Addl.AG, Sindh Sikandar Hassan, DS Irrigation Sindh Khaditn Hussain, DS Irrigation Sindh Abdul Hafeez Memon, SO Irrigation Sindh (alt UtD. V.1. 24.03.202 1 JUD. GMENT IjAz UL AHSAN, j-. Through this single judgment we intend to decide Civil Appeal Nos. 10-K to 17-K of 2019 (hereinafter referred to as "CA") as they involve a common question of law. 2. By way of the instant appeals,the Appellants have challenged the consolidated judgment of the Sindh Service Tribunal, Karachi dated 2808-2018 passed in Service Appeal Nos. 1015 of 2015, 1063 of 2015, 1156 to 1159 of 2015, 1161 of 2015 and 1164 of 2015 (hereinafter referred to as the ChitI Appeals No.10-K to Il-K at 2019 2 "Impugned Judgment"). Through their Service Appeals, the Appellants had filed an application under Section 12(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC")contending that the litigation Respondents were engaged in before the Service Tribunal claiming to be employees of the Irrigation Department of the Government of Sindh was fraudulent and erroneous since they were not Civil servants but Public servants and employees of the Sindh Irrigation and Drainage Authority (hereinafter referred to as "SIDA"). The Service Tribunal dismissed the application of the Appellants vide the Impugned Judgment. Aggrieved, the Appellants have approached this Court. 3. The brief facts giving rise to this Us are that the Respondents were employed against different posts in the Tube Well Division(s) of SIDA by the Executive Engineer(s). The Respondents filed a Writ Petition before the High Court for release of their salaries. The said Writ Petition was remitted to the Service Tribunal. The Service Appeal of the Respondents was disposed of vide orders dated 14.05.2015 with directions to the Department to process the case of the Respondents' salaries in view of different letters issued by the Finance Department. The directions of the Service Tribunal were allegedly not complied with, prompting the Respondents to file execution applications. During pendency of the execution proceedings, the Appellants filed an application under Section 12(2) of the CPC before the Service Tribunal for setting aside the order dated 14.05.20 15 claiming therein (Api! Appeals NO, 20-K to 17-K of 2019 3 that the Service Tribunal did lacked jurisdiction to adjudicate the matter since the Respondents were public servants and not civil servants. The application of the Appellants was dismissed vide the Impugned Judgment. Aggrieved thereof, the Appellants filed Civil Petitions for leave to appeal before this Court against the Impugned Judgment. 4. Leave to appeal was granted by this Court vide order dated 03.04.2019 in the following terms: - "Mr. Malik Naeem Iqbal learned Sr. ASC for the petitioner submits that the impugned judgment has been rendered by the Sindh Service Tribunal under a grave misconception that the private respondents herein were civil servants employed by the Government of Sindh. Such was held for the purported reason that the appointments of the respondents were made by the Executive Engineer of the Irrigation Department. Learned Counsel submits that indeed, it is true that the appointments were made by the Executive Engineer however at the relevant time the said Engineers were not working for the Irrigation Department but were discharging their duties for the Water Management Board on deputation. Learned counsel refers to Section 29 of the Sindh Water Management Ordinance, 2002, to show the Water Management Board is a corporate body independent of the Government of Sindh and in order to show the functions prescribed for the Board the learned Counsel refers to Section 32 and also to Section 16 of the Ordinance which provide that in order to carry out the Purpose of the Ordinance, SIDA may from time to time, employ officers, staff and experts etc with such qualification and expertise, and on such terms and conditions as may be prescribed by S1DA. The learned Counsel further submits that in terms of Section 39 certain provisions of SIDA, including Section 16 are to apply mutatis mutandis to the Board as well. He submits that the tern-is and conditions of the persons employed or sought to be employed were/ are, in terms of Section 16, to be determined by SIDA, its employees cannot be termed as Civil servants for which it is essentially required that their terms and conditions be settled through the relevant statute." 5. Arguments of the learned counsel for the Appellants have been elaborately spelt out in the leave granting order of this Court noted above and need not be repeated. Oiml A ppeals Pin. ?Q-J( to 17-K 0, i01 9 4 6. The learned Counsel for the Respondents has supported the Impugned Judgment. He has argued that the Service Tribunal rightly non-suited the Appellants since Respondents were Civil servants and were employed by the Irrigation Department of the Government of Sindh. He has further argued that the Respondents were employed by the Executive Engineer who was an official of the Government of Sindh, hence, the Respondents for all intents and purposes were Civil servants. In this respect, the learned Counsel for the Respondents has relied upon the appointment letters of the Respondents. 7. We have heard the arguments of the learned Counsel for the parties and have perused the record. The questions which fall before this Court for determination are as follows: - (i) Were the Respondents "Public servants" or "Civil servants" and, the consequences thereof? (ii) What was the legal significance of the appointments made by the then Executive Engineer(s)? (iii) Did the Service Tribunal have jurisdiction to entertain an application under Section 12(2) of the CPC? WERE THE RESPONDENTS "PUBLIC SERVANTS" OR "CIVIL SERVANTS" AND, THE CONSEQUENCES THEREOF? 8. The learned Counsel for the Appellants has argued that, since the Respondents were employees of SIDA, they were deemed to be public servants and not as civil servants because they were employees of an authority, which was a body corporate. In this respect, he has relied upon Section 4( 1)(a) of the Sindh Water Management Ordinance, Civil Appeals go.] U-A to if-A 012UIY 5 2002 (hereinafter referred to as "Ordinance, 2002"). As such, he has argued that the Government of Sindh, Irrigation Department was a separate entity from the Appellant- Authority. We have before us Section 4(l)(a) of the Ordinance, 2002which reads as under: - "1) The SIDA a. Shall be a body corporate, having perpetual succession and a common seal and shall by the same name, sue and be sued" The term "Authority" is defined in Section 3 Ordinance, 2002 which reads as follows: - "As soon as may be, after the commencement of this Ordinance, there shall be established an Authority known as the SIDA, provided that the SIDA existing immediately before the commencement of this Ordinance shall continue to function until the SIDA reconstituted under this Ordinance. "(Underlining is ours) A bare perusal of the alorenoted provisions of the Ordinance, 2002 makes is clear that the SIDA is a separate legal entity which, as per the provisions of the Ordinance, 2002, is different from the Irrigation Department of the Government of Sindh. The Sindh Irrigation Department on the other hand is a department of the Government of Sindh, which is governed by a separate legal regime. The fact that the legislature has in its wisdom sought to incorporate SIDA as a body corporate Authority in the Ordinance, 2002 shows its clear intention of not merely making it a department of the Government of Sindh. A Department of the Government generally operates under the control of the Government. This essentially means that the autonomy of a department is limited insofar as its operations and management are concerned. An Authority on the other hand is generally Ov,( Appeals No.JU-K to il-K 012W 9 6 autonomous. It can regulate its internal affairs and formulate policies after seeking approval from the governing body of the Authority in question. This is evidenced by the fact that there is a separate Board of Management of SIDA provided inter a/ia in Section 12(1) of the Ordinance, 2002 which reads as follows: - "1) Subject to the overall control and guidance of the SIDA, the affairs of the SIDA shall be managed by the Board of Management consisting of the Managing Director and such number of General Managers, as may be appointed by the SIDA on the advice of a committee comprising of four members of the SIDA, provided that at least one of them shall be an elected member. The aforenoted provision makes it clear that SIDA is an autonomous body, which operates as an Authority, managed by a Board of Management. The use of the word "shall" in Section 12(1) makes it evident that SIDA is to govern its own affairs as an autonomous body. 9. The learned Service Tribunal has conceded that, as per Section 106 of the Ordinance, 2002, the Respondents are public servants. It has further been held that since the appointment orders of the Respondents were issued by the Executive Engineer of the Irrigation Department; as such, it cannot be said that the Respondents were not Civil servants since the appointment orders of the Respondents were issued by a representative of the Irrigation Department. We are unable to agree with the findings of the learned Service Tribunal. Section 106 of the Ordinance, 2002 specifically provides that employees of SIDA shall be public servants which reads as follows: - "The Chairman, Members of the Board, Officers and employees of the Regulating Authority, SIDA, AWB, Pt? and Quit A ppeals N0.10-K to 27-K ot 2019 7 other bodies constituted under this Ordinance shall, when acting or purporting to act in pursuance of any of the provisions of this Ordinance, be deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code." The aforenoted provision of the Ordinance, 2009 clearly establishes that the Respondents shall be public servants for a limited purpose spelt out in Section 106 itself. The fact that this has been mentioned categorically within the Ordinance, 2009 itself leaves no room for the Service Tribunal to read into the Ordinance, 2009 something which is not provided therein. Such an interpretation is ultra vires not only to the Ordinance but also, the powers of the Tribunal. A civil servant is someone who has been employed by the competent authority i.e., either the Provincial or Federal Public Service Commission, in the prescribed manner after following due process of law and having gone through the process of competition. Reliance in this regard is placed on Muhammad Mubeen us Salam and others i.,. Federation of Pakistan (PLD 2006 Supreme Court 602) the relevant portion of which reads as under: - "In the above definition of the civil servant, the expression 'All Pakistan Service or of a civil service of Federation" has been included, therefore, section 5 of CSA, 1973 defines the competent authority for appointment. According to which Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf" To meet the requirements of this provision of law, Federal Public Service Commission Ordinance, 1977 was promulgated in pursuance whereof the Commission was authorized to conduct tests and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan, etc." There is nothing on the record to suggest that the Respondents were ever declared civil servants by the Giant A ppeals No. lu-K to li-ft ot 4019 8 competent authority or, that they were appointed by the Public Service Commission of Sindh. Rather, it has been alleged that they were appointed by the Executive Engineer, therefore, they were civil servants. We are unable to agree with this conclusion or the reasons given by the Tribunal for such a conclusion, for reasons discussed above. 10. The relevant definition of a Civil servant for the purposes of this controversy is provided in the Sindh Civil servants Act, 1973, Section 2(1)(b) of which reads as follows: - ""civil servant" means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include - (I) a person who is on deputation to the Province from the Federation or any other Province or authority; or (H) a person who is employed on contract, or on work charged basis, or who is paid from contingencies; or (iii) a person who is "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)" The aforenoted provision defines a civil servant. It is clear from the record placed before us that the Respondents do not fall within the aforenoted definition. They were not employed by the Provincial or Federal Public Service Commission neither is there any notification or any other document on the record that confers on them the status of I civil servants. A public servant may be a person who is employed in the public sector. However, not all public servants are civil servants unless they are appointed in the prescribed manner discussed above. Civil A ppeals No.20-K to 17-K of 2029 9 WHAT WAS THE LEGAL SIGNIFICANCE OF THE APPOINTMENTS MADE BY THE THEN EXECUTIVE ENGINEER(S)? 11. The learned ASC for the Appellant-Authority has argued that the Executive Engineer(s) at the time in question was not working for the Irrigation department. Rather, he was working for SIDA on deputation. It has further been argued that the Executive Engineer did not have authority to employ the Respondents under the provisions of the Ordinance, 2002.In support of his arguments, the learned ASC for the Appellant-Authority has drawn our attention to the notifications dated 14.09,2012, 30.05.2012 and 29.07.2011 wherein it has been mentioned that various Executive Engineers were transferred and posted as Executive Engineers on OPS basis to the Tube Well Division(s) where the Respondents were employed. It is to be noted that the Tube Well Division(s) fell under the jurisdiction of the Area Water Board, Gothki, the control of which stood transferred from the Government of Sindh to the SIDA. In this respect we have on record a notification dated 28.11.2001 which reads as follows: - "1. The Government of Sindh is pleased to designate under Section 23(1) of the Sindh Irrigation and Drainage Authority Act, (IV of 1997), the entire Gothki Feeder Canal Circle and Left Bank Canal Circle from Head to Tail as Gothki Feeder Canal Area Water Board and Left Bank Area Water Board. 2. All the Canals, Drains, Public Tube Wells, Appurtenant structures, assets and liabilities falling within the jurisdiction of both canals command stand transferred to Gothki Feeder Canal Area Water Board and Left Bank Canal Area Water Board. 3. The Gothki Feeder Canal and Left Bank Canal Area Water Boards shall be governed by the Rules and Regulations framed by the Authority.' Civil Aooeals No. 10-K to 17-K of 2019 10 12. All appointments made in SIDA were supposed to be made pursuant to Section 16 of the Ordinance, 2002. It has been argued that in terms of Section 39 of the Ordinance, 2002, certain provisions inter alia, Section 16 of the Ordinance, 2002 shall apply mutatis mutandis to the Area Water Board. Section 39 of the Ordinance, 2002 reads as follows: - "The provisions of sections 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 27 shall mutatis mutandis, apply to an AWB" The aforenoted provision of the Ordinance, 2002 clearly mentions that Section 16 of the Ordinance, 2002 shall apply mutatis mutandis, i.e., without any substantial changes, to the Area Water Board. Section 16 of the Ordinance, 2002 reads as follows: "16. Staff 1) In order to carry out the purpose of this Ordinance, the SIDA mazi, from time to time, employ officers, staff experts, advisers and other employees with such qualifications and expertise and on such terms and conditions as mat,' be prescribed bu SIDA. 2k). The Staff transferred from the Irrigation and Power Department to SIDA shall serve on such terms and conditions as prescribed by SIDA; provided that such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before their transfer to SIDA. 3). The staff transferred from the Irrigation and Power Department shall continue to be governed by the provisions of the Civil Service Pension Scheme, unless they opt not to be so. 4) The Managing Director shall be responsible for the personnel management for all the SIDA staff in accordance with regulations framed by the SIDA. 5) In cases of dismissal, promotion, demotion, removal, termination, punishment(s) and all other matters connected with the terms and conditions of service, staff in the SIDA shall have a right of appeal, in accordance with the regulations framed by the SIDA. (Underlining is ours) GM Appea(s 90. 1 U-A toil-A OT 2W 11 A bare perusal of the aforenoted provision makes it abundantly clear that the powers to inter alia appoint the staff of SIDA vested with the Board of Management of SIDA since the Board has powers as per Section 12(1) of the Ordinance, 2002 to administer all matters of SIDA including employment of its staff. Section 12(1) read with Section 16 clearly indicates that any and all appointments shall be made by the Board of Management of SIDA. As such, no other authority/ person could have exercised such powers without express authorization given by the Board. As such, any and all powers exercised by the Executive Engineer could only have been exercised if the same were delegated by the Board of Management of SIDA under Section 12(4) which reads as under: - "4) The Board of Management of may, by general or special order, delegate to the Managing Director or any other member of the Board, or to any officer of the SIDA, any of its powers under this Ordinance, subject to such conditions or limitations as it may impose." There is nothing on the record to suggest that such powers were ever delegated to the Executive Engineer(s) in question. Even if it is assumed that the Executive Engineer had the authority to appoint staff, the said appointments could not have been made in contravention of Section 16 of the Ordinance, 2002 or, any other provision of the Ordinance, 2002. It is settled law that legislation must be given a harmonious reading where possible. As such, all those lawfully employed under Section 16 of the Ordinance, 2002 would be public servants (for limited purposes) when Section 16 is read with Section 106 of the Ordinance, 2002, noted crv,t Appeals No. 10-K to 17-K of 2019 12 above. Hence, the appointments made the Executive Engineer(s) (if legal) could have only conferred the status of public servants onto the Respondents and under no circumstances, that of Civil Servants. 13. A similar provision within the Ordinance, 2002 with regards to the Area Water Board is Section 34 which reads as under: - "34. Board of Management. 1) Subject to the overall control and guidance of the A WE Board of an A wg the affairs of that AWE shall be managed by a Board of Management formed by the Director and as many Managers as that A WE may reasonably require for the purpose. 2) Sub-section 2) to 4) of Sub-section 12 shrill mutatis mutandis apply to the Board." Section 34 of the Ordinance, 2002 read with the notification dated 28.11.2001 clearly establishes that in any case, it was either the Board of Management of the Area Water Board or, the SIDA, which was to employ the Respondents and not the Executive Engineer. The Respondents have been unable to show us anything from the record to the effect that the Executive Engineer(s) had been delegated with the authority to appoint any staff in the Tube Well Division(s) under the control of the Area Water Board as per Section 32 of the Ordinance, 2002. Even in the best case scenario, the Executive Engineer could only be empowered to employ the Respondents as public servants within the meaning of Section 106 and not as Civil Servants. It is settled law that an official can only exercise as much power as is granted to them by law. The Executive Engineer could not have gone beyond the powers he had or acted in violation of Gun! A ppeals No. 10-K to 1/-K of 2019 13 the provisions of the Ordinance, 2002. Public functionaries owe a fiduciary duty to act in good faith and discharge their duties with honesty and in accordance with law. If a public functionary does not exercise such power in good faith and with honesty, the principle of merit gets compromised which damages the superstructure of merit, competence and good governance. There is no advertisement on the record to show that the posts in question were available to the general public and that the Respondents were appointed after having gone through open competition. This raises doubts over the entire appointment and recruitment process carried out by the Executive Engineer(s). There is nothing on the record to show that the recruitment process was carried out in accordance with the provisions of the Ordinance, 2002. As such, the findings of the learned Service Tribunal that the Respondents were employees of the Irrigation Department are clearly against the record which has totally been misread and misinterpreted. The Respondents were employees of SIDA and not the Irrigation Department because they were appointed by Executive Engineer(s) serving on deputation in SIDA. The learned Service Tribunal's findings in this regard are unsustainable in law and in fact. DID THE SERVICE TRIBUNAL HAVE JURISDICTION TO ENTERTAIN AN APPLICATION UNDER SECTION 12(21 OF THE CPC? 14. After obtaining an order from the High Court for release of their salaries, the Respondents approached the Service Tribunal for implementation of the same, claiming to be civil servants. They filed their respective implementation Ciufi A ppeals No. 10-K to 17-K of2019 14 applications/ petitions. As a response to the same, the Counsel for the Appellant-Authority filed an application under Section 12(2) of the CPC averring therein that the Respondents misrepresented the fact that they were employees of the Irrigation Department and claimed to be Civil Servants whereas, they were in fact Public Servants and governed by the principle of Master and Servant. The learned Service Tribunal dismissed the application of the Appellant- Authority as not maintainable vide the Impugned Judgment, holding that the Service Tribunal did not have powers to decide an application under Section 12(2) of the CPC. We are unable to agree with this finding of the learned Service Tribunal. Section 5 of the Sindh Service Tribunals Act, 1973 categorically provides that the Service Tribunal shall have all powers available to a Civil Court. Section 5 of the Sindh Service Tribunals Act, 1973 reads as under: - "5. Powers of Tribunals.-(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against. (2)A Tribunal shall, for the purpose of decidin g any appeal be deemed to be a Civil Court shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of- (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents; (c) issuing commission for the examination of witnesses and documents; and (d) execution of its decisions. (3) No court-fee shall be payable for preferring an appeal to, or filling, exhibiting or recording any documents in, or obtaining any document from, a Tribunal." (underlining is ours) 15. The aforenoted provision makes it clear that the Service Tribunal has all the powers which are available to the Civil Court. This is further evidenced by the fact that the word "including" is in Section 5(2) which shows that the Tribunal's powers are broad and have not been limited by the Act. It has the same powers as available to a Civil Court. Deciding an CiuüArn,eals No. 10-K to 17-Ko12019 15 application under Section 12(2) is a power vested with the Civil Court. Reliance in this regard is placed on Rahat Naseem Malik v. President of Pakistan and others (2003 PLC (CS) 759 which held as under: - "Now turning towards the next contention of the learned counsel namely that Federal Service Tribunal under section 5 of the Service Tribunals Act, 1973 exercises jurisdiction of a Civil court, therefore, it was its duty to have thoroughly examined the case of the petitioner. As far as the powers of the Tribunal to confirm, set aside, vary or modify an order operating against petitioner as well as to exercise powers of a Civil Court under the Code of Civil Procedure, 1908 is concerned there is no cavil with it. However, such power would be exercised by the Tribunal judiciously keeping in view the recognized principle of law." 16. As such, the learned Tribunal could not have held that the application of the Appellant-Authority was not maintainable in law. When the law categorically provides the Service Tribunal with powers to adjudicate a matter, it cannot restrict itself from doing what it is required by law to do. The Service Tribunal was required to decide the application under Section 12(2) of the Appellant-Interveners on merits, based on the material before it. This is so because the Appellant- Authority alleged that the Respondents misrepresented themselves as Civil Servants and tried to get relief from the Service Tribunal, which, according to Article 212 of the Constitution is empowered to deal with matters pertaining only to persons employed in the Service of Pakistan. It is settled law that fraud vitiates the most solemn of proceedings. Reliance in this regard is placed on the case of Sued Mehmood All Shah v. Zulfigar All and 5 others (PLD 2013 Supreme Court 364). In presence of a plea of misrepresentation and fraud, the learned Service Tribunal could not have summarily dismissed the application of the Ovtl Appeals ho. 10-K to 1/-K of 2019 16 Appellant-Authority as being not maintainable and, was duty bound to examine the same on the basis of the record. The findings of the learned Tribunal in this respect are held to be unsustainable in law and in fact. 17. The fact that there was a clear term in the appointment order(s) of the Respondents stating that their post was purely temporary and that their services could be terminated simpliciter also means that the Respondents were governed by the principle of "Master and Servant". As such, the learned Tribunal could not have interfered in this matter especially when it has been established from the record that the Respondents were not Civil Servants. 18. The learned counsel has agued that the superstructure of the execution is built upon a void order. The learned Service Tribunal has dismissed this argument and has held that the jurisdiction of the Service Tribunal did not suffer from any inherent defects. We are unable to agree with this conclusion. Section 4 of the Sindh Service Tribunals Act, 1973 clearly provides that, for an appeal to be competent before the Service Tribunal, the appellant must be a civil servant. Section 4 of the ibid Act reads as under: - "Appeals to Tribunals.-Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within twelve months of the establishment of a tribunal whichever is latter prefer an appeal to the Tribunal having jurisdiction in the matter. (Underlining is ours) A bare reading of the aforenoted provision makes it abundantly clear that the appeal of the Respondents before cw,l A ppeals No.] U-K to U--t( 0(2019 17 the Service Tribunal was incompetent. As such, the Execution proceedings which were pursued to implement the order passed in the Appeal in question were also incompetent because the Respondents were not Civil Servants. Contrarily, anyone aggrieved of an order of SIDA or, the Area Water Board is required as per the Ordinance, 2002 to appeal to the Regulatory Authority defined in Section 2(m) of the Ordinance, 2002 as the Regulatory Authority of Irrigation, Drainage and Flood Protection established under the Ordinance, 2002. The relevant section under which an appeal may be filed is Section 82 which reads as under: - "An appeal against the order of the SIDA, an AWE of a PD shall lie to the Regulatory Authority within such period and in such manner as may be prescribed by Regulations framed by the Regulatory Authority" There is nothing on the record which shows that the Respondents approached the said Regulatory Authority or complained before the said Regulatory Authority. Even otherwise, in absence of a final order, their appeals were incompetent before the Service Tribunal in view of Section 4 of the Act of 1973. It is specifically provided in Section 83 of the Ordinance, 2002 that the Regulatory Authority is empowered to establish Tribunals for the resolution of contractual disputes between SIDA's staff and SIDA. There is nothing on the record to show that the said Regulatory Authority was ever approached by the Respondents. Rather, the Respondents filed a Service Appeal being Public Servants, which was incompetent and therefore not maintainable. Section 83 of the Ordinance, 2002 reads as under: Civü A ppeals N0.10.Kto 17-K of 2019 18 "83. Tribunals.. 1) The Regulatory Authority, from amongst its professional staff may establish Tribunals for resolving contractual disputes between the authorities and institutions managing the irrigation and drainage network as listed in this Chapter or such other matters as the Regulatory Authority may assign 2) The Regulatory Authority shall frame regulations for the operation of such Tribunals." 19. The learned Service Tribunal has proceeded on the incorrect interpretation of the law and has applied the incorrect principles of the law to the facts and circumstances of the case warranting interference of this Court. The reasons recorded and the conclusions drawn are patently erroneous, incorrect and give a mistaken interpretation of law. As such, the Impugned Judgment is unsustainable. 20. In view of the above, these appeals are allowed. The Impugned Judgment of the Sindh Service Tribunal at Karachi dated 28.08.2018 passed in Service Appeal Nos. 1015 of 2015, 1063 of 2015, 1156 to 1159 of 2015, 1161 of 2015 and 1164 of 2015 is set aside. ISLAMABAD, THE 24th of March 2021 Hans Ishtiaq Lc/' Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MRS. JUSTICE AYESHA A. MALIK (Ac/t) Civil Appeals No.10-0 and 1273 of 2021, CMA No. 0780 of 2021 and Criminal Appeal No.4-0 of 2021. (On appeal against the judgment dated 30.06.2021 passed by the High Court of Balochiston, Quetia in RFA Na41 of 2014 and Contempt Application No.62 of 2018) Zakia Begum and another. fiq CA. 10 & CrI.A.4.Q12021) Shams-ui-Islam Khan and others. (in CA. 1273/2021 & CMA.10780/21) Appellant(s) Versus 1. S Nash--ui-Islam Khan and others. fin CA.JO-Q/21) Shams-ui-Islam Khan and others. (in CrLA.4-Q1202 I) Zakia Begum and another. (in CA. 727312021 & CMA. 70780/21) For the Appellant(s): For the Respondent(s) Respondent(s) Mr. Azhar Ahmed Khan, Attorney. (in CA. 1O-Q/21, CrLA.4-Q/21 & respdts.#1- 2 in CA. 1273121) Mr. Naeem Bukhari, ASC. ([orrespdts. in CA. 1273121 for respdts.#1(a- e, g, h), 2 in CA. I O-Q/21 & 2-3 in CrLA.04- Q121). Date of Hearing: Mr. M. Qasim Khan, ASC. (for respdts.i9-14 in CA. 10-Q121 & 10-15 in CA. 7273121) Mr. Gui Hassan Tareen, ASC. (for respdt.# 15 in CA.) 0-Q121) Mr. M. Munir Paracha, ASC. (for respdL#5 in CA. 1273121) 31.03.2022. (Judgment Reserved) JUDGMENT IJAZ UL AESAN, J-. Through this common judgment, we intend to decide Civil Appeal No. 10-Q of 2021 It • CfltMLJ4 .(fl% 27/2I f)cnALMwAL fl 2GflI MDCk N 7O7T)f2I 2 and Criminal Appeal No.4-Q of 2021 (filed by Zakia Begurn, etc) and Civil Appeal No. 1273 of 2021 (filed by Shams-ui-Islam Khan and others) as they arise out of the same impugned judgment of the High Court. 2. Through these Appeals, the respective Appellants have challenged the judgment of the High Court of Balochistan at Quetta dated 30.06.202 1 (hereinafter referred to as "impugned judgment") passed in RFA No.41 of 2014 and Contempt Application No.62 of 2018. By the impugned judgment, an Appeal filed by Zakia Begum, etc was accepted and the judgment and decree of the Senior Civil Judge-II, Quetta dated 21.03.2014 was set aside and the suit of the Appellants was decreed. She is however aggrieved of certain portions of the impugned judgment as well as the fact that her Contempt Application filed against the Respondents was dismissed. On the other hand, Shams-uI-Islam and others are aggrieved of the impugned judgment on the basis that by setting aside the judgment and decree of the Senior Civil Judge-11, Quetta, the suit of Zakia Begum, etc has been decreed by the High Court. 3. The necessary facts giving rise to this Us are that on 13.12.2005, Zakia Begum and the legal heirs of Mehmooda Begum filed a Suit for Declaration, Possession, Partition, Rendition of Accounts & Permanent Injunction against the Respondents with respect to suit properties and businesses fully described in the plaint (hereinafter referred to as the Suit Properties'). In the fourth and final plaint of cflM'JzNQS.4oa 1273121 y'LAPPELm nI DCA4f2flYL4A the Appellants, it was averred that the Appellants as well as Respondents No.1 & 2 were the legal heirs of the late Abdul Salam Khan. On 02.06.1977, Abdul Salam Khan died and left behind an estate which included various agricultural, residential and revenue-generating properties/ businesses. At the time of Abdul Salam Khan's death, his legal heirs were: his widow Jameela Begum; his two Sons Saif-ul-Islam Khan and Shams-ul-Islam Khan; and his four daughters Mehmooda Begum, Razia Begum, Zakia Begum, and Samina Saeed. Jameela Begum passed away on 24.08. 1982 and as a result, a bungalow as well as some agricultural land were added to the pool of inheritable properties between the two brothers and four sisters. It was further averred that despite multiple requests, the brothers refused to partition the estate between the brothers and sisters according to their Quranic shares. The suit was contested by the Respondents and after pro and contra evidence was led, the suit of Zalcia Begum was dismissed by the Senior Civil Judge-11, Quetta (hereinafter referred to as the "Trial Court") vide his judgement & decree dated 21.03.2014. An appeal was filed by Zakia Begum against the judgement & decree dated 21.03.2014 before the Balochistan High Court. The High Court, vide its judgement dated 17.08.2020, allowed the appeal of Zakia Begum, remanded the matter back to the Trial Court and permitted Zakia Begum to file an amended plaint before the Trial Court. Aggrieved of the judgement of the High Court dated 17.08.2020, Zakia Begum filed C.P. No.202-Q/2020 before this Court which was allowed, vide order dated 06.01.2021. --- Cfr&AEE&kS40a 22fl'211,. 1APcwAL on2mI4w,, tá IC?21 4 The matter was remanded to the High Court with a direction to decide the matter itself. The High Court, vide the impugned judgement dated 30.06.2021, allowed the appeal of Zakia Begum, reversed the judgement & decree of the Trial Court dated 21.03.2014 and decreed the suit of Zakia Begum. The Court while decreeing the suit, also preserved the rights of Respondents No. 9 to 15 who claimed to be bona fide purchasers without notice qua the suit properties. The High Court held that the Appellants were entitled to recover their Quranic shares from the sale consideration received for the properties sold to Respondents No.9 to 15. It is against this factual backdrop that Appellants filed C.A.s No. 10-Q & 1273 of 2021 respectively before this Court. Zakia Begum has also filed Crl.A No.4-Q against the same impugned judgement passed by the High Court in Contempt Application No.62/20 18. 4. The main argument advanced by the Attorney for the Appellants in C.A.No.10-Q & Crl.ANo.4-Q of 2021 is that the High Court had erred in Jaw by not decreeing the suit of Zakia Begum as prayed for when passing judgement in the Appellants favour. He also argued that the bona fide purchasers had, in fact, been aware of the litigation pending between the parties with respect to the suit properties. This knowledge had, as a result, disentitled them from the protection of Section 41 of the Transfer of Property Act, 1882. He has relied on judgements passed by this Court in Zohra Bibi us. Hali Sultan Mahmood (2018 SCMR 762), Sahib Jan cjVTLAptt4L)OsI-O& 27S/21 /sCRoEv4LAPnAL.'fl Io2Ern MDcMAdflO/21 vs. Mst. At,'esha Bthi (2013 SCMR 1540), Municipal Committee of Chakwal vs. Ch. Fateh Khan (2006 SCMR 688), 2002 SCMR 1345 and Mst. Raj Bibi vs. Province of Punjab thr. District Collector, Okara (2001 SCMR 1591). 5. The Learned counsel for the Appellants in C.P. No.1273 of 2021/Respondents No.1 & 2 in C.P. No.10-Q (hereinafter referred to as the Brothers) has argued that the suit of Zakia Begum ceased to be maintainable for lack of necessary parties when she failed to implead all the legal heirs of the late Abdul Salam Khan and Jameela Begum as either plaintiffs or defendants in her subsequently amended plaints. He contends that the estate had already been distributed by the late Abdul Salam Khan and Jameela Begum during their life times through two registered wills dated 24.12.1970 (hereinafter referred to as "The Wills'). The High Court, while passing the impugned judgement, had omitted to consider the fact that none of the legal heirs of the late Abdul Salam Khan and Jameela Begum had denied the two registered wills dated 24.12.1970 nor had they denied their signatures on the registered wills which were duly- signed in the presence of witnesses. He further argues that the two wills were in complete harmony with the Injunctions of Islam and were not violative of any of the legal heirs' Quranic shares. 6. The Learned Counsel for Respondent No.5 in C.A. No.10-Q/2021 has argued that the wills dated 24.12.1970 were invalid in light of the fact that they were made in favour • OWL AnEAL X 9-0 271122 CRThCWAL tfl4L !) GO r A D cp4 b& !Q7V 6 of the legal heirs as well as the fact that they were wills in excess of one-third of the total estate that constituted the legacy/estate of the late Abdul Salam Khan and Jameela Begum. Therefore, the wills, prima-facie, went against the principles of Sharia. He has relied on Sections 117 and 118 of Mullahs Muhammadan Law as well as Section 189 and 190 of B.J. Vermas Commentaries of Muhammadan Law. 7. The learned Counsel for Respondents No.9 to 14 in C.A. No. 1O-Q/2021 (hereinafter referred to as the "Purchasers") on the other hand has defended the impugned judgement of the High Court. The Learned Counsel has also relied on an unreported judgement of this Court passed in C .A. No. 2688/2006 titled Mst. Alokzai and others vs. Allah Dad and others, 8. We have heard the learned counsels for the parties at length and gone through the case record with their assistance. 9. The issues that need to be determined by this Court are:- i. Whether the registered will dated 24.12.1970 was in consonance with Sharia/injunctions of Islam? ii. If the registered will dated 24.12. 1970 went against the injunctions of Islam, what bearing would it have on the rights of the Quranic legal heirs inter se? iii. Whether Sharia-ordained inheritance rights will take precedence over the protection provided in Section 41 of the Transfer of Property Act (hereinafter referred to as the "TPA 1882)? - £..U.Zq S4&& 4 10. Before we discuss the merits of the appeals in hand, it may be prudent to first define what a will is. Wills are defined in the Succession Act of 1925 under Section 2(h). It is reproduced below for reference:- "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A will can therefore be considered as a formal document drawn up by a natural person wherein he expresses his wish as to how he would want his estate to be distributed after their death. By virtue of the fact that wills operate after the death of the donor, they are considered testamentary instruments i.e. instruments that come into effect after the death of the donor/testator. A will, therefore, ceases to be a will if it is executed and acted upon during the lifetime of the testator. Instead, a will executed in the lifetime of a donor takes on the guise of an inter-vivos instrument i.e. an instrument which is executed within the lifetime of a person which can take the form of a gift which has its own requirements and different standards of proof. It is not the case of any of the parties that the instruments in question were gift deeds. It is admitted in the pleadings of the brothers that the wills were executed and acted upon during the lifetimes of the late Abdul Salam Khan and Jameela Begum. This facturn alone brings into question the validity of the wills in light of Section 2(h) of the Succession Act, 1925. However, the veracity of the wills have not been questioned in the light of their legality per se but have instead been challenged with respect to their incongruity in light of Sharia. C&rAF4L\4-O& 3m'?: &CLW AL4LWI 16-O2I AvDcMAsJ97221 8 11. In order to ascertain whether the wills in this case are compliant with Sharia, it is necessary to discuss the sections of various treatises relied on by the learned counsel for parties. Section 117 of Mullahs Mohammadan Law is reproduced as follows:- 'A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. Explanation - In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the wilt, but to the time of the testator's death. (Underlining is ours) Section 118 of Mullahs Mohammadan Law is reproduced as follows:- "A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator." (Underlining is ours) Section 188 of B.J. Vermas Commentaries of Muhammadan Law is reproduced as follows:- "A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death." Section 190 of B.J. Vermas Commentaries of Muhammadan Law is reproduced as follows:- "A Mohammedan is not entitled to dispose of his property (which would otherwise devolve on his heirs under Mohammedan Law) btj wilt in favour of a person who is not a heir, in excess of one third except in the following cases:- (1) Where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom; (2) where there are no heirs of the testator; cM1t4L Ic4n& 127312! /flauVALAflLXfl U.4122 MY JCM4 IO'12I (3) where the heirs existin g at the time of the testator's death, consent to such bequest after his death; (4) where the only heir is the husband or the wife and the bequest of such excess does not effect his or her share.' (Underlining supplied is ours) The Rule behind Section 190 is reproduced as follows:- "The limit of one third is prescribed in respect of property, except in the cases given in Section 190. This is based on a tradition of the Prophet and the object is to prevent a person from so disposing of his property as to leave the heirs destitute. The second restriction with respect to person is limited to heirs. The policy of Mohammedan Law is to prevent a testator from interfering by will with the course of devolution of property among his heirs according to law although he may give a specified portion, as much as a third, to a stranger. It safeguards against a breach of the ties of the kindred. It is intended to prevent the showing of favouritism to any heir to the prejudice of the others and thus defeating the policy of the Quranic injunctions as to the division of heritage according to fixed principles." 12. We have gone over the wills keeping in consideration the aforementioned expositions of law which have long been accepted as the correct meaning scope and interpretation of the relevant principles of Sharia relating to wills made by Muslims. We have noticed that the will of the late Abdul Salam Khan has been drawn up with an obvious bias in favour of the sons. The sons have been given the lion's share in the inheritable pool of properties especially with respect to lucrative revenue-generating properties/ businesses to the complete exclusion of the daughters. A sharia- compliant will would not act as an ex-ante instrument which regulates the inheritable shares of any and all legal heirs before the actual opening of the testator's estate. This would 2fl in.cv n p c.t &?p7Mw2J 10 be the case even where the ultimate value received by all the legal heirs is equivalent to what would have been their receivable Quranic share at the time of the opening of the estate. The daughters were just as entitled as their brothers to a share in their fathers businesses and other properties at the time the estate would have opened up. They were denied that opportunity to become shareholders by virtue of their Quranic rights of inheritance in the suit properties by virtue of the wills in question. The wills had, in essence, ex-ante deprived Quranic inheritors of their shares in properties which they would have received at the time of the opening of the estate for inheritance. The will of the late Abdul Salam Khan therefore, to our minds, is an unconscionable instrument that is not in consonance with Sharia since it favours some legal heirs (the Sons) to the detriment of other legal heirs' (the daughters) Quranic-ordained rights of inheritance. With respect to the will of Jameela Begun, we have noticed that one of the properties was to be transferred to her nephew i.e. one Kaleem Khan whereas the other property was to be divided amongst her sons equally. The same will goes on to state that the will is to operate after the death of Jameela Begum. Adverting to our reasoning above, we cannot come to the conclusion that the will of Jameela Begum is inconsonance with Sharia either since it was drawn up to benefit the Sons. The nephew, Kaleem Khan, could not benefit from Jameela Begum's will since the property bequeathed to him was in excess of one-third of the total inheritable amount. Even if the will was found to have been CI APflflkL N 4.0 & 272La(w CWIA4L APPf,' , 11 compliant with Sharia, his right to inheritance under the will would not have taken precedence over the inheritance rights of the Quranic inheritors of Jameela Begum's estate at the time of Jameela Begum's death. We therefore find that the wills drawn up by the late Abdul Salam Khan and Jameela Begum are contrary to the principles of Sharia and are, as a result, null and void. 13. The contention of the Learned Counsel for Respondents 9 to 1.5 that they are bona fide purchasers of a property without notice and having acquired title in a lawful manner on payment of consideration cannot be annulled or extinguished if the right of the sellers at the time of the purchase emanated from unchallenged wills can only be appreciated after we have gone through Section 41 of the TPA 1882. The same reproduced below for ready reference: 'Transfer by ostensible owner. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.' 13. The essential ingredients that need to be present before the equitable protection under Section 41 can be claimed has already been elaborately laid down by this Court in case of Mst. Alokzai and others vs. Allah Dad and others. The relevant paragraph of the case is reproduced below:- OV7L 4FZ S2 44) A 1272/21 I.. (flWNAJ O Ian 2 I MI) CM4 . IO7'.2L 12 "5. Heard. In the instant case, the dispute inter se the parties primarily revolves around the rule/principle of 'bona fide purchasers", as this equitable doctrine has been incorporated and codified in Section 41 of the TPA. On the plain reading of the provision, it postulates four essential ingredients/ components for a litigant to seek protection thereof i.e. (a) that transferor was ostensible owner; (b)the transferis made bu the express or implied consent of real owner (emphasis supplied); (c) the transfer was made for consideration; and (d) the transferee while acting in good faith had taken reasonable care before entering into the transaction. In our considered view, all these four elements which are the obvious mandate of law must co-exist, for enabling a transferee to set up such a defence, to prove and secure the protection of the section.' It can be seen from the paragraph reproduced above that there are four ingredients that need to be present before the benefit of the equitable doctrine of bona fide purchaser without notice can be claimed. In the present case, the question whether the sons were ostensible owners is answered in the affirmative for the reason that the mutations in their name had been sanctioned pursuant to unchallenged wills. Since the wills had not been challenged by Zakia Begum or the other legal heirs at the time of the purchase, the wills could reasonably have been construed as valid and title- conferring documents. Since the wills were not challenged and the Sons were the only ostensible owner(s) of the purchased suit properties, it was not required of the Purchasers to inquire into whether all the legal heirs of the suit properties had consented to the purchase between purchasers and the sons. Only the express consent and/or acquiescence of the sons was required at the time of sale. The transfers were made for consideration, satisfying the third rna&.fl4L4flA W72/22 Jw!L4I 4fl&4LM2 0C202 Afi1LlA ' 13 ingredient. The final ingredient i.e. acting in good faith and taking reasonable care before entering into a transaction would have required the purchasers to do due diligence when purchasing properties from the Sons. No doubt when the Purchasers exercised due diligence by approaching the revenue records for ascertaining title of the properties being the record would have shown that the sons were the owners of the properties and had become owners by virtue of the unchallenged wills. We therefore have no hesitation in coming to the conclusion that Section 41 of the TPA 1882 applies to case of the Purchasers and that they were entitled to the equitable protection available to them under Section 41 of the TPA 1882 as has correctly been held by the High Court. 14. There is another aspect of the matter insofar as it relates to the property that was sold in favour of Respondents No.9 to 15 for valuable consideration. In view of the fact that we have held that the daughters of Abdul Salam Khan and Jamila Begum being their legal heirs were entitled to their respective shares in the entire estate of the said persons, they were also held entitled to their respective shares in the property that was sold by the sons in favour of Respondents No.9 to 15. Having held that despite the fact that sale by the sons was unauthorized and voidable, the sale per se could not be set aside or annulled in view of the fact that Respondents No.9 to 15 were bona fide purchasers without notice and for valuable consideration. Therefore, the question arises how would the daughters be compensated for their respective rJvaAn,1,, W4-O& 22732I a/wcvmVMLA4LP*i OCI Anrw N W7/2I 14 shares in such sold property. The only viable solution appears to be that the sons be directed to pay for the equivalent of respective shares of the daughters in the said property in monetary terms. The sale price of the property when it was sold is duly documented and none of the parties has argued or alleged that the property in question was sold for a value less than its market at the relevant time. However, the fact remains that the sons received the entire sale consideration and have since then used the same for their own benefit. We therefore direct as follows: i) The respective shares of the daughters in the total sale consideration shall be determined; ii) The sons will pay mark up from the date of sale at the Bank rate to the daughters on their respective shares till the time of payment; and iii) We further declare and reiterate that all other transactions relating to the properties that constituted a part of the estate of late Abdul Salam Khan and his widow Jamila Begum shall devolve upon all their sons and daughters in accordance with their respective shares as provided in Sharia Law. 15. At the very end of his arguments, the learned counsel for the Appellants in Civil Appeal No.1273 of 2021 argued that some of the properties were purchased by the sons from their own resources. The Attorney for the Appellants in Civil Appeal No.10-Q of 2021 has vehemently contested the said assertion and submitted that all other properties purchased by the sons were acquired by utilizing 272/2 &,cpALAnLMa O-o2IMnr1A tjO7121 15 funds from joint family business and sale of joint properties. Therefore, they constituted a part of divisible assets/estates of their deceased parents. Further, despite our query, the learned counsel for the Appellants in Civil Appeal No. 1273 of 2021 has not been able to place on record any documentation indicating any independent source of income of the Sons which they could have utilized for acquiring the additional assets in their own respective names. Even otherwise, this question was not raised before the lower fora therefore it is unnecessary to rule on this issue which has so belatedly been raised. 16. We find that the High Court has come to the correct conclusions in decreeing the suit of the daughters of Abdul Salam Khan and Jamila Begum. Further, we find ourselves in agreement with the reasoning adopted by the High Court in preserving the rights of Respondents N0.9 to 15 who were bona fide purchasers without notice and for valuable consideration and giving them the benefit of Section 41 of the Transfer of Property Act, 1882. The learned counsel for the Appellants in Civil Appeal No. 1273 of 2021 has not been able to persuade us to hold that there is any illegality, jurisdictional defect or perversity and misreading or non- reading of evidence that may furnish lawful basis to interfere in the well reasoned judgment of the High Court. We note that the High Court has elaborately gone through all material aspects of the case and assigned cogent, valid and legally sustainable reasons in decreeing the suit of Zakia Begum, etc. r - - I I r,va v?4L fII) p 271/2; II:)Dd??V 4Pf&4L t '00 2ft21 kYOCUA fT 07s0J21 16 I. 17. On hearing the learned counsel for the Appellants as well as the Respondents, we have reached the same conclusions as the High Court and have no lawful reason, basis or justification to take a different view. We therefore affirm and uphold the judgment and decree passed by the High Court dated 30.06.2021 subject to the aforenoted modification to which extent the judgment and decree shall stand modified. 18. For reasons recorded above, Civil Appeal No. 10-Q of 2021 is partly allowed to the extent noted above, Civil Appeal No. 1273 of 2021 is dismissed and Criminal Appeal No.4-Q of 2021 is also dismissed. 19. Since the main appeals have been finally decided, all miscellaneous applications filed fr(9 time to ti e a1onith the appeals are also dismissed. Announced in open Court on 0 . at Islamabad. ot approved for Reporting' Khalil Sahibzada, LC*/

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED SUO MOTO CASE NO. 11 OF 2011 (Action taken on the news clippings regarding scandal of billions of rupees of National Police Foundation Land) Voluntarily appeared: Mr. Rauf Kalasra, Editor (Inv.), Daily Dunya For the Applicants : Raja M. Ibrahim Satti, Sr. ASC and (aggrieved by NPF): Mr. M. Munir Peracha, Sr. ASC (in CMA 2895/13) Sh. M. Suleman, ASC (in CMA 3274/13) Ms. Shahida Kausar, SP (in CMA 3273/13) Mr. Liaqat Ali (in HRC No.18269-P/2011) Mst. Zahida Bibi (in CMA 2755/2011) Dr. Aslam Khaki, ASC (CMA 4038/13) Mr. Ishtiaq Ahmad Raja, ASC (CMA 3030/13) Ch. Khalid Rasheed, SP Traffic (CMA 2913/13) On Court Notice: For Ex. Officials : Mr. Hamid Khan, Sr. ASC of NPF Mr. Waqar Rana, ASC Mr. M. S. Khattak, AOR with Mr. Iftikhar Ahmad Khan, Ex. MD Mr. Laeeq Ahmad Khan, Ex. Director Mr. Khuda Bakhsh, Ex. Dy. Director For NPF : Syed Asghar Hussain Sabzwari, Sr. ASC Mr. Muhammad Ilyas Siddiqui, ASC Syed Safdar Hussain, AOR Mr. Tariq Hanif Joiya, Secretary/Dir.(Housing) Mr. Zahid Mehmood, Ex.M.D. Kh. Siddique Akbar, Ex-Secy. Interior Mr. Bani Amin Khan, IGP, Islamabad Mr. Zafar Ahmad Qureshi, Former MD NPF For FIA Mr. Muhammad Azam Khan, Addl. DG (Law) SMC No. 11/2011 2 For M/s. Land Linkers Mr. Makhdoom Ali Khan, Sr. ASC Mr. Faisal Naqvi, ASC with Mr. Anjum Aqeel Khan, Ex-MNA On behalf of Allottees Syed Ali Zafar, ASC of more than one plot Mr. Zahir Nawaz Cheema, ASC (CMA Nos. 3686, 3689-3692 & 3706-3716/13) Mr. Sana Ullah Zahid, ASC Syed Rafaqat Hussain Shah, AOR (CMA Nos. 3741/2013 Mr. M. Ashraf Shah, DSP (CMA No. 3328/2013) Syed Rafaqat Mustafa, (CMA No. 3684/2013) Syed Pervaiz Kandhari (CMA No. 3740/2013) Mr. Muhammad Zaman, Ex. Site Engr. (CMA 4030/2013) M/s. Afzal Shigri, Sultan Azam Temori, Sikandar Hayat and Abdul Hannan (in person) Dates of hearings 22.5.2013, 30.5.2013, 11.06.2013, 12.06.2013, 13.06.2013, 14.06.2013, 25.6.2013 & 02.07.2013 JUDGMENT IJAZ AHMED CHAUDHRY, J.- A confidential inquiry report was submitted to the Secretary Interior, Islamabad by National Police Foundation (NPF) against Anjum Aqeel Khan, MNA/Proprietor of M/s. Land Linkers. It was alleged in the said report that Anjum Aqeel Khan, in connivance with four former NPF officers, namely, Iftikhar Ahmed Khan (Managing Director), Abdul Hannan, Khuda Bakhsh (Additional Directors) and Laeeq Ahmed Khan as Director Land had committed a fraud of rupees six billion with NPF during the procurement of the land for NPF Housing Society in E-11, Islamabad as a ‘broker’. This story was published by Mr. Rauf Kalasra, a journalist, in “Express Tribune” dated SMC No. 11/2011 3 30.1.2011 under the heading “Secret probe implicates MNA in Rs. 6 billion scam”. The matter was registered initially as HRC No.2888-G of 2011 and report was called from the Secretary Ministry of Interior, Government of Pakistan. It was, inter-alia, stated in the report that during the course of enquiry, the relevant record of the NPF had been perused. Statements of different officers of NPF and other witnesses were recorded. Mr. Anjum Aqeel Khan was also confronted with the allegations. During inquiry proceedings on 22.2.2011 everything was discussed in detail and Anjum Aqeel Khan finally gave undertaking which was countersigned by the Director Housing, for final settlement of the accounts. As per undertaking Anjum Aqeel Khan was ready to surrender crystal courts and was ready to pay the price of 126 kanals land. However, further enquiry to determine the act of omission/commission on the part of the former officers of NPF and Anjum Aqeel Khan was going on and the officers involved were called to join inquiry on 28.2.2011 at Lahore. After perusal of the said report a comprehensive report was called from the Secretary Interior and Chairman NPF. Accordingly, Mr. Zafar Ahmad Qureshi, the then Managing Director, National Police Foundation, submitted a comprehensive report on 4.6.2011. 2. In the above said report the gist of allegations was stated as under:- “Gist of Allegations SMC No. 11/2011 4 During the procurement of land for the development of housing scheme in section E-11 Islamabad, the company of Anjum Aqeel Khan, (presently MNA) namely M/s Land Linkers was chosen. The officers/officials of NPF had extended undue favours to Anjum Aqeel Khan in the process of the procurement of land. He had been paid millions of rupees by NPF without getting equivalent land at the relevant time. Resultantly NPF had to face huge losses.” The report further shows that during the enquiry proceedings, the relevant record of the NPF as well as NPF Housing Scheme, E-11, Islamabad was consulted. The concerned officers were also interviewed and their version was also obtained. After discussing the working of National Police Foundation, the introduction of NPF Housing Scheme E-11, Islamabad, the introduction of M/s. Land Linkers, the charter of duties of the officers responsible for the procurement of land, etc., the mode of procurement of Lands, etc., the irregularities committed in the process of procurement, etc. and the terms of settlement between Anjum Aqeel Khan and the National Police Foundation, the inquiry officer Mr. Zafar Qureshi, the then M.D. concluded as under:- 1. “The mandate of the undersigned was confined to hold a fact finding enquiry to unearth the irregularities committed in the process of procurement and to quantify the loss faced by NPF as a result of these irregularities. 2. During the course of enquiry, a number of serious irregularities have been found committed by senior position holders of NPF showing their gross negligence SMC No. 11/2011 5 and in-competency in the process of procurement at different times. The detail of which has been discussed at length in the preceding paras. 3. All these officers of NPF who had committed irregularities in the procurement of land had either been retired from the service or left the organization. 4. All the agreements made for the procurement of land at all times were vague in nature and they did not contain any final cut off date for the supply of land and settlement of accounts by NPF with M/s Land Linkers. 5. The land procured through M/s Land Linkers was neither finally quantified by the previous administration of NPF till 2010 nor any effort was made to resolve the issues of shortage of land/rendition of accounts with M/s Land Linkers. 6. Anjum Aqeel Khan had entered into an agreement through which he has made good all the shortfall of land. 7. Anjum Aqeel Khan arranged an agreement between Tahir Mehmood Khan etc. and NPF to pay off the liability of Rs.353.00 million approximately to 59 affecttees after a period of eleven years. 8. The present outstanding liability of Anjum Aqeel Khan is 126 kanals. Anjum Aqeel Khan had submitted undertaking to pay off the price of this land after determination of its worth by the Committee of Administration of NPF. 9. Audits were held every year, the affiliation transactions were never audited for stated reasons that nothing was paid to Anjum Aqeel Khan. 10. During the course of this enquiry, long outstanding issues/disputes of NPF has been resolved and NPF has been benefited with the colossal amount of Rs.6.00 billion approximately in shape of land. The undersigned has no hesitation to admit that the notice taken by Honourable Chief Justice of Pakistan facilitated the recovery of huge amount after lapse of eleven years”. SMC No. 11/2011 6 The said report came up before one of us (Iftikhar Muhammad Chaudhry, C.J.) in Chamber when the following order was passed. “A perusal of report indicates that a considerable amount belonging to allottees of the plots, National Police Foundation and employees of the Police has not been counted for completely. Even now matter is being postponed on the basis of undertaking etc. by the owners of M/s Land Linkers from whom property was purchased. Thus, it is a case where protection to the property of NPF and allottees has not been provided, therefore, case may be registered under Article 184(3) of the Constitution and notices be issued to: (i) Chairman, NPF, holding the charge presently and during the period when the property was purchased from M/s Land Linkers. (ii) Owner of M/s Land Linkers, through Secretary Interior. They should appear and file comprehensive statements about the allegations made against them. However, those who have retired from NPF but otherwise were responsible for the illegalities, should also be served upon through official agencies. Put up in Court on 15.06.2011.” 3. The matter was accordingly registered as SMC No. 11 of 2011 and was heard in Court on 21.6.2011. Relevant portion from the order dated 21.6.2011 reads as follows: “Capt. (R) Zafar Ahmed Qureshi, Managing Director, National Police Foundation has appeared and stated that he has conducted a preliminary inquiry, pointing out the illegalities/ irregularities in SMC No. 11/2011 7 the affairs of purchase of land in National Police Foundation and on the basis of the same he is approaching the Secretary, Ministry of Interior to convene a meeting of the Committee of Administration, to ensure that matter should be dealt with strictly in accordance with law, without causing any prejudice to either of the parties. However, he requests that in order to do the needful, he needs some time. 2. It is made clear that no one is above the law, whosoever he may be. If there is any violation of rules/regulations or illegalities/ irregularities or there is any element of corruption or corrupt practices, in purchase of land by the persons who were at the relevant time in the helm of affairs, the law shall take its own course against them.” 4. The matter was accordingly registered as SMC No. 11 of 2011 and was heard in Court on 21.6.2011. During pendency of the matter newspaper Daily Duniya, Rawalpindi published a news item with the following captions:- ﯽﺿارا ﯽﮐ ںﻮﺑرا ﻮﮐ ﻞﯿﻘﻋ ﻢﺠﻧا ﮯﺳ هﺪﮨﺎﻌﻣ ہﯿﻔﺧ ﮯﻧ ہﻠﺧاد یﺮﭨﺮﮑﯿﺳ" ید ﺮﮐ ﺲﭘاو- ﺖﻣﻮﮑﺣﻞﺒﻗ زور سد ﮯﺳ ﮯﻧﻮﮨ ﻢﺘﺧ ﯽﺟ ﯽﺋآ ﮟﯿﻣ ےﺪﮨﺎﻌﻣ ہﯿﻔﺧ ﮯﻟاوﮯﻧﻮﮨ ﮟﯿﮨ ﻞﻣﺎﺷ ﯽﮭﺑ یڈ ﻢﯾا ﮯﮐ ﻒﯾا ﯽﭘ ﻦﯾا روا ﻦﯿﻣﺎﯿﻨﺑ ﻖﺑﺎﺳ دﻮﺟوﺎﺑ ﮯﮐ ﻮﭨﻮﻣ وﻮﺳﮯﯿﺌﻟ ﺎﻤﮐ ںﻮﺑرا ﮯﻧ ﯽﻠﺒﻤﺳا ﻦﮐر- 2011 ﮟﯿﻣ آ ﺮﭘ مﺎﻋ ﺮﻈﻨﻣﭘ ﻮﮐ مﺎﺠﻧا لﮉﻨﯿﮑﺳ ﻻاو ﮯﻧ"۔ﺎﯿﮔ ﭻﻨﮩ 5. As the matter was pending, the same was again taken up and notices were issued. On 26.4.2013 Mr. Tariq Haneef Joiya, Director Housing-cum-Secretary, National Police Foundation appeared and stated that Mr. Zahid Mahmood DG, who had retired on 29.3.2013, had entered into an agreement with Anjum Aqeel SMC No. 11/2011 8 Khan, MNA, which has retained in safe custody. He was required to place the same on record along with comments on the news caption. In pursuance of order dated 21.6.2011 a list of the allottees was also placed on record which indicated that the statement made by Mr. Zafar Ahmed Qureshi, MD was correct that the plots were allotted more than their entitlement to the police officers and even plots were allotted to some civilians. A report was also called from him as to what action was taken against them. 6. The matter was again taken up by this Court on 29.4.2013 when the following order was passed: “Mr. Tariq Hanif Joiya, Secretary, Committee of Administration, NPF, has filed reply (CMA No.2456/13), which we have gone through in a cursory manner and we consider it appropriate to issue notice to Mr. Zahid Mahmood, Former Managing Director, National Police Foundation. 2. Mr. K.M. Siddiq Akbar, Chairman, ex-officio, Mr. Bani Amin Khan, Inspector General of Police, Islamabad and Mr. Tariq Hanif Joiya, Secretary, Committee of Administration, NPF Islamabad, are present. Mr. Makhdoom Ali Khan, Sr. ASC has entered appearance on behalf of Mr. Anjum Aqeel Khan, Ex-MNA, who himself is also present. 3. Raja Muhammad Ayub, former S.P., appeared and stated that a plot had been allotted on which a boundary wall has already been constructed but he is being dispossessed by the Foundation. 4. Mr. Tariq Hanif Joiya, the Secretary, Committee of Administration, NPF informed that as far as the Foundation is concerned, it has nothing to SMC No. 11/2011 9 do with it, because there is a litigation going on between him and one Nisar Ahmed, who is the owner of the property, in the Civil Court. 5. Issue notice to Nisar Ahmad for the next date of hearing. In the meanwhile, the incumbent M.D. is directed to effect the service upon the allottees to whom more than one plot has been allowed despite of terms and conditions that one person was allowed one plot only. It is informed by Mr. Tariq Hanif Joiya that in pursuance of earlier proceedings, a case was registered and now proceedings have been started for withdrawal of the same. The D.G., FIA is directed not to take any action till the pendency of this case. 6. Mr. Anjum Aqeel Khan and others noted hereinabove except the allottees, are required to furnish their reply of the news clipping appeared in the daily “Dunya” on the next date of hearing. 7. Mst. Zahida Durrani, appeared and stated that she has already been impleaded party but so far no plot has been given to her. The National Police Foundation is directed to furnish the list of the affectees along with their grievances against the Foundation because of non-allotment of the plot. Notice shall also be issued to all of them. 8. Mr. Rauf Kalasra, Editor Investigation, the daily “Dunya” appeared and stated that in the year 2011, he had disclosed the news of fraudulent transactions and few days before again when a new agreement, which according to him is a bogus one, he on having coming to know about the same disclosed this news again. Today during the hearing, he has stated that important facts are being concealed from this Court, therefore, permission be accorded to him to place on record the relevant documents to provide assistance to this Court. Order accordingly. SMC No. 11/2011 10 7. On 30.5.2013 this Court issued notice to Mr. Zafar Ahmad Qureshi, Ex-MD who had prepared the inquiry report, and also made the following direction: “2. Prima facie it appears that a good number of allotments have been made in favour of various allottees contrary to the provisions of scheme of the Administration for the National Police Foundation dated 14.03.1975, therefore, the Secretary, NPF is directed to furnish the list of all those allottees in both the schemes to ascertain as to whether the allotments have been made in their favour according to the scheme noted hereinbefore or otherwise.” 8. After issuing of notices, we have heard Mr. Rauf Kalasara, Auditor (Investigation) Daily Duniya, Mr. Zafar Ahmad Qureshi, former MD, NPF, Mr. Muhammad Azam Khan, Addl. DG FIA, learned counsel for the NPF, Ex-officials of NPF, M/s. Land Linkers, and other necessary parties and have gone through the reports/record made available before us. 9. Mr. Rauf Kalasara, Auditor (Investigation) Daily Duniya, who has published a news item in the Express Tribune, entered his voluntary appearance and while supporting his report published in the aforesaid newspaper submitted that Anjum Aqeel Khan acted as a broker for the National Police Foundation through his firm, namely, Land Linkers and his job was only to find out land for the Foundation’s Residential Colony; that said Anjum Aqeel SMC No. 11/2011 11 Khan got allotted hundreds of plots to his nominees without any formal agreement and the Foundation allotted these plots in accordance with the formula prepared by the Capital Development Authority i.e. 54:46 governing the affiliation of the private land with Government Housing Scheme, according to which, a private land owner has to surrender and provide 46% of his land for roads and streets; that Anjum Aqeel Khan was allotted 162 kanals of developed land and as per this ratio he had to provide 300 kanals land to the Foundation but he had provided only 70 kanals of land and 229 kanals land has yet to be provided by him on account of affiliation of land and an additional 100 kanals land on account of double purchase; that said Anjum Aqeel Khan had not transferred 329 kanals of land to the National Police Foundation and that said Anjum Aqeel Khan has not only defrauded the National Police Foundation by usurping its funds of billions of rupees but also cheated the general public. 10. Mr. Hamid Khan, learned Senior ASC appearing on behalf of Iftikhar Ahmad Khan, Laeeq Ahmad Khan, Abdul Hannan, Khuda Bakhsh and four others, ex-officials of the National Police Foundation, submitted that the aforesaid ex-officials of the National Police Foundation had acted in good faith for the benefit and interest of the Foundation; made the housing scheme successful when nobody was prepared to purchase a plot in the said scheme and the alleged irregularities or lapses are not at all SMC No. 11/2011 12 attributable to any mala fide or deliberate intend on their part; that the allegations or adverse statements made against them in the inquiry report are categorically denied; that the conclusions drawn by the inquiry officer are not supported by the facts and record and suffer from inconsistencies, contradictions, misinterpretation and misreading of available record and that in such circumstances the aforesaid ex-officials of the National Police Foundation are not responsible for the acts of omission and commission as highlighted in the inquiry report. 11. Mr. Makhdoom Ali Khan, learned Senior ASC has appeared on behalf of Anjum Aqeel Khan and contended that the matter was investigated, FIR was also registered, civil agreement was executed, as such no action is required to be taken by this Court since the interest of the Foundation has been safeguarded by executing agreement by Anjum Aqeel Khan in favour of the Foundation; that National Police Foundation is neither a Government department nor a corporate body and instead it is a self-financing organization originally established in the year 1975 so as to generate funds for the benefits of both retired and serving members of the police forces and in such an eventuality National Police Foundation established a housing scheme, namely, National Police Foundation Housing Society in sector E-11 in Islamabad which has chequered history as the Federal Government in the year 1968 decided to acquire 15000 acres of land for Islamabad city SMC No. 11/2011 13 excluding the area falling within the Golra Revenue Estate; that the said land was acquired by the CDA in the year 1968 but the CDA failed to pay full compensation for the built up area with the result that the affectees refused to vacate the land; that in the year 1980 CDA decided to acquire portions of Golra Revenue Estate falling within sectors E-12, F-11 & F-12 and the affectees of the said land were allotted plots in sector E-11 in compensation of acquisition of their land; that when the NPF decided to establish the society in sector E-11 in the year 1989 presuming that the purchase of rights from the allottees would be sufficient but it became evident that mere purchase of rights was insufficient since possession of the land invariably lay with other parties who had no intention to vacate the possession and in such circumstances NPF to have local assistance in acquiring possession of land and made a contact with Anjum Aqeel Khan who was operating through an unregistered firm, namely, M/s Land linkers and was a notable of Golra village and that NPF had acquired approximately 540 of land prior to engaging M/s Land Linkers but could not take possession thereof and today if society is owner in possession of 1325 kanals of land, it is due to the efforts of Anjum Aqeel Khan; that NPF sought assistance of Anjum Aqeel Khan in two different ways i.e. getting possession of the land of which title was already with NPF and obtained additional land for the NPF both through the purchase of allottee’s and affectee’s rights regarding which series of agreements were entered into between the parties; that Anjum Aqeel Khan SMC No. 11/2011 14 arranged possessory rights for all the land which NPF had purchased from allottees and arranged purchase and possession of approximately 608 kanals of land; that Mr. Anjum Aqeel Khan also arranged two other types of land which form part of the NPF i.e. the property which fell within the boundaries of the Golra Revenue Estate in E-11 i.e. exempted land, part of exempted land adjacent to NPF land was purchased by Anjum Aqeel Khan in his personal capacity and subsequently offered to for affiliation, i.e. for inclusion within the formal bodies of the NPF, in exchange for plots within the NPF and the property, title of which was disputed; that Anjum Aqeel Khan had made payment over and above the agreed rates with the Foundation to the persons from whom the land was purchased which approximately comes to Rs.200 million; that Anjum Aqeel Khan of M/s Land Linkers did not act as seller to the society but instead acted as intermediary who arranged transactions in favour of NPF which entered into agreements directly or indirectly with the sellers and if there is any shortfall, Anjum Aqeel Khan is not responsible for that and cannot be pressed upon to make good all the alleged losses suffered by NPF; that according to the record NPF has fully been compensated for all the losses suffered by it as the people, who took payment for land which was not ultimately transferred to NPF, have now repaid to the NPF all amounts received by them, as such, NPF has suffered no loss; that after the decision of this Court regarding shortage of 21 kanals of land option was available with the NPF for filing of suit SMC No. 11/2011 15 of damages against original sellers but having failed to do so NPF cannot demand said land due to its own neglect; that so far as shortage of 21 kanals 19 marlas of duplicate land is concerned, it was on the basis of inadvertence and that the said shortcoming had never been agitated by the NPF and had only raised general allegation of a shortfall in land to which Anjum Aqeel Khan has responded that if any shortfall was shown he would make it good; that as far as the allegation regarding affiliation of land against Anjum Aqeel Khan is concerned, the plots were allotted to the nominees of Anjum Aqeel Khan without any formal agreement and it was incumbent upon the society to adopt a more formal arrangement in relation to the affiliation of land and the subsequent allotment of plots then that obligations was on the society and not on Anjum Aqeel Khan; that the allegations regarding Crystal Court are misleading and unsustainable and that the inquiry report submitted by Mr. Qureshi misrepresents certain facts and thus fails to paint full picture of the matter as is evident from the progress report prepared by the FIA. Learned counsel for Anjum Aqeel Khan finally contended that Anjum Aqeel Khan is ready and willing to abide by the terms of the settlement agreements signed by him with the NPF and he would have no objection if these agreements are set aside by this court and the entire matter is re-examined by a professional firm of auditors and in such an eventuality Anjum Aqeel Khan is fully confident that such re-examination would only substantiate his stance. SMC No. 11/2011 16 12. Mr. Tariq Hanif Joiya, Secretary, Committee of Administration, NPF, filed reply (CMA No. 2456/2013). He has stated in his application that the then Director Housing Mr. Shahid Iqbal calculated the loss of six billion of NPF, but during investigation he failed to satisfy the investigation team regarding his calculation of six billions loss. However, as per record the transaction of business was only for Rs.520,284,375/- and that the calculation made by the then Director Housing as six billion loss of NPF is not correct as per available record of the housing directorate. He further stated that as per direction of this Honourable Court the list of high ups who had allotted more than one plot up to ten plots was submitted before the Committee of Administration and also consulted the legal expert, a request was also sent to a prominent Advocate of Supreme Court Mr. Muhammad Akram Sheikh for the guidance so that action be taken against them but despite all out efforts no one endorsed the NPF for action against them as per law; that presently, the plots which were allotted to the High ups and civilians (more than one plot up to 10) have been disposed off in two, three and more hands and the purchasers have constructed the houses over there and are living with their families. However, efforts are under way to address the issue as directed by the Apex Court as early as possible and action will be taken against those high ups and civilians as per law; that after action was initially taken by MD NPF, namely, Mr. Zafar SMC No. 11/2011 17 Ahmad Qureshi, numerous Managing Directors successively appointed, dealt with the letter for the withdrawal of the criminal case FIR No.17 dated 5.7.2011 under sections 406, 409, 468, 471, 420, 109 and 5(2) 47 PCA registered with P.S FIA, Islamabad and their views and those of the COA comprising well known and well reputed Inspectors General of Police, culminated in the settlement and resettlement of the issue; that none of the officers had even remote connection with the procurement of land, etc. illegally. In the end he has stated that the Suo Moto action by this Honourable Court, subsequent investigation by the FIA team and thorough inquiries have resulted in the resettlement and the problem is resolved in the interest of the Foundation. 13. Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court, learned counsel for the National Police Foundation contended that the Housing scheme was established on commercial basis for the beneficiaries/Government servants and general public, terms and conditions were prepared at the time of establishment of the housing schemes wherein it is clearly mentioned at serial No. 2 that an applicant can apply for only one plot but it is not clear that the other family members of the said applicant are not entitled to get the membership for allotment of plot; that as per definition of Article 1 of the Constitution of NPF, dependants means wife / wives, dependant parents, dependant sons and unmarried daughters of beneficiaries and other relatives SMC No. 11/2011 18 who are so prescribed by the Committee of Administration; that the Foundation, as per clause 1 of Article 2 of the Constitution of NPF, was responsible to provide all basic facilities to the serving and retired beneficiaries and their dependants, as defined in the definition such as advance loan or stipend grants to the dependants and provide loan for the construction of low cost houses of various categories; that in the year 2001 as the Foundation was facing acute problems of funds for the development of housing schemes, a meeting was convened under the chairmanship of the then M.D National Police Foundation wherein after detailed discussions it was resolved that in order to generate funds the membership be opened for general public so as to develop E-11 Housing Scheme and that in order to safeguard the interest of the Foundation the properties of Anjum Aqeel Khan have been mortgaged in favour of the National Police Foundation till successful completion of the agreement executed in between him and the Police Foundation. 14. Mr. Bani Amin, Inspector General of Police, Islamabad also appeared and submitted concise statement (CMA No.2353/2013) in which he has tried to explain the validity/legality of settlement agreement dated 4.3.2013. He submitted that on the direction of this Court through order dated 3.6.2011 matter was placed before the Committee of Administration of NPF and the meeting of the Committee was held on 28.6.2011 and after detailed discussion of the issues regarding purchase of land, the Committee SMC No. 11/2011 19 of Administration constituted a Sub-Committee of three IGs, namely, Syed Shabbir Ahmad, Hassain Asghar and Dr. Tariq Ahmad Khokhar. The Sub-Committee submitted a report to the Committee of Administration which was objected to by Anjum Aqeel Khan, therefore, another Sub-Committee comprising the Secretary Interior, M.D. National Police Foundation, Inspector General of Police, Islamabad and Director Housing NPF was constituted. The said Sub-Committee discussed all the issues with Anjum Aqeel Khan at length and solution proposed was placed before the Committee of Administration. In the end he submitted that he being nominated member of the Sub-Committee by the Committee of Administration took part in the negotiations of outstanding issues with Anjum Aqeel Khan and proposed viable solution in good faith and in the best interest of National Police Foundation. 15. Secretary Interior, Khawaja Siddique Akbar was also given notice but he has not submitted his reply. Though he made his appearance before the Court on some dates of hearing but when he was called for his arguments, he was found absent. 16. Syed Ali Zafar, learned Counsel for the allottees of more than one plot in the Housing Scheme, who have also filed miscellaneous applications in the instant proceedings, contended that none of the ingredients for the exercise of jurisdiction by this Court under Article 184(3) of the Constitution of Islamic Republic SMC No. 11/2011 20 of Pakistan, 1973 are available in the facts and circumstances of the case; that the applicants are bona fide purchasers of the plots and no allegation has either been made against the applicants or proved during the inquiry or investigation that they had obtained more than one plots unlawfully and that the only allegation made regarding purchase of plot was against the management of National Police Foundation; that as the applicants never remained part of the National Police Foundation or a member of the Board of Directors or Committee of Administration thereof, as such, the allegations are not relatable to the applicants and that in such circumstances, he has prayed that since the applicants are bona fide purchasers of the plots for consideration, therefore, any observation made against the applicants will damage their reputation and the notice against the applicants may be withdrawn in the interest of justice. 17. From the above facts and arguments the following issues have cropped up for determination: 1) Whether the National Police Foundation (NPF) is a charitable Organization, if yes, who are its beneficiaries? 2) Whether the NPF is authorised to launch private Housing Schemes, etc. for the general public? 3) Whether the Housing Scheme of E-11 was launched in a transparent manner? SMC No. 11/2011 21 4) Whether all the agreements/settlement entered into between the NPF and M/s. Land Linkers were lawful and transparent? 5) Whether the beneficiaries and the private members of the housing scheme or their dependants were entitled to have more than one plot in any housing scheme launched by the NPF? 6) Whether the rights of beneficiaries of NPF were fully protected? 18. Before discussing the aforesaid questions/issues, we would first like to determine the question of jurisdiction of this Court in such like cases, as urged by Syed Ali Zafar learned counsel for the allottees of more than one plot. Article 184(3) of the constitution of Islamic Republic of Pakistan, 1973, confers jurisdiction upon this Court to examine such like matters, under the principle of judicial review, where the Government bodies exercise their powers in an arbitrary and partisan manner. In this respect we are fortified by the judgment of this Court in Suo Motu Case No.13 of 2009 (PLD 2011 Supreme Court 619) wherein it has been held as under:- “24. It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is SMC No. 11/2011 22 warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. Reference may be made to (1) Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; (2) Tata Cellular v. Union of India (1994) 6 SCC 651 = AIR 1996 SC 11; (3) Raunaq International Ltd. v. I.V.R. Construction Ltd. (1999) 1 SCC 492; (4) Air India Ltd. v, Cochin International Airport Ltd. (2000) 2 SCC 617; (5) Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. (2007) 8 SCC 1 and (6) judgment dated 24-8-2009 of the Andhra High Court in Nokia Siemens Networks (Pvt.) Ltd. v. Union of India. In Air India Ltd. v. Cochin Int., Airport Ltd. (AIR 2000 SC 801), it was held as under: "7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R.D. Shetty v. International Airport Authority; Fertilizer Corporation Kamgar Union v, Union of India; Asstt. Collector, Central Excise v. Dunlop India Ltd.; Tata Cellular v. Union of India; Ramniklal N. Bhutta v: State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if, it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary, power under Article 226 with SMC No. 11/2011 23 great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.” In Tata Cellular v. Union of India (AIR 1996 SC 11) = [(1994) 6 SCC 651], it was held as under:-- "85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 89. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself." In Sterling Computers Ltd. v. Messrs, M. and N. Publications Ltd, (AIR 1996 SC 51), it was held as under:- SMC No. 11/2011 24 “19. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans, [1982] 3 All ER 141, where it was said that "The purpose of judicial review." "... is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court." By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the state. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans (supra), the Courts can certainly examine whether 'decision making process' was reasonable, rational not arbitrary and violative of Article 14 of the Constitution. 20. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such 'contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision. 26. The cases aforesaid on which reliance was placed on behalf of the appellants, have also reiterated that once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14; the executive does not have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount consideration. It has also been' pointed out that for securing the public interest one of the methods recognised is to invite tenders affording opportunity to submit offers for consideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to compelling reasons which must stand the test of Article 14 of the Constitution, departure of the aforesaid rule can be SMC No. 11/2011 25 made. This Court while upholding the contracts by negotiation in the cases referred to above has impressed as to how in the facts and circumstances of those cases the decisions taken by the State and the authorities concerned were reasonable, rational and in the public interest. The decisions taken in those cases by the authorities concerned, on judicial scrutiny were held to be free from bias, discrimination and under the exigencies of the situation then existing to be just and proper. On the basis of those judgments it cannot be urged that this court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest." 25. A part of the argument vehemently canvassed at the bar was that the main purpose of awarding contract to this party was to get the CDA land cleared off from the illegal occupants, which the CDA was unable to do. In this behalf, reference was made to agreements containing recitals of payment of different sums of money made to certain persons in lieu of their vacating such land. According to the aforesaid agreements, huge sums of money running into millions of rupees were allegedly paid. But, surprisingly, no details of payment, such as bank drafts, pay orders, cheques, etc. were given in the said agreements. It is not believable that such large sums of money were paid in cash. Besides, the agreements in question were documents not registered in accordance with law. There was, so to say, no valid proof of payment furnished to our satisfaction. Further, no details of the land allegedly in the illegal possession of the land grabbers along with the names/number of encroachers were provided. Thus, looked at from any angle, the transaction appears to be a sham deal. The whole exercise appears to be an eyewash. This also negates the claim 26. The cases aforesaid on which reliance was placed on behalf of the appellants, have also reiterated that once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14; the executive does not have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount consideration. It has also been' pointed out that for securing the public interest one of the methods recognised is to invite tenders affording opportunity to submit offers for consideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to compelling reasons which must stand the test of Article 14 of the SMC No. 11/2011 26 Constitution, departure of the aforesaid rule can be made. This Court while upholding the contracts by negotiation in the cases referred to above has impressed as to how in the facts and circumstances of those cases the decisions taken by the State and the authorities concerned were reasonable, rational and in the public interest. The decisions taken in those cases by the authorities concerned, on judicial scrutiny were held to be free from bias, discrimination and under the exigencies of the situation then existing to be just and proper. On the basis of those judgments it cannot be urged that this court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest." The aforesaid findings in the case referred supra is complete answer to the argument raised by Syed Ali Zafar Advocate regarding jurisdiction of this case to enter into the arena of scrutiny of such like cases wherein the Government Bodies exercise their contractual powers in an arbitrariness or favouritism manner, thus, the exercise of principal of judicial review in the larger public interest cannot be denied. 19. The first question to be answered in the sequence is whether National Police Foundation is a charitable organization and if the answer is in yes, who are its beneficiaries?. If we see the origin of the Foundation and efforts made in this behalf from time to time we have no doubt in our mind that it is a charitable organization from whatever angle it is looked at. This perception is further invigorated by the SRO 334(1)/75 National Police Foundation was established under section 5 of the Charitable SMC No. 11/2011 27 Endowments Act, 1890 (VI of 1890). The said SRO reads as follows: “S.R.O. 334 (I)/75.—Whereas the Secretary to the Government of Pakistan, Ministry of Interior, States and Frontier Regions (Interior Division), Islamabad has applied for settlement by the Federal Government of a scheme for administration of the amount of two crores of rupees which is to be applied in trust for a charitable purpose to be known as the “National Police Foundation” and which is to be vested in the Treasurer of Charitable Endowment for Pakistan: Now, THEREFORE, in exercise of the powers conferred by Sub-section (I) of section 5 of the Charitable Endowments Act, 1980 (VI of 1980) the Federal Government is pleased to settle the scheme set out in the schedule below for administration of the said National Police Foundation.” The word “Charitable Purpose” has been defined in the Charitable Endowments Act, 1980 as under: 2. Definition: In this Act, “charitable purpose” includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship. The word “beneficiary” has been defined in “The Essential Law Dictionary by Amy Hackney Blackwell, as under:- “Beneficiary. N. Someone who benefits from someone else’s act, such as a person for whom property is held in trust, the recipient of the proceeds of an insurance policy, or someone named in a will as a recipient of property.” In the Black’s Law Dictionary, the word “beneficiary” has been defined as under: “BENEFICIARY. One for whose benefit a trust is created; a cestui que trust. 195 N.E. 557, 564, 97 A.L.R. 1170. A person having the enjoyment of property of which a trustee, executor, etc., has the legal possession. The person to whom a policy of insurance is payable. SMC No. 11/2011 28 Parrott Estate Co. v. Mc- Laughlin. D.C.Cal., 12 F.Supp. 23, 25; Odom v. Prudential Ins. Co. of America, 173 Or. 435, 145 P.2d 480, 482. One receiving benefit or advantage, or one who is in receipt of benefits, profits, or advantage. Bauer v. Myers, C.C.A.Kan., 244 F. 902, 908. For "Favored Beneficiary,". AIMS AND OBJECTS: Aims and Objects of the National Police Foundation have been mentioned in its Constitution which read as under: i) To extend and improve medical facilities for serving and retired beneficiaries and their dependents as defined in the definitions. ii) To advance, whether as a loan or stipend, grants to the dependents of retired or serving beneficiaries for the purpose of education at approved Institutions: iii) To provide for construction of low-cost houses of various categories and their sale on terms and conditions to be decided by the Committee of Administration to beneficiaries whether retired or serving. iv) To provide for Rest Houses/Centres which the beneficiaries and their dependents may use for rest and recreation, at such terms and conditions as the Committee may decide. v) To provide any other facility or help which the Committee of Administration may decide from time to time and which comes under the broad terms of “welfare” of the beneficiaries. vi) To provide lump-sum grants at a rate to be decided by the Committee of Administration in case of death or injury to any of the beneficiaries in the line of active duty. The word “Beneficiaries” has been defined as under:- a) “Beneficiaries” mean persons of Pakistan domicile subjects of States acceded to Pakistan; SMC No. 11/2011 29 i. Who have served or are serving in the Police Force of the Province of Punjab, Sindh, N.W.F.P., Balochistan, National Police Academy, Pakistan Railway Police, Islamabad Police, Azad Jammu & Kashmir and Northern Area Police as Police officer. ii. Who have served or are serving in the Federal Police Organisation under the control of Director General Federal Security Force in the Ministry of Interior, States and Frontier regions (Interior Division), Islamabad. iii. Who have served or are serving the Federal Investigation Agency, under the control of I.G./S.P.E. Director General Federal Investigation Agency in the Ministry of Interior, States and Frontier Regions (Interior Division), Islamabad. iv. Who have served or are serving with executive police ranks on the Ministerial Cadre and other Ministerial staff of any other offices controlled by the Inspectors General of Provinces mentioned in (i) above, or under the Inspector General, Special Police Establishment/Director General, Federal Investigation Agency. v. Who are or have been on deputation to any other departments from the police department wherein they have retained their permanent lien of service. vi. Dependents of persons indicated in clause (i) to (v) and; b) “Dependents” means the wife/wives, dependent parents, dependant sons and unmarried daughters of beneficiaries and other relatives who are so prescribed by the Committee of Administration. Committee of Administration: SMC No. 11/2011 30 Committee of Administration is constituted under Article 3 -1 (a) of the Constitution of the NPF which consists of fifteen members including the Chairman, by virtue of their offices, namely, 1. Secretary, Ministry of Interior, Government of Pakistan, Chairman Ex-Officio 2. D.G. FIA, Member/Vice Chairman 3. Inspectors General of Police of all the four provinces, Members 4. Commandant National Police Academy, Islamabad, Member 5. M.D. National Police Foundation, Member 6. Representative of the M/o Finance not below the rank of Additional Secretary, Member. 7. Representative of the M/o Industries not below the rank of Additional Secretary, Member. 8. Inspector General of Police, Pakistan Railways, Member. 9. Inspector General of Police, Azad Jammu & Kashmir, Member. 10. Inspector General of Police, Northern Areas, Gilgit, Member. 11. Inspector General of Police, Pakistan Motorway Police, Member (Approved by COA in the meeting held on 26.6.2000. Functions of the Committee of Administration SMC No. 11/2011 31 Clause II of the Constitution deals with the functions of Committee of Administration which read as under: a) To receive and administer funds for the foregoing, health, educational and charitable objects and to that end, take and hold, by request, device, gift, purchase or lease, either absolutely, or in trust, any property, real, personal or mixed, without limitation as to amount or value, except such limitation, if any, as may be imposed by laws to sell convey, dispose of any such property and to invest and reinvest the principal and income thereof, to deal with and expand the principal and income of the Foundation for any of the aforementioned object and as may be contained in the instruments under which property is received or the other limitation imposed by law; b) To receive any property, real, personal or mixed in trust under the terms of any will, deed of trust or other trust instrument for the foregoing objects or any of them (but for no other purpose) and in administering the same to carry out the directions and exercise the powers contained in the trust instrument under which the property is received including the expenditure of the principal as well as the income for or more objects, or such subjects as authorised or directed in the instrument under which it is received. c) To receive take title to hold and use the proceeds and income of stocks, bonds, obligations, or other securities of any government or Corporations, domestic, or foreign but only for the foregoing purposes of some of them; SMC No. 11/2011 32 d) And generally to undertake, do and perform all such acts, matters or things as may be desirable or necessary in the opinion of the committee of Administration for the accomplishment of foregoing purposes or any of them and in particular but without prejudice to generally of the foregoing to enter into contracts, to undertake financial and commercial obligations to borrow or raise or secure the payment of money to sell exchange mortgage, let or lease the property and accounts of the Foundation, to purchase, take on lease or tenancy or in exchange, hire take over options, or otherwise require any estate interest or property and to hold develop, deal with turn to account any property assets, or rights, real or personal or any kind and in the directions of the Committee of Administration to, apply the assets of the Foundation in or towards the establishment of any association and institution the objects or purposes of which are in accordance with the objects of the Foundation.” 20. From the narration of the aforesaid facts and the picture depicted from the documents, it is crystal clear that the National Police Foundation was established on 18.3.1975 under sub section (1) of Section 5 of the Charitable Endowment Act 1890 by the Ministry of Health and Social Welfare for the welfare of employees of Federal and Provincial Police Organizations and serving and retired employees of the said Police Organizations, thus it is charitable organization within the meaning of section 2 of SMC No. 11/2011 33 the Charitable Endowment Act, 1980 for the benefits of the following: i) Who have served or are serving in the Police Force of the Province of Punjab, Sindh, N.W.F.P., Balochistan, National Police Academy, Pakistan Railway Police, Islamabad Police, Azad Jammu & Kashmir and Northern Area Police as Police officer. ii) Who have served or are serving in the Federal Police Organisation under the control of Director General Federal Security Force in the Ministry of Interior, States and Frontier regions (Interior Division), Islamabad. iii) Who have served or are serving the Federal Investigation Agency, under the control of I.G./S.P.E. Director General Federal Investigation Agency in the Ministry of Interior, States and Frontier Regions (Interior Division), Islamabad. iv) Who have served or are serving with executive police ranks on the Ministerial Cadre and other Ministerial staff of any other offices controlled by the Inspectors General of Provinces mentioned in (i) above, or under the Inspector General, Special Police Establishment/director General, Federal Investigation Agency. v) Who are or have been on deputation to any other departments from the police department wherein they have retained their permanent lien of service. vi) Dependents of persons indicated in clause (i) to (v). 21. From the definition of charitable purpose as per section 2 of Charitable Endowments Act, 1890 it is crystal clear that it is for SMC No. 11/2011 34 the relief of the poor, education, medical relief and the advancement of any other object of general public utility but does not include a purpose which relates exclusively to religious teaching or worship. In such circumstances, the benefit could be given only to those who are poor and entitled to have share from charity. It is apparent from the constitution of the Foundation that the Foundation was established in March 1975 as a Trust for the benefit of all police forces in the country, the main object of which was to provide help in the shape of medical, education, one time grants, artificial limbs, scholarships, dowry, vocational training centres etc. It is a self-financing agency and generates funds from its own projects such as industrial units, housing schemes, security services etc. The very purpose of the establishment of the Foundation was to help poor objects of the police organizations. The purpose of Administration Committee or the Board of Directors and the Authority under the Endowment Act is to generate funds for the persons who come within the definition of beneficiaries under the aforesaid Act. They could only generate funds for the welfare of the beneficiaries, while framing aims and objects of the NPF they have inserted all the provisions therein which could benefit to them and other such like officers of the police organization and not to the benefit of the actual beneficiaries. Even otherwise, the aims and objects of the Foundation should have been framed in accordance with the substantive law SMC No. 11/2011 35 and framing of rules in conflict with or derogating from the substantive provisions of law or statute under which the Rules are framed are normally declared invalid due to certain reasons. This Court on an earlier occasion while dealing with such like case in Suo Motu Case No.13 of 2009 (PLD 2011 SC 619) held as under:- “16. The first question, which requires to be determined by this Court in the instant case is whether it was permissible for the CDA, to have framed a Regulation, which was inconsistent with the parent statute, i.e. the Ordinance. It may be seen that subsection (1) of section 12 of the Ordinance provides that the CDA may, pursuant to the master plan and the master programme, call upon any local body or agency operating in the Specified Areas to prepare, in consultation with it, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, and thereupon the local body or agency shall be responsible for the preparation of the scheme or schemes, whereas, subsection (5) provides that no planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority. Under subsection (2), the schemes may relate to land use, zoning and land reservation, public buildings, industry, etc. Subsection (3) empowers the Federal Government to add to, alter or amend the list of subjects (schemes). Under subsection (4), the expenditure on the preparation of such schemes is to be borne as agreed to between the CDA and the local body or agency while under subsection (5), no planning or development shall be prepared by any person or by any local body or agency except with the concurrence of the CDA. The term "agency", as defined in section 2(a) means any department or organization of the Federal or Provincial Government and includes a corporation, or other autonomous or semiautonomous body set up by the Federal or Provincial Government. The term "local body" SMC No. 11/2011 36 as defined in clause (j) ibid means the local body, the local council or the municipal body as defined in clauses (23) (24) and (27) of Article 3 of Basic Democracies Order, 1959 (P.O. 18 of 1959), or the Cantonment Board, having jurisdiction in the area concerned, and includes an Improvement Trust within such area. 17. The word 'regulation' as defined in Advanced Law Lexicon referred to by the learned Amicus Curiae means a rule or order prescribed by superior for the management of some business or for the government or a company or society. It is a rule, Ordinance or law by which conduct etc., is regulated. It implies a rule for a general course of action, but does not apply to a case in which specific instructions are to be given applicable to that case alone. According to Black's Law Dictionary, the term 'regulation' means a rule or order having legal force issued by an administrative agency or a local government. In Khawaja Ahmad Hassan (supra), it was held as under: - "25. It must be kept in view that "when the legislature confers power on Government to frame rules it is expected that such powers will be used only bona fide, in a responsible spirit and in the true interest of the public and in furtherance of the object for the attainment of which such powers, were conferred". (Land Realization Co. Ltd. v. Postmaster-General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. (1950) Ch. 435. It is to be noted that rule-making authority which falls within the ambit of subordinate legislation as conferred upon the Government by virtue of section 191 of the Ordinance is neither unlimited nor unbridled and the limitations as mentioned in section 191 of the Ordinance must be adhered to in letter and spirit. 29. It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537; Municipal Corporation v. Saw Willie, AIR 1942 Rang 70, 74)". 30. In the case of statutory rules the Court can always SMC No. 11/2011 37 examine the question as to whether the same are inconsistent with the statute under which they are made. In this regard we are fortified by the dictum laid down in Hazrat Syed Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal. 436. 31. A rule-making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute, under which the rules are framed. No doubt that the rules-making authority has been conferred upon the Government but "a rule, which the rule-making authority has power to make will normally be declared invalid only on the following, grounds: (1) Bad faith, that is to say, that powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden; (2) that it shows on its face a misconstruction of the enabling Act or a failure to comply with the conditions prescribed under the Act for the exercise of the powers; and (3) that it is not capable of being related to any of the purposes mentioned in the Act. (Shankar. Lal Laxmi Narayan Rathi v. Authority under Minimum Wages Act, 1979 MPLJ 15 (DB). Rules cannot go beyond the scope of the Act M.P. Kumaraswami Raja AIR 1955 Mad. 326 nor can they, by themselves, enlarge the scope of statutory provisions. K. Mathuvadivelu v. RT Officer, AIR 1956 Mad. 143. They cannot also militate against the provision under which they were made. (Kashi Prasad Saksena ro. State of U. P. AIR 1967 All. 173. 32. There is no cavil with the proposition that "the power of rule making is an incidental power "that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them. PLD 1975 Azad J&K 81. There are two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self-effacement. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:-- SMC No. 11/2011 38 (a) by the authority mentioned in the Act, and (b) that they are within the scope of the power delegated therein. (PLD 1966 Lah. 287). "36. It is a well-recognized principle of interpretation of statutes that if the rules framed under the statutes, or bye-laws framed under the rules, are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then these provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan, AIR 1934 Ca1.537, 540)." In Nur Ahmad's case (supra), it was held that reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right. The rule-making Authority therefore, cannot clothe itself with power which the Statute itself does not give. In Mian Ziauddin's case (supra), it was held that the rules framed under the Ordinance could not go beyond and over-reach the Ordinance itself. In Ummatullah's case (supra), it was held that Strong presumption as to constitutionality, legislative competence, legality, reasonableness and intra vires attached to a statute is also attached with full force to subordinate legislative instruments as well, such presumption though refutable, onerous burden is cast on person challenging validity or vires of legislative instrument, on any count. In order to strike down a subordinate legislative instrument, challenger has to show that any of the disqualification exist namely (a) it impinges upon fundamental rights guaranteed under the Constitution (b) it is in conflict with any Constitutional provision (c) it is beyond the legislative competence of the delegatee making it and or (d) it is violative or beyond the scope of the parent or enabling statute. (see KBCA v. Hashwani Sales and Services Ltd. PLD 1993 SC 210 @ 228 C, Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543. It was further held that when the parent law i.e. Sindh Buildings Control Ordinance, 1979 does not provide for matter relating to change in land use classification, or conversion of one category of land into another it cannot through delegated legislative instrument confer, bestow or delegate any power and duties on "Concerned Authorities", which powers and performance of duty are not within its own domain or scope of authority. It is settled principle of law that what cannot be done directly cannot be done or allowed to be done indirectly. It is also trite principle of law; what is not possessed can neither be conferred nor delegated. In Kerala Samsthana Chethu's case (supra), it was held that the power of the Government was to make rules only for the SMC No. 11/2011 39 purpose of carrying out the purposes of the Act and not dehors the same. In other words, rules cannot be framed in matters that are not contemplated under the Act. Reference in the above case was made to Bombay Dyeing and Mfg. C. Ltd. v. Bombay Environmental Action Group 2006 (3) SCALE 1, wherein it was held that a policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. In the case of Vikramaditya Pandey v. Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the Indian Supreme Court has held that the provisions of the regulations in question to the extent of their inconsistency with any of the provisions of the. Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen Compensation Act, 1923 and any other Labour Laws for the time being in force, if applicable to any cooperative society or class of cooperative societies shall be deemed to be inoperative. By plain reading of the said Regulation it is clear that in case of inconsistency between the Regulations and the provisions of the Industrial Disputes Act, 1947, the State Act, the Workmen Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any cooperative society or class of cooperative societies to that extent Regulations shall be deemed to be inoperative. In other words, the inconsistent provisions contained in the Regulations shall be inoperative, not the provisions of the other statutes mentioned in the Regulation. 22. From an examination of the above case law it is clear that a rulemaking body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. Thus, we are inclined to hold that no rule can be made which is inconsistent with the parent statute, whereas, no SMC No. 11/2011 40 regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or the rules shall be void and inoperative. In the instant case the Committee of Administration of the National Police Foundation has framed rules according to their own choice irrespective of the scope of the Charitable Endowments Act under which the charitable institution was formed aiming at welfare and benefit of poor and needy officials of the Police Departments all over the country. 23. So far as the question/issue, whether National Police Foundation is authorized to launch private housing schemes etc. for the general public, is concerned, according to item No. 1 & 2 of the agenda of the meeting of Board of Directors of the National Police Foundation held on 26.2.1989, the housing schemes at E/11 and Loi Bher were launched by the Foundation on commercial basis. Since the very object of the Foundation was to help beneficiaries of the foundation, therefore, as per aims and objects No. (v), the foundation in order to provide any facility or help which the committee of administration may decide from time to time comes under the broad terms of “Welfare” of the Beneficiaries. In such circumstances, National Police Foundation was authorized to launch housing schemes for the help of beneficiaries but not for private persons or officers/officials of other departments. Since the SMC No. 11/2011 41 National Police Foundation came into being under sub section (1) of Section 5 of the Charitable Endowments Act, 1890, thus, it was a charitable institution formed for the help of poor and needy officials of the Police Departments all over the country and one of the projects of the said Foundation was establishment of Housing Schemes for those who really need shelter of house. As is evident from the Constitution of the National Police Foundation its aim and object was to help the poor servants of the Police Organizations all over the country and those who had lost their lives while being in service or on duty. 24. For the above reasons the National Police Foundation, keeping in view its objects and for providing maximum benefits to the beneficiaries for whom this charitable organization was established, was authorized to launch a private housing scheme for the help and welfare of the beneficiaries but the plots could have been sold in the private market at higher rate for generating funds and could not be allotted to the higher police officers and their dependants under the garb of beneficiaries. In such circumstances, it is held that National Police foundation has deviated from the basic purpose of charitable for which this Foundation was established. Thus it is a clear cut case of mismanagement and the charitable organization has been used for loot-sale of plots to the higher influential police officers including the private and influential persons of other departments/organizations. SMC No. 11/2011 42 25. Since all the remaining issues are related to the housing schemes and are interlinked, therefore, the same are being discussed/determined together. Housing Scheme of E-11, Islamabad and Lohi Bher 26. The Board of Directors of the National Police Foundation in its meeting held on 26.2.1989 decided to set up two housing schemes in Rawalpindi and Islamabad areas to cater for the housing needs of the beneficiaries of the NPF and Government servants in Lohi Bher Area (0-9) and Sector E-11 Islamabad. In Sector E-11, there were a number of villages including Dharmian, Bara Dari, Maira Bheri, Bhekar Akku and Golra etc. The establishment of Housing Schemes at E/11 and Lohi Bher, Islamabad was discussed in the meeting of the Baord of Directors held on 26.2.1989 as agenda item No. 1 & 2 which reads as under:- “Item No. 1 & 2 LAUNCHING OF HOUSING SCHEMES AT E/11 ISLAMABAD AND LOI BHER The Managing Director briefed the Board about the launching of the two Housing Schemes at E/11 and Loi Bhair on commercial basis, mentioning that the land in question was allotted to the affectees of Islamabad and has been procured from them privately. About the Loi Bhair the Board was informed that the agreement has been made to purchase a piece of land comprising over an area of 1000 Kanals. The Chairman was further informed that agreements in this connection had already been signed with the owners and an advance money of Rs.10 lacs has also been paid while a sum of Rs. 5 lacs have been advanced for the E11 scheme. The Board was further briefed that these two schemes would yield a good profit of about 20/30 million rupees. It was further SMC No. 11/2011 43 explained that to organize these two schemes we would be requiring skeleton staff for which two/three persons would be employed. Besides a Suzuki Jeep will also have to be purchased to visit the site etc. The proposal was approved by the Board.” 27. The Board of Directors of the NPF in its meeting held on 26.02.1989 also passed a Resolution to set up two housing schemes in Rawalpindi/Islamabad area to cater for the housing needs of the beneficiaries of the NPF and Government Servants in Lohi Bher Area (O-9) and Sector E-11 Islamabad which reads as under: “RESOLUTION Resolved by the Board of directors in its meeting held on 26/02/1989 to launch two Housing Schemes in Rawalpindi/Islamabad area at Loi Bhair and E/11. It was further resolved that an area of 1000 kanals approximately at Loi Bhair Rawalpindi/Islamabad should be purchased to cater for the housing needs of the beneficiaries/government servants and general public. The Board approved the agreements dated February 7, 1989 and January 29, 1989 signed by the Managing director, National Police Foundation and the sellers. Sd/- Sd/- (S. K. MAHMUD) (HAFIZ S. D. JAMY) CHAIRMAN MANAGING DIRECTOR Sd/- Sd/- (M. M. SAEED) (SHAHID ABBAS) DIRECTOR INDUSTRIES DIRECTOR FINANCE” Agreement between NPF and M/s. Land Linkers NPF signed three agreements for the purchase of land through Anjum Aqeel Khan, owner of an unregistered firm, namely, M/s. Land Linkers. First agreement was made on 3.11.1997 for the purchase of 200 to 300 kanals of land @ SMC No. 11/2011 44 Rs.595,000/- per kanal. Under this agreement 252 Kanals 6-1/2 marlas land was provided by Anjum Aqeel Khan to the NPF. Second agreement was made on 28.8.2001 for the purchase of 318 kanals land @ Rs.8,25,000/- per kanal and 318 kanals 12 marlas land was provided to NPF. Third agreement was made on 12.4.2003 for the purchase of 58 kanals land @ Rs.825,000/- per kanals and 37 kanals 12 marlas land had been provided under this agreement to the NPF. 28. General rules for membership and terms and conditions of allotment were also reduced into writing by the foundation in the following manner:- Membership 1. Acceptance of membership is subject to the screening of the applications, which may accept or reject any application without assigning any reason. 2. An applicant can apply for only one plot. 3. In case the National Police Foundation due to any reason fails to allot a plot the applicant shall not claim any damages, compensation or interest, however the applicant will be entitled to the refund of the principal amount deposited with the NPF. 4. If the number of applications received is more than the plots available, then the allotment shall be determined by ballot. The Managing Director reserves the right to allot 10% of the plots at its discretion. 5. Each applicant will pay in advance by means of crossed bank draft/pay order en-cashable at Islamabad drawn in favour of National Police Foundation Islamabad. Cash Payment / cheques shall not be acceptable. SMC No. 11/2011 45 6. After an applicant’s membership is accepted, he will be intimated the total cost of the plot along with schedule of payment. 7. All applications will be accepted subject to availability of land. Allotment 1. Allotment will be made subject to the following terms and conditions:- a. In case of a corner plot you are required to pay 10% extra price of the plot. b. All payments shall be made to NPF through a Bank Draft / Pay Order. c. Conservancy charges at the prescribed rate shall be paid by you to the NPF after the completion of development work. 2. The possession of the plot will be handed over to you on the completion of development work and the construction will be allowed after taking over possession of the plot as per building bye-laws of the CDA / RDA. 3. The location / size of the plot is tentative and may vary at the time of actual demarcation and handing-over the possession of plots. The NPF reserves the rights to change the plot without any notice. 4. Mutual transfer of plots will be permissible with the prior approval of the NPF on payment of transfer fees and all other dues etc. if any outstanding against the transferor. 5. Transfer of plot will be permissible with the approval of NPF on production of legal documents as required by NPF. The transfer fees shall be charged at the prescribed rate. SMC No. 11/2011 46 6. Demarcation fee Rs. 500/- per plot will be charged from you at the time of handing over the possession of the plot for the first time and for every subsequent demarcation on your request a fee of Rs. 500/- will be charged. 7. You shall submit the building plan prepared by an approved architect of the CDA / RDA for the approval of the CDA / RDA and the building on the plot shall have to be completed in accordance with the building and zoning regulations of the CDA / RDA. 8. No allottee/transferee shall amalgamate or sub divide the plot without prior permission and sanction of the NPF/CDA/RDA. 9. If at the time of demarcation the area of the plot is found excessive the allottee shall pay such price of excessive area as may determine by the NPF. In case the size of plot is found lesser the NPF will refund the amount of the lesser area @ cost of land charged from the member. 10. The extension in the construction period may be allowed by the NPF on payment of extension surcharge at the rate prescribed by the CDA/RDA. 11. In case of breach of any of the above cited conditions and non-observance of the above noted formalities within due time as given in this letter or in the agreement to be executed by you, the allotment will be liable to cancellation after deducting of 5 to 10% of the price of the plot and the plot with any building or material found thereon shall re-vest in the NPF without any liabilities to pay compensation thereof. Further that you will also be responsible for any loss that the NPF may sustain in the re-sale of the plot. The decision of the NPF in this behalf shall be final. SMC No. 11/2011 47 12. The allotment shall be cancelled if any instalment of the development charges is not paid within the stipulated or extended period. 13. All the payments should be made in the name of NPF through Bank Draft / Pay Order. No cash / cheque will be acceptable. 14. Corner Plot charges should be paid along with 1st instalment. 15. Any change in address may invariably be intimated to this office. TERMS AND CONDITIONS 1. Acceptance of membership is subject to the screening of the applications, which may accept or reject my application without assigning any reason. 2. An applicant can apply for only one plot. 3. In case the National Police Foundation due to any reason fails to allot a plot the applicant shall not claim any damages, compensation or interest, however, the applicant will be entitled to the refund of the principal amount deposited with the NPF. 4. If the number of applications received is more than the plots available, then the allotment shall be determined by ballot. The Managing Committee reserves the right to allot 10% of the plots at its discretion. 5. Each applicant will pay in advance by means of crossed bank draft / pay order cashable at Islamabad drawn in favour of National Police Foundation Islamabad. Cash payment / cheques shall not be acceptable. 6. After an applicant’s membership is accepted, he will be intimated the total cost of the plot along with schedule of payment. SMC No. 11/2011 48 7. All applications will be accepted subject to availability of land. 29. During pendency of the instant proceedings, Mr. Zafar Ahmad Qureshi, Ex-MD of National Police Foundation inquired into the matter of allotment of plots in the aforesaid two residential schemes and found the following illegalities / irregularities therein:- (a) In Qilla No. 74 comprising 8 Kanals land, NPF authorities purchased 9 kanals 9 marlas land in three transactions against an entitlement of 4 kanals as per detail given below:- i. Agreement dated 4.6.1998 between Mr. Abdul Hameed (as owner) (first party) and Mr. Abdul Hannan AD/NPF (second party) for 4 kanal and @ Rs. 5,95,000. Total amount of Rs. 23,79,000/- was paid against entitlement letter No. CDA/DL/1(2)(12)/84 dated 2-3-1986. ii. Agreement dated 4.4.1998 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan legal attorney (first party) and Mr. Abdul Hannan AD/NPF (second party) same 4 kanals land @ Rs. 5,95,000/-. (total amount of Rs. 23,79,000/-) was purchased against same entitlement letter No. CDA/DL/1(2)(12)84 dated 2.3.1986. iii. Agreement dated 26.8.2000 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan legal attorney (first party) and Abdul Hannan AD/NPF (second party) 1 kanals 9 marlas land @ Rs. 5,95,000/-. (total amount of Rs. 8,62,750/-) for the same entitlement letter No. CDA/DL.1(2)(12)84 dated 2.3.1986 of 4 kanals land was purchased. CDA vide its letter No. CDA/DLR/6(83)2001/658 dated 28.7.2001 transferred only 4 kanals land to NPF. SMC No. 11/2011 49 (b)i. Vide agreement dated 4.5.1998 between Mr. Abdul Qayyum s/o Muhammad Din (legal attorney) of Ali Haider s/o Nadir Khan as (first party) and Abdul Hannan AD/NPF (second party) 16 kanals land in Qilla No. 56,44,47 was purchased @ Rs. 5,95,000/- and total amount (Rs. 95,19,000/-) was paid. ii. Another 5 kanals land in the same Qilla No. was purchased under agreement dated 29.7.1999 from Mr. Muhammad Ashraf s/o Nadir Khan (first party) and Abdul Hannan AD/NPF (second party) total amount of Rs. 29,75,000/- was paid. iii. The same land was again purchased by giving 18 developed plots to Sh. Arif Pervez who won the case form Supreme Court and was declared owner of 21 kanals land in Qilla No. mentioned above vide MOU dated 28.10.2002 signed by Sh. Arif Pervez and Ch. Iftikhar Ahmed MD/NPF. The amount paid to Abdul Qayyum and Muhammad Ashraf mentioned above was not recovered from M/S land linkers. (c)i. Under agreement dated 10.7.1998 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan (legal attorney) of Tariq Mehmood s/o Abdul Rehman, Mrs. Naran Begum d/o Abdul Rehman and Abdul Hannan AD/NPF (second party) 2 kanals 16 marla land out of Qilla No. 219, 220 and 225 was purchased @ Rs. 5,95,000/- and an amount Rs. 16,65,000/- was paid against entitlement letter No. CDA/DL/1(2)(12)/84 dated 2-3-1986. ii. Again under agreement dated 19.6.1999 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan (legal attorney) of Tariq Mehmood s/o Abdul Rehman, Mrs. Naran Begum d/o Abdul Rehman (first party) and Abdul Hannan AD/NPF (second party) same land 2 kanals 16 marlas land @ Rs. 5,95,000/- and sum of Rs. 16,65,000/- was paid against the same entitlement letter No. CDA/DL/1(2)(12)/84 dated 2.3.1986. SMC No. 11/2011 50 CDA vide its letter CDA/DLR/6(83)/2001/544 dated 17.7.2001 transferred only 1 kanals 11 marlas land in the name of NPF. (d)i. Under agreement dated 30.3.1998 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan (first party) and Abdul Hannan AD/NPF (second party) 2 kanals 10 marlas land out of Qilla No. 282, 369 to 371,362,363,341,302 to 305 and 309 @ Rs. 5,95,000/- and total amount of Rs. 14,87,500/- was paid against entitlement letter No.CDA/DL/1(2)(12)/84 dated 2.3.1986. ii. Again under agreement dated 4.7.1998 between Mr. Aamir Shahzad Khan s/o Khuda Dan Khan (legal attorney) of Mrs. Aamir Jan as (first party) and Abdul Hannan AD/NPF (second party) same land 2 kanals 10 marlas of same Qilla No. and vide same allotment letter No. CDA/DL/1(2)/12(84) dated 2.3.1986 was purchased @ Rs. 5,95,000/- per kanals and an amount Rs. 14,87,500/- was paid. iii. For the third time under agreement dated 16.6.1999 between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan (legal attorney) of Mrs. Aamir Jan as (first party) and Abdul Hannan AD/NPF (second party) 2 kanals 10 marlas land was purchased from same Qilla No. and the authority of the same letter No. CDA/DL/1(2)(12)/84 dated 2.3.1986 @ Rs. 5,95,000/- and total amount Rs. 14,87,500/- was paid. CDA vide its letter No. CDA/DLR/6(83)/2001/676 dated 21.7.2001 transferred 2 kanals 8 marlas land in the name of NPF in above mentioned Qilla Nos. (e)i. Under agreement dated 30.3.1998 between Mr. Zafar Iqbal s/o Ghulam Farid as (first party) 6 kanals 5 marlas land consisting of Qilla No. 441/1 to 449/1 and 454/1 @ Rs. 5,95,000/- and a total amount Rs. 37,18,750/- was paid against entitlement letter No.CDL/DL/1(2)(12)/84 dated 2.3.1986. SMC No. 11/2011 51 ii. Again under agreement dated 19.6.1999 the same land was bought from Mr. Zafar s/o Ghulam Farid (legal attorney) of Mr. Allah Bux Khan s/o Feroze Khan as (first party) and Abdul Hannan AD/NPF (second party) for the same Qilla Nos. at the same rate and paying same amount Rs. 37,18,750/- against entitlement letter No. CDA/DL/1(2)(12)/84 dated 2.3.1986. CDA vide its letter No. CDA/DLR/6(83)2001/659 dated 21.7.2001 transferred 5 kanals 3 marlas land from the said Qilla Nos. (f) Pursuance to purchase of land agreement dt 28.8.2001 & dt 12.4.2003 the following irregularities were committed in the transactions. CDA transferred 563 kanals 6-1/2 marlas land. The rest of land was not provided due to irregularities and illegalities mentioned at serial No.1 above as per detail given below:- i) Land of Abdul Qayyum and Muhammad Ashraf cancelled 21 ---- 00 ii) Duplicated sale / purchase of land 21 ----- 19 iii) Excess share of land sold and not transferred by CDA 2 ------ 05 Total 45 --- 04 Advance payments to M/s Land Linkers for purchase of land started on 4.11.1997 and continued 12.4.2003. Adjustments of advance against the land purchased by M/s Land Linkers continued till 28.8.2006. Another 1 kanals 13 marlas land was transferred to NPF in 2010, but possession has not been handed to NPF. Abdul Hannan Addl. Director (R) the then AD executed all the transactions related to first agreement dated 3.11.1997. The management of the NPF did not bother for the shortage of 45 kanals land and continued to make payments in advance to M/s Land Linkers till 12.4.2003. Abdul Hannan played a key role in this regard as he signed all the agreements / power attorneys on behalf of NPF. He never put up any note or reported the irregularities / illegalities i.e. duplicate purchase of land because he himself was party to it. This shortage of land was first pointed out by Laeeq Ahmed Khan Director Housing, SMC No. 11/2011 52 vide letter No. HD/28/NPF/E-11/2005/761 dated 28.3.2005, thereafter Anjum Aqeel Khan gave undertaking dated 22.2.2006 to fulfill the short fall of land within 2 months but he failed to honour his commitment. (g) Anjum Aqeel Khan requested for affiliation of 75 kanal land vide letter dated 16.5.2002 to the MD/NPF, which was accepted by NPF. In pursuance to this acceptance, he provided 2 lists of his 149 + 29 nomineesfor allotment of plots of different sizes on his affiliated land. He had given undertaking that these allotment would be subject to proper transfer / possession of the said land in favour of NPF. But contrary to the undertaking this condition was not kept in view or incorporated in the allotment letters. The management of NPF issued 91 + 29 = 120 allotment letters to his nominees and thus allotted 120 developed plots comprising land measuring 41 kanals. 21 plots were allotted in the colony area i.e. sector E-11 of NPF and 99 allotment letters were issued on the proposed affiliated land adjacent to the scheme. In response to this request Anjum Aqeel Khan transferred 71 kanals land to NPF from 27.8.2003 to 10.6.2004. (h) On 25.8.2003 Anjum Aqeel Khan requested for affiliation of 60 kanals land and given undertaking that he will pay development charges as well. He did not provide land documents like fard, aks shajra not even mentioning Qilla No. or Khasra No. for proposed land offered for affiliation. He did not given any undertaking for provision of land nor made any specific agreement with NPF. The NPF officials Laeeq Ahmed Khan Director Housing, Abdul Hannan, Addl. Director Housing, Khuda Bukhsh Dy. Director Housing, Rafat Mustafa, Dy Director (Budget & Accounts) recommended to accept this request if Anjum Aqeel Khan is asked to get the land transferred to NPF. Iftikhar Ahmed Khan MD/NPF approved this recommendation. Anjum Aqeel Khan submitted a list of 61 nominees indicating the plot numbers. NPF allotted 61 developed plots comprising 33 kanals land. Out of this list 32 developed plots (comprising 20 kanals land) were allotted on colony land and 28 developed plots (comprising 13 kanals land) SMC No. 11/2011 53 were allotted on proposed affiliated land on 10.9.2003. In pursuance of this request he did not provide any land although reminded again and again every time he reiterated his commitment. (i) On 29.4.2004 Anjum Aqeel Khan requested for affiliation of 50 kanals land and gave undertaking that he will pay development charges. He did not provide land documents like fard, aks shajra not even mentioning Qilla No. or Khasra No. for the proposed land offered for affiliation. He did not give any undertaking for provision of land nor made any specific agreement with NPF. NPF officials Khuda Bakhsh and Abdul Hannan recommended the proposal and MD Ch. Iftikhar Ahmed Khan approved it on 11.5.2004. He submitted a list of 91 typed and 4 hand written (95) nominees. The allotment letters (by Ch. Iftikhar Ahmed Khan MD/NPF) were issued on 14.5.2004 to 95 nominees of Anjum Aqeel Khan. NPF allotted 95 developed plots comprising 73 kanals land out of which 57 developed plots comprising about 39 kanals land allotted in colony area and 38 plots comprising about 34 kanals land on proposed affiliated land. (j) On 9.9.2004 Anjum Aqeel Khan surrender 25 allotment letters of plots issued on 14.5.2004 with the request that 5 plots should be adjusted at another place. He surrendered 20 allotment letters (issued on 14.5.2004) and requested that this area should be declared Flat Area. Mr. Khuda Bakhsh recommended the proposal and Abdul Hannan Addl. Director observed “since there is no financial involvement on part of NPF, hence the request may please be approved”. Mr. Sikandar Shaheen (Secretary) instead of Director Housing signed and marked the file without any remarks and sent to MD. It was approved by the MD on 6.10.2004. In pursuance of approval 24367 Sq.Yds (48 kanals) land was allotted to Anjum Aqeel Khan on 14.10.2004 as commercial area. It is pertinent to mention to that Anjum Aqeel Khan had not requested for allotment of 48 kanals land and this land was allotted to Anjum Aqeel Khan in lieu of proposed affiliated land of 50 kanals (request dated 29.4.2004). By now NPF allotted 48 kanals SMC No. 11/2011 54 developed plots and 48 kanals commercial area a total of 96 kanals land against of fake request of 50 kanals affiliation. Mr. Abdul Hannan is on record to have given a certificate to the effect that Anjum Aqeel Khan has paid the development charges so possession should be handed over to him. Whereas Anjum Aqeel Khan had not paid any development charges for the commercial area till date. It was a fraudulent transaction planned and executed by Anjum Aqeel Khan, Khuda Bakhsh and Abdul Hannan. MD was probably misled by the strong recommendation of Deputy Director and Addl. Director but it does not absolve him from the responsibility being the final authority. As per record all the allotment letters issued to the nominees of Anjum Aqeel Khan were signed by Iftikhar Ahmed Khan Managing Director/NPF and Laeeq Ahmed Khan Director Housing/NPF. The Inquiry Officer Mr. Zafar Ahmad Qureshi, has further stated in his report that following general irregularities have been committed in the purchase and affiliation of the land in question. These acts on the part of alleged persons are without any legal justification:- i. Duplicate / triplicate transactions of sale / purchase were made regarding the land provided to NPF by Anjum Aqeel Khan. ii. All payments were made by NPF to Anjum Aqeel Khan in advance and unlimited time was given for provision of land without any plausible justification. iii. The plots on developed colony land were allotted to the nominees of Anjum Aqeel Khan without getting corresponding land transferred in the name of NPF. iv. All the transaction of affiliation and allotment of land were without any formal agreement or undertaking to provide the land to NPF. SMC No. 11/2011 55 v. The requests of Anjum Aqeel Khan were, for the allotment of plots to his nominees on proposed affiliated land, but plots were allotted on colony land also without any plausible reason. vi. No formal request of Anjum Aqeel Khan is available on record for allotment of plots to his nominees on NPF colony land. vii. Allotment of 95 plots comprising 73 kanals land against a fake request of affiliation of 50 kanals land. viii. Allotment of 48 kanals commercial land against surrender of 20 allotment letter of 20 kanals land. ix. Commercialization of a residential piece of land measuring 48 kanals without consideration. x. Iftikhar Ahmed Khan MD/NPF and Laeeq Ahmed Khan DH/NPF issued irrevocable allotment letters to the nominees of Anjum Aqeel Khan. The allotment letters should have been subject to the provision of land by Anjum Aqeel Khan. So in case of non-fulfillment of his commitment, NPF should have been in a position to cancel these allotment letters. Assessment of the outstanding liabilities of Anjum Aqeel Khan Sr. No. Description If Crystal Court Surrendered If Crystal Court not Surrendered 1. Land allotted by NPF (developed plots) To the nominees of Anjum Aqeel Khan 170-K 170-K 2. Crystal Court (Commercial land) 48-K 00-K 3. Net land allotted by NPF developed plots (In colony area & proposed affiliated land) 122-k 170-k 4. Add: Wastage calculated as per CDA Rules 104-K 145-K 5. Total shortage of affiliated land 54:46 226-K 315-K 6. Add: Shortage of land in purchase 45-K 45-K SMC No. 11/2011 56 7. Less: affiliated land transferred to NPF by land linkers 71-K 71-K 8. Net outstanding shortage of land 200-K 289-K 30. During the course of inquiry, Anjum Aqeel Khan was confronted with the record of procurement of land by the inquiry officer as well as the allegations against him. Said Anjum Aqeel Khan after admission of the allegations of procurement of land executed an agreement in favour of NPF which reads as under:- “In order to resolve my dispute with the NPF regarding the supply of land for the NPF Scheme in Sector E-11, Islamabad, I solemnly undertake to abide by the following terms and conditions: 1. I was allotted a piece of land by NPF vide letter No. HD/28/NPF/2004/4517 dated 14.10.2004 in NPF Housing Scheme E-11, Islamabad. This piece of land is named as Crystal Courts. Out of the land mentioned in this letter, NPF had the ownership of only 22 kanals. 2. I voluntarily settle and surrender this property measuring 22 kanals of Crystal Courts in favour of NPF and handover the possession with immediate effect. Henceforth, I or any of my legal heirs will not have any sort of claim over this property and any claim over this property will not be agitated by me or any of my legal heirs at any forum in future. 3. I will immediately withdraw and Stay order / the Court case filed by me against NPF concerning this property in Civil Court at Islamabad. 4. In today’s meeting with NPF, it has been found that land measuring 126 kanals 14 marlas is due against SMC No. 11/2011 57 me in this scheme. At present, I am not in a position to provide this land to NPF. I undertake to pay the price of this land to NPF. I undertake to pay the price of this land to NPF @ rates prevailing in the vicinity in the year 2004 within 01 year up prevalent rate of land. 5. This rate would be determined by a committee constituted by the Ex-officio Chairman of NPF (Secretary Interior). 6. Previously, NPF has cancelled the allotment letters of my 14 nominees. These plots have been subsequently re-allotted to police beneficiaries / fresh allottees and restore all the previous allotments. 7. NPF would compensate the rest of the affecttees who had got the allotment letters of residential plots and could not get plots due to non-availability of land. I would not have any ability of the affecttees. 8. This settlement would be treated as full and final settlement between me and NPF regarding the supply of land to NPF for NPF Housing Scheme in Sector E- 11, Islamabad. The Inquiry Officer Mr. Zafar Ahmad Qureshi also recorded the statements of Iftikhar Ahmed Khan, ex-MD, Laeeq Ahmed Khan, ex-Director Housing, Abdul Hannan, ex-Addl. Director Housing, Khuda Bukhsh, ex-Deputy Director Housing and Anjum Aqeel Khan. All the officers / officials of NPF had stated before the Inquiry Officer that they had rendered their services honestly and had left no stone unturned to make this scheme a reality. They had further stated that they had never obtained any personal gain at SMC No. 11/2011 58 any stage. Laeeq Ahmed Khan had pointed out that during his incumbency as Director Housing, he had written a letter to Anjum Aqeel Khan in which he pointed out the short fall of land and asked Anjum Aqeel Khan to provide the additional land to bridge this shortfall. 31. On 27.5.2011, an undertaking on a stamp paper of Rs. 500 has been executed by Anjum Aqeel Khan in favour of NPF. This undertaking/settlement agreement is reproduced below: “In order to resolve my dispute with the National Police Foundation (NPF) regarding the purchase, affiliation and possession of land for the National Police Foundation Scheme in Sector E-11, Islamabad. I, Anjum Aqeel Khan son of Khuda Dad Khan r/o Golra Sharif, Islamabad, solemnly undertake to abide by the following terms and conditions: (i) I was allotted a piece of land by NPF vide letter No. HD/28/NPF2004.4517 dated 14.10.2004 in NPF Housing Scheme, E-11, Islamabad. This piece of land measuring 24,367 Sq. yds. Is named as Crystal Courts. Out of the land mentioned in this letter, through negotiation and settlement first time it came on record that 23 kanals land (11,949 sq. Yds.) is belong to NPF. (ii) I voluntarily settle and surrender this property measuring approximately 23 kanals (11,949 sq. yds) of Qilla Nos. 229 (7 kanals 3 marlas), Qilla No. 230/1 (1 kanal 18 marlas) and Khasra No. 75 & 76 (13 kanals 9 marlas) in favour of NPF and handover the possession with immediate effect. SMC No. 11/2011 59 Henceforth, I, or any of my legal heirs will not have any sort of claim over this property and any claim over this property will not be agitated by me or any of my legal heirs at any forum in future. (iii) That I, Mr. Anjum Aqeel Khan son of Khuda Dad Khan is solemnly responsible for remaining land measuring 25 kanals (12,418 sq.yds) of Crystal Courts. National Police Foundation has no liability whatsoever for any legal / illegal transaction after or before handing over the possession of approximately 23 kanals (11,949 sq. yds) land to NPF from Crystal Courts as per Qilla and Khasra numbers mentioned above in Para (ii), which is already in the name of NPF as per CDA revenue record. (iv) I will immediately withdraw the Stay order / the court case filed by me against NPF concerning this property in Civil Court at Islamabad. (v) In today’s meeting with NPF, it has been found that land measuring 126 kanals 14 marlas is due against me in this scheme. At present, I am not in a position to provide this land to NPF @ rates prevailing in the vicinity in the year 2004 within 01 (one) year. (vi) This rate would be determined by the Chairman of NPF (Secretary Interior) in consultation with the Members of the Committee of Administration. (vii) Previously, NPF had cancelled the allotment letters dated 5.11.2010 of my nominees of any other. These plots have been subsequently re- SMC No. 11/2011 60 allotted to police beneficiaries, would be restored immediately. (viii) I, voluntarily assure with the cooperation / assistance of Mr. Tahir Ahmad, Mr. Masroor Sarwar Khan and Mr. Tahir Mahmood Khan to solve the financial burden of 59 affectees by affiliation of 22 kanals land to accommodate 59 affectees. (ix) This settlement would be treated as full and final settlement between me and NPF regarding the purchase, affiliation and possession of land to NPF for NPF Housing Scheme in Sector E-11, Islamabad.” 32. On 26.5.2011, another agreement for the affiliation of land to settle the claims of 59 effecttees was signed after lapse of eleven years. In this agreement first party is Deputy Director Housing, NPF whereas second party are the three nominees of Anjum Aqeel Khan namely Mr. Nisar Ahmed son of (late) Dilbar Khan, Mr. Tahir Mehmood Khan son of (late) Muhammad Afzal Khan and Mr. Masroor Sarwar Khan s/o Rana Muhammad Sarwar Khan. All the signatories / parties acknowledge as follows: 1. Land measuring 11 kanals 13 marlas (7,048 square yards) land was transferred to NPF on 18.8.2010 in Sector E-11 Islamabad, out of which 10 kanals land was transferred by Mr. Nisar Ahmed and 1 kanals 13 marlas land by Mr. Anjum Aqeel Khan. 2. The second part undertakes to transfer additional land of about 9 kanals including 2 residential plots making total of SMC No. 11/2011 61 about 22 kanals. This whole land shall be affiliated by NPF and converted into Commercial area. 3. According to the submitted layout plan, a total plots of 21 are achieved as follows: a) Plot Size 40’X60’ : total number 17 b) Plot Sized 60’X60’ : total number 02 c) ODD Size plots : total number 02 Terms and Conditions for Settlement 1. Mr. Anjum Aqeel Khan has recommended Mr. Tahir Mehmood Khan son of (late) Muhammad Afzal Khan, to provide & transfer additional land to NPF for affiliation. 2. Mr. Tahir Mehmood Khan is providing additional land measuring about 9 kanals (or so), including 2 residential plots (plot No. 786-A measuring 40’X70’ and Plot No. 822 measuring 50’X90’) that Mr. Tahir Mehmood Khan would purchase from his own sources, adjacent to & adjoining the already transferred land of 11 kanals & 13 marlas in Sector E- 11 Islamabad. Thus the total land would become about 22 kanals or so. This whole land will be affiliated by NPF and converted into Commercial area. 3. Against the transfer of said 9 kanals additional land, Mr. Tahir Mehmood Khan and Mr. Masroor Sarwar Khan has reached an understanding that 5 plots each measuring 40’X60’ including the front plot on the left side of the commercial area (plot Nos. C-1 to C-5 as per layout plan submitted for approval) will be allotted to Mr. Tahir Mehmood Khan or his nominee(s). Remaining all plots shall be allotted to Mr. Masroor Sarwar Khan or his nominees, according to their desire, to accommodate 59 affectees and to pay off the owner / allottee of Plot No. 822. 4. Mr. Tahir Mehmood Khan would provide additional land, as mentioned above, to NPF for affiliation within one month of signing of this settlement agreement of 59 affectees (7 kanals + 2 residential plots). SMC No. 11/2011 62 5. The total plots towards the affectees fund would be 10 each measuring 40’X60’ or equivalent affiliated commercial area. Mr. Masroor Sarwar Khan, in good faith & voluntarily, undertakes that he would pay-off or reach an understanding with all the 59 affectees, within 45 days of approval of layout plan or as soon as possible. 6. A mechanism has been decided that after surrendering allotment of 6 affectees of NPF, NPF would transfer & handover possession of one commercial plot measuring 40’X60’ (or equivalent affiliated commercial land) shall be allotted / transferred to Mr. Masroor Sarwar Khan against surrendering 6 allotments of affectees, totaling to 10 plots. 7. Mr. Nisar Ahmed (plot Nos.` C-11 to C-16) and Mr. Masroor Sarwar ( any plot of NPF choice) shall be allotted “Irrevocable Allotment Certificates” immediately upon signing of this agreement, as per “provisional allotment” dated 5.1.2011. Additionally Mr. Tahir Mehmood Khan or his nominee(s) shall also be allotted “Irrevocable Allotment Certificates” for his share of plots numbering C-1 to C-5 immediately upon signing of this agreement. 8. Mr. Nisar Ahmed is fully authorized to sell his allotted 6 commercial plots each measuring 40’X60’, in accordance with provisional allotment dated 5.11.2011, in the market and these plots are free from any encumbrances or legal complications of any kind over these plots of NPF. 9. Mr. Masroor Sarwar Khan is fully authorized to generate funds from its own sources or commit sales of NPF securitized allotted plots to any third party to generate finances to pay- off affectees. But, these plots will only be allotted to Mr. Masroor Sarwar Khan or his nominee only after paying off affectees according to this agreement. 10. It is agreed that to generate better price of the sales of the plots, Mr. Masroor Sarwar Khan in collaboration with NPF or under management of NPF, can invite auction of sales of SMC No. 11/2011 63 securitized plots using NPF platform, sales proceeds of which shall remain securitized under NPF unless all affectees are paid off. Such auction shall be organized by Mr. Masroor Sarwar Khan through his company MSK International as “Settlement Manager / Advisor. Mr. Masroor Sarwar Khan, Mr. Nisar Ahmed and Mr. Tahir Mehmood Khan can also sell their respective allotted plots through same auction. 11. The development of the commercial area shall commence within 7 days or approval of layout plan and transfer & possession of additional land by Mr. Tahir Mehmood Khan. The complete development charges shall distributed upon all allotted plots, proportionately, of Mr. Masroor Sarwar, Mr. Nisar Ahmed and 10 plots of affectees fund. No. Development charges shall be claimed from Mr. Tahir Mehmood Khan. 12. After signing of this agreement, 23 allotment letters would be restored as mentioned in the undertaking agreement signed between Mr. Anjum Aqeel Khan and NPF on 22.2.2011. 13. After the transfer of additional 9 kanals (7 kanals and 2 residential plots) or so land, the total land transferred by Mr. Tahir Mehmood Khan would be about 11 kanals for the above affiliation. 14. The total liability towards NPF would be 12 kanals (10 + 2 kanals). Therefore, this land should be exchanged by NPF to Mr. Tahir Mehmood Khan having Khasra Numbers 111, 113, 114, 116, 127, 132, 136 (measuring 12 kanals) with the land of NPF that is not under possession of NPF’s Qilla Numbers 430 & 434 (total 12 kanals),. 33. Apart from the aforesaid illegalities committed by the office bearers of the National Police Foundation in connivance of Anjum Aqeel Khan of M/s. Land Linkers, the allotment of plots in both the aforesaid housing schemes was made in violation of the bye-laws / terms and conditions of the said schemes. As already SMC No. 11/2011 64 held the National Police Foundation was established only for the benefit of the poor and needy persons under sub section (1) of Section 4 of the Charitable Endowments Act, 1890, thus, all the property of the said foundation vest in the treasurer of the Charitable Endowments for Pakistan and was in trust of the Treasurer but the persons at the helm of affairs in the National Police Foundation allotted plots not only to those persons who were not at all entitled for allotment thereof but also allotted plots to every member of the family of those police officers who were at the helm of affairs in the said Foundation. According to the meaning of the Charitable the benefit of the said schemes could have been granted only to the poor, martyred and needy serving or retired and dependents of such servants of the said Foundation or those who had sacrificed their lives for the country. 34. In such circumstances we are of the view that the Committee of Administration of the Foundation has violated the purpose of establishment of this charitable institution under the garb of generation of funds and has committed gross illegalities, in order to favour the higher police officers and their families by allotment of plots even to private persons and other persons who were not entitled to the allotment of plots. Instead of selling the plots in open market and for the purpose of generating funds for the National Police foundation to achieve the object of the establishment of the said organization for the help of the needy and the heirs of the martyrs. SMC No. 11/2011 65 35. In the light of the objective of the Foundation, which has been elaborated in the foregoing paras, it is evident that the Foundation’s real purpose was to cater for the health, educational and charitable matters for the officials of the police department and their dependants. However, in the garb of such objectives of the National Police Foundation the administration of the NPF decided to enrich their own pockets and to dole away the plots to the higher police officials and other higher government officials for a consideration which was not inconsonance with the market price prevailing at that time and the police officials and that other government officials have been allotted more than one plot. 36. During proceedings on 22.3.2012 Mr. Humayun Raza Shafi, M.D. National Police Foundation has submitted a list under his signatures according to which more than one plot have been allotted to several police & government officials and in addition to them several plots have been allotted to other civilians. Details of which are given below: Srl. No. Name & Designation Plot No. & Size Scheme Date of Allotment Cost of Land by NPF 1. Mr. Abdul Qadir Haye, I.G. 379(50x90) E-11 6.4.2003 1130000.00 2. Mrs. Shaheen Qadir Haye, wife of Abdul Qadir Haye 380(50x90) E-11 9.3.2002 1130000.00 3. Mr. Abdur Razzaque, I.G 480(50x90) E-11 4.7.1998 1130100.00 4. Mrs. Farhat Razzaque, w/o Mr. Abdur Razzaque 52(50x90) E-11 4.7.1998 565100.00 SMC No. 11/2011 66 5. Mr. Afzal Ali Shigri, I.G. 558(50x90) E-11 31.7.2002 463933.00 6. Mrs. Mahlaqa Shigri, w/o Afzal Ali Shigri 557(50x90) E-11 3.9.2001 1130100.00 7. Miss Amna Rizvi, d/o Afzal Ali Shigri 556(50x90) E-11 3.9.2001 1130100.00 8. Miss Mahlaiqa Shigri, w/o Afzal Ali Shigri 1027-B (35x65) O-9 4.11.2004 250100.00 9. Mis amna Shigri, d/o Afzal Ali Shigri 1026- B(35x65) O-9 4.11.2004 250100.00 10. Mrs. Gulshan Iftikhar, w/o Iftikhar Rasheed, I.G. 1011(50x90) E-11 11.11.2002 1575100.00 11. Miss Sheze Iftikhar, d/o Iftikhar Rasheed, I.G. E-11 10.5.2002 1575100.00 12. Mr. Kaleem Iman, I.G. 661(50x90) E-11 14.2.2002 1690100.00 13. Mrs. Ayusha Hanif w/o Kaleem Imam, I.G. 1041(50x90 ) E-11 22.4.2003 1690100.00 14. Mr. Muhammad Rafique Haider, I.G. 485(50x90) E-11 4.7.1988 1130100.00 15. Mrs. Nabeela Rafique Haider 486(50x90) E-11 4.7.1998 1130100.00 16. Rana Altaf Majeed, I.G. 470(50x90) E-11 4.7.1998 1200600.00 17. Mrs. Salwa Rana 469(50x90) E-11 4.7.1998 1130100.00 18. Saiyed Mohib Asad, I.G. 643- C(50x90) E-11 4.7.1998 393433.00 19. Mrs. Nigar Mohib, wife of Saiyed Mohib Asad, I.G. 722(50x90) E-11 22.8.2002 1575100.00 20. Syed Abid Abbas, DSP 251(35x65) E-11 4.7.1998 565100.00 21. Mrs. Romana Abid, w/o Abid Abbas, DSP 774(35x65) E-11 11.11.2002 787600.00 22. Mrs. Romana Abid, w/o Abid Abbas, DSP 430- X(50x90) O-9 15.4.2003 500100.00 23. Syed Abid Abbas, DSP 82(12x20) O-9 8.12.2001 56100.00 24. Mr. Haq Nawaz Kiani, SP 807(35x65) E-11 14.2.2002 787600.00 25. Mrs. Pakeeza Nawaz Kiani, w/o Haq Nawaz Kiani, SP 674(50x90) E-11 14.2.2002 1575100.00 26. Miss Hina Nawaz, d/o Haq Nawaz Kiani, SP 540(50x90) E-11 4.7.1998 1130100.00 27. Mr. Behram Tariq, I.G. 29(50x90) E-11 4.7.1998 1130100.00 28. Mrs. Farida Sultana, w/o Behram Tariq, I.G. 29(50x90) E-11 4.7.1998 1130100.00 29. Ch. Muhammad Akmal, 546(50x90) E-11 4.7.1998 1130100.00 SMC No. 11/2011 67 Inspector 30. Mrs. Farzana Akmal, w/o Ch. Muhammad Akmal, Inspector 545(50x90) E-11 4.7.1998 1130100.00 31. Mr. Wajahat Latif, I.G. 476(50x90) E-11 4.7.1998 1200600.00 32. Mr. Ahmad Latif, Banker, s/o Wajahat Latif 477(50x90) E-11 4.7.1998 1200600.00 33. Mr. Mohammad Nawaz Malik, I.G. 632- F(50x90) E-11 14.2.2002 1575100.00 34. Mrs. Surriya Nawaz, w/o Mohammad Nawaz Malik 632- G(50x90) E-11 20.2.2002 1575100.00 35. Mr. Naseer Ali, Banker, s/o Muhammad Nawaz Malik 2112- A(50x90) O-9 11.9.2003 500100.00 36. Mr. Arif Hussain, Accountant, s/o Muhammad Nawaz Malik 2093- T(50x90) O-9 11.9.2003 500100.00 37. Mr. Manzoor Ahmad, I.G. 669 Sub- 1068(50x90 ) E-11 1.12.1999 1200600.00 38. Mrs. Qaisar Sultana, w/o Manzoor Ahmed 670(50x90) E-11 1.12.1999 1130100.00 39. Ch. Manzoor Ahmad, I.G. 400-B (35x65) O-9 7.10.2011 251000.00 40. Mr. Zaheed Waheed Butt, Brig. 676(50x90) E-11 29.3.2002 1575100.00 41. Mrs. Zille Huma Dar, w/o Zahid Waheed Butt, Brig. 645(35x65) E-11 29.3.2002 105400.00 42. Mr. Muhammad Afzal Rana, Lt. Col. 708(50x90) E-11 20.2.2002 787600.00 43. Miss. Sadia Afzal Rana, d/o Muhammad Afzal Rana 1035(50x90 ) E-11 11.11.2002 1500350.00 44. Agha Baqir Ali , Foreign Service Officer 871(50x90) O-9 4.4.1991 240100.00 45. Agha Sibtain Raza s/o Agha Baqir Ali 873(50x90) O-9 4.4.1991 240100.00 46. Mr. Amjad Bashir, s/o Mr. Muhammad Bashir 1845- V(50x90) O-9 26.2.2005 958100.00 47. Miam Imtiaz Bashir, s/o Mr. Muhammad Bashir 1845- H(50x90) O-9 25.2.2005 500100.00 48. Mr. Shaukat Aziz, Ex- Prime Minister 411(50x90) E-11 20.8.2002 1105100.00 49. Mr. Shaukat Aziz, Ex- Prime Minister 357(50x90) O-9 7.10.1990 245100.00 SMC No. 11/2011 68 50. Mrs. Rukhsana Aziz, w/o Shaukat Aziz, Ex- P.M. 358(50x90) O-9 7.10.1990 245100.00 51. Mr. Israr Ahmed, I.G. 594(50x90) O-9 22.10.1990 245100.00 52. Mr. Israr Ahmed, I.G. 286(50x90) E-11 4.7.1998 1105100.00 53. Mrs. Maimoona Israr, w/o Israr Ahmed 593(50x90) O-9 22.10.1990 240100.00 54. Mr. Sagheer Ahmed, PIA 143(40x60) O-9 10.1.2005 1066880.00 55. Mrs. Shaista Sagheer, wife of Sageer Ahmad 76(12x20) O-9 19.12.2002 106780.00 56. Malik Nazir Ahmad, Banker 34(15x30) O-9 28.12.1999 104100.00 57. Mrs. Nasim Akhtar Naz, w/o Malik Nazir Ahmad 33(15x30) O-9 28.12.1999 104100.00 58. Syeda Farzana Hussain, w/o Syed Shaukat Hussain 130(15x30) O-9 28.10.2002 200100.00 59. Syeda Naureen Batool, d/o Syed Shoukat Hussain 122(15x30) O-9 28.10.2002 200100.00 60. Mr. Sulran Azam Temori, IG 718(50x90) E-11 14.2.2002 1665100.00 61. Mr. Sultan Azam Temuri, DIG 88(12x20) O-9 14.12.2001 56367.00 62. Mrs. Rabia Temuri, w/o Sultan Azam Temuri 160(15x30) O-9 4.11.2003 200100.00 63. Mr. Siraj Din, Businessman, s/o Muhammad Din 52(12x20) O-9 18.7.2002 53434.00 64. Mr. Naik Bakht s/o Muhammad Din 53(12x20) O-9 18.7.2002 43434.00 65 Mrs. Bilqees Akhtar, w/o Ghulam Ali 121(15x30) O-9 18.10.2002 200100.00 66. Miss Batool Akhtar, d/o Ghulam Ali 113(15x30) O-9 18.10.2002 200100.00 67. Mr. Ahsan-ulHaq s/0 Abdul Aziz 109(15x30) O-9 19.12.2002 200100.00 68. Mr. Rizwan-ul-Haq s/o Abdul Aziz 108(15x30) O-9 19.12.2002 200100.00 69. Mr. Arif Qayum, Businessman 148(15x30) O-9 17.8.2011 200100.00 70. Mrs. Najma Arif, w/o Arif Qayyum 147(15x30) O-9 18.6.2003 200100.00 71. Mr. Humayoun Javaid, ® Director FIA 184(12x20) O-9 22.2.2010 1491000.00 72. Mr. Humayoun Javaid, 185(12x20) O-9 22.2.2010 1491000.00 SMC No. 11/2011 69 ® Director FIA 73. Mr. Fazal Mehmood Malik, Businessman 187(12x20) O-9 22.2.2010 1521000.00 74. Mr. Fazal Mehmood Malik, Businessman 188(12x20) O-9 22.2.2010 1521000.00 75. Mr. Zaheer Mahmood, Businessman, s/o Mahmood Khan 2093-B (50x90) O-9 8.3.2003 100.00 76. Mr. Mudasser Sheraz, s/0 Mehmood Khan 2093-C (50x90) O-9 8.3.2003 100.00 77. Mrs. Ghulam Sughra, w/o Mr. Muhammad Bashir Shakir, Captian 119-K (50x90) O-9 31.3.2003 500100.00 78. Mr. Jawad Bashir, s.o Muhammad Bashir Shakir 119-L (50x90) O-9 31.3.2003 500100.00 79. Mrs. Zahida Parveen, w/o Ch. Imtiaz Ahmad 119-G (50x90) O-9 1.4.2003 500100.00 80. Miss. Zehra Imtiaz, d/o Ch. Imtiaz Ahmad 119-H (50x90) O-9 1.4.2003 500100.00 81. Syed Muhammad Shahwaze Abbas Sherazi s/o Syed Safeer Hussain Shah Sherazi, DSP 698-L (50x90) O-9 25.2.2003 100.00 82. Syedia Saffia Kazmi, w/o Syed Safeer Hussain Shah Sherazi, DSP 698-N (50x90) O-9 25.2.2003 100.00 83. Syed Ibn-e-Ali Rizvi, s/o Syed Sardar ali Shah 163-H (50x90) O-9 1.3.2003 450100.00 84. Mrs. Narjis Batool Kazi, Doctor, w/o Syed Ibn-e- Ali Rizvi 163-G (50x90) O-9 1.3.2003 450100.00 85. Mr. Jehangir Akhtar s/o Noor Mohammad 400-M (50x90) O-9 31.3.2003 500100.00 86. Mr. Tanveer Akhtar, Businessman, s/o Noor Muhammad 400-N (50x90) O-9 31.3.2003 500100.00 87. Mr. Babar Mumtaz, DSP 450-K (50x90) O-9 31.3.2003 500100.00 88. Mr. Amir Mumtaz s/o Sardar Mumtaz Ali Khan 450-L (50x90) O-9 31.3.2003 500100.00 89. Mr. Muhammad Farhan Ghauri s/o Muhammad Sharif Ijaz Ghauri 99-D (50x90) O.-9 27.1.2004 337500.00 90. Mr. Muhammad Faisal Ghauri, s/o Muhammad Sharif Ijaz Ghauri 99-F (50x90) O-9 27.1.2004 337500.00 91. Mr. Akhtar Mahmud, Businessman s/o Ch. 2150 O-9 16.9.2002 450100.00 SMC No. 11/2011 70 Khuda Dad Khan (50x90) 92. Mrs. Naila Akhtar, W/o Akhtar Mahmud 2151 (50x90) O-9 16.9.2002 450100.00 93. Mr. Muhammad Afzal Khan, S.J. (R.) 2096 (50x90) O-9 4.9.2002 450100.00 94. Miss Atika Khan, d/o Muhammad Afzal Khan 2093 (50x90) O-9 4.9.2002 450100.00 95. Mr. Mehmood Farooq Khan, NRSP, s/o Muhammad Akbar Khan 2105 (50x90) O-9 15.6.2001 450100.00 96. Mr. Masood Akbar, NRSP, s/o Muhammad Akbar Khan 2106 O-9 15.6.2001 450100.00 97. Mr. Abdul Sattar, Businessman s/o Abdul Ghafoor 451-R (50x90) O-9 1.4.2003 100.00 98. Mrs. Shafqat Sattar, W/o Abdul Sattar 451-U O-9 1.4.2003 100.00 99. Mr. Mohammad Ahsan Shahzad, s/o Abdul Sattar 451-T (50x90) O-9 1.4.2003 100.00 100. Mr. Arshad Munir, s/o Abdul Ghafoor 451-S (50x90) O-9 1.4.2003 100.00 101. Mr. Tayyab Aziz, Businessman, s/o Abdul Aziz 451-P (50x90) O-9 1.4.2003 100.00 102. Mrs. Rukhsana Tayyab w/o Tayyab Aziz 451-N (50x90) O-9 1.4.2003 100.00 103. Hafiz S.d. Jamy, IG (Ex- MD NPF) 446(50x90) E-11 4.7.1998 1188920.00 104. Mr. Hassan Naveed Jamy, Engineer, s/o Hafiz S.d. Jamy 255(50x90) O-9 10.10.1990 240100.00 105. Mr. Gul Najam Jamy, Govt. Service, s/o Hafiz S.d. Jamy 813(50x90) O-9 11.10.1990 245100.00 106. Mr. I.M. Mohsin, I.G. 672(50x90) E-11 14.2.2002 1130100.00 107. Mr. I.M. Mohsin, I.G. 884(50x90) O-9 19.2.1991 245100.00 108. Mr. Rajeel Mohsin, s/o I. M. Mohsin 1021 (50x90) E-11 11.11.2002 1575100.00 109. Miss Nashita Mariyam, d/o I. M. Mohsin 217-A (50x90) O-9 17.11.1992 280100.00 110. Mr. Usman Amin Mian s/o Mian Muhammad Amin (I.G.) Ex-MD NPF 457(50x90) E-11 21.3.2000 1200600.00 111. Mr. Afnan Amin Mian, Engineer, s/o Mian Muhammad Amin (I.G.) 606 (50x90) E-11 21.3.2000 1130100.00 SMC No. 11/2011 71 Ex-MD NPF 112. Dr. Sikandar Amin Mian, Doctor, s/o Mian Muhammad Amin (I.G.) Ex-MD NPF 605(50x90) E-11 4.7.1998 1130100.00 113. Dr. Kamran Fazal, DD/FIA, son in law of Mian Muhammad Amin (I.G.) Ex-MD NPF 541(50x90) E-11 4.7.1998 1200600.00 114. Dr. Naila Kamran, D/o Mian Muhammad Amin (I.G.) Ex-MD NPF 542(50x90) E-11 4.7.1998 1200600.00 115. Mrs. Silva Nishat, Mother of son in law of Mian Muhammad Amin (I.G.) Ex-MD NPF 479(50x90) E-11 4.7.1998 1200600.00 116. Mr. Laeeq Ahmad Khan DIG 456 (50 X 90) E-11 30.3.2002 541766.00 117. Mr. Laeeq Ahmad Khan DIG 289 (50 X 90) E-11 04.07.1998 1132100.00 118. Mrs. Hina Asher Khan d/o Laeeq Ahmed Khan 57 (12 X 20) O-9 22.11.2002 106780.00 119. Mr. Umar Alam Khan son of Laeeq Ahmed Khan, Marketing Manager NPF 4 12 X 20) O-9 30.3.2002 56100.00 120. Mr.Mrs. Aisha Khanum wife of Umar Alam Khan 5 (12 X 20) O-9 01.04.2001 56100.00 121. Mr. Sikandar Hayat Shaheen, DIG 511 (50 X 90) E-11 28.03.2002 580100.00 122. Mrs. Riffat Shaheen wife of Sikandar Hayat Shaheen 582 50 X 90 E-11 04.07.1998 1130100.00 123. Miss Fatima Shaheen d/o Sikandar Hayat Shaheen 1273 (50 X 90) O-9 17.06.2002 450100.00 124. Dr. Amina Shaheen (Lady Doctor) d/o Sikandar Hayat Shaheen 400-B (50 X 90) O-9 17.06.2002 450100.00 125. Mr.Muhammad Khawar Saeed Brother-in-Law of Sikandar Hayat Shaheen 797 (35 X 65) E-11 27.12.2002 775100.00 126. Mr. Abdul Hannan Ex- Addl.Dir./NPF 512 (50 X 90) E-11 30.03.2002 516766.00 127. Mr. Abdul Mateen Kamran, Businessman son of Abdul Hannan 604 (50 X 90) E-11 04.12.2002 1575100.00 128. Mr. Faisal Hannan, Businessman son of Abdul Hannan 1006 (50 X 90) E-11 11.11.2002 1575100.00 129. Mr.Abdul Mateen Kamran, Businessman son of Abdul Hannan 137 (50 X 70) O-9 14.5.2003 777877.00 130. Mr. Faisal Hannan, Businessman son of Abdul Hannan 136 (50 X 70) O-9 14.05.2003 77877.00 131. Mr. Umar Hannan son of Abdul Hannan 135 (50 X 70) O-9 14.05.2003 777877.00 132. Miss Aisha Hannan D/o of Abdul Hannan 147 (50 X 70) O-9 14.05.2003 777877.00 SMC No. 11/2011 72 133. Mrs. Shahida Nasreen wife of Khuda Bukhsh 138 (50 X 70) (purchased) O-9 13.05.2003 777877.00 134. Mrs. Soban Bi wife of Khuda Bukhsh 142 (40 X 60) O-9 07.01.2005 1066780.00 135. Mrs. Shahida Nasreen wife of Khuda Bukhsh 752 (50 X 90) (purchased) O-9 07.02.1991 240100.00 136. Mrs. Shahida Nasreen wife of Khuda Bukhsh 1074 (35 X 65) O-9 07.02.1991 122600.00 137. Mr. Khuda Bukhsh Ex- DDH/NPF 149 (50 X 70) O-9 13.05.2003 777877.00 138. Mrs. Shahida Nasreen wife of Khuda Bukhsh 124 (15 X 30) O-9 13.01.2003 200100.00 139. Mr. Khuda Bakhsh Ex- DDH/NPF 513 (50 X 90) E-11 04.07.1998 541766.00 140. Mr. Khuda Bakhsh Ex- DDH/NPF 426 (50 X 90) E-11 04.07.1998 1025575.00 141. Mr. Asad-ur-Rehman son of Khuda Bukhsh 409-A (50 X 90) E-11 05.09.2003 1575100.00 142. Mr. Khuda Bakhsh Ex- DDH/NPF 212 (35 X 65) E-11 (Member ship) 04.07.1998 565100.00 143. Miss Nasira Naureen d/o Khuda Bukhsh 644 (50 & 90) E-11 (purchas ed) 21.02.2003 2871300.00 144. Mr. Khuda Bakhsh, Ex- DDH/NPF 211 (35 X 65) E-11 Members hip) 04.07.1998 565100.00 145. Mr.Muhammad Zaman 138 (15 X 30) O-9 27.05.2003 200100.00 146. Mr. Muhammad Zaman Ex-Site Engineer/NPF 298 (25 X 45) O-9 02.08.2002 112600.00 147. Mr.Muhammad Zaman Ex-Site Engineer/NPF 303 (35 X 65) E-11 04.07.1998 600350.00 148. Mrs. Nayyar Rafat wife of Syed Rafat Mustafa 69 (50 X 90) E-11 04.07.1998 1130100.00 149. Syed Rafat Mustafa ex- DD/B&A 510 (50 X 90) E-11 28.03.2002 516767.00 150. Mrs. Bibi Hanifa wife of Mumtaz Ellahi 100 (35 X 65) E-11 04.07.1998 600350.00 151. Mr. Mumtaz Ellahi ex- PSO to MD/NPF 632-B (50 X 90) E-11 04.07.1998 1130100.00 152. Mr. Mumtaz Ellahi ex- PSO to MD/NPF 45 (35 X 65) E-11 04.07.1998 565100.00 153. Mr. Abdul Jamal Khan, DF/NPF 514 (50 X 90) E-11 28.03.2002 516766.00 154. Mrs. Zarina Khan d/o Abdul Jamal Khan 996 (50 X 90) E-11 11.11.2002 1550100.00 155. Mr.Muhammad Khan Asstt:/NPF 206 (35 X 65) E-11 04.07.1998 552600.00 156. Mrs. Naseem Akhtar wife of Muhammad Khan 357 (35 X 65) E-11 04.07.1998 552600.00 SMC No. 11/2011 73 37. The above list clearly shows that the successive Managing Directors of the NPF have allotted the plots to the police officials not only over and above their entitlement but certain civilians of their choices as well as military officials have been allotted plots, who, even did not fall within the definition of the beneficiaries as discussed in the preceding paras. Some of the allottees in the above list have been allotted plots only for a sum of Rs.100/- as shown at Srl. Nos. 75, 76, 81, 82, 97, 98, 99, 100, 101 and 102 of the list reproduced hereinabove. 38. The Board of Directors of the Foundation while establishing housing schemes did not at all fix the criterion by making bye-laws / terms and conditions for allotment of plots in the housing schemes and divided plots to their nears and dears without there being any logic for such allotments. Even the Board of Directors did not frame any rules / bye-laws for allotment of plots to the general public and allotted plot to the persons of their choice without having published in the newspapers the policy or criteria regarding allotment of plots. The plots in the said scheme were also not put to auction in accordance with law by the Board of Directors, as such, the Board of Directors has been utilizing the foundation for their personal gains for the benefit of their nears and dears. 39. It is also apparent from the record that the National Police Foundation (NPF) was established purely for the welfare of police officials but the officers at the helm of affairs in the SMC No. 11/2011 74 Foundation allotted land worth billions of rupees at throwaway prices i.e. for Rs.100/- only to the ruling elite, including generals, bureaucrats, ambassadors, close relatives of top police officials and well-connected civilians. The loot sale of a facility created for the welfare of the poor cops has been going on in sectors E-11 and O-9 of Islamabad, which were purchased by the government-controlled NPF on nominal prices for the benefit of all police forces in the country. It has also been established on record that the privileged ones have gobbled up everything, generously. Such has been the largesse of the NPF that some were allotted two and even more, while for some senior police officers, selected employees of the NPF and even civilians, floodgates of generosity were opened to the extent that more than five plots and in certain cases more than ten plots were given to one family. In one case, an NPF employee got eight plots from the Foundation for himself and his family. There is a long list of police officials and even others who got two or more than two plots in the name of members of their families. All these allotments were made by successive Managing Directors (MDs) of the NPF who were only competent to allot one plot to each police official but they illegally allotted plots to the civilians, other bureaucrats and military personnel. 40. As far as the arguments of learned counsel for the ex- officials of the National Police Foundation that they had acted in good faith for the benefit and interest of the Foundation and the SMC No. 11/2011 75 alleged irregularities or lapses are not at all attributable to any malafide or deliberate intent on their part, have no force at all for the simple reason that the said ex-officials were in power at the relevant time and that they made decisions detrimental to the interest of the Foundation and its beneficiaries. They did not at all make their efforts for the betterment and interest of the Foundation rather allotted plots to their nears and dears who were not at all entitled for such allotment. Even they failed to utilize the funds of the Foundation according to the true spirit of the constitution thereof, as such, they were fully responsible for the acts and omission as highlighted by the inquiry officer in his report, referred to hereinabove. 41. As far as the case of Anjum Aqeel Khan is concerned, suffice it to observe that a fact finding inquiry was conducted by an honest and upright officer by associating all the concerned including Anjum Aqeel Khan in the said inquiry wherein he had not only admitted lapses on his part regarding loss to the Foundation but also entered into agreements for making good the loss suffered by the Foundation. Even learned counsel for Anjum Aqeel Khan in his CMA No. 3742 of 2013 while summing up his arguments also stated that Anjum Aqeel Khan stands ready and willing to abide by the terms of the settlement agreement signed by him with the NPF. 42. While taking up the issue of settlement agreement dated 4.3.2013 arrived at between the Foundation and Anjum Aqeel Khan of M/s Land Linkers during pendency of the matter SMC No. 11/2011 76 before this Court in order to make up the loss suffered by the Foundation at his hands, we are further fortified from the judgment in the case referred supra (PLD 2011 S.C. 619) relevant portion wherefrom reads as follows: “25. A part of the argument vehemently canvassed at the bar was that the main purpose of awarding contract to this party was to get the CDA land cleared off from the illegal occupants, which the CDA was unable to do. In this behalf, reference was made to agreements containing recitals of payment of different sums of money made to certain persons in lieu of their vacating such land. According to the aforesaid agreements, huge sums of money running into millions of rupees were allegedly paid. But, surprisingly, no details of payment, such as bank drafts, pay orders, cheques, etc. were given in the said agreements. It is not believable that such large sums of money were paid in cash. Besides, the agreements in question were documents not registered in accordance with law. There was, so to say, no valid proof of payment furnished to our satisfaction. Further, no details of the land allegedly in the illegal possession of the land grabbers along with the names/number of encroachers were provided. Thus, looked at from any angle, the transaction appears to be a sham deal. The whole exercise appears to be an eyewash.” 43. In this view of the matter the agreements as afore- stated appears to be another example of fraud with the Foundation as there is no date for finalization / completion of the said agreements, as such, the said agreements cannot be termed as good in the eyes of law. The said agreements also appears to be a tricky to the effect that the same might have been executed in order to avoid the consequences of the criminal proceedings got initiated by the Foundation against Anjum Aqeel Khan. The said agreement is, therefore, held to be of no legal effect. 44. In view of the above discussions, we hold that the Board of Directors of the Foundation in connivance with Anjum Aqeel SMC No. 11/2011 77 Khan of M/S Land Linkers with malafide intention gave a huge and colossal loss to the Foundation which has surfaced in the enquiry report of Mr. Zafar Ahmad Qureshi as stated above. Board of Directors, instead of generating funds for the poor and needy persons who were still facing hardships to acquire a roof to live under has allotted the plots to their near and dears under the garb to generate the funds. 45. While summing up our discussion made above, we declare that the National Police Foundation was a charitable organization established under section 5 of the Charitable Endowments Acts, 1890 aiming at helping the poor and for those who had lost their lives while being in service or on duty in the shape of education, medical relief etc. The Committee of Administration/Rule Making Body was not authorized to make rules in conflict with or in derogation of the substantive provisions of law or the statute under which the rules are framed. Rules cannot go beyond the scope of the Act but the rules/regulations were made by the Committee of the Administration of the Police Foundation according to their own whims and not according to the purposes envisaged by the Charitable Endowment Act. The persons mentioned in para 36 above have been allotted plots who were not entitled for such allotment and in some cases they have been allotted more than one plot or even a single plot without observing any bye-laws/rules, as such, the allotment of plots was not made by the Foundation in a transparent manner. Even some SMC No. 11/2011 78 persons were allotted 1 kanal plot against payment of only Rs. 100/-. The allotment of plots in the National Police Foundation can be termed a bad example of mal-administration as every officer of the said foundation at the helm of affairs tried to loot the Foundation by allotting plots to their nears and dears without observing any codal formalities required for the purpose. 46. Anjum Aqeel Khan who had entered into agreements with the National Police Foundation to arrange land for establishment of residential colony also got the developed plots allotted against affiliation of land to various persons without paying the development charges and accounting for the land as per formula of the CDA. 47. While making allotments of plots the then Board of Directors allotted plots to their near and dears ignoring legal heirs/family members of those police personnel who had laid down their lives for this nation. Under the Constitution of Islamic Republic of Pakistan no one can be permitted even though he be the head of the department to purchase all the plots for himself, or to give out the same as per his own choice. There are number of examples of such malpractices on the part of the police high ups who remained at the helm of affairs in the National Police Foundation. Most of the poor policemen were left up without allotment of any plot, though some have been allotted. The high ups of the police hierarchy have purchased a good number of plots SMC No. 11/2011 79 in violation of the purpose the Foundation was established for. Not only that, they after having acquired such plots started business. The Board of Directors without observing any legal or codal formalities such like advertisement in the press and without framing any bye-laws for the allotment of plots doled them out, whereas poor policemen are still facing hardships to acquire a roof to live under. Even the land earmarked for lawns/parks was also converted into plots for allotment to the higher police officers of the ranks of I.G., D.I.G., S.S.P. etc. 48. For the foregoing reasons it is held and directed as under:- 1. The illegalities and irregularities in the procurement of land committed by the Board of Directors in connivance with Anjum Aqeel Khan are worst examples of corruption and corrupt practices and all those who are responsible are liable to be penalized in accordance with the law of the land and also to make the loss good by recovering the said loss through coercive measures. 2. All the plots, one, two or more than that which have been illegally and un-authorizedly allotted without entitlement, as discussed above, to any person, whether police officials, employees of NPF, other government officials or the civilians, businessmen, etc. or their dependants are declared to be illegally allotted and are SMC No. 11/2011 80 thus cancelled forthwith. However, if they are interested to retain the plots in their names they are directed to pay price thereof according to the present market value within a period of two months from today. 3. Anjum Aqeel Khan or his nominee shall be entitled to retain only those plots in lieu whereof he has given land for being affiliated and not otherwise, that too subject to payment of development charges according to the nature of the plots within two months. In case he or his nominee fails to pay the development charges within a period of two months, he shall not be entitled to retain them. 4. Anjum Aqeel Khan is directed to fulfill his outstanding liability of 126 kanals of land as undertaken by him through agreement dated 27.5.2011 reproduced in para No. 31 and if he is not in a position to provide 126 kanals of land to the Foundations then he will pay present market price of 88 developed plots in accordance with 54:46 ratio formula of CDA and adopted by the Foundation within the period of two months from today, otherwise law will take its own course by initiating penal action as well as attachment of all his property, moveable or immoveable and that of his dependents. SMC No. 11/2011 81 5. The persons who are nominated for allotment of plots by Anjum Aqeel Khan without having corresponding land transferred in the name of NPF or who have filed miscellaneous applications against Anjum Aqeel Khan, shall not be allotted plots until and unless they are found legally entitled to such allotment by way of affiliation or through any other mode. They are at liberty to launch any sort of proceedings against Anjum Aqeel Khan, if so desired. However, it is clarified that the Foundation will not be responsible for any act or omission of said Anjum Aqeel Khan while nominating the persons for allotment of plot in the Foundation. 6. Any other shortfall of land is directed to be made up by Anjum Aqeel Khan of M/s. Land Linkers. 7. The Managing Director of the National Police Foundation is directed to ensure compliance with the aforesaid directions in letter and spirit within a period of two months from today and submit compliance report thereof to this Court, where-after the Auditor General for Pakistan shall get the accounts of the Foundation audited as well as transactions of allotment of plots, affiliation of land and deposit of development charges with the Foundation and submit report to this Court within a month. He shall also submit audit SMC No. 11/2011 82 report regarding receipts and payments by the Foundation from the date of its creation till date. 49. As a consequence of our above conclusion, it has been found necessary to initiate proceedings against Anjum Aqeel Khan and other responsible persons, whose reference has been made in the preceding paras. Chairman NAB is directed to initiate the proceedings under the NAB Ordinance, 1999 as amended, promptly, so it may serve the deterrence of like minded people. It is further directed that the progress repot shall be submitted by the Chairman NAB through the Registrar of this Court for the action taken by him within 90 days. Chief Justice Judge Judge Announced in Open Court By Ijaz Ahmed Chaudhry, J.- On 31.10.2013 At Islamabad APPROVED FOR REPORTIG (Zulfiqar)

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GHULAM RABBANI SUO MOTU CASE NO. 13 OF 2009 [Action on press clipping from the Daily “Patriot”, Islamabad dated 04.07.2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11, Islamabad] ON COURT NOTICE For the CDA: Mr. Khalid Anwar, Sr. ASC Raja Abdul Ghafoor, AOR Mr. Waqar Ali Khan, Director (Land) For MPCHS: Mr. Zulfiqar Khalid Maluka, ASC Amicus Curiae: Mr. Muhammad Akram Sheikh, Sr. ASC FOR THE APPLICANTS CMA No. 4204/2009: Mr. M. Ikram Chaudhry, ASC CMA No. 4686/2009: Dr. Aslam Khaki, ASC Dates of hearing: 8th to 10th & 14th March, 2011 .-.-. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In December 2008, the Capital Development Authority (CDA) entered into a Joint Venture Agreement (JVA) with M/S Multi Professional Cooperative Housing Society (MPCHS) for development of 54 SMC 13-2009 2 acres of land located in northern strip of Sector E-11, Islamabad. A news report appeared in the DAILY PATRIOT dated 04.07.2009 stating that prime land belonging to the CDA had allegedly been given to MPCHS through an underhand deal. The press clipping was registered as Human Rights Case No. 3557-G of 2009 vide order dated 06.07.2009 passed by one of us (Iftikhar Muhammad Chaudhry, CJ) and a report was called from the Chairman CDA. It was, inter alia, stated in the report that originally CDA owned 78 acres of land at northern strip of Sector E-11, out of which 24 acres were utilized for adjustment of the outstanding claims of the locals as per directions of the High Court and the remaining land was under adverse possession, therefore, considering that the said land would be consumed to settle the claims, which were the subject matter of many petitions pending in different Courts, CDA entered into the JVA with MPCHS. It was further stated that in pursuance of decision of CDA Board, Expression of Interest was invited from interested parties and after due consideration and evaluation, the said JVA was signed. The matter was registered as Suo Motu Case No. 13 of 2009 and was fixed in Court. 2. In the concise statement filed on behalf of the CDA, it is submitted that in 1968, land measuring 654 acres in Golra Revenue Estate comprising Sectors E-11 (203 acres), E-12 (36 acres), F-11 (45 acres), F-12 (77 acres) and Blue Area (293 acres) was exempted from acquisition by the Federal Government with the approval of Field Marshal Muhammad Ayub SMC 13-2009 3 Khan, the then President of Pakistan. In 1969, the CDA acquired land falling in Sector E-11 at a nominal cost of Rs.208/- per kanal, but did not announce Award in respect of houses/built up property nor any compensation/allotment of plots was made to the affectees/occupants. In 1983, the CDA with the approval of the then President of Pakistan decided to exchange and consolidate in Sector E-11 the land of Golra Revenue Estate situated in Sectors F-11, F-12, E-12 and Blue Area. In 1986, six Cooperative Housing Societies including the National Police Foundation with the approval of CDA purchased land in Sector E-11, took possession from the affectees/occupants and developed it. Only 78 acres of land located in the northern strip of Sector E-11 remained with the CDA. Subsequently, 24 acres were allotted to locals against their claims, leaving a balance of 54 acres. 3. It is further stated that in December 1992, CDA in exercise of the powers conferred by section 51 read with section 11 of the CDA Ordinance, 1960 framed with the approval of the Federal Government the Islamabad Capital Territory (Zoning) Regulation, 1992, hereinafter referred to as ‘the Regulation’. The Regulation divided the Capital Territory into five Zones, viz., Zones 1 to 5. The development of Zone 1 was entrusted to CDA, while private parties were authorized to buy and develop land falling in Zones 2 and 5. Although Sector E-11 was located in Zone 1 and was to be developed by the CDA itself, but on account of consolidation of land, it was provided in regulation SMC 13-2009 4 4(1)A(iv) of the Regulation that no private scheme of any kind whatsoever shall be allowed except in Sector E-11 where the schemes would be regulated by the provisions applicable to schemes in Zone 2. In June 1993, the CDA framed Modalities and Procedures under the Regulation for development of private housing schemes in Zones 2 and 5. 4. In 2005, the CDA, in exercise of powers conferred by section 51 read with section 49 of the CDA Ordinance, 1960 framed the Islamabad Land Disposal Regulation, 2005. Regulation 4 thereof provided that the CDA Board may decide to enter into JVAs with any private or public sector agency regarding property vested in it for any specific project. 5. On 30.06.2005, the CDA, by advertisement published in the Daily Dawn, invited Expression of Interest for development/construction of high-rise residential apartments, commercial, educational, health centres and recreational facilities in the northern strip of Sector E-11. Some developers showed interest, but the proposal could not mature due to adverse possession of the land and built up property in the area. 6. On 14.03.2008 the CDA, by advertisement in the Daily Dawn and Jang again invited Expression of Interest. Three bids from M/S Services Cooperative Housing Society, M/S Golra Associates and M/S MPCHS were received. The proposal of MPCHS, having been approved by the CDA Board was accepted and the JVA dated 02.12.2008, after completion of the codal formalities, was signed. The MPCHS got vacated the possession SMC 13-2009 5 from the occupants, got approval of planning and engineering designs and 80% of the work had already been completed. The CDA has not spent a single rupee on acquiring possession of land, preparation of its master plan, engineering designs and execution of development works, etc. It was pointed out that on the contrary the CDA had failed to take over possession of the acquired land in Bheka Syedan Sector F-11, Sector E-12, Sector F-12 and Sector G-12. 7. It is pleaded that the other bidders did not object to the award of contract to MPCHS. All major projects relating to buildings, bridges, flyovers, source development of water supply, planning/construction of sewerage treatment plants, etc., were carried out by engaging specialized planners, architects, consultants and contractors of repute. 8. Mr. Khalid Anwar, Sr. ASC who appeared on behalf of the CDA submitted that CDA has observed all rules and regulations while entering into the JVA in a transparent manner and selecting a party. The CDA, by advertisement published in the Daily Dawn dated 30.06.2005 invited Expression of Interest for construction of high rise apartments in Sector E-11 having shopping centre and other facilities such as community centre, school, mosque, playfields, health centre in the northern acquired strip of land measuring about 70 acres on joint venture basis. The Expression of Interest was invited from high profile well- reputed national and international development firms having vast experience in development of housing/construction. However, SMC 13-2009 6 nobody came forward mainly because of adverse possession on the land in question. 9. The issue was then considered by the CDA Board in its meeting held on 28.02.2008. It was decided that the housing societies already working in Sector E-11 and having possession of the land will be allowed to have a joint venture with CDA on the land which is owned by the CDA, but is in possession of the societies. Accordingly, by a fresh public advertisement dated 14.03.2008, expression of interest was again invited from the private parties/real estate developers, societies of good repute to develop 54 acres of land in E-11. It was given out that the subject land, though validly owned by CDA, was under adverse possession of certain illegal squatters and the selected party would have to get the area cleared off and ready for development at its own risk and cost. Reference in particular was made to clauses 3 and 4 of the advertisement, which are reproduced below: - “3. Preference will be accorded to societies already operating in Sector E-11. Such preference will be determined, in addition to other parameters, by the contiguity and adjacency to the northern strip of sector E-11. 4. Only those societies of Sector E-11 which have clear, undisputed title and possession will be considered. Application of Societies/Parties of E- 11, which possess land in excess of their ownership will not be entertained and will be summarily rejected.” SMC 13-2009 7 In response to the above advertisement, three proposals, including that of MPCHS were received, which were scrutinized by the evaluation committee in its meeting held on 09.07.2008. MPCHS was found to be qualified as against the other two firms, namely, M/S Services Co-Operative Housing Society and Golra Associates (Pvt.) Ltd. who had only submitted expression of interest but not the technical and financial bids. The credentials of the two firms were checked and it was observed that they did not fulfil the conditions prescribed in clause 4 of the advertisement. The CDA Board in its meeting held on 21.07.2008 approved the proposal of MPCHS and JVA was entered into with it. To ensure transparency in the execution of the works by the MPCHS, it was agreed, inter alia, that the MPCHS shall, in consultation with the CDA, appoint at its sole cost consultant of international repute through open advertisement in two leading English Daily Newspapers with national circulation for planning, designing and supervision of development work of the project and the terms of reference shall be formulated in accordance with CDA planning requirements/standards. The work will be awarded to contractors duly registered with PEC in the respective category. After approval of the development plan and as full and final consideration for the all actions and activities undertaken by MPCHS under the agreement and the letter of intent, including without limitation executing development works, the remaining area under residential plots, commercial area, medium rise/high rise apartment buildings, super store, petrol pump, education SMC 13-2009 8 centre, health centre and other recreational places like hotel and community clubs if and as provided shall be divided between the parties on 57 : 43 ratio, though initially MPCHS in the draft JVA submitted along with the financial proposal had proposed 50 : 50 ratio. It being a transparent transaction, the Suo Motu Case be disposed of in the interest of justice. 10. Mr. Zulfiqar Khalid Maluka, who appeared on behalf of MPCHS submitted that MPCHS was registered with the Registrar of Cooperative Societies, ICT, Islamabad. The objectives of the society are to promote economic interests of its members on the principles of cooperation, self help, on no profit – no loss basis. On account of excellent developmental work, integrity and experience, MPCHS is registered by Moody International for complying with the requirements of ISO 9001:2008 and ISO 14001:2004. The Senate of Pakistan commended excellent performance of MPCHS and rated it next to Defence Housing Society. It had completed different schemes for which CDA had issued final NOC. The land in Golra Revenue Estate was exempted from acquisition as far back as the year 1968-69 by the then President of Pakistan as a mark of respect for the Great Pir of Golra Sharif. The provision allowing operation of private societies in Sector E-11 is to be seen in the context of adverse possession and the consolidation in the said sector of land of Golra Revenue Estate spread over in different sectors. MPCHS had acted in pursuance of the advertisement duly published in the press dated 14.03.2008 wherein other parties also SMC 13-2009 9 participated and the bid offered by his clients was accepted after duly verifying its credentials. The JVA was concluded with MPCHS as a result of open bidding in the transparent manner at the benefits most suitable to CDA. 11. On the other hand, Mr. Muhammad Akram Sheikh, Sr. ASC who appeared as an Amicus Curiae on Court’s notice, submitted that the Regulation framed by the CDA was ultra vires of the provisions of the CDA Ordinance, 1960. The word “agency” defined in section 2 of the Ordinance does not include a private company. The powers and duties of the CDA are provided in Chapter – III of the Ordinance. Section 11 provides for the preparation of master plan and master programme. Section 12 provides that all schemes will be prepared by a local body or an agency of the Federal or Provincial Government. The manner and form of a scheme to be prepared by the Authority are provided in sections 13 and 14 while the enabling powers of the Authority are laid down in section 15. The power of the CDA to enter into and perform contracts under clause (v) of subsection 2 of section 15, as also its power under section 49 of the Ordinance to retain, lease, sell, exchange, rent or otherwise dispose of any land vested in it are not attracted in the instant case. 12. The learned Amicus Curiae has stated that sections 22 to 32 of the Ordinance empower the CDA to acquire land as per procedure laid down therein, while section 49B read with section 49D provides for summary ejectment of unauthorized occupants with police assistance. But, in the present case, the CDA SMC 13-2009 10 functionaries never tried to exercise such powers. Chapter VII of the CDA Ordinance, 1960 provides “Penalty and Procedure” for contravention of any provisions of the Ordinance or Rules or Regulations made or schemes sanctioned thereunder. The CDA has tried to justify its action under regulation 4(1)A(iv) of the Regulation, but the said Regulation does not apply to the facts and circumstances of the present case as the same applies to unacquired sectoral areas whereas the land in question is an acquired land and the CDA has its own mechanism of its development under the relevant provisions of the Ordinance and Rules or Regulations made thereunder. As regards authority to enter into the JVA with any private and public sector agency by the CDA Board it is provided in section 4 of the Islamabad Land Disposal Regulation, 2005, however, the same is not applicable to the instant case in view of regulation 2B of the said Regulation and section 2(a) of the Ordinance, which defines the word “agency” and private & public sector agencies are not included therein. Moreover, the first proviso to regulation 4 of the Regulation, 2005 is inconsistent with section 51 of the Ordinance and thus has no legal sanction and binding force. 13. On the issue of transparency in the JVA, the learned Amicus Curiae submitted that the aforesaid clause (iv) of Regulation 4(1)A seems to have been added to benefit Mr. K. U. Faruqui, the President of MPCHS who was then Cabinet Secretary to the Government of Pakistan and had prepared summary for the Prime Minister of Pakistan and the first proviso to regulation SMC 13-2009 11 4 of the Regulation also seems to have been added just to swindle a public property valuing billions of rupees for the benefit of Mr. K.U. Faruqui, which raises many questions on the transparency in the JVA and smacks of mala fides on their part. In the concise statement, the CDA functionaries have not provided exact khasra numbers of the 54 acres land in question and have also not provided names of the occupants at the time of acquisition of the land in the years 1968-69 and have also not provided the names of the occupants of the land at the time of entering into the JVA. Nothing has been said about the agreement entered into between one Rashid Mehmood Khan and MPCHS whereby said Rashid Mehmood Khan had agreed to get the land vacated on payment of commission/service charges @ 3% of the purchase price though the CDA had its own Enforcement Directorate, which was authorized to eject unauthorized occupants summarily with the assistance of local police. 14. Mr. Akram Sheikh next submitted that regulation being delegated legislation have to be consistent with the statute under which they were framed. Delegated legislation could be described as orders, rules, regulations, schemes, licences and instruments, the nomenclature used would be the one laid out by the enabling Act. A delegated legislation, in this case the Regulation, could be struck down as ultra vires on five main grounds, namely, if statutory procedure prescribed for making them had not been followed; if they were repugnant to provisions SMC 13-2009 12 of some other statute; if they conflicted with the parent Act itself; if they were uncertain; and if they were unreasonable. The regulation in question is not within the parameters envisaged by the parent Act, therefore, the same is ultra vires. He has referred to the definition of “regulation” from Advanced Law Lexicon, 3rd Edition 2005, Black’s Law Dictionary, Seventh Edition. He also referred to Khawaja Ahmad Hassan v. Government of Punjab (2005 SCMR 186), Mian Ziauddin v. Punjab Local Government (1985 SCMR 365), Province of East Pakistan v. Nur Ahmed (PLD 1964 SC 451), Ummatullah v. Province of Sindh (PLD 2010 Karachi 236) and Kerala Samsthana Chethu v. State of Kerala [(2006) 4 SCC 327]. 15. We have heard the learned counsel and have gone through the relevant provisions of the CDA Ordinance, 1960 and the record produced by the CDA. 16. The first question, which requires to be determined by this Court in the instant case is whether it was permissible for the CDA to have framed a Regulation, which was inconsistent with the parent statute, i.e. the Ordinance. It may be seen that subsection (1) of Section 12 of the Ordinance provides that the CDA may, pursuant to the master plan and the master programme, call upon any local body or agency operating in the Specified Areas to prepare, in consultation with it, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, and thereupon the local body or agency shall be responsible for the preparation of the scheme or schemes, SMC 13-2009 13 whereas, subsection (5) provides that no planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority. Under subsection (2), the schemes may relate to land use, zoning and land reservation, public buildings, industry, etc. Subsection (3) empowers the Federal Government to add to, alter or amend the list of subjects (schemes). Under subsection (4), the expenditure on the preparation of such schemes is to be borne as agreed to between the CDA and the local body or agency while under subsection (5), no planning or development shall be prepared by any person or by any local body or agency except with the concurrence of the CDA. The term “agency”, as defined in section 2(a) means any department or organization of the Federal or Provincial Government and includes a corporation, or other autonomous or semiautonomous body set up by the Federal or Provincial Government. The term “local body” as defined in clause (j) ibid means the local body, the local council or the municipal body as defined in clauses (23) (24) and (27) of Article 3 of Basic Democracies Order, 1959 (P.O. 18 of 1959), or the Cantonment Board, having jurisdiction in the area concerned, and includes an Improvement Trust within such area. 17. The word ‘regulation’ as defined in Advanced Law Lexicon referred to by the learned Amicus Curiae means a rule or order prescribed by superior for the management of some business or for the government or a company or society. It is a rule, ordinance or law by which conduct etc., is regulated. It SMC 13-2009 14 implies a rule for a general course of action, but does not apply to a case in which specific instructions are to be given applicable to that case alone. According to Black’s Law Dictionary, the term ‘regulation’ means a rule or order having legal force issued by an administrative agency or a local government. In Khawaja Ahmad Hassan (supra), it was held as under: - “25. It must be kept in view that “when the legislature confers power on Government to frame rules it is expected that such powers will be used only bona fide, in a responsible spirit and in the true interest of the public and in furtherance of the object for the attainment of which such powers were conferred”. (Land Realization Co. Ltd. v Postmaster- General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. (1950) Ch. 435. It is to be noted that rule-making authority which falls within the ambit of subordinate legislation as conferred upon the Government by virtue of section 191 of the Ordinance is neither unlimited nor unbridled and the limitations as mentioned in section 191 of the Ordinance must be adhered to in letter and spirit. 29. It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537; Municipal Corporation v. Saw Willie, AIR 1942 Rang 70, 74)". 30. In the case of statutory rules the Court can always examine the question as to whether the same are inconsistent with the statute under which they are made. In this regard we are fortified by the dictum laid down in Hazrat Syed Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal. 436. 31. A rule-making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute, under which the rules are framed. No doubt that the rules-making authority has been conferred upon the Government but "a rule, which the rule-making authority has power to make will normally be declared invalid only on the following, grounds: - SMC 13-2009 15 (1) Bad faith, that is to say, that powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden; (2) that it shows on its face a misconstruction of the enabling Act or a failure to comply with the conditions prescribed under the Act for the exercise of the powers; and (3) that it is not capable of being related to any of the purposes mentioned in the Act. (Shankar Lal Laxmi Narayan Rathi v. Authority under Minimum Wages Act, 1979 MPLJ 15 (DB). Rules cannot go beyond the scope of the Act M.P. Kumaraswami Raja AIR 1955 Mad. 326 nor can they, by themselves, enlarge the scope of statutory provisions. K. Mathuvadivelu v. RT Officer, AIR 1956 Mad. 143. They cannot also militate against the provision under which they were made. (Kashi Prasad Saksena ro. State of U. P. AIR 1967 All. 173. 32. There is no cavil with the proposition that "the power of rule making is an incidental power that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them. PLD 1975 Azad J&K 81 = PLJ 1975 Azad J&K 89. There are two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self-effacement. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:-- (a) by the authority mentioned in the Act, and (b) that they are within the scope of the power delegated therein. (PLD 1966 Lah. 287). “36. It is a well-recognized principle of interpretation of statutes that if the rules framed under the statutes, or bye-laws framed under the rules, are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then SMC 13-2009 16 these provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan, AIR 1934 Ca1.537, 540).” In Nur Ahmad’s case (supra), it was held that reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right. The rule-making Authority therefore, cannot clothe itself with power which the Statute itself does not give. In Mian Ziauddin’s case (supra), it was held that the rules framed under the Ordinance could not go beyond and over-reach the Ordinance itself. In Ummatullah’s case (supra), it was held that Strong presumption as to constitutionality, legislative competence, legality, reasonableness and intra vires attached to a statute is also attached with full force to subordinate legislative instruments as well, such presumption though refutable, onerous burden is cast on person challenging validity or vires of legislative instrument, on any count. In order to strike down a subordinate legislative instrument, challenger has to show that any of the disqualification exist namely (a) it impinges upon fundamental rights guaranteed under the Constitution (b) it is in conflict with any Constitutional provision (c) it is beyond the legislative competence of the delegatee making it, and or (d) it is violative or beyond the scope of the parent or enabling statute. (see KBCA v Hashwani Sales and Services Ltd. PLD 1993 SC 210 @ 228 C, Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh SMC 13-2009 17 Kurmarsheth AIR 1984 SC 1543). It was further held that when the parent law i.e. Sindh Buildings Control Ordinance 1979 does not provide for matter relating to change in land use classification, or conversion of one category of land into another it cannot through delegated legislative instrument confer, bestow or delegate any power and duties on “Concerned Authorities”, which powers and performance of duty are not within its own domain or scope of authority. It is settled principle of law that what cannot be done directly cannot be done or allowed to be done indirectly. It is also trite principle of law; what is not possessed can neither be conferred nor delegated. In Kerala Samsthana Chethu’s case (supra), it was held that the power of the Government was to make rules only for the purpose of carrying out the purposes of the Act and not dehors the same. In other words, rules cannot be framed in matters that are not contemplated under the Act. Reference in the above case was made to Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group [2006 (3) SCALE 1], wherein it was held that a policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart SMC 13-2009 18 from being intra vires the Constitution should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. In the case of Vikramaditya Pandey v. Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the Indian Supreme Court has held that the provisions of the regulations in question to the extent of their inconsistency with any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen Compensation Act, 1923 and any other Labour Laws for the time being in force, if applicable to any cooperative society or class of cooperative societies shall be deemed to be inoperative. By plain reading of the said Regulation it is clear that in case of inconsistency between the Regulations and the provisions of the Industrial Disputes Act, 1947, the State Act, the Workmen Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any cooperative society or class of cooperative societies to that extent Regulations shall be deemed to be inoperative. In other words, the inconsistent provisions contained in the Regulations shall be inoperative, not the provisions of the other statutes mentioned in the Regulation. 18. From an examination of the above case law it is clear that a rulemaking body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the SMC 13-2009 19 scope of the Act. Thus, we are inclined to hold that no rule can be made which is inconsistent with the parent statute, whereas, no regulation can be made inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of their inconsistency with the parent statute or the rules shall be inoperative. 19. The thrust of the arguments on the issue whether the CDA was authorized to enter into JVA with a private entity for preparation of a scheme in terms of section 12 of the Ordinance was that it was allowed to do so in terms of the provision of regulation 4(1)A(iv) of the Regulation, which provides that the development of land in the zones shall be subject to the following conditions: - A. Un-acquired Sectoral Areas: In these areas of Zone-1, (i) land shall be acquired under a phased programme and developed by the Authority in accordance with the land use pattern spelled out in the Master plan; (ii) no sale/ purchase of land which entails change in land use shall be allowed; (iii) no construction of houses or buildings shall be allowed. However, repair of old houses and expansion of existing houses may be allowed by the Authority to the native residents subject to the conditions that the site is located within the main body of the village. The covered area of such construction shall not exceed 1000 Square feet including expansion and such permission shall not in any way impede the right of the SMC 13-2009 20 Authority to acquire the property whenever needed; and (iv) no private scheme of any kind whatsoever shall be allowed, except in sector E-11. Schemes in E- 11 will be regulated according to the provisions applicable to schemes in Zone 2. Above clause (iv) is couched in negative terms, inasmuch as it provides that no private scheme of any kind whatsoever shall be allowed in Zone-1. However, as an exception, a private scheme is allowed to be launched in Sector E-11, but the same will be regulated by the provisions applicable to schemes in Zone-2. It may be noted that the said provision is not in consonance with the mandate and scope of section 12 of the Ordinance, which lays down that all schemes pursuant to the master plan and the master programme are to be prepared by a local body or agency. The CDA could not have extended the scope of section 12 by framing regulation and allowed preparation of schemes by the private organizations even with prior approval of the Federal Government. This is something not envisaged by the Ordinance and something, not permitted by the statute could not be allowed to be done by the subordinate legislation. 20. In the case in hand, as noted earlier, the exception to clause (iv) of Regulation 4(1)A providing for development of a private scheme in Sector E-11 falling in Zone 1, which is to be developed by the CDA either itself or through an agency of the Federal or a Provincial Government or a local body in terms of section 12 read with section 2(a) & (j) of the Ordinance is SMC 13-2009 21 inconsistent with the Ordinance, and hence inoperative. Such an arrangement is against the primary aim and object of the Ordinance as reflected in its preamble, viz., the Capital Development Authority is established for making all arrangements for the planning and development of Islamabad within the framework of a regional development plan, which is further reinforced by section 13 of the Ordinance, which provides that the Authority may, pursuant to the master-programme, itself prepare schemes relating to matters enumerated in subsection (2) of section 12 of the Ordinance. In this view of the matter, the JVA with a private organization is not sustainable. 21. The learned counsel appearing for the CDA as well as the learned counsel for the MPCHS made repeated reference to clause (3) of the JVA, which obligates the second party (MPCHS) to clear off from the occupants (affectees/illegal encroachers) all the area under the northern strip (54 acres) and planned right of way for the construction of north and east service roads of Sector E-11. The stance of the learned Amicus Curiae, on the other hand, was that the CDA was legally and physically equipped with the necessary powers and infrastructure in the shape of Enforcement Directorate, duly authorized to deal with the situation of the kind in a summary manner and get the land owned by the CDA vacated from the illegal occupants. Though an attempt was made to depict the inability of the CDA to get cleared its lands from the illegal occupants in various Sectors, e.g. G-12, F-12, etc., but no reference was made to the SMC 13-2009 22 countless instances where the CDA had, in exercise of its powers and by use of police force, got vacated its lands in various sectors/other areas, such as Bani Gala, etc. Clearly, it was abdication of the exercise of lawful powers and jurisdiction in favour of the land grabbers, which can hardly be allowed to be pressed into service to the great detriment of the general public. Illegal occupants cannot be allowed to take advantage of their illegal acts and wrongful gains. Instead of allowing the law to take its course, the approach and the conduct of the CDA appear to be aimed at encouraging illegal encroachments upon the State lands. In the circumstances, the act of payment to illegal occupants was not warranted by law. The much trumpeted card is not available to the CDA functionaries and no support at all could be drawn from it. 22. It was argued by Mr. Zulfiqar Khalid Maluka, ASC that MPCHS, as provided in its Byelaws of 2005, was a cooperative housing society formed with the objectives of promoting economic interests of its members on the principles of cooperation, self-help, on no profit – no loss basis, such as to arrange, buy or otherwise acquire land, buildings, prepare layout plans, establish, construct and maintain residential colonies, apartments, commercial areas, farm houses, etc. It may be pertinent to mention here that a ‘housing society’, as defined in section 3(h)(4) of the Cooperative Societies Act, 1925, means a society formed with the object of providing its members with dwelling houses on conditions to be determined by its bylaws. SMC 13-2009 23 Therefore, the objectives of the society can hardly be pressed into service to meet the initial obligation of the CDA either to develop land itself or get it done through an agency of the Government or a local body. Even otherwise, the learned counsel also failed to show that development of sectoral land was the expertise of MPCHS and it was hardly equipped to undertake construction work. 23. As far as a limb of argument that MPCHS had made huge investment of over one billion rupees, firstly in getting cleared the land from the illegal occupants, and secondly in developing the land in question, therefore, any finding/decision at this stage nullifying the JVA would result in great loss to a private investor, who had come forward to make investment in the government sector at a time when the economy of the country was passing through a difficult period. Such a decision would discourage investment, which is the lifeblood of any economy, and more particularly of a developing economy. However, the learned counsel failed to place on record any valid documentary evidence in support of their claim. The issue in the case in hand revolves around transparency in a transaction entered into by or on behalf of a public body, which cannot be allowed to be compromised in any event. 24. It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or SMC 13-2009 24 favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. Reference may be made to (1) Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; (2) Tata Cellular v. Union of India (1994) 6 SCC 651 = AIR 1996 SC 11; (3) Raunaq International Ltd. v. I.V.R. Construction Ltd. (1999) 1 SCC 492; (4) Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617; (5) Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. (2007) 8 SCC 1] and (6) judgment dated 24.08.2009 of the Andhra High Court in Nokia Siemens Networks Pvt. Ltd. v. Union of India. In Air India Ltd. v. Cochin Int., Airport Ltd. (AIR 2000 SC 801), it was held as under: - “7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R. D. Shetty v. International Airport Authority ; Fertilizer Corporation Kamgar Union v. Union of India ; Asstt. Collector, Central Excise v. Dunlop India Ltd. ; Tata Cellular v. Union of India ; Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. . The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In SMC 13-2009 25 arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.” In Tata Cellular v. Union Of India (AIR 1996 SC 11) = [(1994) 6 SCC 651], it was held as under: - “85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is SMC 13-2009 26 exercised for any collateral purpose the exercise of that power will be struck down. 86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 89. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.” In Sterling Computers Ltd. v. M/s. M. & N. Publications Ltd, (AIR 1996 SC 51), it was held as under: - 19. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the “decision making process”. In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans, [1982] 3 All ER 141, where it was said that “The purpose of judicial review.” “... is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.” By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the state. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans (supra), the Courts SMC 13-2009 27 can certainly examine whether ‘decision making process’ was reasonable, rational not arbitrary and violative of Article 14 of the Constitution. 20. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision. … … … … 26. The cases aforesaid on which reliance was placed on behalf of the appellants, have also reiterated that once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14; the executive does not have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount consideration. It has also been pointed out that for securing the public interest one of the methods recognised is to invite tenders affording opportunity to submit offers for consideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to compelling reasons which must stand the test of Article 14 of the Constitution, departure of the aforesaid rule can be made. This Court while upholding the contracts by negotiation in the cases referred to above has impressed as to how in the facts and circumstances of those cases the decisions taken by the State and the authorities concerned were reasonable, rational and in the public interest. The decisions taken in those cases by the authorities concerned, on judicial scrutiny were held to be free from bias, discrimination and under the exigencies of the situation then existing to be just and proper. On the basis of those judgments it cannot be urged that this court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest.” SMC 13-2009 28 25. A part of the argument vehemently canvassed at the bar was that the main purpose of awarding contract to this party was to get the CDA land cleared off from the illegal occupants, which the CDA was unable to do. In this behalf, reference was made to agreements containing recitals of payment of different sums of money made to certain persons in lieu of their vacating such land. According to the aforesaid agreements, huge sums of money running into millions of rupees were allegedly paid. But, surprisingly, no details of payment, such as bank drafts, pay orders, cheques, etc. were given in the said agreements. It is not believable that such large sums of money were paid in cash. Besides, the agreements in question were documents not registered in accordance with law. There was, so to say, no valid proof of payment furnished to our satisfaction. Further, no details of the land allegedly in the illegal possession of the land grabbers along with the names/number of encroachers were provided. Thus, looked at from any angle, the transaction appears to be a sham deal. The whole exercise appears to be an eyewash. This also negates the claim of huge investment made by the MPCHS in this project. 26. Having held that the CDA was not competent to allow private societies to operate in Zone-1, even otherwise the transaction could, in no manner, be termed as transparent. There was complete absence of fair and open competition in the bidding process where only three parties had submitted the expression of interest, two of whom did not meet the requirement of SMC 13-2009 29 submission of technical and financial proposals along with the bid/letter of intent, thus practically leaving only one party in the field. Such a situation did call for making a fresh advertisement, which was not done. On the other hand, the CDA Board, in its meeting held on 18.07.2009, approved planning and development of an area measuring 53.86 acres owned by the CDA in the northern strip of Sector E-11 on joint venture basis with MPCHS with the following land use: - Built up area Residential apartments 14 acres 25.99 % Commercial 3.73 acres 6.92 % Social Services 3.41 acres 6.33 % Residential plots 5.94 acres 11.03 % ? Roads 15.89 acres ? Green area 2.8 acres ? Proposed land use analysis of the scheme is given below: - Schedule of plots S. No. Use Area in kanals %age 1. Residential plots 47.58 11.05 2. High rise and medium rise plots 112.05 25.99 3. Commercial 29.86 6.92 4. Institutional 70.51 16.35 5. Education & health 27.28 6.33 6. Roads 127.12 29.05 7. Parks & open spaces 16.64 3.86 Total: 430.39 100 The non-saleable CDA area was shown as under: - (i) Road area, parking & footpath 102.15 kanal (ii) Parks, green area & Nullahs 32.27 kanal (iii) Mosque 03.68 kanal (iv) Facilitation centre 03.04 kanal (v) Fire station 01.89 kanal Total: 143.08 kanal SMC 13-2009 30 The break-up of the non-divisible/saleable area is as under: - (i) Five star hotel plot No. 88 22.28 kanal (ii) Super Mart plot No. 69 14.95 kanal (iii) Filling station plot No. 68 3.61 kanal (iv) Hospital plot No. 64 6.00 kanal (v) Education enclave plot No. 63 21.88 kanal (vi) Entertainment enclave plot No. 65 21.87 kanal Total: 90.59 kanal The break-up of the divisible/saleable area is as under: - A RESIDENTIAL AND APARTMENTS PLOTS CDA 57 % (i) Plot No. 87 G+ 15 27.54 kanal (ii) Plot No. 86 G+ 15 28.46 kanal (iii) Plot No. 82 G+ 6 07.93 kanal Total: 63.93 kanal MPCHS 43 % (i) Plot No. 85 G+ 15 21.96 kanal (ii) Plot No. 84 G+ 15 20.22 kanal (iii) Plot No. 83 G+ 6 05.90 kanal Total: 48.08 kanal B COMMERCIAL PLOTS CDA 57 % (i) Plot No. 80 G+ 4 size 61’x80’ 542.22 sq. yds. (ii) Plot No. 81 G+ 4 size 61’x80’ 542.22 sq. yds. (iii) Plot No. 77 G+ 4 size 70’x90’ 700.00 sq. yds. (iv) Plot No. 72 G+ 4 size 66’x70’ 513.33 sq. yds. (v) Plot No. 73 G+ 4 size 66’x70’ 513.33 sq. yds. (vi) Plot No. 70 G+ 4 size 70’x70’ 544.44 sq. yds. (vii) Plot No. 71 G+ 4 size 70’x70’ 544.44 sq. yds. Total: 3899.98 sq. yds. = 06.45 kanal MPCHS 43 % (i) Plot No. 74 G+ 4 size 66’x70’ 513.33 sq. yds. (ii) Plot No. 75 G+ 4 size 66’x70’ 513.33 sq. yds. (iii) Plot No. 76 G+ 4 size 70’x95’ 738.88 sq. yds. (iv) Plot No. 78 G+ 4 size 66’x80’ 586.66 sq. yds. (v) Plot No. 79 G+ 4 size 66’x80’ 586.66 sq. yds. Total: 2938.87 sq. yds. = 04.86 kanal SMC 13-2009 31 C RESIDENTIAL PLOTS CDA 57 % (i) Plot No. 61, 62 (2 each measuring 35’x80’ = 311.11 sq. yds) 622.22 sq. yds (ii) Plot No. 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 35, 38, 39, 40, 41, 42, 43 and 44 (22 each measuring 50’x90’ = 500 sq yds.) 11000.00 sq yds. (iii) Plot No. 1, 9, 10, 18, 27, 28, 37 and 45 (8 each measuring 60’x90’ = 600 sq yds.) 4800.00 sq yds. Total: 16422.22 sq yds. = 27.14 kanal MPCHS 43 % (i) Plot No. 46 to 60 (15 each measuring 35’x80’ = 311.11 sq yds.) 4666.65 sq yds. (ii) Plot No. 2 to 8, 29 to 34 (13 each measuring 50’x90’ = 500 sq yds.) 6500.00 sq yds. (iii) Plot No. 19 & 36 (2 each measuring 60’x90’ = 600 sq yds). 1200.00 sq yds. Total: 12366.65 sq yds. = 20.44 kanal D SPECIALIZED BUSINESS/OFFICE BUILDING CDA 57 % Plot No. 66 G+18 15.05 kanal MPCHS 43 % Plot No. 67 G+18 11.31 kanal Grand total: 53.87 acres (430.93 kanal) Terms and conditions, such as the ratio of plots to be offered to the intending bidders, etc., were not published in the advertisement and a full picture was not given to them. If the advertisement had mentioned the details of the benefits to be offered to the bidders, e.g., share in the plots for residential, commercial, 5-star hotels and multi-storeyed buildings, certainly more parties would have been attracted and so better offers would have come. SMC 13-2009 32 27. By the earlier advertisement published in 2005, expression of interest was invited from well reputed national and international development firms having vast experience. They were required to provide the detail of company/consortium, experience and list of housing projects/construction projects undertaken by them. However, in the advertisement of 2008, the terms and conditions were changed drastically to the effect that the expression of interest was invited from private parties/real estate developers/societies of good repute. They were required to submit precise mode of partnership, specifying method and quantum of benefits to be shared with CDA. It was stated that most reliable, credible and beneficial formula would be preferred. The purpose was the development of northern strip of Sector E-11. In the said advertisement, it was also stated that preference would be accorded to Societies already operating in Sector E-11. Only those societies of E-11 which had clear, undisputed possession would be considered. Those who had land in excess of their ownership would not be entitled and the parties would be responsible for clearing off the strip at their own risk and cost. It seems that this device was adopted to keep the interested parties out of competition, except MPCHS who fulfilled the said conditions. 28. It was argued by the learned counsel for the CDA that changes were brought about in the terms and conditions offered in the advertisement in terms of the decision of the CDA Board dated 28.02.2008. In the first advertisement, bids were invited SMC 13-2009 33 from national and international development firms, private parties/real estate developers/societies and preference was be accorded to Societies already operating in Sector E-11. It is to be seen whether the CDA Board could have, in all fairness, agreed to terms and conditions, which were totally different from those mentioned in the advertisement and render the transaction bereft of the essential attributes of transparency and fairplay. The Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory. 29. In the case in hand, in response to the advertisement dated 14.03.2008, three parties, namely, M/S Services Coop Housing Society Islamabad, M/S Golra Associates (Pvt.) Ltd., Islamabad and MPCHS submitted their bids. The first two parties only submitted application/letter along with the requisite pay order. M/S Golra Associates also filed one map along with the application. MPCHS alone submitted financial and technical proposals. To evaluate the bids, the Chairman CDA constituted SMC 13-2009 34 an evaluation committee consisting of the following officers of the CDA: - (i) Financial Advisor/Member (ii) Member Estate (iii) Member (Planning & Design) (iv) Head of Treasury (v) Director PMO (vi) Director (Land & Rehabilitation) The Evaluation Committee, in its meeting held on 09.07.2008, examined the bids and found that the first two firms had only submitted their expression of interest without technical and financial bids, therefore, the same did not fulfil the conditions prescribed in clause 4 of the advertisement, hence their expression of interest was not accepted. The Committee recommended that MPCHS, at that initial stage, was qualified for further processing of the case. Thereafter, the CDA Board, in its meeting dated 21.07.2008 approved that Director Lands & Rehabilitation to issue letter of intent to MPCHS. 30. Though it was an open bid invited through advertisement in the press, but only three parties came forward out of which two did not submit the financial and technical proposals along with their applications, which depicted their non- seriousness in the matter. Only one firm, MPCHS submitted the application accompanied by the financial and technical proposals, which was accepted by the CDA authorities. Thus, with only one party left in the field, practically there was no competition. The non-submission of financial and technical proposals, in the circumstances, appeared to be collusive and mala fide. In such a situation, the CDA, instead of going for further advertisement of SMC 13-2009 35 the tender, chose to be content with the one and the only party in the field and thus deprived of the advantage of competitive bidding. This action of the CDA functionaries contravened the provisions of Article 18 of the Constitution and caused a great detriment to the public exchequer as well. 31. In the case of Fast Food outlet in F-9 Park Islamabad titled as Human Rights Cases No. 4668/06, etc., (PLD 2010 SC 759), having noted that the spaces reserved for cuisine area, bowling alley, etc., in the un-approved Master Plan did not have the proper legal sanction at their backing and the CDA authorities thus rendered bereft of the power to go ahead with the preparation of schemes in relation thereto, as envisaged by section 13 of the CDA Ordinance, 1960, it was held that the issuance of licence to M/S S&S Enterprizes was illegal and unsustainable and liable to be withdrawn/cancelled. It was further held that regulation 12(3) of the Islamabad Land Disposal Regulation, 1993 obligated the CDA to itself develop and maintain public parks, playing fields and graveyards, which the CDA violated by awarding lease/licence in favour of M/S S&S Enterprizes and M/S Siza Foods. Earlier, this Court in the case of Iqbal Haider (supra) noticed that in the Capital territory, a master plan was prepared at the time of its inception and subsequently under different schemes, different sectors were set up. In this behalf, reference to the preamble and sections 11 and 12 of the Ordinance, 1960 was made. It was noted that in the scheme of a sector, some of the areas were earmarked as public SMC 13-2009 36 parks for the general public, playing fields and graveyards and according to Article 12(3) of the Regulation, the same were to be developed and maintained by the CDA. Thus, it was concluded that during the classification of the plots, under Article 3 of the Regulation, if a piece of land was earmarked as a public park, it could not be leased out and CDA itself was bound to develop the same. 32. It is important to note that Islamabad being the Capital of the country, each inch of its land belongs to the entire public of Pakistan. Admittedly, it is a prime land situated in Sector E-11, which is a most expensive location of the capital city. The CDA, which is a statutory body, established by law, is mandated not only to make arrangements for the planning and development of the Capital City, but is to be authorized/compelled to perform functions of a Municipal Committee, inter alia, to promote interests of different sections of the society including taxpayers. Any transaction, which is not transparent, and goes against the interests of the general public constitutes violation of Article 9 of the Constitution, which guarantees right to life to all persons. Right to life has been explained and interpreted by the Superior Courts in a large number of cases. It includes right to livelihood, right to acquire, hold and dispose of property, and right to acquire suitable accommodation, which could not hang on to fancies of individuals in authority, and includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. It SMC 13-2009 37 implies the right to food, water, decent environment, education, medical care and shelter. A fundamental right cannot be snatched away or waived off pursuant to any agreement. This Court, in the case of Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2006 SC 394) dealt with a somewhat similar transaction as under: - “17. It has been noted that deal between respondents Nos.1 and 2 has not been made in a transparent manner…… Essentially, when a party makes investment, may be meager one, it would make money by granting licences, franchise, etc. for which it will enter into agreements with local and international parties and the burden of the same ultimately is to be borne by the general public, in terms of tickets, amusement fee etc. … … 20. At this juncture, to unfold the mala fides on the part of respondent No.1 i.e. C.D.A., it is to be noted that in the publication, neither specification of the areas of Jubilee Park Markaz F-7 was mentioned, on which Mini Golf Course was to be developed nor the period for which the lease was intended to be given. Inasmuch as, it was not disclosed in the publication that what is the reserved lease money fixed by the C.D.A. because in absence of such information, the genuine bidder could not offer bid accurately except those bidders who have the blessings of the authority competent to accommodate any one of them out of way. It is also important to be kept in mind that volume of the lease money depends upon the area of the land, as we are of the opinion that if C.D.A. had disclosed in publication that an area of 5.05 acres is available for the purpose of development of Mini Golf Course, there was every possibility of fetching much higher lease money, than one, on which it has been given to respondent No.2. We are told that the plot is situated in the commercial area of Markaz F-7, where the prices of the property are extremely on a high side but with ulterior intentions, this important information was concealed. 21. Be that as it may, out of both the pre-qualified interested parties, D M/s. Family Entertainment Centre offered 2.5 million (Rs.25 lacs) per annum for the subject matter, whereas respondent No.2 offered Rs.6 lacs per annum rent for the subject matter for a period of at least 15 years, with 25% increase on every three years. It is stated that the C.D.A. evaluated both the offers and rejected the one quoted by M/s. Family Entertainment Centre, as it has failed to secure requisite points obtained by respondent No.2, as such respondent No.2 was called upon to increase/match the bid up to Rs.2.5 million. However, the report of evaluation committed is not SMC 13-2009 38 available to ascertain as to whether it was carried out independently or otherwise. Thus it is held that in such like situation, C.D.A. if at all was interested to lease out the Public Park, instead of developing the same, may have invited fresh proposals instead of calling upon respondent No.2 to enhance the lease money because in granting contracts for the purpose of fetching money to support the public exchequer, the competent authority had an obligation to adopt such devices on the basis of which more money could be procured as it has been held in Captain-PQ Chemical Industries (Pvt.) Ltd. v. A.W. Brothers (2004 SCMR 1956). C.D.A. seems to be interested to grant lease of Jubilee Park to respondent No.2, as it is evident from preceding narration of facts. The negotiation with respondent No.2 culminated in its success because of its agreeing to match the bid to the extent of Rs.2.5 million, which was however, subject to extending him extraordinary benefit in formulating the conditions of agreement, two of them are most important, which may be referred to from the conditions reproduced herein above i.e. being Nos.4 & 5, which, later on, became part of the lease agreement dated 4th June, 2005 as Conditions No.14 and 15. These concessions were allowed to respondent No.2 contrary to the restriction imposed in the advertisement published on 14th August, 2004 namely, no heavy civil structure will be allowed, open and soft landscaping will be done, whereas contrary to it, respondent No.2 has been allowed to construct arcs of 1000 sq. yards besides 1500 sq. yards for family and children activities and eating court, which is impossible unless a concrete flooring is made. It is also to be seen that nothing was mentioned in the publication in respect of concession expected to be available to successful bidders in terms of period of lease, the area, as it has been pointed out herein above, the period of completion of project and commencing date for the purpose of making payment of lease money i.e. after a period of about 20 months, etc. 22. It is an unfortunate aspect of the case that prime land situated in one of the most posh area of the capital city has been leased out in a most opaque manner, causing colossal loss to the public exchequer for which C.D.A. had no authority, as discussed above. … … … ……….. 23. Thus, in view of above discussion, it is held that the mala fides of respondent No.1 in concluding the transaction with respondent No.2 are abundantly apparent on record. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Kharim Shorash Kashmiri (PLD 1969 SC 14) has held that mala fide is to be proved on record. This view has been reiterated by this Court in the case of Ahmad Hassan v. Government of Punjab (2005 SCMR 186). Therefore, applying the test laid down in these judgments on the facts of the present case, we are inclined SMC 13-2009 39 to hold that in view of the admitted facts on record, mala fides on the part of respondent No.1 in granting lease to respondent No.2 are apparent, thus, the lease agreement dated 4th June, 2005 is not transparent.” 21.3233. For the foregoing reasons, it is held and directed as under: - (a) Clause (iv) of regulation 4(1)A of the Regulation is declared to be inconsistent with sections 12 and 13 read with section 2(a) & (j) and consequently the JVA entered with MPCHS is rendered inoperative and ineffective qua CDA. (b) The CDA Board is directed to takeover the project and complete the same in accordance with the provisions of the Ordinance. (c) The Chairman CDA shall ensure implementation of the above direction and submit compliance report within a period of one month from the date of this judgment. (d) MPCHS will, however, be at liberty to pursue the remedy for recovery of any amount spent on the project in accordance with law. CHIEF JUSTICE JUDGE Islamabad Announced in Court on 15.04.2011. C.J. APPROVED FOR REPORTING

In the supreme court of Pakistan (Original Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Qazi Faez Isa Mr. Justice Sardar Tariq Masood Suo Moto Case No. 13 of 2016 (Action against illegalities, contraventions and violations in appointments within NAB) AND Civil Misc. Application No. 5811 of 2016 (Application for impleadment of Mirza Sultan M. Saleem and others) AND Civil Misc. Application No. 5887 of 2016 (Application BY Syed Adil Gillani) AND Civil Misc. Application No. 6001 of 2016 (Application of Sr. Shafiq-ur-Rehman S/o Sajawal Khan) AND Civil Misc. Application No. 6028 of 2016 (Anonymous application regarding illegal appointments in NAB) AND Civil Misc. Application No. 6285 of 2016 (Impleadment application by Asad Kharal) AND Civil Misc. Application No. 6907 of 2016 (Application by Mirza Sultan M. Saleem) AND Civil Misc. Application No. 6980 of 2016 (Impleadment Application by Dr. Shaista Nuzat) AND Civil Misc. Application No. 6984 of 2016 (Impleadment Application by Yasir Ali) AND SMC.13/2016 2 Civil Misc. Application No. 7093 of 2016 (Application by Muhammad Arshad Saeed) AND Civil Misc. Application No. 7363 of 2016 (Application of Haji Muhammad Tariq Aziz Khokhar) AND Civil Petition No. 630-K of 2015 (Abdul Hadi Vs. NAB and others) AND Civil Petition No. 65-Q of 2015 (Mirza Luqman Masud and others Vs. Chairman NAB and others) AND Civil Misc. Application No. 1249 of 2017 (Report by Joint Secretary (D & L), on behalf of Establishment Division) In Attendance: On Court Notice : Syed Tahir Shahbaz, Secretary, Establishment Division. For the Federation : Ch. Amir Rehman, Addl. Attorney General. For the NAB : Khawaja Haris Ahmed, Sr. ASC Mr. Waqas Qadeer Dar, PG, NAB. Mr. Qamar Zaman, Chairman NAB For Ms. Aliya Rasheed : Hafiz S. A. Rehman, Sr. ASC. (in CMA. 7192/16) For Maj. (R) Shehzad Saleem : Malik Muhammad Qayyum, Sr. ASC and Maj. (R) Shiraz Naeem For Brig.(R) Farooq Nasir : Mr. Ahmed Awais, ASC For Maj (R) Shabir Ahmed : Mr. Muhammad Shoaib Shaheen, ASC and for Syed M. Husnain Mr. Rashid Javid Lodhi, ASC. For Ziaullah Toru : Khawaja Azhar Rashid, ASC. For Zahir Shah : Dr. Muhammad Ali Saif, ASC. For Adnan Shehzad Asghar, : Raja Imran Aziz, ASC. Yasir Mehmood, Muhammad Mr. Arshad Ali Ch., AOR. Fahad Khan, Karim Bux and Harmoon Bhatti SMC.13/2016 3 In CMAs.5811 & 6907/16 : Mr. Abdur Rehman Siddiqui, ASC. Mr. Ahmed Nawaz Ch., AOR. In CMA.5887/16 : Mr. Hashmat Ali Habib, ASC In CMA.6001/16 : Shafiq-ur-Rehman, In-person. In CMA 6285/16 : Asad Kharal, In-person. In CMA.6980/16 : Sardar Muhammad Aslam, ASC. Dr. Shaista Nuzat, In-person In CMA.6984/16 : Nemo. In CMA.7093/16 : Nemo. In CMA.7363/16 : Mr. Aftab Alam Yasir, ASC. Syed Rifaqat Hussain Shah, AOR. In CP No.65-Q/2015 : Mr. Muhammad Aslam Chishti, Sr. ASC. Mr. Zahoor-ul-Haq Chishti, ASC. In CP No.630-K/2015 : Mr. Shahid Anwar Bajwa, ASC. In Attendance Raja Saif-ur-Rehman, ASC. Mr. Muhammad Umer Riaz, ASC. Mr. Riaz H. Rahi, ASC. Mr. Kamran Murtaza, ASC. Mr. Mehr Khan Malik, AOR. Mir Aurangzaib, AOR/ASC. Dates of Hearing : 27th, 28th and 29th March, 2017. JUDGMENT Amir Hani Muslim, J. These Suo Moto proceedings were initiated under Article 184 (3) of the Constitution of Pakistan on an anonymous application/letter wherein it was alleged that illegalities, contraventions and violations were committed/made in the appointments made in the National Accountability Bureau (“NAB”). It was, inter alia averred that NAB, which was the apex anti-corruption body of the country, had never come under legal scrutiny and the judgments of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. The Province of Sindh (2015 SCMR 456) were not followed to stream-line the service structure within NAB. It was further stated that there were a number of officers who lacked the eligibility criteria prescribed in the rules made pursuant to the National Accountability SMC.13/2016 4 Ordinance, 1999 (“the NAB Ordinance”) were still working in NAB in different capacities. The said rules, which have been made pursuant to the NAB Ordinance, are the “National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS), 2002” (“the TCS”). Pursuant to the TCS Rules the methods of appointment and qualifications were prescribed in the “National Accountability Bureau (NAB) Methods of Appointment and Qualification (MAQ)” (“the MAQ”). After registering the said application / letter as a Suo Moto Case under Article 184(3) of the Constitution, notices were issued to the learned Attorney General for Pakistan and the Chairman NAB. When this case was fixed on 23.09.2016, it was observed by this Court as under: “2. We have gone through the concise statement filed by the NAB and have noticed that appointments made in the NAB are, prima facie, violative of the principles enunciated by this Cout in the cases reported as Contempt Proceedings Against Chief Secretary, Sindh and others (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh and others (2015 SCMR 456). The NAB has taken the stance that these judgments do not apply to their employees on the ground that they are not civil servants. This stance is completely in conflict with the observations made by this Court in para 121 of the judgment Ali Azhar Khan Baloch (supra) where this Court has held that the principles laid down in aforesaid judgments would be applicable to the civil servants, Government servants and all other employees serving in different statutory organizations which are working under the administrative control of the Government.” 2. Notice of the proceedings as contemplated under Order XXVII-A CPC was also given to the learned Attorney General for Pakistan vide order dated 24.10.2016. Furthermore, NAB was required to file service profile of the officers whose appointments were challenged through different CMAs, inter alia, on the ground of legal infirmities in their appointments. In compliance with this direction, NAB filed a report (CMA No.8114/2016) setting out the infirmities in the appointments made in NAB, but as this Court was not satisfied with the report it was decided to take up the case of all the officers / officials named in the said report and decide their fate on merits in accordance with law. Notices were issued SMC.13/2016 5 to all the concerned officers / officials vide order dated 7.12.2016. Thereafter, on 12.01.2017, this Court observed as under: “We have heard the learned Counsel for the NAB and have perused the report submitted by the committee on the issue of appointments made in the NAB. We are not satisfied with the report. The stance of the NAB that a committee comprising senior officers of the NAB and the Establishment Division was constituted to scan the appointments made in the NAB, is also incorrect, as the report submitted by the NAB reflects that the representative of the Establishment Division has not signed it. 2. With the consent of the learned Counsel for the NAB and the Counsel representing the parties present in Court, we direct the Secretary, Establishment Division, Government of Pakistan, to scrutinize as to whether all the appointments / promotions / absorptions / deputations and appointments on contract basis made in the NAB since 2002 till date are in conformity with the National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) 2002, and National Accountability Bureau Methods of Appointment and Qualification (MAQ) 2002 (amended from time to time) and whether the officers who were appointed/promoted/absorbed/ appointed on deputation or on contract basis hold the qualification/relevant experience in the required field and these appointments were in conformity with the principles laid down by this Court in the cases of Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs Province of Sindh (2015 SCMR 456). A detailed report against each appointment / promotion / absorption / deputation made in BS-16 to BS-22 in the NAB shall be submitted by the Secretary. The Secretary, Establishment Division, may summon the original service profile of the officers of the NAB which shall be provided to him immediately without delay. The Chairman, NAB, and all his subordinates shall extend full co-operation to the Secretary, Establishment Division, in this exercise, which shall be completed within 04 weeks from the date of communication of this Order. 3. A copy of the report submitted by the NAB shall also be provided to the Secretary, Establishment Division, for his perusal which may be of some assistance to him in completion of the task. Copy of this order shall be faxed immediately to the Chairman, NAB, the Secretary, Establishment Division and Attorney General for Pakistan for their information and compliance.” 3. Thereafter, when this case was fixed on 22.03.2017, it was observed by this Court as under: SMC.13/2016 6 “….According to the Secretary, Establishment nine officers lacked inherent qualification for appointment to the post. In addition with regard to the issue of promotion where, according the Secretary, Establishment, there are many inconsistencies. The Secretary, Establishment has not given his own opinion as to whether these officers qualified to be retained in the office or not. Kh. Haris Ahmed, learned Sr. ASC is put on notice to go through the report and make statement as to whether the discrepancies in the appointments / promotions are correct and whether in particular the nine officers pointed out by the Secretary, Establishment had the requisite qualification on the date of their appointment and, if they did not whether such officers were entitled to subsequent promotions. He states that he will examine the report of the Secretary, Establishment with regard to the inherent disqualification of nine officers, the promotion that were given and whether the appointments by promotion or absorption were inconformity with the principles laid down by this Court in the judgments reported as: Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and Ch. Muhammad Akram Vs. Registrar, Islamabad High Court (PLD 2016 SC 961). Kh. Muhammad Haris, learned Sr. ASC will file a report which will cover all material aspects as pointed out by Secretary Establishment…” Following the above mentioned directions, NAB submitted its response, through CMA 1748 of 2017, which states that to the extent of some of the officers they agree with the report of the Secretary Establishment. 4. Khawaja Harris Ahmed, Senior ASC appeared as Counsel for the NAB and made a statement on behalf of NAB and the Chairman NAB, stating that the list of nine officers who were found to have inherent disqualifications in their appointments according to the report of the Secretary Establishment can be divided into two sets of officers. The first set of officers comprises of three officers with regard to whom NAB has no dispute with the findings of the Secretary Establishment that they did not meet the stipulated qualification and were inherently disqualified. The second set comprises of six officers whose induction in NAB according to his understanding is protected by a ‘deeming clause’ which is sub-rule (2) of Rule 14.03 of TCS. This ‘deeming clause’, according to him, provides that officers who have been inducted in NAB under Rule 14.03 of the TCS will be deemed to be ‘transfer employees’ for all purposes SMC.13/2016 7 under the TCS and the requirements of TCS will not apply to them . He further contends that Rule 3.30 of TCS would not be attracted in the case of induction of these employees who were already serving in NAB. In an attempt to explain his interpretation of the deeming clause in sub-rule (2) of Rule 14.03 of TCS, he stated that the last line of the said sub-rule provides that those inducted in NAB through Rule 14.03 shall be deemed to be appointments by transfer “for all purpose of the TCS”. By virtue of this phrase, he states, that the relevant rules applicable to appointment by transfer in part IV of the TCS titled ‘Appointment by Transfer’ which prescribe that three elements need only to be fulfilled, which are that the appointment must be in the public interest (Rule 3.28 of TCS), only regular incumbents be considered (Rule 3.29 of TCS) and employees possess qualifications required for initial appointment to the relevant post (Rule 3.30 of TCS). These elements, he contends, are presumed to have been fulfilled by an inductee by operation of the deeming clause. In this regard he has referred to the case of Munir Hussain Bhatti vs. Federation of Pakistan (PLD 2011 SC 407). 5. The learned Senior ASC next contends that there are three main categories of appointments mentioned in the report of the Secretary Establishment Division wherein inconsistencies were found in the mode of appointment; i.e. (i) appointment by initial appointment (ii) appointment by induction and (iii) appointment by promotion. Regarding the first category, in which employees were inducted through initial appointment, he states that there were 629 appointments made in NAB, out of which in 101 appointments inconsistencies were found in the report of the Secretary Establishment and NAB agrees that there were inconsistencies in 48 appointments and states the concerned officers will be de-notified. He further stated that apart from these, there are twelve (12) officers who are no longer in the service of NAB and that NAB does not agree with inconsistencies found in the appointments of the remaining 39 officers. 6. With regard to the second category, where appointments were made by promotion, the learned counsel states that the said report reflects that 561 SMC.13/2016 8 appointments were made by promotion within NAB out of which inconsistencies were found in only 133 appointments and out of these 35 officers have retired. He submitted that NAB agrees with the findings of inconsistencies in 102 of these appointments except four officers who were pointed out in Annexure IV of the said report, namely: (1) Khalid Mehmood, (2) Ansar Yaqub, (3) Saleem Chandio and (4) Afshan Basharat. Regarding these four officers he states that their appointments were governed by Rule 14.02 of the TCS. He states that Khalid Mehmood was appointed on deputation basis in NAB from the Accounts and Works Department Punjab in the year 2007. He states that Khalid Mehmood and Ansar Yaqub were promoted on the decision of the Federal Service Tribunal and since there is no provision in the TCS that provides for the fate of appointments by promotion given by a Service Tribunal’s decision, Rule 14.08 of the TCS applies to their appointments which provides that “in matters not covered under the TCS the employees of NAB shall be governed by the rules applicable to the other civil servants and the instructions issued from time to time by the Federal Government on such subject”. He further contends that the third officer namely Saleem Chandio was given a conditional promotion on the recommendations of the DPC and his case too is, therefore, distinguished and attracts special treatment on this ground. As regards the fourth officer Afshan Basharat she was given conditional promotion on the ground that her senior was resigning and thereafter she was promoted when the resignation of her senior was finalized and contends that Rule 3.24 of TCS applies to her appointment by promotion. 7. Khawaja Haris Ahmed, learned ASC then contends that in the third category of appointment, which was by induction, there were 32 officers who were inducted in NAB pursuant to Rule 14.03 of the TCS. He submitted that proviso (i) of paragraph 2 of the MAQ specifically addressed the treatment of officers who had been working in NAB on transfer / deputation basis for the past one year prior to the promulgation of the MAQ. The proviso states that vacancies will be reserved for such employees against the posts equal to those already held SMC.13/2016 9 by them on regular basis in their parent departments in terms of Rules 14.02 and 14.03 of the TCS. He further submits that out of these 32 officers only 15 are still in service while the rest have retired. Out of these remaining 15 officers, six (6) officers have been cleared by the Secretary Establishment in his report. He contends that one of these nine (9) officers is Aliya Rasheed and NAB agrees with the findings of the report of the Secretary Establishment in her case. He, however, states that she has been retained in NAB on the basis of judgments of this Court in her favour. A judgment of this Court passed in CP No.1632/2011 decided on 2.12.2011 wherein this Court observed that her appointment, future promotion or career shall not be affected in any manner and the second judgment of this Court in HRC No.1305-G/2009 wherein it was observed by this Court that she should not be discriminated against with regard to her promotion. 8. The learned counsel further contends that another officer, S. M. Hasnain, did not complete the one year period of service in NAB as per proviso (i) of para 2 of MAQ before his induction. With regards to his induction Khawaja Haris Ahmed submits that a lenient view may be taken as he was short of the requisite experience by only a few months. Regarding the remaining seven 7 officers, he contends that NAB agrees that the required qualifications were not met by these officers, however, these officers do not need to comply with the said requirements as proviso (i) of para 2 of MAQ read with Rule 14.03 of TCS governs their induction. He submits that sub-rule (2) of Rule 14.03 contains a deeming clause whereby employees inducted from the Federal Government, other than those from the Armed Forces, could exercise a one time option for their absorption and would be deemed to have been appointed on transfer under the TCS, subject to the consent of the competent authority of their parent department and the approval of the appointing authority in NAB. 9. Khawaja Haris Ahmed, ASC learned counsel further argued that apart from these nine officers, there was one more officer, namely, Zia Ullah Khan Toru who is currently serving as Deputy Director (BS-20) in NAB. This SMC.13/2016 10 officer was continuing on the basis of a judgment in his favour from the Peshawar High Court. This judgment was appealed before this Court but the petition was dismissed therefore, Zia Ullah was appointed in NAB without an advertisement, and without meeting the requisite academic qualification criteria. 10. Mr. Waqas Qadeer Dar, the Prosecutor General (“PG”) NAB, stated that in the MAQ the qualifications required for appointment, in the Schedule under ‘Academic Qualification’ also includes “any qualification approved by the competent authority”. He contends that the said word “any” is of wide import and would include any qualification. In this regard he referred to the case of Inamur Rehman Vs. Federation of Pakistan (1992 SCMR 563) and regarding interpretation of word “qualification” he referred to the case of Noor- Ul-Ameen Vs. Muhammad Abdul Qayum Khan (1991 MLD 2658). 11. Malik Muhammad Qayyum, learned Sr.ASC, appeared on behalf of Major (R) Shiraz Naeem, who is currently serving in the NAB as Director on “Own Pay Scale” (OPS). The learned Senior ASC contends that Major (R) Shiraz Naeem was previously serving in the Pakistan Army and was sent on deputation to NAB. Thereafter, he served in NAB on deputation from 1999 till the year 2003 after which he retired from the Pakistan Army and was inducted in the NAB under the TCS. He pointed out that Major (R) Shiraz Naeem possessed the required academic qualifications since he had a Masters Degree in Computer Sciences and therefore, he did not have any inherent disqualification. He also submits that the report of the Secretary Establishment had no adverse findings against his appointment. Malik Muhammad Qayyum, learned Sr. ASC also appeared on behalf of Maj. (Retd) Shehzad Saleem and contended that at the time of his induction in NAB he fulfilled all the codal formalities, therefore, his induction was in accordance with the law / rules. 12. Mr. Ahmed Awais, learned ASC, appeared on behalf of Brig. (R) Farooq Naseer Awan and contends that the applicant was directly appointed as SMC.13/2016 11 Director General (BS-21) in NAB in the year 2013 and fulfilled the requisite academic qualifications prescribed in the MAQ since he had a B.Sc. degree as well as M.Sc. degree. With regard to his mode of appointment, he contended that 307 candidates had applied for the said post in February 2013 and he was duly selected. Despite there being no irregularity in his appointment he contends that his case falls in the list of 48 officers regarding whose appointment NAB agrees with Secretary Establishment’s report that inconsistencies existed. 13. Hafiz S.A. Rehman, learned ASC, appeared on behalf of Aliya Rasheed in CMA No. 7192 of 2016. He contends that Aliya Rasheed was appointed in NAB on 26.06.2003 pursuant to a directive by the then Prime Minister on account of her being an exceptional tennis star who represented the country in various international tennis tournaments. He contended that she had never been involved with or assigned any investigation related matter throughout her service in NAB and was only involved in raising awareness against corruption. He next contended that her appointment was not made under the TCS or MAQ but was made pursuant to the said policy of the Prime Minister. He concedes that no other sportsperson was appointed in NAB pursuant to this policy. He next contends that she has been retained in NAB on the ground of judgments of this Court in her favour, passed in CP No.1632/2011 decided on 2.12.2011 wherein this Court observed that her appointment, future promotion or career shall not be affected in any manner and the second judgment of this Court in HRC No.1305-G/2009 wherein it was observed that she should not be discriminated against with regard to her promotion. 14. Mr. Shoaib Shaheen, learned ASC, appeared on behalf of the applicants namely, Major (R) Shabbir Ahmed and S.M. Hasnain. He contends that both of the applicants were appointed in NAB pursuant to Rules 14.02 and 14.03 of the TCS. He also contends that although Major (R) Shabbir Ahmed did not initially have the required qualifications for the post of Deputy Director (BS-20) on 30.09.2003 when he was absorbed in NAB, he had later acquired a LLB SMC.13/2016 12 degree in the year 2005 and then a MBA degree in the year 2010. He submits that a recent judgment of this Court in the case of DCO/ Chairman District Recruitment Committee Khanewal Vs. Kishwar Sultana (Civil Appeal No. 843 to 863 of 2012 etc) supports the proposition that where a person lacks the qualifications required for initial appointment to a post, he may acquire the required qualification later to cure the defect. With respect to the case of the applicant S.M Hasnain, he contends that the said officer did not complete the one year period of service in NAB as per proviso (i) of para 2 of MAQ before his induction, however he had four years of experience in the Anti-Corruption Establishment. He also referred to Rule 14.01 of the TCS whereby the Chairman if he is satisfied may relax any provision or condition. 15. Dr. Shaista Nuzhat who was previously employed in NAB and is now serving in the Establishment Division in BS-19, appeared in CMA No.6980/2016 and submitted that she only wanted to place some facts on record regarding the appointment of Ms. Aliya Rasheed. She contended that Ms. Aliya Rasheed was initially a project employee in the Ministry of Education, remained on contract basis in the said Ministry and was never appointed on regular basis. Thereafter, she was appointed in NAB in BS-18 on contract basis and was inducted after two months in BS-19. She further contended that Prime Minister had twice turned down the summary for her appointment but she was appointed in NAB in violation of the law / rules. 16. Maj. (Retd) Syed Burhan Ali, appears in person and contends that he is presently posted as Director General NAB, Lahore (BS-20). While giving details of the process of his induction in NAB, he contends that he was a serving Major in Pakistan Army and was appointed on deputation to NAB as Deputy Director (B-18) in the year 2000, following which his induction took place on 30.9.2003. He next contends that he was holding a B.Sc. degree at the time of his induction and his case fell in the category of those officers who possessed “any qualification approved by the competent authority” as stipulated in the SMC.13/2016 13 qualification requirement for the post of Deputy Director (BS-18) under the “Academic Qualification” in the Schedule to MAQ, therefore, the qualifications which were relevant for other officers were not attracted in his case. He also refers to Rule 1.02 (b) of the TCS, submitting that his case falls within the ambit of those officers on deputation who were excluded from the application of the TCS even though after induction he was no longer a deputationist. 17. Maj. (Retd) Tariq Mehmood Malik, Director General NAB, Balochistan, appeared in person and contended that his case was similar to that of Maj. (Retd) Syed Burhan Ali. He contends that he was holding a B.Sc. degree at the time of his induction and his case fell in the category of those officers who possessed “any qualification approved by the competent authority”, therefore, the academic qualification which were relevant for other officers were not attracted in his case. He also referred to Rule 1.02 (b) of the TCS, submitting that his case falls within the ambit of those officers who were on deputation and had been excluded from the application of the TCS even though after induction he was no longer a deputationist. 18. Chairman NAB, appeared in Court and was confronted with his opinion about those officers who did not have the requisite academic qualifications for their appointment and are serving in NAB, and why these officers had not been de-notified as yet. In response to this he stated that he agreed that the qualification/criteria prescribed in the TCS and the MAQ cannot be compromised, therefore, the officers who lacked the required qualifications at the time of their appointments, should indeed be de-notified. 19. On 28.03.2017 the Chairman NAB submitted that with regard to the nine officers who were found to have inherent disqualification in their appointments in the Secretary Establishment’s report, two Directors namely Muhammad Younas and Capt. (Retd) Farrukh Naseem Akhtar have opted for voluntary retirement, whereas, two other officers, namely, Col. (Retd) Naeem and SMC.13/2016 14 Sq. Ldr. (Retd) Tariq Nadeem serving as DG and Director respectively have retired. He further submits that two officers, namely, Syed Muhammad Amir (Additional Director) and Ansar Yaqub (Deputy Director) have opted for repatriation to their parent departments. He stated that Ms. Aliya Rasheed, who was not amongst these nine officers, was offered voluntary retirement but chose not to opt for the same and contest her case on merits. He next states that the issue now remains only with regards to three officers, namely, Maj. (Retd) Syed Burhan Ali, Maj. (Retd) Tariq Mahmood Malik and Maj. (Retd) Shabbir Ahmed. 20. When this matter was fixed on 28.03.2017, the following order was passed by this Court: “We asked the Chairman, NAB to respond to the option which this Court had extended to the nine officers against whom the report submitted by the Secretary, Establishment Division, Government of Pakistan and which was concurred by NAB that the said nine officers did not meet the stipulated criteria prescribed for appointment. 2. The Chairman, NAB states that two of these officers have retired, namely, Col. Naeem, Director General NAB, Karachi and Tariq Nadeem, Director NAB, Lahore. 3. Chairman NAB further states that Mr. Muhammad Younas, Director NAB, and Mr. Farrukh Naseem Akhtar, Director NAB have opted to avail pre-mature retirement. Therefore, these two officers shall submit pre-mature retirement applications to the Chairman, NAB which should be processed in accordance with rules and accepted. It is clarified that these two officers would be entitled to all the pensionary benefits and perks that would be due to them upon such retirement. 4. With regard to Syed Muhammad Amir, Additional Director NAB, Quetta and Ansar Yaqoob, Deputy Director NAB, Lahore, the Chairman, NAB states that they have sought to be repatriated to their respective parent departments. Let such applications be made to the Chairman, NAB, who in turn shall relieve these officers by repatriating them to their respective parent departments. Their lien, if it had been terminated shall stand revived and they would be entitled to the same benefit of salary and seniority as per their batch-mates, and if their batch-mates have been promoted, they shall also be entitled to promotion in their parent departments. The parent departments shall complete this exercise from the date they receive the order of repatriation/relieving by the Chairman, NAB. SMC.13/2016 15 5. As regards the remaining three officers, namely, Maj. (R) Syed Burhan Ali, who is posted as Director General NAB, Lahore, Maj. (R) Tariq Muhammad, who is working as Director General NAB, Balochistan and Maj. (R) Shabbir Ahmed, Director NAB holding acting charge of Director General, NAB Karachi, the matter is adjourned for tomorrow. i.e. 29.03.2016. In the meantime, Chairman NAB shall get in touch with Secretary Establishment Division, Government of Pakistan” 21. Through the NAB Ordinance, NAB was created with the purpose to eradicate corrupt practices and hold accountable persons who had indulged in corrupt practices. The object, as mentioned in its Preamble was to provide effective measures for the detection, investigation and prosecution of those involved in corruption and corrupt practices or who had misused or abused their powers. The apparent objective was not to target petty criminals but those who had indulged in massive corruption or where there had been major misuse or abuse of powers. NAB also had the mandate to proceed against white collar criminals who may not be easily detected by the provincial police or the Anti- Corruption Establishments in view of the subterfuge with which such persons operate or in view of the difficulty associated with unearthing such crimes. The very mandate of NAB means that the different positions in NAB are filled by persons possessing certain minimal academic qualifications and experience as stipulated in the Schedule to MAQ. Similarly, stringent conditions for promotion were mentioned in the TCS and MAQ. We were dismayed with the contents of the report submitted by the neutral and very senior bureaucrat, the Secretary Establishment Division, Government of Pakistan. Whereas, NAB acknowledges many of the shortcomings and discrepancies in the appointments, inductions and promotions it had a different viewpoint with regard to certain others. 22. The learned counsel representing officers in NAB as well as Khawaja Haris Ahmed, learned senior ASC, representing NAB have tried to justify as to why the stipulated academic qualification or the prescribed experience was not met by a person appointed and/or promoted. A number of SMC.13/2016 16 untenable arguments in this regard were put forward which have been mentioned hereinabove. In this regard reference was made to sub-rule (2) of Rule 14.03 of TCS and much stress was placed on the word “deemed” appearing therein. Another argument that was put forward was that appointments made by transfer, as attended to in Part VI of the TCS, had their own methodology and that the appointments made pursuant to these provisions would not require to meet the criteria specified in MAQ. The learned PG, NAB put forward another novel contention which was that under the title “Academic Qualification” which mentions specific qualifications that appointments could also be made if the appointee had “any qualification approved by the competent authority”. Messrs Malik Muhammad Qayyum, learned Senior ASC, Ahmed Awais, learned ASC and Muhammad Shoaib Shaheen, learned ASC, stated that if a person had subsequently acquired the required academic qualification he cannot be removed or de-notified on the ground that he did not have the stipulated academic qualification. It was also stated that the Chairman, NAB has the power to relax any provision, condition or requirement. The individuals who represented themselves advanced similar arguments. Hafiz S. A. Rehman, learned Senior ASC canvassed another extra-ordinary viewpoint which was that if an appointment was made, pursuant to a policy issued by the Prime Minister that supported or encouraged sportspersons, the stipulated qualification and experience would not be relevant. 23. Though an attempt has been made to make this matter complicated, it is basically very simple. The MAQ and the TCS prescribed the requisite academic qualification and experience, inter alia, that a person who is appointed must possess at the time of his appointment. To appreciate the respective contentions, it would be appropriate to reproduce certain provisions of the TCS: “1.02. Commencement and Application. These terms and conditions of service (TCS) shall come into force at once and shall apply to all employees of the National Accountability Bureau other than: SMC.13/2016 17 (b) a person who is serving on deputation from the Federal or the Provincial Government or from a corporation, statutory body or Local Fund or an autonomous body etc;” “3.30. Possessing Qualifications for Initial Appointments. Only an employee possessing the qualifications and other conditions laid down for initial appointment to the post on which appointment by transfer is being made, shall be considered by the Selection Board or the Departmental Selection Committee, as the case may be, for appointment by transfer.” “14.01. Just and Equitable Treatment in Hardship Cases. Notwithstanding anything to the contrary contained in these TCS in relation to the terms and conditions of service of an employee, the Chairman may, if he is satisfied, for reasons to be recorded in writing, that strict application of any provision or, condition causes hardship in any case, by order, relax this requirement to such extent as it may deem fit, for ensuring just and equitable treatment to the employee concerned without infringing the right of any other employee.” “14.02. Appointments made Prior to Coming Into Force These TCS. On commencement of these TCS, all appointments made either by initial recruitment or promotion or transfer other than of those employees who were posted on deputation or employee or contract before coming into force of these TCS, shall be deemed to have been made on regular basis, subject to fulfillment of conditions of eligibility prescribed in the Methods of Appointment and Qualification, (MAQ) for each post, recommendation of appropriate Selection Board/Committee as well as approval of the appointing authority.” “14.03. Induction of Employees of other Services. (1) A person belonging to the Federal Government including the Armed Forces of Pakistan or a Provincial Government or a Corporation or body set up or controlled by any such Government and serving on deputation in the NAB may opt for permanent absorption in the NAB against the post equal to or identical with the post held on regular basis by him, under such Government, Corporation or body. (2) The option for absorption once exercised shall be final and subject to the consent of the competent authority of such employee in the parent department and approval of the appointing authority in the NAB, his appointment in the NAB shall be deemed as appointment on transfer for all purposes under these TCS.” 24. Clause (b) of Rule 1.02 of the TCS is restricted only to such persons who are “serving on deputation” in NAB, and this Rule has no application if a person wants to be permanently absorbed in NAB. Rule 14.03 of TCS does not stipulate that, those who opt for permanent absorption in NAB are not required to have the academic qualifications and experience provided in the MAQ. Neither the MAQ nor any rule of the TCS mentions that the qualifications prescribed in MAQ would not apply to such persons. Therefore, the prescribed qualifications are applicable. This would also apply to the appointments made on transfer basis. 25. With regard to the induction of an employee from any other service and the argument that he “shall be deemed as appointment on transfer” SMC.13/2016 18 and therefore would only be required to comply with Rules 3.28, 3.29 and 3.30 of TCS is not supported by the TCS. Rule 3.30 clearly stipulates that, “only an employee possessing the qualifications and other conditions laid down for initial appointment to the post on which appointment by transfer is being made shall be considered…”. Therefore, if a person is to be inducted in NAB from another service he must have the requisite qualifications, and if he did not have them he cannot be appointed. As regards the other limb of the argument that induction is “deemed as appointment on transfer” is also of no consequence as Rule 14.03 does not state that the inductee from another service is exempt from having the prescribed academic qualifications and other eligibility criteria. The persons who were so inducted in NAB were already advantageously placed as they did not have to compete with others in a competitive process, therefore, to project them as victims is wholly inappropriate. 26. As regards the learned PG’s contention that, under the title “Academic Qualification” in the Schedule to MAQ, the competent authority can substitute the stipulated academic qualifications by “any qualification” this contention has no application in these cases, since the competent authority had not exercised such powers nor had substituted the stipulated academic qualifications with any other qualification. Therefore, we need not speculate as to the kind of alternative qualifications which could have been approved by the competent authority. We may, however, observe that if the competent authority elects to substitute the stipulated academic qualification it could only be to ensure that certain skills which accompany a particular academic qualification were required. The alternative attempt by the learned PG, to read the words “any qualification” on their own, is precluded by the fact that these words are followed by the following words- “approved by the competent authority”. 27. The contention that a person can obtain the requisite qualifications subsequently, that is after he had already joined the service of NAB is unsustainable. If this concept or principle is accepted it would render meaningless SMC.13/2016 19 the stipulated qualification for a particular job. Though reference has been made to an unreported judgment mentioned in paragraph 14 (above) but that judgment is based on altogether different facts and circumstances. In that case the Skill Development Council constituted under the National Training Ordinance, 1980 had embarked upon issuing diplomas and certificates which it was not entitled to do and this Court held, that “persons employed on the basis of the same may continue in service” provided they also “possess the requisite or relevant qualifications”, and as regards “those who could not improve their qualification should improve it within a period of one year…”. An untenable situation was created by the Government itself as it had stipulated that those who possess certificates/diplomas from the Skill Development Council could apply. This judgment is given on its own the peculiar facts and circumstances and does not lay down any principle of law in terms of Article 189 of the Constitution. Moreover, in the present case NAB did not issue any notification that it would also accept any other degree/diploma/certificate, consequently, the said judgment has no relevance to the facts of this case. 28. As regards the argument that, the Chairman, NAB possesses the power to relax any provision or condition under Rule 14.01 of the TCS and in making the appointments he is presumed to have done so, is negated by the said Rule itself. The Chairman’s power to relax is circumscribed in terms of Rule 14.01 itself. To begin with this Rule is premised on the fact that the person affected by any particular provision or condition is already an employee of NAB, which was not so in the present case, as deputationists in NAB are not employees of NAB. This Rule does not apply to those who are being appointed or inducted in NAB. In addition the Chairman, NAB can only exercise his powers to relax rules only to the extent that a particular provision or condition “causes hardship” and provided it is “just and equitable”. All these factors have to be attended to by the Chairman, NAB “in writing”. Moreover, nothing has been brought on the record to show that the Chairman, NAB had actually exercised such powers. If a person SMC.13/2016 20 does not have the requisite academic qualification it cannot be construed to “cause hardship”, therefore, the question of providing “just and equitable treatment” in terms of Rule 14.01 would not arise. Besides the aforesaid reasons, we are of the considered view that the Chairman, NAB did not have the authority to relax the rules by compromising eligibility and academic qualifications. In this regard, we are fortified by the judgment of this Court in the case of Muhammad Akram v. Registrar, Islamabad High Court (PLD 2016 SC 961). Consequently, we are clear that Rule 14.01 of the TCS is not attracted. 29. As regards pressing into service the “policy” issued by the Prime Minister to support and encourage sportspersons with regard to Ms. Aliya Rasheed, the referred to “policy” is reproduced hereunder: “In order to promote sports at grass root level and inculcate discipline amongst the masses for national integration and cohesion, the Prime Minister has been pleased to direct that the sportsmen of International/National level may be provided jobs in Government Departments and large organizations like PIA, WAPDA, Police, Railways and other Federal/Provincial Departments/Autonomous Bodies, through a proper selection procedure. For this purpose Departments/Organizations concerned should make necessary provision in their service rules. 2. M/o MCST&YA will monitor the progress of implementation of this directive and submit monthly progress report for information of the Prime Minister.” Supporting the said appointment on the basis of this “policy” is not sustainable on a number of grounds. Firstly, the NAB Ordinance, the TCS and MAQ do not vest the Prime Minister with any authority to issue such a policy. Secondly, pursuant to the purported policy neither the MAQ or the TCS were amended. Thirdly, the appointment was made without advertising the post or inviting equally placed persons to participate. Simply issuing such “policy” without any further action thereon cannot substitute the provisions of the NAB Ordinance, the TCS and/or the MAQ. SMC.13/2016 21 30. It is, therefore, quite clear that none of the arguments and contentions that were advanced could justify the appointments, inductions or transfers mentioned hereinabove. 31. We accordingly hold and direct that: I. The initial appointments of 05 officers namely Muhammad Fahad Khan, Yasir Mehmood, Karim Bux, Harmoon Bhatti, and Adnan Shehzad Asghar, whose names have been mentioned at page 86 of C.M.A.No.1748 of 2017, have been found to be inconsistent with the National Accountability Bureau (NAB Employees Terms and Conditions of Service) (TCS), 2002. The learned counsel for these officers, stated that one of these officer, namely, Adnan Shehzad Asghar may be allowed to be repatriated to his parent department, i.e. the National Bank of Pakistan. In these circumstances and to avoid any hardship, we direct the Chairman, NAB, to immediately repatriate Adnan Shehzad Asghar to his parent department, i.e. the National Bank of Pakistan, and the Bank, in turn, shall allow him to join. He shall be given seniority and promotion alongwith his batch mates as if he was never repatriated. Termination of lien will not come in the way of the aforesaid officer. According to the learned Counsel the remaining four officers named hereinabove had not produced equivalence certificate from the Higher Education Commission (HEC) and be given an opportunity to do so. We therefore grant time to these officers to submit equivalence certificates after obtaining them from the HEC in respect of their degrees/certificates within four weeks from today. In case they fail to produce the requisite equivalence certificates, their services shall be terminated forthwith under intimation to this Court through the Registrar. II. On the issue of requisite experience in the initial appointments in the NAB, the Secretary, Establishment Division, had noticed 96 officers who lacked the requisite experience and he suggested, with the consent of the Chairman, NAB, that a committee be formed to examine the issue. The list of these officers was placed separately by the Secretary, Establishment Division, which was taken SMC.13/2016 22 on record. We agree with this suggestion and constitute such Committee, which shall be headed by Syed Tahir Shahbaz, Secretary, Establishment Division, who shall be its Chairman and its Members shall be Mr. Muhammad Shakeel Malik, Director General (H.R), NAB and one Member of the Federal Public Service Commission to be nominated by the Chairman, FPSC. The Chairman, FPSC, shall notify the Member for the purpose of joining the Committee within one week from today. III. The Chairman NAB/Competent Authority shall issue notices to all these officers to appear before this Committee. The Committee after affording them an opportunity of a hearing, shall record its findings within two months and the findings shall be acted upon by NAB. IV. With regard to the appointments by promotion the Secretary, Establishment Division, found 137 promotions made in NAB to be inconsistent with the TCS and or MAQ and the NAB authorities concur with him. The Chairman, NAB, informs that out of these 137 officers 35 have retired. We direct that the remaining officers shall be issued show cause notices to appear before the Committee referred to hereinabove. The Committee shall afford these officers an opportunity of a hearing and decide their cases within two months from the date they appear before the Committee. The findings shall be acted upon forthwith by the NAB. The Committee and the Chairman, NAB, shall submit compliance reports in respect of both the aforesaid issues for our perusal in Chambers, within 15 days of the recording of findings by the Committee. 32. As regards the officers namely Maj (R) Syed Burhan Ali, Maj (R) Tariq Muhammad, Maj (R) Shabbbir Ahmed and Ms. Aliya Rasheed, they were not qualified to hold the respective posts in NAB. They shall therefore be de- notified immediately. It will, however, be open for these officers to exercise the option of proceeding on retirement within four days from today, and if such option is exercised it shall be accepted by NAB. They shall be entitled to all the pensionary benefits to which they are entitled to under the law/rules. However, in case they fail to exercise the option of retirement, their services shall be SMC.13/2016 23 terminated after expiry of four days. It will be open to these officers to apply for the posts advertised by the NAB in future and they shall be entitled to appear in the examinations to be conducted by FPSC provided they meet the eligibility criteria and compete with the other candidates. The Chairman, NAB, shall submit compliance report in this regard within seven (7) days for our perusal. 33. We expect that all the existing vacancies in NAB or that may be pursuant to the Committee’s findings in future shall be filled within three months through the Federal Public Service Commission, from the date, the proposed Committee finally submits its report for our perusal. In the intervening period, NAB shall requisition its existing vacancies to the FPSC, which shall take steps for filling up the same. We are aware that the recruitment rules of NAB exclude recruitment through the FPSC, but in the larger public interest, the FPSC shall undertake this exercise and the posts shall be filled in by observing the mandate of Articles 240 and 241 of the Constitution, as these posts are extremely sensitive and only the most qualified candidates should be appointed. The Chairman, NAB, shall submit compliance report in the matter.” 34. These proceedings alongwith all the listed Applications are disposed of in the above terms. The connected Civil Petitions No. 630-K of 2015 and 65-Q of 2015 are de-tagged and should be fixed for hearing before an appropriate Bench. Office is directed to send copies of this judgment to the Chairman, Federal Public Service Commission, Islamabad, the Secretary Establishment Division, Government of Pakistan, Islamabad and Chairman, National Accountability Bureau for information and compliance. The time periods mentioned above shall commence from the date of receipt of the judgment by the aforesaid. Judge Judge Judge Bench-III Islamabad: 31.03.2017 Approved for Reporting (Sohail)

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez SUO MOTO CASE NO. 15 OF 2009 A/W CMAs. 4928-4929/2009 & 1989 & 1998/2010. (Corruption in Pakistan Steel Mills Corporation) AND CONST. PETITION NO. 30 OF 2010 (Wattan Party vs. Federation of Pakistan) AND H.R.C NOs.13922-S, 14156-S & 12664-P/2010 (Applications of Ahmed Hussain and Asif Khawaja) For the petitioner : Barrister Zafaullah Khan, Sr. ASC. (in Const. P.30/2009) Mr. Arshad Ali Ch. AOR. On Court Notice : Mr. Dil Muhammad Alizai, DAG. For Pak. Steel Mills : Mr. Fakhruddin G. Ibrahim, Sr. ASC. Mr. M.S. Khattak, AOR. Mr. Waseem Ahmed, CEO. Mr. Qamar Mehmood Sindhu, Dy. GM. Raja Aviz Mehmood, Chief Law Officer. For Ex-Chairman, PSM : Mr. Suleman Aslam Butt, ASC. (Mr. Moin Aftab). For Riaz Lalji : Mr. Mansoor-ul-Arfeen, ASC. For M/o Industries : Mr. Gul Muhammad Rind, Secy. Mr. Abdul Ghaffar Somoro, Ex-Secy. SMC.15/09, etc. 2 For M/o Interior : Mr. Rehman A. Malik (in-person). Mr. Qamar Zaman Ch., Ex-Secy. Mr. Nasir Hayat, Ex-Addl. Secy. For FIA : Mir Zubair Mehmood, Dir. (Sindh) Mr. Moazam Jah, Dir. (Sindh) Mr. Azam Khan, Director Law. Mr. Khaleeq-uz-Zaman, Dy. Dir. Mr. Akhtar Baloch, Dy. Dir. Mr. Anwar Qureshi, Asst. Dir. Mr. Wasim Ahmed, Ex-DG. For the NAB : Mr. Akbar Tarrar, Addl. PG. For the applicant : Dr. Aslam Khaki, ASC (in-person). (in CMA 4928/2009) For the applicants : Mr. Abdul Hafeez Pirzada, Sr. ASC. (in CMA 4929/2009) Mr. Mehmood A. Sheikh, AOR. For the applicants : Mr. Khalid Anwar, Sr. ASC. (in CMA 1989/2010) For the applicants : Raja Qureshi, Sr. ASC. (in CMA 1998/2010) Raja Abdul Ghafoor, AOR. For Pak. Steel Re-Rolling: Mr. S.M. Zafar, Sr. ASC. Mills Association For Iron Steel Merchants: Mr. Sohail Muzaffar, ASC. Mr. Khalid Javed, ASC. For respondent No.2 : Mr. Tahir Hussain Lughmani, ASC. (in Const. P.30/2010) Dates of hearing : 7th, 16th & 30th Oct., 2009; 25th Nov., 2009; 17th & 24th Dec., 2009; 25th Jan., 2010; 8th Mar., 2010; 25th Jun., 2010; 21st Jul., 2010; 4th Nov., 2010; 24th Jan., 2011; 1st & 23rd Feb., 2011; 9th Mar., 2011; 13th & 28th Apr., 2011; 13th Mar., 2012 & 15th March, 2012. * * * * * * * * * * SMC.15/09, etc. 3 JUDGMNET: TARIQ PARVEZ, J. – Pakistan is governed under the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as ‘the Constitution’] and the State is named as “Islamic Republic of Pakistan”. The very name of the country has direct nexus with the very reason and object of the creation of this country, which is reflected in Article 2A of the Constitution, commonly known as ‘Objectives Resolution’, which inter alia states that “wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah”. With this background of the very creation of the Muslim State, we have to visualize our individual as well as collective behavior, which is subject to teaching of Islam and Sunnah of Prophet Muhammad (PBUH). 2. It is commonly known that higher the position, greater the responsibility and the accountability. It is expected from every citizen of Pakistan that he shall be loyal to the State and the basic duty of every citizen is to be obedient to the Constitution and law as ordained under Article 5 of the Constitution. 3. Trust/breach of trust has been defined under Anglo- Saxon laws and by Courts interpretation but foremost importance SMC.15/09, etc. 4 is to be given to teaching of Allah Almighty in the Holy Quran, a book which is for all times to come and for all human beings; in Surah-Al-Anfal ayt.27 Allah Almighty warns:- Similarly, in Surah-Al-Hajj ayt.38 it is command by Allah Almighty: In Surah-Al-Baqarah ayt. 188 4. Corruption is generally defined as an act of doing something with the intent to give some advantage in consistent with official duty and to the rights of others; this amounts to SMC.15/09, etc. 5 misconduct in office, misbehaviour in office, misdemeanor in office or official corruption; it is a menace and curse in a society. In Words & Phrases, Permanent Edition, Vol.27 (at page 432), the word ‘misappropriation’ has been defined as ‘wrong appropriation; to turn or put to a wrong purpose’. In Words & Phrases, Permanent Edition, Vol.27 (at page 546), the word ‘mismanagement ’ has been defined as ‘to manage badly, improperly, or unskillfully’. In Stroud’s Judicial Dictionary (5th Edn.) at page 1605, the word ‘misappropriate’ is defined as ‘wrongful conversion of or dealing with anything, by the person to who it had been interested. In Supreme Court on Criminal Law 1950-2002, 6th Edn. (Vol.2), the definition of corruption has been elaborately and meaningfully given by Indian Supreme Court as under:- “Corruption in a civilized society is a disease like cancer, which if not detected in time is sure to malign the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS being incurable. It has also been termed as Royal thievery. The socio political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest. It is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society. [(State of Madhya Pradesh vs. Ram Singh) AIR 2000 SC 870: 2000 Cr. LR (SC) 188]. SMC.15/09, etc. 6 5. Corruption, spreading throughout the World in different countries at different levels and considering it to be a menace for the Society, the United Nations could not remain oblivious, formation of which is with the object to maintain peace amongst the Nations/States in this World, “the United Nations Convention against Corruption” was passed by the General Assembly Resolution 58/4 of 31.10.2003 and adopted, to which Pakistan is member country as signatory. In this Convention, corruption was considered as one of the serious problems and threats posed to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law. Illicit acquisition of personal wealth was equated with causing damage to the democratic institutions, national economies and the rule of law. It was thought that effective measures are required to be taken for which it was held that prevention and eradication of corruption is the responsibility of all States and every State must cooperate with another. It was, therefore, agreed upon, inter alia, that each State party shall in accordance with fundamental principles of its own legal system shall develop and implement or maintain effective, coordinated anti-corruption policies and shall promote the participation of society by reflecting the principles of the rule of SMC.15/09, etc. 7 law, proper management of public affairs and public property, its integrity, transparency and accountability. It was also held that each State shall endeavour to periodically evaluate the entire relevant legal instruments and administrative measure with a view to determining their adequacy to prevent and fight corruption. Each State party to the Convention was called upon that they shall ensure within their legal system the existence of a body or bodies as appropriate or necessary for the prevention of corruption and that each State party shall grant to such body or bodies ‘necessary independence’ in accordance with the fundamental principles of its legal system so to enable the body or bodies to carry out its or their functions effectively, freely and without being influenced from within or from outside; they were to be provided necessary material resources with the specialist staff, with continuous/periodical training to such staff. Towards achievement of such goal, each State party was to take appropriate steps within their legal system for maintaining and strengthening system for recruitment, hiring, retention, promotion and retirement of civil servants. To protect and ensure the safety of the State properties in public sector besides the above measures, States parties were called upon to adhere to principles of efficiency, transparency and objective criteria, such as merit, SMC.15/09, etc. 8 equity and aptitude, by adopting the measures for promoting adequate remuneration and equitable pay scales, however, taking into account the level of economic development of the State concerned. (emphasis provided) Each State party was to adopt appropriate legislative and administrative measures in view of fundamental principles of their domestic law. It was the responsibility of the State party to promote, inter alia, integrity, honesty and responsibility among its public officials and was to adopt the measures for establishing the system to facilitate the reporting by the public officials of acts of corruption to the appropriate authorities. In this Convention, it was highlighted that the Independence of Judiciary and its crucial role in combating corruption, each State party within the fundamental principles of its legal system shall take measures for strengthening integrity and preventing opportunities for corruption among members of Judiciary. It was also called upon the State party that it shall take measures as necessary to establish criminal offences when committed intentionally like making promise, offering or giving to a public official or any other person directly or indirectly of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to SMC.15/09, etc. 9 obtaining from an administration or public authority of the State party an undue advantage. Under the Convention, a very serious note was taken of extensive attitude at all levels and in different fields of life of increasing corruption and measures were suggested for its eradication which includes making such practices as criminal offence and establishing body or bodies including involving judicial system. The measures were also suggested for the retrenchment of the properties/assets by freezing, seizure or confiscating the same to the State. Since the Convention was under the auspices of the United Nations, covering the large number of States and because cases of corruption within or outside the State were increasing or have increased and the mobilization of the individual in the present geographical set up has become easy, therefore, in the Convention provisions for its eradication were incorporated that an accused person if committed a crime, the reporting country can request the other State party for return of the offender; care was also taken between the States parties to afford to each other the widest measures of mutual legal assistance in investigations, prosecutions and judicial proceedings. 6. It is manifest from the aforementioned Quranic Injunctions, Article 2A (Objectives Resolution) of the SMC.15/09, etc. 10 Constitution, which is actually an offshoot of the Quranic Injunctions and also of the United Nations Convention against Corruption, that there are not only violation the Quranic Injunctions but also deviation of the established conventions agreed to by the nations the world over and to which Pakistan is also a signatory. A glaring consequence of this deviation can be seen in the case of Pakistan Steel Mills, which is the moot issue in these proceedings. 7. In the past, the strength of a country or nation was dependent upon and determined on the basis of volume of its fighting forces/Army, whether regular or volunteers. A State that would have a bigger army in order to capture its neighbourhood, comprising of small area, would attack and conquer the same in order to extend its own territory and administrative jurisdiction. By such conquer, not only the conquering State would acquire more area but would also become owner of its resources, found or available in such area of the conquered State; because of it the conquering State would become vast, wide and more strong. The stability of the State was dependent upon manpower. Big States were those which possess more land and more resources. It was, therefore, that the citizens of such States would be more resourceful and more prosperous as against the weaker and smaller States. SMC.15/09, etc. 11 8. With the advancement of education and socio- cultural development, the present era of scientific inventions set in. The strength becomes of scientific inventions transformed from manpower to machine power. Today, a country which is advanced in technology is stronger then the one which is not more strong in machines or industry. Machines have entered into every sphere of life of human being and have become indispensible; it includes almost every size of machinery. In our household items, the modern scientific devices have become part of our domestic needs; for example a grinder in the kitchen is not a luxury but a need; clothes which were washed with hands are being washed by washing machines. So where on the one hand smaller machine have become necessary for individuals, the heavy machines become need of a State/Country/Nation. A glance in the past history of Europe and America, hardly a century back and thereafter, clearly amplify the change before and after introduction of machines/industries. 9. Technical advancement has become basis for the determination of per capita income of a country. There are three categories of the countries; one, who are developed; second who are developing; and third under-developed. Pakistan in the present state of its affairs does not fit into the category of SMC.15/09, etc. 12 developed State; it is developing in certain spheres and is still underdeveloped in some sectors. 10. It cannot be denied today that strength of a country is totally dependent upon its commercial and economical activities. The currency rate is the test to evaluate the economical condition. Today in our country 1$ is equal to about Rs.91/- whereas 1₤ is equal to Rs.141/- or around. This rate of inflation clearly demonstrates that we are lagging behind because of our failure in building up our productive capacity. 11. It also cannot be denied that strong economy is guarantee for sustainment of State but for strong economy there has to be productive activities in the State itself. The currency rate of a country is determined on the basis of State’s resources; either it be gold in State treasury or dollars or ponds reserves equal to gold. We for example in Pakistan have to produce such articles, which are exported abroad and from their export, foreign exchange is earned and brought in the country. 12. Pakistan Steel Mills (hereinafter referred to as ‘the PSM’) is one of such public sector installation of which people of Pakistan are proud of considering it to be the backbone of industries culture for Pakistan. It is not for the first time that this Court is under obligation to safe the national asset but even earlier too in the year 2005, the PSM was subject matter before SMC.15/09, etc. 13 this Court in the case of Wattan Party vs. Federation of Pakistan (PLD 2006 SC 697). 13. Pakistan Steel Mills is a private limited company, wherein 100% of its shares are owned by the Government of Pakistan; it was incorporated in the year 1968 whereas it went into production in the years 1981 to 1984; the plant was installed with the collaboration and assistance of the Russian Government by the Ministry of Industries, Production and Special Initiatives; it is installed over the area measuring about 19000 acres of the land; the annual designed capacity of the PSM is 1.1 million tons; at the time of inception and commencement of production, its profitability was not good because of overstaffing, financial liabilities, poor working discipline, low capacity utilization, small sales, mismanagement and lack of attitude to feel responsibility. 14. It was in that background that in the year 1997, the Government of Pakistan decided to privatized it and got approval from the Council of Common Interest; somehow, the process of privatization discontinued and in the month of May, 2000, restructuring plan was approved by the Chief Executive of Pakistan, which included rightsizing of its employees, repair and maintenance of the plant etc. However, in the month of March, 2005, the Ministry of Privatization and Investment again moved a summary to the Board of Privatization Commission that the PSM SMC.15/09, etc. 14 shall also be included in the program of privatization. After approval, bids were asked for; however, such process was challenged before the High Court of Sindh, Karachi, which matter ultimately landed before this Court and in the judgment reported as Wattan Party (supra), this process was checked and scrutinized. 15. Cognizance of the matter was taken by this Court while exercising its Suo Motu jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan, when a write up was published in Daily DAWN on 11.09.2009 with a caption “Steel Mill Case”, it was authored by Ayesha Siddiqa, who is regarded as an independent strategic and political analyst. Subsequent thereto, the Hon’ble Chief Justice of Pakistan recorded his lordship’s note, which is reproduced herein below for the sake of convenience:- “Comments may be called from the Chairman, PSM for 24.09.2009” 16. From record of the case, it reveals that on 07.10.2009, Mr. Qamar Mehmood Sindhu, Deputy General Manager (Legal) submitted comments under his signatures on behalf of the Chairman, PSM, while pointing out that the FIA (Federal Investigation Agency) is already conducting an enquiry in respect of risks losses and reduction in sales etc. in the PSM; his comments were, however, not supported by any external or SMC.15/09, etc. 15 internal audit report for the years 2008-09; he was, therefore, ordered to file the same on the next date of hearing; on the same date of hearing, the then Chairman of the PSM was required to file further para-wise comments with reference to write up/article dated 11.09.2009. Simultaneously, Mr. Qamar Mehmood Sindhu, Deputy General Manger (Legal) was asked to furnish address and telephone numbers of Mr. Moin Aftab Sheikh, Former Chairman the PSM to the Registrar of this Court for the purpose of issuing notice to him; simultaneously, report was also called from the DG, FIA in respect of investigation already undertaken by FIA, as informed by the Deputy General Manager (Legal); comments from Ministry of Industries and Commerce were also called for and the matter was adjourned to 16.10.2009, on which date Mr. Abdul Mujeeb Pirzada, learned Sr. ASC appeared on behalf of Chairman, PSM and informed that comments on behalf of his client have been prepared but are in the process of being filed. Mr. Moin Aftab Sheikh, former Chairman PSM did appear in- person in response to notice but because of late service requested for time to file comments and his explanation; however, no one put in appearance on behalf of the DG FIA. (emphasis provided). On 30.10.2009, Mr. Suleman Butt, ASC appeared on behalf of Mr. Moin Aftab Sheikh, Ex-Chairman PSM and submitted SMC.15/09, etc. 16 reply on his behalf. Mr. Muhammad Azam, Director (Law), FIA also appeared and stated that tentative reports have been prepared whereas Mr. Abdul Mujeeb Pirzada, learned Sr. ASC also stated that a Committee has been constituted by the Management of the PSM, comprising of three members, with the terms of reference to find out financial/administrative reasons causing loss to the PSM and to fix responsibilities upon the person, if any, for causing financial loss, etc. with direction to complete the investigation and submit report by 28.10.2009. On 25.11.2009, when the matter was taken up, Mr. Azam Khan, Director (Law), FIA filed an enquiry report which was made part of record. Mr. Abdul Mujeeb Pirzada, Sr. ASC for the PSM filed another report, which was also placed on record; he also placed on record newly awarded dealership during 2008-09 according to which 300 new dealers were registered by the PSM; Mr. Suleman Aslam Butt, ASC for Mr. Moin Aftab Sheikh, Ex- Chairman PSM also placed some documents to highlight the view point of his client and while referring to the said documents, demonstrated that he is not involved in the scam of losses to the PSM, which according to his estimation comes to Rs.22 billion. On 17.12.2009, it was noticed by this Court that Ministry of Interior, Government of Pakistan under the signatures of Mr. A. Rehman Malik, Minister for Interior has constituted a SMC.15/09, etc. 17 Joint Investigation Team (JIT), which order was reproduced in the order sheet of the said date and for the sake of convenience, the same is reproduced hereinbelow as well:- “In pursuance of the directions of the Honourable Supreme Court of Pakistan regarding investigation into the affairs of Pakistan Steel Mills and also showing dissatisfaction into the investigation so far done by FIA. Keeping in view the observations of the Honourable Supreme Court, a broad based JIT has been constituted with the mandate to investigate the matter thoroughly and submit report within four weeks. The JIT is directed to keep the Honourable Supreme Court of Pakistan enabling the JIT to complete its investigation in a full transparent manner and on merits. 2. The JIT will consist of a senior officer of FIA at an ADG level, a Deputy Secretary of Ministry of Interior, one Deputy Secretary, Ministry of Production & Industries, Deputy Attorney General and a Police Officer of DIG rank from Sindh Police. A Coordinating Officer may also be appointed to coordinate the whole matter. 3. The services of a well reputed International Audit firm may be co-opted to assist the JIT to cover technical and complicated financial aspects as already discussed and agreed with the Minister for Industries. 4. All previous Inquiry Reports on the matter shall be re-assessed into transparently and on merit by the JIT. 5. ToRs of the JIT are annexed herewith. The JiT will complete the work in four weeks time.” Along with above order of the Ministry, terms of reference were also attached and a team was constituted comprising of five members. However, the above arrangement of constitution of JIT and terms of reference were not happily received by this Court SMC.15/09, etc. 18 considering it to be an attempt to undo the directions contained in order dated 25.11.2009 and once an issue is under-examination/ consideration before this Court, the same should not have been placed before the JIT. 17. It so happened that pending proceedings of the matter before this Court, the then DG FIA i.e. Mr. Tariq Khosa was transferred before completion of his tenure of his such assignment; however, his transfer issue was not acted upon by exercising restraint and in these circumstances notices were issued that let Mr. A. Rehman Malik, Minister for Interior in the Court that as to why he should not be proceeded against for contempt of Court. 18. Consistent efforts were being made by this Court to procure sufficient data in the form of material in respect of the allegations at least to make out prima facie case of corruption and mismanagement; as such the FIA was given time and again opportunity to do the needful to submit its report. It was on 25.01.2010 when Mr. Azam Khan, Director (Law) and Mr. Zubair Mehmood, Director FIA Sindh had appeared and stated that as per their estimate, in order to proceed against the persons who were allegedly involved in causing huge losses to the PSM, neither the FIA nor the Special Court Anti- Corruption is empowered to retrieve the money or effect SMC.15/09, etc. 19 recoveries except ordering seizer of the properties belonging to the delinquents; they had further stated that under the NAB Ordinance, the NAB authorities are competent to effect recovery of such amount. 19. It transpired that at this stage of proceedings, when the DG, FIA was to be taken on board in respect of making the process of recovery of the embezzled amount, some uncalled for changes were noticed in the FIA establishment including the constitution of JIT by Mr. A. Rehman Malik, Interior Minister; vide order dated 17.12.2009, this Court took serious notice of it and accordingly notice was issued to Mr. A. Rehman Malik, Interior Minister to explain as to why he should not be proceeded against for contempt of Court. Subsequent thereto a report was filed by FIA on 08.03.2010, which was not accepted as satisfactory, however, it revealed from the report that certain named persons against whom FIA had registered cases through registering FIRs were released on bail by the Courts but no steps whatever were taken by the FIA towards seeking there cancellation of bails. Another report was filed on 25.06.2010 by the FIA showing some steps taken towards recovery of misappropriated amount; however it was pointed out to the Court that it is the ultimate duty of the DG, FIA to ensure recovery, therefore, the Court directed the then DG, FIA to take steps towards fair and successful completion of the investigation. (emphasis provided). SMC.15/09, etc. 20 20. Noticeable information was given to the Court on 04.11.2010, by Mr. Fakhurddin G. Ibrahim, learned Sr. ASC appearing for the PSM, while stating that M/s Anjum Asim, Shahid & Company has been appointed to conduct Forensic Audit; a terminology of the Forensic Audit and its efficacy has been highlighted in the application including the definitions of the terms; it was on 04.11.2010 that Mr. Wasim Ahmed, the then DG, FIA was called upon to go through our order sheets and also read inquiry report No.95/2009 prepared by Mr. Khaliquz Zaman, Deputy Director, FIA/Crime Circle, Karachi but Mr. Wasim Ahmed rather contested this report by giving an impression that the said report is incorrect, however it was admitted by the DG, FIA that the PSM had sustained losses of Rs.22 billions. (emphasis provided). This Court once again was not satisfied with the investigation as reflected in our order sheet dated 24.1.2011, because it was noticed that no professional skill was shown by the investigating agency towards collection of incriminating evidence involving the culprits. On 23.02.2011, this Court was informed by Mr. Fakhruddin G. Ibrahim, learned Sr. ASC for PSM that the Management of PSM had issued notice to 176 persons/companies who had received/purchased products (billets) from the PSM without SMC.15/09, etc. 21 making payment of the actual market price and that they have been asked to make the payment of difference in the rates. It was directed to the Secretary, Ministry of Industries that its department being concerned to the affairs of the PSM has shown no interest to ensure effective progress in the investigation rather it was their duty to do so. However, it was admitted by the Secretary, Ministry of Industries, that uptill February, 2011, the PSM had sustained losses of Rs.26+11=37 billions. When confronted with the huge amount of losses caused to the Government exchequer belonging to the PSM, the Secretary requested that some time be given to him so he may file his report in black and white. On 09.03.2011, we were informed by Mr. Fakhruddin G. Ibrahim, learned Sr. ASC for the PSM that the task of Forensic Audit has commenced and the Auditors have requested for three months time to accomplish the job. The Court however, responded that they had already consumed sufficient time, therefore, the Management of the PSM shall press upon the firm to undertake the exercise of Forensic Audit and complete the same as early as possible. We were also informed by Mr. Fakhruddin G. Ibrahim that the notices were issued to the dealers for making the payment of differential amount between market value and the price paid by SMC.15/09, etc. 22 them and in this regard Rs.25 millions have been recovered. In the meantime, the Secretary, Ministry of Industries also submitted a comprehensive report pinpointing the dealers who have been benefitted by paying low prices of the products purchased by them from the PSM. We were also informed that because of taking effective steps towards the recovery and because of strict measures duly taken to cover up the losses of the PSM, there was remarkable reduction in the losses of the PSM i.e. if for the financial year 2008-2009, losses were Rs.25.5 millions, in the year 2009-2010, the same have been reduced to Rs.11 millions, while for the financial year 2010-2011, upto 31st December, 2010 they have been further reduced to Rs.5.7 millions. Then it was on 13.04.2011, we were again informed by Mr. Fakhruddin G. Ibrakim, learned Sr. ASC that the Forensic Audit Report is almost complete and shall be received in the 1st week of June, 2011. He further informed that some of the dealers who were issued notices for depositing differential amount of price paid by them for the products, had deposited the amount, while few others contested the same. We were also informed that though the FIRs have been registered but many other dealers who were involved were let out and directions of the Court were sought to avoid discrimination. It was also noticed SMC.15/09, etc. 23 that certain firms like M/s Abbas Steel Industries, if on one hand running their Private Limited Company, simultaneously was shareholder of the PSM; therefore, the directions were issued that let the FIA proceed against all of them without any discrimination but strictly in accordance with the law. On 28.04.2011, it was informed by Mr. Azam Khan, Director (Law), FIA by stating that hectic efforts are in hand to furnish comprehensive audit report and Interpol Authorities have been approached to apprehend the culprits so that the looted amount of Rs.26 billions could be recovered. It was also pointed out that report from Ministry of Industries has also been given to the FIA which is being implemented in letter and spirit. This Court also directed that the Ministry of Production shall explain as to why the comprehensive audit report so furnished was not acted upon and as to why no steps were taken in light of the said report. 21. Since by then the job of Forensic Audit Report for the year 2008-2009 was entrusted to M/s Avais Haider Liaqat Nauman (AHLN) and as per their calculation, cumulative losses of Rs.26.5 billions identified in the PSM as follows: - Business Losses : Rs.4.68 billions. Losses due to corrupt Practices : Rs.9.99 billions. Losses due to mismanagement/ : Rs.11.84 billions. Negligence Total : Rs.26.526 billions. SMC.15/09, etc. 24 22. It was admitted by Mr. Gul Muhammad Rind, the Secretary, Ministry of Industries who was present in the Court on 13.03.2012 that they have received the above Forensic Audit Report some six months ago but no step so far has been taken by the Ministry concerned; he also informed that five enquiries were initiated by the FIA but no case is registered against any delinquent. We also inquired from the Secretary, Ministry of Industries as to why prompt action was not taken on receipt of Forensic Audit Report to which he responded that his Ministry is contemplating and deliberating to refer the matter to the NAB; this Court asked the Secretary to explain the reasons for not initiating action promptly. 23. Pursuant to our above directions to the Secretary Ministry of Industries, a report was filed by the Ministry regarding action taken by it on receipt of Forensic Audit Report. Paras 4,5,6 and 7 being relevant are reproduced herein below for convenience. “4. That since investigations were carried out by the FIA under the instructions of this Honourable Court dated 09.03.2011 therefore, it was not advisable for the Ministry to refer the subject corruption case to the NAB authorities, without orders of this Hon’ble Court. 5. That during the last hearing of the lilted case on 13.03.2012, the Honourable Court observed that no effective measures were taken for recovery of losses and in such a pathetic situation about the affairs of Pakistan Steel Mills, the Ministry may itself take decision to refer the matter to the SMC.15/09, etc. 25 NAB authorities regarding all cases which have been earlier registered by the FIA and regarding the inquiries, which are pending with the FIA. 6. That the matter regarding referring the above said cases to NAB authorities was discussed with the Minister for Production in light of the Supreme Court proceedings of dated 13-03-2012, MOP is of the opinion that although the Forensic Report has been provided to FIA for necessary action however, as advised by the Pakistan Steel’s Board PSM management is in process of reviewing of the report in consultation with M/s. AHLN to make the same in accordance with the TORs of the contract assigned to the Audit firm. Moreover, as the investigation is with Director General FIA and Director FIA both are out of country therefore, after obtaining the present status of the inquiries conducted by them alongwith their comments/recommendations, the matter will be taken up accordingly. MOP feels that for expeditious finalization of inquiries, a senior Audit and Account Expert will be nominated to complete the inquiry. 7. The above facts show that no any delay occurs on the part of the Ministry of Production however, the Ministry requests the Hon’ble Court to instruct FIA for early finalization of the inquiry report.” 24. From perusal of different order-sheets, summary of which has been given in detail hereinabove, coupled with the final report filed by the Ministry of Industries in March, 2012, it has become clear to us that neither the FIA nor the Ministry of Industries have taken this matter seriously rather evasively and on no good pretext they intend not to refer the matter of Rs.26 billions mega scam to the NAB Authorities, which losses pertain to only one year time i.e. 2008-2009. SMC.15/09, etc. 26 25. Likewise, in pursuance of notice issued by this Court, Sheikh Aftab Moeen Sheikh, who was Chairman of the PSM for the period from 2008-2009 filed his reply; perusal whereof indicates that efforts were made by him to justify/explain the alleged losses of Rs.26 billions; he in his reply stated that losses in the year 2008-2009 were due to severe economic recession in the World over because of serious turmoil occasioned in steel industry including the PSM and the sales fell from Rs.5.052 billion in July 2008 to Rs.1.131 billion in October, 2008; it was stated that surplus and cheap steel from the World market flooded in Pakistani market due to the recession, thus there was low demand of the PSM products, which caused piling up of huge inventory of finished goods and that economic suffering was further multiplied due to the fact that in 3rd quarter of the year 2008, price of steel products went down very sharply in the World steel market which fell by more than 68% from July, 2008 to November, 2008, rendering the PSM products uncompetitive in the domestic market. Stand was taken by Mr. Moin Aftab Sheikh that the prevailing domestic market had forced the PSM to reduce prices of its products round 35% in November, 2008. It was further stated by him that during the period in question, procurement of basic raw materials from international market continued on higher pre-recession prices till end of SMC.15/09, etc. 27 March, 2009 because the PSM has entered into long term contracts. Similarly, the PSM was to pay high freightment prices which continued till August, 2009 because of early contracts entered in May, 2005. Further explanation was tendered by him while stating that adverse affects of recession to the PSM started from August, 2008 which resulted into forced lower down of the sale prices, whereas contractual prices of raw materials remained higher which became reason of huge losses. The situation was further highlighted by stating that decrease in revenue of the PSM was due to global economic recession, high prices of raw material (67% of total cost) resulting in higher cost of production, less utilization of capacity in production and personnel related costs (salaries of staff etc. were increased by 39%). It was also reasoned that Pak rupee as against US$ was devalued i.e. 1$ which can be bought in Rs.70/- went up to Rs.81/- per US$ and there was increase in the prices of natural gas and power. It was also responded by him that the PSM products went to the lowest ebb by November, 2008 and that the PSM products remained uncompetitive as compared to cheap and substandard imported identical steel products because surplus and substandard steel from international market flooded into local market of Pakistan with cheap price having inferior quality; and that SMC.15/09, etc. 28 imported bulk of hot rolled materials were available in the market less than the listed prices of the PSM. 26. On technical side it was pointed out that out of eight main production units, Coke Oven & By-Products Plant and Blast Furnaces were required to be in continuous production around the year as the batteries placed therein must remained hot and once the batteries becomes cool down, total refractory bricks were to be dismantled and re-built again; which is also one of the reasons which occurred because of shutting down of the PSM. 27. For reducing the prices of the products of the PSM, it was stated that the same is managed and operated through a Committee which comprises top management officials of the PSM i.e. Chairman, Director Finance, Director Commercial and G.M. Marketing. This Committee considers the price trend of the steel products in the international market, which internationally has fallen by more than 68% from July, 2008 to November, 2008, due to international recession which yielded serious negative impact on the sale of the PSM products. It was in these circumstances to save the PSM from shutting down and to improve its liquidity position, various measures were taken by the PSM including drastic reduction in price etc. but its products did not pickup. SMC.15/09, etc. 29 28. While responding to the allegations of corruption, it was stated that since the FIA is undertaking the investigation the responsibility of individual shall be determined which is dependent on the result of the investigation. 29. It appears that even the PSM management was trying to justify the alleged losses occurred during the financial year 2008-2009; its background is given in C.M.A. No.4481 of 2009 filed by Mr. M. M. Usmani, Chairman, PSM on 15.10.2009 explaining the position by stating that FIA has started investigation referred to it by the Government and that on receipt of report of investigation, disciplinary action will be initiated against the concerned employees. In fact this CMA is para-wise reply of the allegation as contained in the Article published in the Daily Dawn on 11.09.2009, written by Ms. Ayesha Siddiqa. It was admitted that as per the provisional accounts of the PSM for the year 2008-2009, the estimated losses incurred were Rs.22.143 billions and that in fact Auditor General has reported the losses of revenue of Rs.9.672 billions only due to fixation of sale price of products below the market price. The reason for loss shown in the year 2008-2009 was explained to be receipt of lesser sales revenue as per budget estimate; one of the reasons was stated to be lower capacity utilization @ 65% as against 75% as envisaged in the budget estimates; due to lower capacity utilization (65%) SMC.15/09, etc. 30 for production of raw steel, the production cost increased by Rs.1.2 billions; the personnel related costs as increased by 39% due to CBA agreement and enhancement of salaries etc.; pilling up of huge Inventory of finished goods. It was also explained that due to international steel market slump, situation became unstable which badly affect the sales volume and profitability of the PSM. Another reason was stated to be that a bailout package amounting to Rs.10 billions for the PSM was approved by the Ministry of Finance but no release of the funds was materialized due to different requirement of the National Bank and hence, the advantage was not achieved. It was stated that import of secondary steel in the garb of primary is always damaging the sales of the PSM as the same was available in the market on lesser prices. While responding to the charges/allegations, it was pointed out that during July, 2008 to February, 2009, scrape to the tune of 0.727 million tons was imported into Pakistan which was converted into ingots/billets, which competed with the PSM billets because the same was cheaper, therefore, due to wide difference between landed cost of the PSM billets and the local cost of billets, which resulted into taking out PSM products out of competition. Similarly, old ships were available at cheaper rate SMC.15/09, etc. 31 for breaking demolition from which 0.75 million tons of steel plates/scraps were available in market at 30% less then PSM billets. 30. Overall impression one gets from the detailed para- wise comments filed by the then Chairman PSM i.e. Mr. M.M. Usmany, it appears that on the factual and technical side it was supporting the stance taken by Mr. Moin Aftab Sheikh, who was Chairman PSM from 26.05.2008 till 18.08.2009. In fact both are toeing the line of each other, rather supporting each other. 31. With reference to subject scam in the PSM, the FIA crime Circle Karachi also conducted inquiry in respect of different issues and submitted detailed report on 21.11.2009 before this Court qua the investigation and registration of cases by the FIA. In Inquiry regarding award of canteen contract of the PSM, the FIA detected that the alleged staff of the PSM in connivance with the union/CBA and canteen contractor deviated from the normal procedure and approved three contracts, mechanically with mala fide intentions and ulterior motives by enhancing number of employees as well as rates exorbitantly, which resulted in causing huge loss to the Government exchequer; therefore, the Inquiry Officer recommended that three separate cases be registered against the three different firms and the alleged SMC.15/09, etc. 32 officers of the PSM, who scrapped the first tenders fixed for opening/bidding, reapproved three contracts, mechanically without applying their minds with ulterior motives and in connivance of each other. On the subject of scam of reduction of prices of finished good of the PSM and its allocation to favourits, the FIA team found that the prices of the PSM products were reduced in comparison to international market but when international market was at higher side the prices were not increased and in this way heavy financial loss was suffered by the PSM because of illegal and irrational decisions of Mr. Moin Aftab Sheikh, the then Chairman, PSM and others to give wrongful benefits to M/s Abbas Steel Group. It has been further observed that as per sales policy the management of the PSM was bound to give priority to consumers over traders/dealers to avoid commission/rebate but Mr. Moin Aftab Sheikh, the then Chairman and others favoured some traders especially M/s Abbas Steel Group and gave them maximum allocations, which also caused heavy losses to the PSM. It has been further observed that due to difference of prices of billet of the PSM with that of international market, the PSM suffered net loss of Rs.3,655,105,437/- in sale of billets and in this connection maximum benefit in selling of billets was availed by one group SMC.15/09, etc. 33 i.e. M/s Abbas Steel Group which earned premium amounting to millions of rupees wrongfully. It is also noticed by the Inquiry Officer that M/s Abbas Steel Group holds duel dealership i.e. trader dealership & consumer dealership which is in violation of established selling rules and regulations of the PSM. It is further discovered by the FIA that Mr. Moin Aftab Sheikh before assuming the Charge of Chairman, PSM was paid employee of M/s Abbas Steel Group and used to visit the PSM as Director-M/s Abbas Steel Private Ltd. Since January, 2009 to August, 2009, more than two times, the Price Fixation Committee met and decided to increase the prices as high premium was prevailing in market but neither the prices were increased nor the minutes were prepared on the direction of Mr. Moin Aftab Sheikh, which resulted in heavy financial losses to the PSM. Regarding procurement of 40,000 MT of metallurgical Coke through MV AFOVOS, the Inquiry Officer discovered that Mr. Moin Aftab Sheikh, the then Chairman PSM and Mr. Sameen Asghar, Director Commercial of the PSM with common objective and criminal intention in collusion with one Capt. Rashid Abro manipulated a surprise shipment of 40,000 MT of Met Coke without its formal approval or opening of LC and thus foisted it upon the management compelling it to accept SMC.15/09, etc. 34 it despite the fact that international market registered a down slide in the prices of the material and freightment, allowed the payment on the already contractual price. In respect of procurement of Coal at highly inflated price, it is exposed by the Inquiry Officer that during the period from May, 2008 to August, 2009, Mr. Moin Aftab Sheikh, Mr. Sameen Asghar in collusion with Capt. Rashid Abro deliberately and willfully imported Coal from Australia at highly exorbitant prices against the prevailing low prices in the market due to international recession and for personal wrongful gain they avoided to make any effort to bring down the prices of Coal and freightment, which resulted in huge losses to the PSM. Qua procurement of 50,000 MT of Coal without tender through ship MV ANNOULA, it is observed by the Inquiry Officer that Mr. Moin Aftab Sheikh and Mr. Sameen Asgher with common objective and with criminal intent fraudulantly manipulated the import of 50,000 MT of coal on extremely exorbitant price and on payment of exorbitant freight charges without any justification or plausible explanation, thereby causing colossal loss to the PSM. It is further observed by the Inquiry Officer that the above said officials abused their official position in attaining their SMC.15/09, etc. 35 nefarious task by influencing their subordinate officers by compelling them to comply with their illegal orders under duress. 32. In pursuance of above investigation the FIA Sindh, Karachi registered ten cases against the management of the PSM and private persons/beneficiaries for causing loss of Rs.26 billions to the PSM. Out of these ten cases, the first three cases pertain to malicious import of raw material (coal and coke), involving loss of Rs.4.5 billions approximately in which the foreign companies are involved; six cases are in respect of corruption in sale of billets and other finished products to various dealers/consumers on the prices lower than the prevailing market rates causing loss of Rs.4 billions approximately; one case is about malicious award of canteen contract to favorites. Case FIR No.36 of 2009 relates to loss of Rs.49 Crore to the PSM, accusing Mr. Moin Aftab Shaikh being Ex-Chairman, Mr. Sameen Asghar, Ex-Director Commercial and Capt. Rashid Abro a representative of M/s Noble Resources Singapore, alleging that they fraudulently manipulated a spot purchase of 50,000 MT of coal from Port Gladstone, Australia on highly inflated price and on extremely higher freight rates despite declining market rate. In this case interim charge-sheet is submitted in the Court followed by supplementary charge-sheet and the properties of the accused persons have also been seized SMC.15/09, etc. 36 during investigation by the FIA; trial has commenced and is likely to be concluded within two months. Case FIR No.37 of 2009, registered against the above named accused, relates to fraudulently manipulation by the accused named above in acceptance of 40,000 MT of Metallurgical Coke, arrived from China through MV Alpha Afovos, without opening of LC or obtaining necessary permission by the PSM on highly inflated price and on extremely higher freight rates resulting in loss of Rs.1 billions to the PSM. In this case as well charge-sheet has been submitted and trial has commenced. In case FIR No.38 of 2009, again the above named persons have been accused for fraudulently manipulating the ten shipments of coal arrived from Ports Gladstone and New Castle of Australia and Robert Bank Canada respectively, on highly inflated price and extremely higher freight rates, causing loss of billions of rupees to the PSM. In this case charge sheet has been submitted and trial is under progress. Case FIR No.1 of 2010 is in respect of award of Canteen contract wherein it is alleged that Mr. Moin Aftab Sheikh, Ex- Chairman, PSM in connivance with other accused persons fraudulently scrapped the already floated tender estimating Rs.4,62,49,827/- with an increase of 30% and award of contract SMC.15/09, etc. 37 by manipulation at exorbitant cost of Rs.12,72,91,007/-, causing colossal loss to the PSM to the tune of Rs.81,041,180/- to the PSM. In this case besides Mr. Moin Aftab Sheikh, Ex-Chairman, ten other persons are accused; namely Brig. (R) Abdul Qayyum, PEO (A&P) PSM; Muhammad Atique Khan, DGM Incharge (IR) PSM; Imtiaz ul Haq, DGM, PSM; Muhammad Farooq, Manager IR Department, PSM; Muhammad Aslam, Canteen Contractor of M/s Feed Well; Ali Haider, Canteen Contractor of M/s Cosmos Enterprises; Asghar, DM (ECD) PSM; Najmuddin Suho, Chairman Food Committee, PBU/CBA, PSM; Syed Zahid Ali Hashmi, Canteen Contractor of M/s Casa Caterers and Wazir Ali. In this case as well charge has been framed against all the accused persons and the trial has commenced. However, some of the accused are in judicial custody, whereas some are on interim pre-arrest bail. Case FIR No.39 of 2009 is regarding loss of Rs.3.65 billions, occurred due to corruption in sale of billets of the PSM to 220 consumers/dealers due to non-increase of price according to international market. In this case four companies of M/s Abbas Steel Group are also one of the traders/consumers dealers, who lifted 49,000 MT billets in 2008-09 which comes to 19% of the total sale of billets on the prices fixed by the PSM; as per audit report the sale price of the billets was much lower from the SMC.15/09, etc. 38 market-value. Charge sheet in this case is submitted in the Court against the Management of the PSM and concerned Directors of four companies of M/s Abbas Steel Group besides seizure of industrial land measuring 224 acres belonging to M/s Abbas Steel Karachi and residential houses of two of the Directors of the said group. FIR No.9 of 2010 has been registered for extending illegal benefit of 90 days Free Credit Scheme without mark up to M/s Amrelli Steel Ltd. Karachi by extending the scheme mala fidely; in this way M/s Amrelli Steel Ltd. Karachi lifted 10,000 MT of cast billet amounting to Rs.339 million resulting in causing loss to the PSM. The accused persons involved in this case are Sameen Asgher, Ex-Director Commercial, PSM; Abbas Akbar Ali, CEO of M/s Amrelli Steel Ltd.; Tariq Irshad, Proprietor of M/s Export International; Mehmood, Proprietor of M/s Dunhill Corporation and Ch. M. Shafiq, Proprietor of M/s Choudhry Steel Re-Rolling Mills, Lahore. In this case as well Charge Sheet has been submitted and trial is in progress. Case FIR No.13 of 2009 is registered regarding violation of the PSM Sales Rules against Muhammad Sohail Proprietor of M/s Remya Traders, Karachi and Muhammad Javed Ghani, Proprietor of M/s Javed Trading Corporation, Quetta on the allegation that they both used to obtain the PSM products in the SMC.15/09, etc. 39 name of M/s Javed Trading Corporation, Quetta being a consumer dealer but the material was never transported to factory premises yet sold in local market on premium/own. It is alleged against both these accused persons that they opened the bogus accounts in M/s Habib Metropolitan Bank, Karachi for running their illegal business and used to transfer the funds for purchase of the PSM products to sell them in local market which resulted in causing loss to the PSM. In this case charge sheet against the accused persons has been submitted; however, reportedly they both are on bail. Case FIR No.15 of 2009 is registered on the same subject as noted in above para against accused persons namely Ghafoor Pathan, Deputy Manager/Incharge Customer Service Marketing, PSM; Mohammad Sabir owner of M/s Gujrat Steel Private Ltd. and Muhammad Imran representative of the said firm. It is alleged that they in collusion with each other, knowingly and fraudulently lifted the flat products on the name of their four companies i.e. M/s Gujrat Steel Ltd., Karachi, M/s Bombay Wala Steel, Karachi, M/s AWB Corporation, Karachi and M/s Alfalah Steel Corporation, Karachi; against Mr. Abdul Ghafoor Pathan it is alleged that he being Deputy Manger, PSM/In-charge, Customer Services Marketing Department, PSM from July 2009 to December 2009 misused his official authority and willfully SMC.15/09, etc. 40 allowed lifting of the aforesaid products and granted illegal benefit in allocation to the above mentioned accused persons and violated the rules and regulations of the PSM, and willfully ignored/skipped the directions of the PSM i.e. “no customer shall hold consumer and trader dealership (s) at the same time”. In this case interim charge sheet was submitted in the Court, which is treated as final and the case is under trial stage. Case FIR No.17 of 2009 is against 13 persons including the traders and officials of the PSM for causing wrongful loss to the Government exchequer and for wrongful gain to the tune of million of rupees regarding sale/purchase of various finished products i.e. Billets and HR. The names of the accused are Moin Aftab Sheikh, Ex-Chairman, PSM; Sameen Asgher, Ex-Director Commercial, PSM; Rasool Bux Phulpoto, MD, PSM; Zulfiqar Ali of M/s Aramis International Trading; Abrar Ali of M/s Iftikhar and Co.; Shahid Hussain of M/s Hussain Enterprises; Qutab Khan of M/s Mehran Traders; Muhammad Farooq Ali of M/s Zaman Traders; Ahmed Hussain Jivani of M/s Ahmed Hussain Jeevani; Waqar Ali of M/s Karrfour Enterprises; Muhammad Adil Usman of M/s Adeel Traders; Faisal Hafeez of M/s Mughal Traders and Muhammad Rafique of M/s Al Rehman Steel Traders. It is alleged that the PSM officials named above in collusion with the traders mentioned above fraudulently and SMC.15/09, etc. 41 dishonestly with ulterior motive sold the Billets and HR to these consumers dealers on reduced prices as compared to that of international market. It is to be noted that reportedly some of the accused in this case are absconding; some are on bail whereas the Ex-Chairman, PSM is in the judicial custody. Case FIR No.18 of 2009 is registered against twenty seven accused persons on the allegation that the consumer/dealers accused in this case in collusion with top management of the PSM including Moin Aftab Sheikh, Ex-Chairman, PSM and others fraudulently and dishonestly with ulterior motives caused wrongful loss to the PSM and wrongful gain to the companies accused in the FIR regarding sale/purchase of various finished products including long and flat products of the PSM on reduced prices as compared to that of international prices. The accused in this FIR are Moin Aftab Sheikh, Ex-Chairman, PSM; Sameen Asgher, Ex-Director Commercial, PSM; Rasool Bux Phulpoto, MD, PSM; Dewan Abu Obaida Farooqi of M/s Dewaan Steel Mills; Dewan Muhammad Rehan Farooqi of M/s Dewaan Steel Mills; Zubair Qayyum But of M/s BBJ Pipe Industries Pvt. Ltd., Lahore; Muhammad Hashim of M/s Bashir Pipe Industries Ltd., Lahore; Amir Iqbal of M/s AN Industries Pvt. Ltd., Lahore; Farooq Ahmed of M/s Jamal Pipe Industries Pvt. Ltd., Lahore; Ch. Jamal Abdul Nasir of M/s Win Pipe Industries, Islamabad; SMC.15/09, etc. 42 Iftikhar Ali of M/s Hattar Solid Steel Corporation Pvt., Karachi; Faiz Muhammad Brohi of M/s Indus Steel Pipe Ltd., Karachi; Munir Ahmed Dogar of M/s Indus Steel Pipe Ltd., Karachi; Brig (R) Hashmat Ali Shah Bukhari of M/s Indus Steel Pipe Ltd., Karachi; Shahnawaz Ishtiaq of M/s Nawab Brothers Steel Mill Pvt. Ltd., Karachi; Ch. Waheed ud Din of M/s Victory Pipe Industries Pvt. Ltd., Islamabad; Mehmood Ali Mehkri of M/s Metropolitan Steel Corporation, Karachi; Syed Asgher Jamal Rizvi of M/s Metropolitan Steel Corporation, Karachi; Badruddin Akbar Ali of M/s Amrelli Steel Ltd., Karachi; Muhammad Zafar Ali Khan of M/s Sarhad Re-Rolling Mills Pvt. Ltd., Karachi; Sarfraz Hussain of M/s AS Steel Re-Rolling Mills, Karachi; Aamir Malik of M/s Madina Steel Industries Re-Rolling Mills, Lahore; Asif Bhagani of M/s Faizan Steel, Karachi; Asif Sohail of M/s AF Steel Re-Rolling Mills, Lahore; Mian Muhammad Yasin Suleman of M/s Hajvery Traders, Lahore; Zubair Shoukat of M/s Ramzan Tube Mill, Lahore and Jamil Akhtar of M/s Millat Pipe Industries, Gujranwala. In this case as well some of the accused are absconder; some are on pre-arrest bail, whereas Ex-Chairman, PSM is in the judicial custody and the trial is under progress. 33. The above gist of the FIRs is given just to have a glance at the progress so made by the FIA in the matter. SMC.15/09, etc. 43 34. Due to heavy losses suffered by the PSM in the year 2008-09, the Management of the PSM appointed M/s AHLN (Avais Haider Liaquat Nauman) Chartered Accountants to conduct Forensic Audit of the PSM to determine the cause or causes of such huge loses. They were also given the mandate to establish responsibility for the loss incurred and provide evidence to the management of the PSM of any wrong doing. The firm M/s AHLN carved out the following task while conducting the Forensic Audit of the PSM:- i) To find out and tabulate the break-up of losses and the reasons behind them. ii) To investigate and segregate the losses incurred due to negligence, mismanagement and corruption. iii) To find out the people and agencies responsible for the losses and report their name along with complete details of loss caused to PSM as a result of their involvement required. iv) To provide the management with the evidence required for taking any subsequent disciplinary or criminal proceedings. v) Recovery of losses from whosoever is/are responsible for the losses by tracing their assets in the Court of Law. vi) To suggest corrective measures to facilitate transparency and avoidance of any such losses in future. 35. A careful perusal of the Forensic Audit Report on the PSM reveals that the Auditors took into account the sales, SMC.15/09, etc. 44 procurement of bulk raw material, purchases, production, etc. while compiling their report. While examining Sales of the PSM it was opined by the Auditors that prices of the PSM products had not been increased during the year 2008-2009 specifically from November, 2008 onward despite increase of the local/ international prices; the then Chairman of the PSM, who was Convener of the Price Fixation Committee did not take steps as required by Terms of Reference (TOR); the then Director Commercial (Mr. Samin Asghar) also did not act as required by the TOR. Qua allocation of products, the Auditors observed that the PSM suffered huge losses due to manipulating the process of allocation of its products to some specific customers; these deviations in the process of allocation of products have been noted specifically from November, 2008 to April, 2009 when the management of the PSM decreased the prices of its products by 30-35%; it was opined that Administrative Head of Marketing Department i.e. the Chairman PSM acted in collusion with specific customer and had deliberately manipulated the process of allocation of material to get the maximum benefit of reduced prices. The then Director Commercial/Acting Chairman PSM approved the extension of free credit scheme on 02.12.2008 SMC.15/09, etc. 45 without prior approval of the Price Fixation Committee and in this way M/s Amreli Steel and three other customers enjoyed facilities of Free Credit Scheme (FCS), which resulted in loss of Rs.13,622,074/- to the PSM. The report further reveals that priority was given to traders/dealers as compared to consumers by allocating the material to specific customers during the said period; non- implementation of the SOPs of Marketing Department resulted in losses caused to the PSM. The Board of Directors issued instructions for constitution of High Power Committee to negotiate with the suppliers, shipping companies but the then Chairman never constituted such committee in total disregard of the instructions of the Board of Directors. The Iron Ore Lump was approved to be procured at a very high price by the Chairman against the best interest of the PSM. While discussing the purchase by the management of the PSM, the Auditors opined that the Incharge Purchase Department failed to get approvals from all the concerned departments and from the Chairman and to place the purchase order within the validity period of the offer. According to the Audit Report, the purchase proposals so forwarded by the purchase department to the Chairman for approval were rejected making the freight cost as the base of rejection, however, the tender was awarded to the SMC.15/09, etc. 46 supplier quoting the higher freight rate then quoted previous year. It was observed by the Auditors that the then Chairman acted negligently and in complete disregard to the financial implications of decision to continue the production of Cast Billets, even when the losses were being incurred on such production; he even did not take any step to reduce production level to the minimum. During the course of audit, it was observed by the Auditors that some transactions qua sales were carried out in total contravention of normal business practice; these anomalies were observed in all of the sales made during the period from November, 2008 to April, 2009 in all of the PSM products i.e. Billets, Hot Rolled Product, Cold Rolled Product and Galvanized Product; it was observed that one or more characteristics in the contracts of some customers are common like signature of buyer on the contracts of different customers is of the same person; likewise contracts of similar quantities and similar products are entered into by different dealers with same handwritings; similarly, business addresses were same or very close to each other; it was observed by the Auditors that these dealerships belong to one person or closely related group. 36. In order to examine the above mentioned Audit Report, the Board of Directors of PSM in their meeting held on SMC.15/09, etc. 47 30.07.2011, constituted a seven members designated Committee which examined and reviewed the report and gave its findings as under:- a. The Committee opined that M/s AHLN while elaborating their assignment methodology in their technical proposals, has mentioned that the assigned is being taken up jointly in association with their UK counterpart i.e. RSM Tenon; but the Committee in this regard has not observed any reflection of the contribution made by RSM Tenon; the Committee, therefore, insisted that the contribution of RSM Tenon should be clearly reflected in the report and the endorsement of the same as required earlier should also be made part of the Report. b. The Committee concluded that the work as per the given TOR is incomplete with respect to clause 2(e) which, if acknowledged, will reduce the scope of assignment of M/s AHLN and the basic objective of this exercise i.e. recovery of the lost money will not be achieved. c. The Committee also opined that the business loss, as indicated in the preliminary report has not been catered for, as it comprises of those elements of expenditures and provisions which are independent of any operational level of activity; the Committee was of the view that PSM must have suffered a substantial loss on account of difficult market condition, global recession and devaluation of Pak Rupee against US$ which was factors were not accounted for by M/s AHLN in the breakup of 26.5 billion losses. d. The Committee observed that the double counting adjustments as identified in special notes to observations 7.4.1 to 7.4.3 are also not available in the Report. e. The Committee observed that clause 2(c) of TOR which speaks that the Forensic Consultants are required to pinpoint those who were responsible for the losses from within the PSM and any beneficiary outside the PSM is not complied with. f. The Committee further observed that the conclusions drawn by M/s AHLN for many of their observations were made on some serious matters without the conciliation the management’s point of view on logical/technical ground. g. While the quoting the definition of “Corruption” in legal terms the Committee observed losses attributed towards the corruption have not been passed to the individual dealers, suppliers or other beneficiaries to the extent of benefit drawn by such individuals/groups/parties; therefore, no one can be charged for the same and such vague allegations without substantial evidences/specific charges, may result into a total confusion in transferring the responsibility on individuals/groups/parties for recoveries. SMC.15/09, etc. 48 37. In view of above findings, the Committee concluded that the M/s AHLN has not completed the assignment in true spirit of Forensic Accountancy as generally accepted. 38. We do realize that this case of mega scam was entrusted to the FIA by this Court for investigation and we have been receiving reports from the FIA from time to time but we have been invariably showing our displeasure and express our dissatisfaction both as to the manner and pace of the investigation conducted by the FIA; although the FIA has also filed Audit Reports but ultimately the auditing of the PSM was entrusted to M/s AHLN (Avais Haider Liaquat Nauman) Chartered Accountants, who though did not conclude their work within time but in reasonable time had conducted Forensic Audit of the PSM for the year 2008-2009. 39. It is generally not advisable that pending investigation, the charge of the same be taken over and entrusted to another agency but in the given circumstances and for the reasons, which shall be detailed hereinafter, we are constrained to hold that the no meaningful results are likely to be achieved towards the investigation so far conducted by the FIA, in particular qua the recovery of misappropriated money, which is not within the power and jurisdiction of the FIA authorities but under the law, the NAB Authorities can recover the said SMC.15/09, etc. 49 misappropriated money besides criminally prosecuting the persons either mentioned in the reports of the FIA so far filed or to whom the NAB Authorities subsequently will find so involved in the scam in the PSM for the year 2008-2009. 40. The reasons for transferring the investigation from FIA to the NAB Authorities are formulated as under:- i) The FIA had been filing either preliminary or incomplete reports and had never filed any satisfactory final report; ii) We do not find any serious effort on the part of the FIA towards prosecution of the cases registered through the FIRs mentioned above; iii) Despite observations made by this Court and although from the FIA, it appears that they were not happy because of bail-before-arrest or bail-after-arrest, granted to nominated accused but no appeal for cancellation of bail has been filed against the accused involved in the whole scam of misappropriation of money; iv) There are number of accused who have been shown absconder but no purposeful steps are taken by the FIA to procure their arrest except obtaining only their warrants of arrest; v) It has been admitted at the bar by the Director Legal, FIA and other officials that so far as recovery of misappropriated amount is concerned, it cannot be successfully effected by the FIA authorities, whereas they themselves in their reports have not only pinpointed the names of those persons, who were responsible for the said misappropriation of money but in some matter, they have specified the mount misappropriated by the individuals; vi) During the course of investigation, the DG SMC.15/09, etc. 50 FIA including Mr. Tariq Khosa, from whom there were good expectations, was transferred and even later on by some of the DGs, we have noticed no-cooperation towards the investigation of the case or at times evasive replies; vii) At the first stage of proceedings, the then DG Mr. Waseem Ahmed openly in Court disagreed with the reports of his own subordinates, who were conducting the investigations; viii) The entire investigation appears to be casual and not final result oriented; ix) We do not find any conclusive report prepared by the FIA. 41. Above are the few reasons, which persuade us to conclude that the investigation of the case be transferred and entrusted to the NAB Authorities. 42. We may add here that the incumbent Chairman NAB has been making public statements of his uprightness and integrity. The Chairman NAB under the National Accountability Ordinance, 1999 is head of the investigation agency. The very title of the ‘national accountability’ suggest that the nation expect from the Chairman and all those who are working under the NAB Ordinance that no person who has prima facie committed the offence of corruption and misappropriated the public money to which every citizen of Pakistan has got a right and claim that the ownership of the State treasury belong to them, would be taken to task. SMC.15/09, etc. 51 43. We may here highlight the purpose of the promulgation of the NAB Ordinance, 1999; its very preamble deals with the subject matter of the instant case; same is reproduced herein below for the sake of convenience:- “WHEREAS it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto; AND WHEREAS there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institutions, Governmental agencies and other agencies; AND WHEREAS there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority; ……………………………………………………………… ……………………………………………………………… ……………………………………………………… AND WHEREAS it is necessary that a National Accountability Bureau be set up so as to achieve the above aims;” (emphasis provided) 44. It is categorically stated by the FIA in para-8 of Civil Misc. Application No. 417 of 2011 that the commercial audit, carried out by the FIA was discussed with the Management of the PSM but the Management did not agree with the same rather contested the same. It was pursuant to such disagreement of the Management of the PSM that the FIA and the Chairman PSM agreed thereby to appoint the forensic audit which was carried out by M/s AHLN (Avais Haider Liaquat Nauman) Chartered Accountants. The Management of the PSM was so adamant not SMC.15/09, etc. 52 to accept its liability by showing account clearance certificate of its dealers and nominated accused firms, stating therein that no outstanding amount was recovered from them and it was on such basis that the nominated accused persons succeeded in getting relief of bail from the different Courts including from the High Court of Sindh. 45. During the course of investigation by the FIA to find out as to who and how huge losses of over 26 billions rupees was caused to the PSM, Bank accounts and details of M/s Abbas Steel Group and its linkage with Mr. Riaz Lallji, the transaction of lifting of billets below the market price was also obtained and also to ascertain whether Mr. Riaz Lallji hold any position of Director, shareholder or Chief Execution in M/s Abbas Steel Group but the FIA failed to establish any linkage between the losses caused to the PSM and the involvement or interest of Mr. Riaz Lallji. 46. Similarly, as one Mst. Sabin Sakina, who was reportedly in United Kingdom was served with a questionnaire by the FIA regarding her contentions in respect of alleged transaction of the PSM with M/s Abbas Steel Group but till to date no progress could be made. 47. It appears from Civil Misc. Application No. 1576 of 2012 that Mr. Riaz Lallji and Mrs. Nazneen Lallji, who were the SMC.15/09, etc. 53 Directors of M/s Abbas Steel Group and were in the Management in September, 1996 had apparently resigned from the Directorship in the year 2004-2005. At the time of investigation M/s Sabina Sakina, Khalid Khan and Malid Bashir Ahmed were the Directors for last about three years; strangely enough, the two later named persons were made accused in case FIR No. 39 of 2009 but connection or otherwise of Ms/ Sabina Sakina does not surface from the report of the FIA. 48. We may reiterate here that the investigation by the FIA so far has failed to pinpoint the real beneficiaries under the garb of M/s Abbas Steel Group. 49. The purpose of present proceedings is not to punish someone but to secure the recovery of looted money, which has been plundered by the persons prima facie connected with the commission of the offence and if there cases are sent up for trial before the Court of competent jurisdiction, they shall be held responsible but strictly in accordance with law. 50. The reasons which persuade us to decide that the investigation be taken over from the hands of the FIA and entrusted to the NAB are reflected in our order sheets, wherein we have noted at different times that whenever a DG FIA could make a headway and was about to lay hands on the culprits, he used to be posted out on unknown pretext and when Mr. Wasim SMC.15/09, etc. 54 Ahmed, DG FIA took over the charge, he in open Court had disagreed with the investigation of his subordinates. We also felt that attempts to divert the fair and honest investigation were also made by the Ministry of Interior by appointing Joint Investigation Team in spite of the fact that the matter was sub judice before this Court and the FIA was carrying out the investigation under the directions of this Court. 51. Even otherwise, as compare to investigation under the FIA, the investigation that would be carried out by the NAB would be more purposeful and effective; in this regard we may refer to Section 12 of the NAB Ordinance, where under the Chairman NAB or the Court, trying the accused for any offence under the NAB Ordinance can order freezing of his property or part thereof, whether in his possession or in possession of his relative, associate or person on his behalf; similarly Section 25 of the NAB Ordinance provides for voluntary return and plea bargain; through such process at least the State money, which belongs to the people of Pakistan can be recovered/retrieved, leaving apart the criminal prosecution of the persons involved by the Trial Court, if reference is sent before it. 52. We have also noticed from so far submitted reports of the FIA that many of the nominated accused are still absconding and their arrest in the near future is not expected but the NAB can SMC.15/09, etc. 55 press into service Section 31-A of the NAB Ordinance against the accused persons, who are either absconding or purposely avoiding being served with the process issued against them either by the Court or by other authority like investigating agency because under the NAB Ordinance, such conduct itself is an offence which is punishable with imprisonment, which may extend to two years. 53. Keeping in view all above facts and circumstances, i.e. undisputedly there is huge loss caused to the PSM in the year 2008-2009, coupled with the fact that in more than one audit reports the reasons have been highlighted for such losses which include that major portion of losses is due to misappropriation of money and at times due to negligence and mismanagement, we feel that to secure the interest of public at large, the propriety demands that the investigation so far conducted by the FIA, which appears to us unsatisfactory, shall now be taken over by the NAB authorities. Therefore, we direct the DG FIA to handover all the record so far prepared/collected by the FIA in this mega scam of the PSM to the Chairman NAB. Consequently, the Chairman NAB is directed to :- i) supervise/appoint a team of honest and upright officers under his administration to further probe in the mega scam of losses of more than SMC.15/09, etc. 56 26 billions rupees to the PSM, which pertains only to one financial year i.e. 2008-2009; ii) determine the accusation against the individuals responsible for such losses and misappropriation including negligence; since the sufficient material including the Forensic Audit Report will be before him, his team shall feel facilitated for further probing in the matter in its own manner; iii) ensure that immediate and stringent steps are taken for the recovery of looted money from the persons who are responsible for it; iv) also ensure completion of investigation/enquiry within the shortest possible time; v) further ensure the arrest of the accused who have been declared absconder or who may be found involved in the case; vi) that if in his opinion the bail obtained by some of the nominated accused is not justified, he shall direct his prosecution agency to seek cancellation of the same by filing application before the Court of competent jurisdiction; vii) make it sure that after and on completion of enquiry/investigation, references are filed against the persons found involved in the crime; SMC.15/09, etc. 57 The above exercise shall be completed by the Chairman NAB within a period of three months and fortnightly report about progress of the investigation/enquiry shall be filed before the Registrar of this Court for our perusal in Chambers and for passing appropriate orders, as may be deemed necessary in the circumstances. 54. Simultaneously, we direct our office to transmit a copy of entire record of the case, compiled during the course of hearing, along with order sheets to the Chairman NAB for his information/ guidance. 55. So far as contempt proceedings initiated against Mr. A. Rehman Malik, Interior Minister vide order dated 17.12.2009 are concerned, reference of which has been made in para-19 above, the same be registered independently and notices be issued for a date after two weeks. All the titled cases are disposed of in above terms along with ancillary Misc. Applications. CJ. J. Islamabad, J. Announced in Court On 16th day of May, 2012. APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE SARDAR TARIQ MASOOD SUO MOTO CASE NO.15 OF 2015 (Suo Moto action regarding acquittal of Mustafa Kanju S/o Siddique Kanju (Former State Minister) and his four Security Guards due to lack of evidence) Attendance Mr. Razzaq A. Mirza, Addl. AG.Pb. Mr. Ehtesham Qadir Shah, PG Punjab. Mushtaq Sukhera, IG Punjab. Sultan Ahmed Ch. DIG (Inv) Lahore. Kamran Adil, AIG Legal Nasir Abbas Panjutha, DSP, (Inv). Lahore. Khalid Abu Baka Shah, DSP (Inv), CIA/OC Syed Imtiaz Hussain Shah, Inspector/IO. Mehboob Alam, ASI Ejaz Ahmed, HC. Aamir Hameed, HC Muhammad Shehbaz, HC. Muhammad Naseer, HC Furqan Masih, Constable. Muhammad Idrees, Constable. Waseem Abbas s/o Muhammad Yar Nadeem S/o Muhammad Aslam Muhammad Ishaq S/o Ahmed Bakhsh Muhammad Qasim S/o Muhammad Yousaf Muhammad Yousaf S/o Ameer Sohail Afzal S/o Muhammad Afzal (Complainant) Qaiser Afzal S/o Muhammad Afzal (Witness) Farooq S/o Muhammad Yousaf (Witness) Waqas Waseem S/o Muhammad Waseem (Witness) Ghazala Rauf Sd/o Rauf (Mother) Manahil D/o Rauf (Sister) Rimsha D/o Rauf (Sister) Hasnain S/o Zahoor (injured witness) Zahoor S/o Noor Ahmed. Raja Shujah (R) Capt. Col. (R) Ayub Jaffary. Muhammad Ashraf S/o Ali Muhammad Sakhawat S/o Bashir Ahmed. Muhammad Arshad S/o Muhammad Deen. Date of hearing 16-11-2015 2 O R D E R On 10.11.2015, the I.G. Police, Punjab, filed his report and this Court directed appearance of legal heirs of the deceased Zain and the prosecution- witnesses including the Complainant on 16.11.2015. On 16.11.2015, the L.Rs of the deceased Zain and prosecution-witnesses of the case appeared in the Court. The deceased was survived by a mother and two sisters, as his father had died one and half year before the incident. Mst. Ghazala, mother of the deceased, present in Court, has stated that she is too weak to fight against the killers of his deceased son, as the accused party is very powerful. This Court has extended assurance to her that she is not required to fight herself but it is the duty of the State to ensure that citizens of this Country enjoy equal protection of law guaranteed under the Constitution and if any injustice is done, it is the obligation of the State to remedy it by brining the culprits to book. 2. In order to understand the view point of the L.Rs of the deceased, the Court called them in Chambers and heard them individually. Mst. Ghazala, the mother of the deceased, told us in Chambers that she is a poor lady and after untimely death of her husband, she is earning the living of her family comprising of two daughters and a son, who was killed on a footpath/road in the evening of 1.4.2010. She has further informed the Court that her brothers are also from lower middle class family and hardly make their both ends meet and in this background, she and her daughters after the incident are scared and disturbed. Out of the two daughters one namely Manahil stated that she cannot appear in the examinations because of the apprehensions regarding her safety. Mst. Ghazala further stated that State should take steps to ensure that those who have killed her son be punished. She, in so many words, has stated that she has not forgiven the accused persons nor has entered into any compromise nor was terrorized by any one. According to her, it was the duty of the State to collect material against culprits and prove their 3 guilt. We have also called brothers of Mst. Ghazala and heard them besides the injured Muhammad Hasnain, who perhaps was not giving true story. 3. We, in the given circumstances, are shocked to see the state of affairs where a mother of a young boy because of her weaknesses and other shortcomings is being compelled to give up her right to seek justice. The procedure provided under our present criminal justice system is very cumbersome. We can understand that the L.Rs of Zain deceased have lost confidence not only in the police but also in State machinery. They feel insecure and need to be assured that justice will be done. 4. Prima facie, the manner in which the police has investigated the case is not transparent. We have failed to understand that why in a case of this nature the police had not produced the prosecution witnesses before the Magistrate for recording their statements under Section 164 Cr.P.C. We inquired from the police officials, present in Court, as to what prevented them from getting recorded the statements of the witnesses under Section 164 Cr.P.C, but no plausible explanation was offered from their side. 5. The Prosecutor General, Punjab, has informed us that the state has preferred an Appeal before the Lahore High Court against acquittal of the accused persons named in the F.I.R, taking all the available grounds. He submits that the propriety demands that these proceedings be deferred till the pending Appeal of the State is decided by the learned Lahore High Court, as any finding and/or observation made in these proceedings may cause prejudice to the case of either party. 6. We do not, in the peculiar facts and circumstances of the case, intend to comment on any aspect of investigation/prosecution at this point of time as it may influence the outcome of the pending Appeal filed by the State, therefore, we 4 adjourn this case sine die. Once the State Appeal is decided by the learned High Court, intimation shall be given by the Prosecutor General, Punjab, to this Court through the Registrar with a copy of the judgment immediately. Upon receipt of a copy of the judgment of the High Court, this Court may, if deem necessary, revive the present proceedings. We expect that the learned Lahore High Court shall decide the Appeal of the State expeditiously, preferably within two months from the date of communication of this Order. We may observe that if the L.Rs of the deceased or the injured victim seek protection of the police, then the I.G Police shall attend to the request. 7. A copy of this order be faxed to the Registrar of the Lahore High Court, Chief Secretary, I.G Police, Home Secretary, Prosecutor General, Advocate General, Punjab, and the L.Rs of the deceased Zain for their information and compliance. Office is further directed to immediately send back the R&P of the trial Court so that no delay is caused in hearing of the State Appeal. 8. Adjourned in terms of para 6 hereinabove. Judge Judge Judge Announced in open Court on ________________. Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN S.M.C. NO. 16 OF 2011 ETC (Suo moto action regarding law and order situation in Karachi) In Attendance: Mr. Salman Aslam Butt, Attorney General Mr. Waqas Qadeer Dar, DAG Mr. Aslam Butt, DAG (On Court Notice) Mr. Abdul Fateh Malik, A.G. Sindh Mr. Sher Shah, P.G. Sindh Mr. Adnan Karim, AAG Sindh (For Government of Sindh) Mr. Shahid Hayat, Addl. I.G. Sindh Mr. Ali Sher Jakhrani, DIG (For Police) Mr. Nazar Muhammad Leghari, Consultant BOR Mr. Zulfiqar Ali Shah, Member BOR(IT) Mr. Yawar Ali, ASC Mr. Ahmed Pirzada, ASC (For BOR) Date of Hearing: 24.02.2014 ORDER REGARDING LAND GRABBING Mr. Zulfiqar Shah, Member (Technical) Board of Revenue, Sindh, has submitted a detailed report in CMA No. 834/2013 wherein he has inter alia submitted that with the assistance of satellite imagery of GIS Section, illegal occupancy of Government land has been identified and verified of an area of 52,1032 acres by various institutions and 7672 acres by private persons. Adds that action is being taken to remove the illegal encroachments and Anti Encroachment Police Force headed at present by Mr. Arif Aziz has been entrusted with the task. SMC 16/2011 etc 2 2. Mr. Nazar Muhammad Leghari, Consultant, Board of Revenue has also submitted a report and adds that there is a law in place in Sindh called the Sindh Public Property (Removal of Encroachment) Act, 2010 which provides issuance of notices to illegal occupants before an action is taken. Adds that notices have been issued. However, he was not in a position to give details of the number of notices issued and whether those have been challenged in courts of competent jurisdiction and a stay order has been issued against those notices or not. 3. Let Member, Board of Revenue submitted a detailed report about the notices issued in terms of the above and the fate of those notices. Mr. Arif Aziz who heads the Anti Encroachment Police, Board of Revenue shall also appear and submit a progress report on the next date. To come up on 26.2.2014. C.R.P. NO. 2-K/2014 IN CMA NO. 589-K/2013 3. Let this review petition be fixed before a 5 Members Bench on 26.2.2014. All other cases of 5 Members Bench shall also be taken up on 26.2.2014. 4. Learned Attorney General for Pakistan submits that in terms of paras 3, 4 & 5 of the order dated 29.11.2013, Attorney General and Advocate General Sindh had submitted in writing the names of technical, judicial and accounting members for the proposed Commission. So far as para 3 is concerned, he submitted that the PTA was to submit a report. Mr. Ali Akbar appearing for PTA submits that the report shall be submitted during the course of the day today. Let this matter be taken up on 26.2.2014 because it is a 5 Members Bench’s order. CRIMINAL ORIGINAL PETITION NO. 84/2013 SMC 16/2011 etc 3 5. Petitioner submits that a gruesome incident took place in Abbas Town as a result of which about 50 persons lost their lives and this Court while taking suo moto notice of this case had expressed dismay over the fact that immediately after the incident no police officer reached the spot rather the media persons reached the spot before any officer was there. The incident prima facie reflected not only inaction on the part of the concerned police officers but also demonstrated their inefficiency. That being so, the Court had directed that “in the circumstances, we direct the Chief Secretary, Government of Sindh, being the head of the Executive that immediately suspend SSP, DSP and SHO and issue such notification during the course of the day. The also be directed to join interrogation on account of their criminal negligence in not providing the assistance to the inhabitants.” Petitioner makes a grievance that though the afore-referred order, Rao Anwar Ahmed who was then posted as SSP Maleer where the incident took place was suspended in terms of this Court’s order. However, without any departmental inquiry he was not only reinstated but given another posting. Let notice be issued to Inspector General of Police, Sindh, to personally appear on 26.2.2014 to explain the factual position. 6. The rest of the case will be taken up on 26.2.2014. CHIEF JUSTICE JUDGE JUDGE Karachi, the 24th of February, 2014 Not Approved For Reporting Khurram

THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE SH. AZMAT SAEED Suo Motu case No.17 of 2016. (Action taken by this Court to examine the vires of Section 25(a) of the NAB Ordinance. In Attendance: Mr Ashtar Ausaf Ali, Attorney General for Pakistan. Ch. Aamir Rehman, Addl.A.G. Barrister Asad Rehman, Consultant to A.G Mr Waqas Qadeer Dar, PG, NAB Mr. M. Azam, DPG, NAB. Mr Imranul Haq, Spl. Prosecutor NAB. Mr Abdul Latif Yousafzai, AG, KPK. Mr Ayaz Swati, Addl.A.G, Balochistan. Mr Zamir Hussain Ghumro, A.G, Sindh. Mr Sheharyar Qazi, Addl.A.G, Sindh. Akhtar Rehana, Addl.P.G Sindh. Mr Asjad Javed Ghural, Addl.P.G. Punjab. Mr Mudassar Khalid Abbbasi, Asstt.A.G, Punjab. Mr Asad Kharral, Applicant in CMA No.6374 of 2016. Date of hearing 24.10.2016. ORDER AMIR HANI MUSLIM, J.- This Court on 02.09.2016, during hearing of Civil Appeal No.82-K of 2015, noticed abuse of authority by the NAB while taking cognizance of petty matters in terms of Section 9 of the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance). The Ordinance was primarily legislated to counter the cases of mega scandals and initiate proceedings against the accused persons who are involved in scandals of mega corruption and corrupt practices. Suo Motu Case No.17/16. 2 2. The Court also noticed that in terms of Section 25(a) of the Ordinance, the NAB authorities after issuance of call up notices suggest to the accused that they may opt to come forward with the offer of voluntary return of the amounts that have allegedly been acquired or earned illegally by them. Section 25 (a) (ibid) empowers the Chairman, NAB, to accept such voluntary returns made by the accused persons, the amount is deposited with NAB in installments at the discretion of the Chairman, NAB. Alarmingly, on payment of certain portion of the amount, such person is given clean chit by the NAB to rejoin his job. The frequent exercise of powers under Section 25 (a) (ibid) by the NAB on one side has multiplied the corruption usurping the jurisdiction of the F.I.A and Anti-Corruption agencies and defeated the object of the Ordinance on the other hand. In this regard the matter was referred by a Bench of this Court to the Hon’ble Chief Justice of Pakistan, for examining the vires of Section 25(a) (ibid) vis-à-vis un-bridled powers of the Chairman, NAB to accept the offer of voluntary return from a person regardless of the size of the amount by any mode adopted at his discretion which falls within the domain of the judiciary. The matter was placed before the Hon’ble Chief Justice of this Court, who directed the office to fix the matter in Court, treating it as a Petition under Article 184 (3) of the Constitution. On 02.09.2016, the NAB authorities were further directed to provide the following details (i) The list of the cases in which NAB authorities are conducting enquiries and investigations and or references pending in the NAB Courts, involving an amount of less than Rs.100 Million; (ii) The list of the persons, civil servants and or public servants, to be provided by relevant departments of the Governments and or State owned organizations, who entered into Voluntary Return. (iii) The action which the Federal/Provincial Governments and or statutory organizations have taken against their employees after their offer of Voluntary Return was accepted by NAB in terms of Section 25(a) of the NAB Ordinance. Suo Motu Case No.17/16. 3 3. On 28.09.2016, the matter was adjourned at the request of the learned Law Officers of the Federation and the Provinces as well as the NAB authorities for today. In response to the order dated 02.09.2016, the required reports have been submitted by the Federal Government and the Provincial Governments. The NAB has also filed its report as C.M.A.No.6376 of 2016, giving details of the persons who have offered voluntary return of the monetary gains that they acquired through corrupt practices and such offer was accepted by the Chairman, NAB. From the reports submitted by the Federal Government and the respective Provincial Governments, it appears that no departmental action has been taken against the officers/employees of different organizations including Govt. departments, who had voluntarily returned illegally acquired monetary gains, which is very unfortunate. Once a person accused of corruption or corrupt practices volunteers to offer to return the amount he has pocketed or gained through illegal means, prima facie, cannot hold any Government/Public Office, as the very act of his offering the voluntary return falls within the definition of “misconduct” under the service law and calls for initiation of disciplinary action against the accused person(s). The report filed by the NAB mentions that hundreds of employees/civil servants and others who have voluntarily returned the amounts in terms of Section 25(a) (ibid) are still enjoying their office, without being exposed to any departmental proceedings which has further multiplied the corruption in the country. 4. This inaction on the part of the departmental authorities towards the accused has patronized corruption, by providing a window to the NAB as Suo Motu Case No.17/16. 4 well to the employees, who plunder public money and after paying back a portion of the alleged amount of corruption/corrupt practice continue in their jobs. 5. Primarily, the concept of voluntary return under the Ordinance, was confined to those accused against whom the proceedings were yet to start and they, on their own, had approached the NAB authorities by offering the voluntary return of the amounts illegally gained or acquired by them. This concept, however, was side tracked and instead the accused persons against whom call up notices were issued on the strength of some complaint or otherwise are extended favours by the NAB under the garb of Section 25(a) which was never intended for. 6. In the given circumstances, what has further disturbed us is that the amounts so collected by the NAB in installments or otherwise is not being deposited in its entirety with the concerned Government/Department forthwith, instead some of the amount under the garb of Rules or otherwise is retained by the NAB authorities for distribution to its official towards award. 7. We inquired from the Prosecutor General, NAB, to provide us the details of the amounts of voluntary return recovered from different accused persons and details of its deposit. The P.G, NAB, states that no amount is withheld by the NAB authorities for distribution to its officers who conduct the investigation of the cases as award. 8. The NAB shall provide us the details of the amounts which they have collected from accused persons, during the last 10 years and the Suo Motu Case No.17/16. 5 amounts which they have deposited with the different Governments. These details should reach this Court by 05.11.2016 positively. Likewise, the Attorney General for Pakistan as well as the Advocate Generals of the Provinces shall handover the copies of C.M.A.No.6376 filed by the NAB to the Secretary, Establishment Division and the Chief Secretaries of all the four provinces, who in turn shall ensure initiation of departmental proceedings against the accused persons mentioned therein who have voluntarily returned the amounts under Section 25(a) of the Ordinance, besides they shall further provide the details of the amounts which different departments have received from the NAB in terms of Section 25(a) (ibid). 9. We, therefore, direct the Secretary, Establishment Division and all the Chief Secretaries of the Provinces to ensure initiation of departmental proceedings forthwith against the employees mentioned in C.M.A.No.6376 of 2016 who have voluntarily returned the amounts in terms of Section 25 (a) (ibid), without further loss of time and report compliance. 10. In the meanwhile, the Chairman, NAB, or any other Officer authorized by him in this behalf, is restrained from accepting any offer of voluntary return in terms of Section 25(a) of the Ordinance. The office is directed to re-list the matter on 07.11.2016. Chief Justice Judge Islamabad the, 24th October, 2016. Not approved for reporting. Judge Sohail/**

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Muhammad Sair Ali Mr. Justice Ghulam Rabbani Mr. Justice Khalil-ur-Rehman Ramday SMC NO. 18 OF 2010 ACTION REGARDING VIOLATION OF PUBLIC PROCUREMENT RULES, 2004 IN PROCUREMENT LOSS OF BILLIONS OF RUPEES OF PUBLIC EXCHEQUER CAUSED BY NATIONAL INSURANCE COMPANY LTD. On Court notice: Moulvi Anwarul Haq Attorney General for Pakistan For NICL: Mr. Abdul Hafeez Pirzada, Sr. ASC Mr. Tariq Iqbal Puri, CE TDAP Acting Chairman, NICL For M/o Commerce: Mr. Zafar Mehmood, Secretary For M/o Interior: Mr. Qamar Zaman Ch, Secretary For the FIA: Mr. zafar Iqbal Qureshi, Addl. Director Mr. M. Azam Khan, Director (Law) Mr. Moazzam Jah, Director, Karachi Mr. Basharat Shehzad, Dy. Dir/IO Mr. Muhammad Ahmad, Asstt.Dir/IO For Athar Naqvi: Syed Iftikhar Hussain Gillani, Sr.ASC For Casa Bella: Ms. Romaisa Ahmad For Naveed Zaidi: Nemo For Hur Riahi: Nemo For NAB: Mr. Muhammad Akbar Tarar, Acting PG Mr. Fauzi Zafar, DPGA Date of hearing : 25.01.2011 ……. O R D E R Ch. Qamaruzzaman, Secretary, Ministry of Interior, Government of Pakistan has placed on record the notification dated SMC 18/2010 2 24.01.2011, issued by the Government of Pakistan whereby Capt. (Retd.) Zafar Ahmed Qureshi, Managing Director, National Police Foundation has been appointed as Additional Director General, FIA in addition to his present assignment with immediate effect till further orders to supervise investigation of the NICL case at Lahore. 2. It is to be noted that during the period when he was supervising the investigation and the investigation was likely to make effective progress, he was abruptly transferred on the pretext that after his promotion in Grade 21 he could not continue as a Director over there, but we feel that this device was adopted with a mala fide intention otherwise by an identical notification as has now been issued, the authorities could have allowed him to continue with the investigation of an important case, involving a huge public money, which has allegedly been looted. 3. Mr. Zafar Ahmed Qureshi is present. He has explained the progress made by him so far in the investigation of the case. When inquired as to why he is not treating all the accused persons at par because one of the Directors of NICL, Amin Qasim Dada has not been arrested whereas remaining Directors have already been taken in custody of the FIA, he answered that despite his best efforts he was not allowed to do it. He stated that whenever any person is required from Lahore where he is posted as a Director, the needful is done, but when he had gone to Karachi and contacted Moazzam Jah, Director FIA over there in connection with the arrest of Amin Qasim Dada, Moazzam Jah told him that Amin Qasim Dada used to sit with DG, FIA in his camp office, therefore, how he could cause his arrest. On Court query, the Director FIA, Karachi, who is present, stated that 4-5 days before the registration of the case and after the order had already SMC 18/2010 3 been passed by this Court, Amin Qasim Dada was present with the DG, FIA. Be that as it may, DG, FIA is equally responsible for not causing his arrest. It seems that instead of allowing his Director to make progress in the case, he is providing shelter to the accused persons; therefore, we direct the Additional Director General, FIA, Zafar Ahmed Qureshi to take all necessary steps for causing his arrest and if on a further probe he comes to the conclusion that the accused is being given shelter by the DG, FIA, then he should proceed against the DG too in accordance with law because no one is above the law. He further explained that all efforts shall be made to explore the possibility as to how the Government money was taken out of the accounts of the NICL, where the same was spent and in whose accounts the same was deposited. In this behalf, he has particularly made reference to the case of M/S Al-Tahoor Co., whose Manager Abdul Maalik has already been arrested and stated during interrogation that the account was opened in Allied Bank Ltd, Airport Road Branch, Lahore in the name of one Adil Manzoor whose name/NIC was used but when said Adil Manzoor was interrogated, he stated that he had no knowledge of the same, but according to the statement of Manager Abdul Maalik, an amount of 22 crores of rupees has been given to Moonis Elahi. According to him, as progress was being made in the meanwhile, he was transferred and made under orders of DG (Waseem Ahmed) to relinquish the charge immediately. Be that as it may, Zafar Ahmed Qureshi has now again been posted as Additional Director General, FIA, therefore, he would be supervising investigation of the case pertaining the persons concerned. 4. Director Moazzam Jah also gave progress report, which does not seem satisfactory as no step has been taken by him as well SMC 18/2010 4 to cause arrest of the accused persons, who had left the country inasmuch as Amin Qasim Dada, who was available in Karachi and according to his information he was sitting with DG, FIA after passing of order by this Court, he ought to have taken necessary steps to cause his arrest. Similarly, he had taken no steps to recover the amount from the account of Ayaz Khan except making attachment of the property but making no probe in the matter thoroughly fixing the responsibility upon the accused persons, which indicates that the investigation is not being carried out honestly, fairly and properly. However, we may give him another chance to proceed with the matter strictly in accordance with law and submit report on the next date of hearing in this behalf. 5. The Secretary Commerce has stated that he has sent a letter to the Auditor General of Pakistan to conduct special audit of the NICL. 6. The report submitted by the Secretary Interior is also placed on record. 7. Adjourned to 01.02.2011 when the Additional Director General, FIA, Lahore and Director, FIA, Karachi shall attend the Court and submit their reports. CJ. J. J. J. Islamabad, 25.01.2011

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Amir Hani Muslim Suo Moto Case No.18 of 2011 And C.M.As No.4823-4825, 4916 & 4820/2011 And H.R41939 of 2011 (Irregularities and Non-Payment of Salaries/Pension to Pakistan Railways employees) On Court Notice: Maulvi Anwar-ul-Haq, AGP For Pakistan Railways:Rai Muhammad Nawaz Kharal, ASC Mr. M. Naeem Malik, GM, MTS Mr. Ahsan Mehmood Mian, Addl. G.M, Mr. Muhammad Tariq Khan, CME/WQ Mr. Shafiqullah, Secy, Railways Board Mr. M. Azam Ghafoor, Chief Controller Mr. M. Ashraf Lanjaar, Director (LA) For NAB: Mr. Akbar Tarar, Addl. P.G. NAB Mr. Fauzi Zafar, ADP, NAB In C.M.A 4820/2011: Nemo In CMA 4823/2011: Mr. Salman Akram Raja, ASC With Sheikh Rashid Ahmed, Former Minister, Railways In CMAs 4824,4825/11: Mr. Zulfiqar Ahmad Butta, ASC & 4902/2011 In CMA No.4916/11: Syed Zafar Ali Shah, Sr. ASC In CMA 5088/11: Mr. Hafeezullah Cheema, ASC in person In CMA 5225/11: Sardar Ayaz Sadiq, MNA/ Chairman Standing Committee on Pakistan Railways Date of hearing: 30.11.2011 ORDER Iftikhar Muhammad Chaudhry, CJ.— Sheikh Rashid Ahmad, Former Minister for Pakistan Railways SMC 18/2011 2 pointed out that after commencing hearing of this case, 20 locomotives have been rehabilitated and are being used with railway trains. Former Minister has also referred the audit report of current year and read out different portions therefrom, according to which huge losses have been caused to the Railways on account of mismanagement, corruption and corrupt practices, etc. Surprisingly the concerned authorities have failed to initiate action against the persons responsible, till date. Mr. Shafiqullah, Secretary Railways Board stated that in addition to it, 21 locomotives shall also be rehabilitated on or before 21st December, 2011 2. It may be noted that identical objections in regard to corruption were raised on the last date of hearing in respect of auctioning of the scrape and we had directed the Chairman NAB to look into this matter and initiate actions according to law. In respect of the audit report as well, we direct the Chairman that he should collect the audit report from the Railways Department and examine the same to ascertain the criminal liabilities of the officers/officials and other persons responsible for the corruption and corrupt practices. The learned Attorney General for Pakistan as well as learned Additional Prosecutor General, NAB pointed out that in compliance with the orders of this Court, action has already been initiated by NAB. 3. Sardar Ayaz Sadiq, MNA, Chairman Standing Committee on Pakistan Railways has appeared and stated that there is no such serious problem with the Railways except the things are becoming complicated for one or the other reason. He has pointed out that bailout packages have been issued and by the time 12 billions have been received by the Railways Department but on account of mismanagement, no progress has been made for rehabilitation of Railways. One of the reasons pointed out SMC 18/2011 3 by him was the non-functioning of the Railways Board. The Secretary Railways Board stated that about one year back Prime Minister of Pakistan had accorded approval of the Railway Board wherein names of some of the private persons had been mentioned but despite lapse of a sufficient time the Board has not been notified. He further stated that the Government should nominate such persons to be the members of Board, who have no personal interest or stake and preference should be given to the persons who have expertise in the relative commercial business. The learned Attorney General has stated that he would discuss these issues with the Secretary Railways and on the next date of hearing shall inform the reasons for non-issuance of the notification of the Railway Board. 4. The Secretary Railways Board further informed that out of available 494 locomotives 60% have already lived their lives, therefore, despite spending money on their repairs, no useful purpose can be obtained from the same. On the other hand Sheikh Rashid Ahmad has pointed out that majority of the engines are those, which have been parked for want of minor repairs, say like; in some of the cases on account of use of contaminated oil the crank shafts have been damaged and minimum expenditures for replacement of crank shaft is required and if this procedure is adopted, the Railways can rehabilitate a good number of their engines. We do not have technical expertise, however, we direct the Chairman that he should prepare a list of each locomotive, pointing out the defects and the plan for its rehabilitation alongwith approximate cost of each locomotive. This exercise should be completed within a period of ten days and copy of the same shall be sent to the Registrar as well as Sheikh Rashid Ahmad, Former Minister, Railways. The Registrar shall convene a meeting of Former Minister and representatives/engineers of HMC, HIT and SMC 18/2011 4 Risalpure as well as the Railway authorities and after taking their reaction, on the detail report on the proposed report, the Registrar shall submit his report on the issue for perusal of this Court before the next date of hearing. 5. We are informed by the Secretary Railways that as far Auditor General of Pakistan is concerned, it has no expertise for conducting forensic audit, therefore, with the permission of competent authority some private charted accountant company of repute shall be involved subject to payment of the cost etc. to do the needful. Progress report in this behalf may be submitted on the next date of hearing. We expect that employees of the railways represented by the learned counsel shall also show their interest for the purpose of reactivating the Pakistan Railways as early as possible. 6. It is informed by the Mr. Ayaz Sadiq, MNA that immovable properties of the Railways Department, situated in different provinces has been encroached by different agencies including Defence, Rangers, FC and private persons. Detail report in this behalf be submitted to the Registrar of this Court within seven days, who shall forward the same to all the Chief Secretaries for ensuring that the property belonging to the Railways Department is handed over to them. Let case be adjourned to a date in office after three weeks. Chief Justice Judge Islamabad, the 30th

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Amir Hani Muslim Mr. Justice Sh. Azmat Saeed SUO MOTO CASE NO.18/2016, CMAs NOs.7067, 7587, 8495-8498/2016 IN SMC NO.18/2016 & CMA NO.8198/2016 IN CMA NO.7067/2016 IN SMC NO.18/2016, (Suo Moto Action regarding eligibility of Chairman and Members of Sindh Public Service Commission and others) In attendance: For Government of Sindh : Mr. Zameer Hussain Ghumro, AG Sindh Mr. Ghulam Ali Brahmai, Addl. Secretary, Services, Sindh For Chairman & Members of SPSC : Mr. Farooq H. Naek, ASC Raja Abdul Ghafoor, AOR For Saindad Khan Solangi, Ghulam Shabbir Shaikh and Muhammad Hanif Pathan : Raja Muhammad Ibrahim Satti, Sr. ASC Syed Rafaqat Hussain Shah, AOR For the applicant(s) : Mr. Zulfiqar Khalid Maluka, ASC (In CMA No.7587/2016) Nemo (In CMAs Nos.7067, 8495 to 8498 of 2016) Date of Hearing : 03.01.2017. ORDER AMIR HANI MUSLIM, J. - These proceedings emanate out of an Application submitted by Mr. Muhammad Junaid Farooq, a practicing Lawyer of the High Court of Sindh, addressed to the Hon’ble the Chief Justice of Pakistan, complaining therein that the Chairman and Members appointed by the Government in the Sindh Public Service Commission (hereinafter referred to as the Commission), lack eligibility threshold as S.M.C.No.18/16. 2 provided in Section 3 of the Sindh Public Service Commission Act, 1989. It was further averred that the Chairman and Members were involved in corruption, nepotism and mass mismanagement in the Commission, which stories were aired/printed in the electronic and print media. He has prayed that this Court should take suo motu notice of this matter of great public importance, as it has far reaching effects on the future of youth of the Province of Sindh. He further prayed that all the recommendations made by the illegally appointed Chairman and Members for appointments to different posts should be declared void and of no legal effect. 2. On this Application, one of us (Amir Hani Muslim, J), made the following recommendations:- “Through this Application, the applicant has challenged the eligibility and qualification of Chairman Public Service Commission Sindh and the members appointed by the Sindh Government. This is a matter of public importance and has direct bearing on the rights of public at large. Public Service Commission is constituted pursuant to the directions contained under Article 240 of the Constitution. If the Chairman and the Members themselves are not eligible to hold office, how can they allowed to undertake exercise of examining the candidates for appointments in the government departments. I, therefore, suggest the office to place this application before the HCJP, recommending to examine the issue raised in the application on judicial side under Article 184 (3) of the Constitution. 3. Accordingly, the Application was placed before the Hon’ble Chief Justice of Pakistan, who was pleased to pass the following order:- “It may be treated as suo motu case and fixed at Islamabad on 28.09.2016 with notice to the A.G Sindh and the persons named at the bottom of this application.” S.M.C.No.18/16. 3 4. Notices were issued to the Applicant, Advocate General, Sindh, and the Respondents. The matter was fixed in Court on 28.09.2016, and the Secretary, Services, Sindh, was directed to place before the Court the service profiles of all the Members of the Commission, indicating the length of service of the Respondents in departments in each scale, including their length of service in BS-20. The Secretary, Establishment Division, Government of Pakistan, was also directed to produce the service profile of Muhammad Saleem Bhanwar, with details of his length of service in each scale, including BS-20. 5. Thereafter the matter was posted on 17.10.2016 and on 03.11.2016, when the following order was passed:- “The learned Advocate General Sindh has placed a statement in writing before the Court, which reads thus : - “The following persons have tendered their resignation to the Government of Sindh and has such Sindh Public Service Commission shall be reconstituted in accordance with the law. 1. Mr. Muhammad Saleem Bhaounr, Chairman, SPSC 2. Syed Jawed Ali Shah Bukhari, Member, SPSC 3. Mr. Shamsuddin Hisbani, Member SPSC 4. Mr. Feroze Mehmood Bhatti, Member SPSC 5. Dr. Baz Muhammad Junejo, Member, SPSC 6. Mr. Ashiq Ali Memon, Member, SPSC” 2. From the above statement, it is not clear as to whether the resignations so tendered by the aforesaid officers of the Sindh Public Service Commission (SPSC) have been accepted or are still under consideration before the Competent Authority. In case, the fate of these resignations has not been decided as yet, it shall be positively decided within three days and relevant material to this effect be placed on record before the next date of hearing. In addition to it, the learned Advocate General, Sindh is directed to place on record the complete list of recommendies of SPSC from the date when Mr. Muhammad Saleem Bhaounr, Chairman SPSC was so designated in this office. 3. The hearing of this case is adjourned to 17.11.2016. In the meantime, the interim order dated 17.10.2016 shall remain operative with further clarification that the Government of Sindh shall not make any appointment on the recommendations of SPSC, if any, already received by it.” S.M.C.No.18/16. 4 6. Today, Mr Farooq H Naek, learned ASC, has appeared and states that he has been instructed not to contest the case of Ashiq Ali Memon, one of the Members of the Commission, and that Ashiq Ali would immediately tender his resignation to the competent authority. On tendering the resignation, the competent authority shall forthwith accept it. 7. Mr. Muhammad Ibrahim Satti, Sr. ASC has appeared for Saindad Khan Solangi, Ghulam Shabbir Shaikh and Muhammad Hanif Pathan, all three of whom are Members of the Sindh Public Service Commission and contended that all of them were appointed in accordance with law. He referred to Section 3 of the Sindh Public Service Commission Act, 1989 and submitted that two members i.e Saindad Khan Solangi and Ghulam Shabbir Shaikh were appointed by the Government in terms of Section 3 (3) of the Act, which provided for the appointment of not less than half of the Members from the service of Pakistan. However, the Member namely Muhammad Hanif Pathan was appointed under Section 3 (4) of the Act of 1989, whereby the remaining Members were to be appointed from the private sector. He referred to the service profiles of all the three Members and contended that the matter was taken up by this Court on the application of one Mr Muhammad Junaid Farooqi, whereby the appointments of the Chairman and the other Members were challenged but the eligibility of the Members who are his clients was never challenged. 8. He referred to the service profiles of the two Members namely Saindad Khan Solangi and Ghulam Shabbir Shaikh and contended that these Members fulfill the criteria laid down under Section 3(3) of the Act. S.M.C.No.18/16. 5 9. He next contended that the 3rd Member, namely Muhammad Hanif Pathan, was appointed in pursuance of Section 3(4) of the Act, which stipulates that the remaining members shall be selected from private sector from amongst the eminent persons with minimum age of forty five years and maximum age of sixty five years representing liberal arts and science and professionals having a Bachelor’s Degree with sufficient practical experience in the relevant field. He submitted that the said Applicant/Respondent is from the private sector and has 40 years experience including 28 years experience of Aviation industry/P.I.A and 12 years in different Government organizations and is qualified to hold the office as Member of the Commission. 10. He lastly contended that the removal of the Chairman and the Members of the Commission could only be made in accordance with the procedure laid down in Section 6 of the Act. 11. We have heard the learned counsel M/s Farooq H. Naek and Ibrahim Satti besides the Advocate General Sindh and have perused the record with their assistance. After scanning the service profiles of all the Respondents, we are of the view that the appointments of two of the Members namely Saindad Khan Solangi and Ghulam Shabbir Shaikh were made in accordance with the provisions of Section 3(3) of the Act. However, Muhammad Hanif Pathan, who is appointed as a Member, does not qualify the eligibility criteria as laid down in Sub-Section 4 of Section 3 (ibid). Contrary to the requirements stipulated in the said sub-section, he is not from the private sector. His experience is based on his 28 years service in the P.I.A, which is a public sector organization besides he does not qualify the S.M.C.No.18/16. 6 test of ‘eminent person’, as provided by Section 3 (4) of the Act. We, therefore, hold that the appointment of Muhammad Hanif Pathan as a Member of the Commission was not made in conformity with the provisions of Section 3 (4) of the Act. 12. While hearing these proceedings, we have noticed that the Commission created under Article 242 of the Constitution is a constitutional body responsible for recruitment in public sector. The Act empowers the Sindh Government to appoint the Chairman and Members of the Commission, for which no formal mechanism for their selection has been delineated. Section 10 of the Act provides that the Government should make rules for carrying out the purposes of the Act, but till date no such rules have been framed by the Government for determining the mode through which the Chairman/Members would be selected although there is reference of qualification under Section 3 of the Act, providing the eligibility of the Chairman and Members which needs further clarity by the rules stipulating the mechanism. The wisdom behind the provision of Section 10 empowering the Government to frame rules appears to be that the posts of Chairman and Members, which is left at the discretion of the Government under the statute, has to reach out such a group of eminent and dignified personalities who would otherwise not apply for these posts. The Chairman/Members of this constitutional body, who enjoy the constitutional protection, need to be selected from amongst noble individuals possessing incomparable competence, exalted caliber, unblemished track record, impeccable integrity and unquestionable impartiality. They should be the persons who can be entrusted with the responsibility of selecting the most deserving candidates S.M.C.No.18/16. 7 who will be holding key positions in the public sector a decade down the path. 13. The application of ultimate wisdom in selection of the Chairman and Members of the Commission is extremely important, as it should have been a symbol of excellence, which is at the brink of losing its traditional grace. We have also noticed the controversy recently generated by the examinations/interviews and recommendations undertaken by the Commission headed by the Chairman namely Muhammad Saleem Bhanour, which was talk of the town. 14. The appointment of the Chairman and Members of the Commission has far reaching effects as observed by us hereinabove and the inherent disqualification that we have noticed in their appointments was willfully overlooked by the relevant forum, as there is no yardstick provided for scrutinizing the caliber of the persons before their appointment. The discretion of the competent authority in making the appointments of the Commission needs to be structured through the rules, which need to be framed by the Government in terms of Section 10, suggesting a high- powered permanent committee to examine the service profiles of the Chairman and Members to be selected under Section 3(3) and the qualifying standards provided therein. Likewise, the high-powered committee needs to scrutinize the eminence of the persons in the private sector before the selection as Member in consonance with the terms used in Section 3(4) of the Act. S.M.C.No.18/16. 8 15. This Court in the case of Muhammad Yasin Vs. Federation of Pakistan (PLD 2012 SC 132), which view was affirmed in the case of Muhammad Ashraf Tiwana Vs. Pakistan (2013 SCMR 1159), has provided the guidelines for appointment to the public office, which read as follows:- “(a) whether an objective selection procedure was prescribed; (b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e selection of the sort of candidate envisaged in [the law]; (c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law”. 16. These guidelines should be made basic criteria for appointment to the office of Chairman and Members of the Commission. The proposed rules need to be framed in a manner where the selection to the posts of Chairman and Members should be transparent and confined to the persons who enjoy high standards of integrity and honesty. The rules should further provide that the proposed appointee has a clean service record without any adverse entry in his P.E.Rs throughout his career. 17. We, for the aforesaid reasons, direct the Government to immediately take steps to frame rules and thereafter appoint the Chairman and Members of the Commission against vacancies created by resignations of the Chairman/Members and by the order of this Court passed today. The Government shall retain the services of two Members namely Saindad Khan Solangi and Ghulam Shabbir Shaikh, as their appointments are found to S.M.C.No.18/16. 9 have been made in conformity with the provisions of Section 3 of the Act. The C.M.A.No.7066 of 2016 filed by Mr Muhammad Ibrahim Satti, learned Sr.ASC, is partly allowed in the above terms. 18. There are complaints received by this Court against Jumo Khan Chandio, Deputy Controller of the Commission, and Javed Ahmed, Director I.T. who were ordered to be repatriated to their parent departments, who have been posted back to the Commission. We direct the Chief Secretary, Sindh, to place before us the original service profiles of both these officers with explanation as to how they could come back from their parent departments to the Commission and why proceedings under contempt law should not be initiated against them for willful defiance of the orders of this Court being beneficiaries. Both the officers shall appear in person on the next date of hearing with explanation. 19. The next issue raised in these proceedings relates to the examinations/interviews and recommendations made by the Commission for appointments of the candidates to different departments in the intervening period. The Advocate General Sindh and the learned Counsel representing some of the recommendees shall make their submissions on the next date and appropriate orders shall be passed after hearing them. 20. To come up after one week. Judge Islamabad the, 3rd January 2017. Judge Not approved for reporting. Sohail/**

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012, 4055/2012, 5186/2012, 926-L OF 2013 & H.R.C. NO. 8634-S OF 2012 (Regarding death of more than 90 heart patients under treatment in Punjab Institute of Cardiology on account of spurious drugs) In Attendance: Mr. Faisal Zaman Khan, Addl. A.G. Mr. Muhammad Zikria Sh, DAG Mr. Khurram Saeed, ASC (for Efroz Chemicals) Syed Zia Husnain, Federal Inspector Drug, DRAP Mr. Nadir Feroz, in person Mr. Hamid Khan, Sr. ASC (for Shaikh Zayad Hospital) Mr. Mehmood ul Islam, AOR Mr. Babar Hayat Tarar, Acting Secretary Health Mr. Shahid Hussain, Asstt Incharge, DRAP Mr. Mazher Sher Awan, Addl. P.G. Date of Hearing: 26.12.2013 ORDER THE CASE OF SHEIKH ZAYAD HOSPITAL Mr. Babar Hayat Tarar, Secretary Health, Government of Punjab submits that the Provincial Government reiterates its undertaking to ensure that the autonomous status of the Shaikh Zayad Hospital would not be compromised rather the same shall be retained; that the Provincial Government has sent a Reference to the Federal Government to reconstitute the Board of Trustees of the Shaikh Zayad Bin Sultan An-Nahyan Trust and adds that the apprehension of the Members of the Faculty of Shaikh Zayad Hospital that the salary structure is likely to be adversely affected is misconceived. On Court query, he submits that the Provincial Government by way of interim arrangement had constituted a S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012, 4055/2012, 5186/2012, 926-L OF 2013 & H.R.C. NO. 8634-S OF 2012 2 Managing Committee comprising of eight members and is headed by Mr. Ishaq Dar, Federal Minister for Finance and the last meeting of the said Committee took place in March, 2013. The other Members of the Committee, according to him, are renowned public figures, Government Servants and two representatives / Faculty Members from Shaikh Zayad Hospital. 2. We would not like to comment any further on the working of the Shaikh Zayad Hospital and the grievances being agitated by Members of the Faculty in CMA No. 682-L/2013. However, the very fact that the Managing Committee did not have a meeting for the last more than nine months may not be a flattering commentary on the working of the institution. The Court was inclined to constitute a committee / commission by way of an interim arrangement to oversee the working of the Institution and to ensure that the above undertaking of the Provincial Government is given effect to in letter and spirit. However, on the assurance held out by the Secretary Health before this Court that the matter would shortly be resolved and the Reference sent to the Federal Government would lead to a more permanent arrangement, we adjourn the case for a date to be fixed by the office in the 2nd week of January, 2013. THE CASE OF EFROZ CHEMICALS 3. Learned counsel for the Efroz Chemicals submits that petitioner is prepared to pay compensation to each bereaved family in terms of CMA No. 1624-L/2013. However, he adds that in deference to the observation of this Court, petitioner is prepared to increase the amount of compensation to the tune of Rs.400,000/- to each bereaved family provided the State drops the prosecution of S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012, 4055/2012, 5186/2012, 926-L OF 2013 & H.R.C. NO. 8634-S OF 2012 3 the criminal cases registered qua the occurrence; requests for three days time to seek instructions as to how soon the afore- referred compensation can be paid to the families. 4. Let notice be issued to the Prosecutor General Punjab as also to the Advocate General Punjab to appear after examining the matter and seeking instructions from the Competent Authority. To come up on 30.12.2013. CHIEF JUSTICE JUDGE JUDGE Lahore, the 26th of December, 2013 Khurram

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN S.M.C. NO. 01 OF 2014 & CIVIL PETITION NO. 20-K OF 2014 (On appeal from the judgment dated 25.11.2013 passed by the High Court of Sindh, Karachi in C.P. No. D-2267/2007) Suo moto action regarding suicide bomb attack of 22.9.2013 on the church in Peshawar (SMC No. 1/2014) AND Shree Ratheshawar Maha Dev Welfare Shewa Mandly (In CP 20-K/2014) … Petitioner VERSUS Province of Sindh and others (In CP 20-K/2014) … Respondents In Attendance: Mr. Ramesh Kumar Vankwani, Patron, Pakistan Hindu Council Mr. Abdul Fateh Malik, A.G. Sindh Mr. Adnan Karim, Addl. A.G. Sindh Mr. Aslam Butt, DAG Mr. Eijaz Ali Jatoi, A.C. Tando Adam Mr. Shahid Farooq, Acting Headmaster Mr. Abdullah Dahri, S.O. Culture Mr. Bashir Ahmed, Addl. Secretary Culture Mr. Nadeem A. Sheikh, ASC (Justice Helpline) Mr. Roshan Lal, Mr. Sushi Bhai & Mr. Atam Parkash (Prem Prakash Mandal) Mr. Salem Micheal (Justice Helpline) Mr. Ravi Dawani, President, All Pakistan Hindu Panchayat Mr. Saleem Javed (for CMS) Mr. Neil Keshav, ASC & Mr. Mazhar Ali B. Chohan, AOR (for petitioner in CP No. 20- K/2014) Mr. Makhdoom Ali Khan, Sr. ASC & Mr. K.A. Wahab, AOR (for respondent NAPA in CP No. 20-K/2014) Date of Hearing: 27.02.2014 S.M.C. NO. 01 OF 2014 & CIVIL PETITION NO. 20-K OF 2014 2 ORDER PREM PRAKASH MANDAL / HINDU ‘ASHARAM’ AT TANDO ADAM Learned Advocate General Sindh submits that the ‘Asharam’ within the boundary wall of a primary school in Tando Adam has already been declared a cultural heritage and that there is no restriction on Hindu community to come and use it as ‘Asharam’. However, adds on Court query that there is a possibility that the said ‘Asharam’ could be given access from independent door instead of the community people using the school gate and undertakes to have a plan prepared for the proposed access door. 2. Mr. Shahid Farooq who is acting Incharge / Headmaster of the School confirms the existence of ‘Asharam’ but he adds that it is not in use for the last many years. However, adds that it is being frequented by members of the Hindu community for the last two years. To this extent the matter is adjourned for tomorrow i.e. 28.2.2014. HINDU GYMKHANA 3. Learned Additional Advocate General Sindh has filed a written statement on behalf of the Culture Department regarding the Hindu Gymkhana which is to the following effect:- “The Hindu Gymkhana situated opposite to Arts Council on M.R. Kyani Road, Karachi is a protected heritage under Sindh Cultural Heritage (Preservation) Act, 1994. This building is also a protected heritage under Building Control Ordinance, 1979 and included in the list of “Structure of Special Architectural and Historical Interest of” Karachi. This Gymkhana was transferred by Federal Government to Government of Sindh in 1991 for establishment of a Centre of Arts and Crafts. The renovation of the building was carried out in 1994, after taking over by Sindh Culture Department in 1993. In September 2005, on the directives of the then President of Pakistan, Hindu Gymkhana was rented out to Mr. Zia Mohiuddin for a period of thirty (30) years for establishing National Academy of Performing Arts (NAPA). In violation of law and terms of the tenancy agreement, NAPA started S.M.C. NO. 01 OF 2014 & CIVIL PETITION NO. 20-K OF 2014 3 construction of a Theater / Auditorium within the premises of Hindu Gymkhana, without seeking permission from the landlord (Culture Department). NAPA did not even take NOC from the Advisory Committee of Government of Sindh on heritage before undertaking the construction activity, within the premises of a heritage building. Principally, NAPA administration was morally and legally bound to seek formal and written permission from both. The construction of Theater / Auditorium within the premises of Hindu Gymkhana by NAPA violated the provisions of Sindh Cultural Heritage (Preservation) Act, 1994 and infringed the terms of agreements dated 12.10.2004 and 23.09.2005, made between Government of Sindh (Culture Department) and NAPA. Thus, on the advice of Law Department and in pursuance of clause 8 of the agreement, executed between Culture Department and NAPA on 13th September, 2008, three months notice was served upon NAPA by Culture Department regarding termination of the said agreement and vacation of the premises. In response to this notice, NAPA filed a civil suit No. 1646/2008 in the Honourable High Court of Sindh, which granted stay in the matter. The matter is still pending decision of the court. Notwithstanding the legal position and details of litigations, as stated above, the said heritage property is under the legal ownership of Government of Sindh, Culture Department. According to Sindh Government Rules of Business (1986), as amended upto December, 2011, ‘heritage properties’, whether public or private, fall within the official domain of this department. The Hindu Community of Karachi and indeed of the whole province, is clamoring for allowing them the usage of this property at least on their religious rituals (Holi, Diwali, etc). Ironically, NAPA management has remained intransigent even to yield to the legal and genuine demands of the landlord (Culture Department) and of the Hindu Community.” 4. Mr. Makhdoom Ali Khan at this stage has entered appearance to submit that the Hindu Gymkhana was given on 30 years lease to National Academy of Performing Arts; that the latter has not changed the character of the main building of Hindu Gymkhana but in the vacant land it has raised construction against which efforts were made to demolish it by the Government of Sindh and NAPA had filed a Constitution Petition bearing No. 06/2009 before the High Court of Sindh which is pending decision; that another petition (bearing No. D2267/2007) was filed by Shree Ratheshwar Maha Dev and the same stands dismissed vide the order dated 25.11.2013 against which the said petitioner has filed S.M.C. NO. 01 OF 2014 & CIVIL PETITION NO. 20-K OF 2014 4 Civil Petition No. 20-K/2014 which is pending decision. It has further been pointed out that a civil suit bearing No. 1646/2008 was also filed by NAPA before the High Court of Sindh which is pending decision. 5. Learned counsel for the petitioner in Civil Petition No. 20-K/2014 submits that admittedly the Hindu Gymkhana was built as far back as 1923 on a land allotted by the Municipal Corporation to Hindu community and in the year 1963 it was declared as an abandoned property by the Government of Pakistan but subsequently it was declared as heritage building. However, in the year 1996 it was declared as evacuee property. Such a property, he further adds, could not have been given on lease to NAPA and the way it has been used and defaced is not only violative of the fundamental rights provision of the Constitution but the Constitutional rights granted to the minorities in the Constitution of Islamic Republic of Pakistan. 6. Having heard learned counsel for the parties, we are persuaded to grant leave to appeal in Civil Petition No. 20-K/2014 to consider whether the Hindu Gymkhana which admittedly is evacuee property could have been given on lease to NAPA; whether NAPA could have been used and defaced in the manner it has been alleged; whether the act of the Government of Sindh of granting lease to NAPA is violative of the fundamental rights provision of the Constitution and whether the impugned order is sustainable in law? 7. Since some of the issues raised in this petition may be sub-judice before the High Court in Writ Petition No. 06/2009 and the Civil Suit No. 1646/2008 and as the matter is pending decision in the High Court of Sindh since long, we are persuaded to direct the High Court of Sindh to decide both the cases preferably within a S.M.C. NO. 01 OF 2014 & CIVIL PETITION NO. 20-K OF 2014 5 month of the receipt of this order. Office shall transmit a copy of this order to the Hon’ble Chief Justice of the High Court of Sindh for information. CMA No. 120-K/2014 8. In this CMA it is alleged by Hindu community that the manner in which constructions have been raised around Swami Narain Temple and the land around Lakshmi Narain Temple has been leased out to a restaurant has made it difficult for the members of Hindu community to visit those Temples to offer their prayers. 9. We have called learned Advocate General Sindh. A copy of this application has been given to him. He shall file a written reply within 10 days and the matter shall be taken up thereafter. CHRISTIAN MISSION SCHOOL 10. It has also been brought to our notice that the Christian Mission School which has a historical significance as the founder of this country Quaid-e-Azam Mohammad Ali Jinnah had his earlier education from there has been given to an NGO, which was initially being run by Church of Pakistan and then was nationalized. Learned Advocate General Sindh shall also seek instructions about this and submit a report within 10 days. CHIEF JUSTICE JUDGE JUDGE Karachi, the 27th of February, 2014 Not Approved For Reporting Khurram

SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Umar Ata Bandial Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed S.M.C. 01/ 2020 (SUO MOTO ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID -19) IN ATTENDANCE: For the Federation : Mr. Khalid Javed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, DAG Dr. Tanveer Qureshi, Secretary M/o National Health Saeed Ullah Khan Niazi, J.S. (Admn) Asif Suhail, Director (Lit) G.M. Jakhrani, Dy. Director (Lit) (All from M/o National Health) Mirza Mahsood, J.S. M/o Interior For ICT : Mr. Niaz Ullah Khan Niazi, A.G., Islamabad Shafaq Hashmi, D.G., (Chief Commissioner Office) Waseem Ahmed, Asstt. D.C., (I.C.T.A.) Amer Naveed, A.D., (Lit), (I.C.T.A.) For Govt. of Punjab : Mr. Shan Gul, A.G., Punjab Javed Yaqoob, Addl.AG, Punjab Cap (R) M. Usman, Secy. Primary & Secondary Health Deptt. Punjab M. Nabeel Ahmed Awan, Secy. Specialized, Health Care & Medical Education Deptt (Via Video link from Lahore Branch) Ch. Faisal Fareed, Addl.A.G. Punjab (In Islamabad Mr. Adnan Younas Butt, Sr. Law Officer, Punjab For Govt. of Sindh : Mr. Salman Talibudin, A.G, Sindh Zahid Abbasi, Secy. Health Muhammad Usman Chachar, Addl. Chief Secy-Home Dr. Saeed Ahmed Qureshi, (Focal Person to Chief Secy. Sindh) SMC.01/20 2 Syed Salman Shah, DG, PDMA (All via Video link from Karachi Branch) For Govt. of KP : Mr. Shumail Butt, A.G. KP (Via video link from Peshawar Syed Imtaiz Hussain Shah, Secy. Health, KP M. Abid Majeed, Secy. Relief Rehabilitation, KP Mian Shakeel Ahmed, Secy. Local Govt. KP Rooh-ul-Amin, Addl. Registrar, PHC Amir Sultan Tareen P&D, Deptt- EHSAAS, Programme (All via Video link from Peshawar Br) For Govt. of Balochistan : Mr. Arbab Muhammad Tahir, A.G, Balochistan Mr. Naimatullah Battazi, P.G. Baluchistan Cap (R) Fazeel Asghar, Chief Secy: Cap (R) Zafar Tahir Abbasi, Special Secretary Health Imran Zarkhoon, DG, PDMA (Via Video link from Quetta Branch) Mr. Ayaz Khan Swati, Addl.A.G.(In Islamabad) For Govt. of GB : Mr. Muhammad Iqbal, AG, G.B. In CMA.2355/2020: Mr. Aman Ullah Khan Kanrani, ASC Dr. Waqar Aftab, In person Mr. Farhat Nawaz Lodhi, ASC Dr. Fazal-e-Rabi, In person Professor Abdul Rashid Mian, President PMA Mr. Samuel Payara Chairman, Implementation of Minority Rights Forum Malik M. Shaukat Feroze, DIG (Prison), Rawalpindi Region, Rwp (on behalf of Govt. of the Punjab). Date of Hearing : 13.04.2020 SMC.01/20 3 O R D E R We have heard the learned Attorney General for Pakistan, the Advocates General of Punjab, Sindh, KP, Balochistan, Islamabad so also the GB. Some individual lawyers have also been heard, while few of the people from public have also appeared and made their respective submissions. 2. The learned Attorney General for Pakistan, on the observation of this Court in the Order dated 7.04.2020, regarding making of emergency legislation on Coronavirus (COVID-19) by the Federal Government, Provincial Governments, G.B. and ICT, has stated that as a matter of policy, the session of Parliament is not being called but the Government is considering such aspect of the matter. He, however, further stated that today a high level meeting is taking place between the Prime Minister and the Chief Ministers of all the Provinces including GB and Chief Commissioner, ICT, where issues relating to Coronavirus (COVID-19) will be thoroughly deliberated and measures will be taken, in that, a uniform policy applicable to all the territories of Pakistan is drawn and it is ensured that the same is applied across the board and in this regard no territory of Pakistan, where people of Pakistan are living, is treated differently. 3. The Federal Government through the learned Attorney General has assured the Court that it is taking all steps to deal with this pandemic and is trying to reduce its effect on the people by taking various measures on the social welfare side and also on humanitarian grounds. Further medical supplies are being SMC.01/20 4 provided by the Federal Government to the Provincial Governments, including PPEs and ventilators to the hospitals and test-kits to the laboratories. Although it is stated that most of the items of PPE, test-kits and ventilators are imported but now there seems to be some consensus in Punjab and Sindh, where efforts are being made to manufacture the same locally in large quantity. The stage of making a test-kit, apparently, has not been reached but the learned Attorney General states that such will be achieved by the Government. The locally manufactured ventilators are being put to the test and hopefully, if they are found successful, they will be produced and distributed all over Pakistan. 4. The learned Advocate General, Punjab has filed a report giving in detail the steps taken by the Government of the Punjab with regard to addressing the issue of Coronavirus (COVID-19) in Punjab. The report as it reads, shows that certain steps have been taken by the Government of the Punjab, which seems to be in a positive direction and we hope that they will continue to enhance their capacity in making available; PPEs, all sorts of other protection, so also the equipments required by the people fighting such pandemic. 5. Mr. Amanullah Kanrani, learned ASC has brought to our attention that the Governmnet of Punjab has issued some executive order on the basis of which inter-provincial movement of the people has been stopped. We have asked the learned Advocate General, Punjab about the existence of such executive order and he admitted that such executive order has been passed. When SMC.01/20 5 confronted with Article 15 of the Constitution, the learned Advocate General, Punjab conceded that such an order cannot be passed by the executive authority; rather it has to be done by law to be made by legislature. The learned Advocate General, Punjab states that he is going to advise the Government accordingly. However, until such measure is taken by the legislature, the executive order of the Governmnet of Punjab, restricting inter- provincial movement of the people, is struck down and set aside. 6. The learned Advocate General, Sindh has also informed the Court about the steps, the Government of Sindh taken to mitigate the spread of Coronavirus (COVID-19) in the Province of Sindh. We have, however, noted with concern that yesterday, the Provincial Government has passed an executive order sealing 11 Union Councils (UCs) in Karachi. We have asked the learned Advocate General, Sindh to give justification for such sealing, he stated that Government of Sindh has found some cases in these 11 UCs suffering from Coronavirus (COVID-19) but nothing concrete has been placed before the Court to show that such is correct and well founded. 7. Be that as it may, we have asked the learned Advocate General, Sindh as to what programme the Government of Sindh has prepared to implement the sealing of 11 UCs, in that, how the people will be reached for medical testing and screening and if any such case is found what further steps the Sindh Government will take to secure the affected person and what about his family and persons who have been exposed to him. Whether medical team and SMC.01/20 6 logistics in each of the 11 UCs have been deputed to undertake all exercises. How basic necessities, including, food, groceries and other utilities will be made available to the residents of these 11 UCs. The learned Advocate General states that groceries shops in these 11 UCs have been allowed to remain open but no other programme has been drawn by the Government of Sindh for these 11 UCs. 8. We have pointed out to the learned Advocate General, Sindh that in case a person is unable to purchase groceries, how he is going to survive. The learned Advocate General states that the Government of Sindh is going to look into this matter. It has also been brought to notice of this Court that free Rashan worth Rs. 8.0 billion has been distributed in Sindh by the Government of Sindh. We are not sure how far this is true but note that there is no documentation of purchase of Rashan and its distribution made available to this Court by the Government of Sindh. 9. We have also asked the learned Advocate General to inform us about the persons, who have contracted this pandemic in the 11 UCs, the learned Advocate General states that no such information is available with him. This is a very sorry state of affairs prevailing in the Province of Sindh, where not only in Karachi but other cities of the Province of Sindh, people are protesting lack of subsistence to them. Let a comprehensive report in this regard be submitted by the Government of Sindh well before the next date of hearing. SMC.01/20 7 10. The Governments of KP and Balochistan, have submitted their reports, the same are taken on record. It seems that the effect of Coronavirus (COVID-19) is not so much alarming in these two Provinces, including, GB and things are being kept in control. Punjab, Sindh and ICT, however, are on different pedestals, where there is a considerable threat of surge of this pandemic. In these circumstances, let the Government of Punjab also give its report to this Court so also the ICT regarding matters relating to this pandemic and give to the Court all necessary information, which can show that citizens’ fundamental rights are fully safeguarded and the State functionaries are all what is necessary for the survival of the people 11. The doctors and paramedics, who are working in the front line in dealing with this pandemic, are especially affected and are at risk of contracting this disease and it is hoped that the Federal Government so also the Provincial Governments, the ICT and GB shall ensure that all necessary needs of the doctors and paramedics, in such emergency situation, are fully fulfilled. We are informed that doctors and paramedics are performing duties beyond their call of duty and at many places, they are not even being provided with food. This, in our view, is a sensitive issue, which should immediately be addressed by all the Governments and grievances, in this regard of the doctors and paramedics are redressed. 12. The condition of sanitary staff is also not good and it is informed that they are exposed to all sorts of diseases, while they SMC.01/20 8 are working in the hospitals and other places. No effective care is being provided to them and a request has been made that they be provided with the requisite protection, so that they may perform their work without any fear. In the circumstances, the Federal Government as well as all the Provincial Governments, including, the ICT and GB shall ensure that sanitary staff are taken care of and are provided with proper and secure uniforms, so that they can work without fear of being affected by disease. 13. The Chairman, PMA has informed that 40,000 applications for registration of doctors are pending because of the issue prevailing with PMDC. The issue is already pending in the Courts, including this Court and will be addressed soon in accordance with law. 14. The Federal Government shall also file a comprehensive report, along with the outcome of the high level meeting which is taking place today. 15. To come-up on Monday, i.e. 20.04.2020 at 11:30 a.m. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Bench-I ISLAMABAD 13.04.2020 Nasir Khan*/

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Muhammad Ali Mazhar SUO MOTO CASE NO.1 OF 2022 (Re: ruling by the Deputy Speaker of the National Assembly under Article 5 of the Constitution qua voting on No-confidence Motion against the Prime Minister of Pakistan) In attendance: For the Petitioner(s) : Mr. Khalid Javed Khan, Attorney General for Pakistan. Mr. Sohail Mehmood, Addl. AGP., Mr. Ahsan Bhoon, ASC/ President, SCBA. Mr. Farooq H. Naek, Sr. ASC. Sardar Muhammad Latif Khan Khosa, Sr. ASC. Dr. Babar Awan, Sr. ASC. Mr. Azam Nazeer Tarar, ASC. Mr. Kamran Murtaza, Sr. ASC. Date of Hearing : 03.04.2022 O R D E R Office has initiated a note stating events that took place today in the National Assembly and have been widely reported on electronic and social media that motion of no- confidence against the Prime Minister of Pakistan was to be voted upon by the National Assembly today i.e. 03.04.2022. However, reportedly the (Deputy) Speaker of the National Assembly has dismissed the said motion in the light of Article 5 of the Constitution of 1973. The following order was passed on the note in chambers: “Several Hon. Judges of the Court have met me earlier today to share their concern about the constitutional situation following the rejection of the motion of no confidence against the Prime Minister by the Deputy Speaker today on the basis of Article 5 of the Constitution. In view of the above consensus, power under Article 184(3) of the Constitution is invoked to initiate original SMC No.1 of 2022 2 proceedings before the Court. To be heard by Bench comprising CJP, Ijaz-ul-Ahsan, J and Muhammad Ali Mazhar, J.” 2. The matter was accordingly registered as SMC No.1 of 2022 and fixed for hearing today. 3. The hearing was attended by the learned Attorney General for Pakistan, the President of the Supreme Court Bar Association along with the other learned counsel representing different parties noted in the title of the order. 4. At the outset, notice is issued to the learned Attorney General for Pakistan under Order XXVIIA CPC on the constitutionality of the decision of the Deputy Speaker today to dismiss the motion of no confidence on the basis of Article 5 of the Constitution. It is contended that, prima facie, there is neither a finding recorded in the matter nor was a hearing granted to the affected party. We would also like to examine whether such action is protected by the ouster contained in Article 69 of the Constitution. 5. The matter of concern for this Court is that peace and public order is maintained in the country. Accordingly, all the political parties involved in the process of the no confidence motion in the National Assembly and other political forces are directed to observe the law and maintain peace and public order. No state functionaries or bodies shall take any extra- constitutional measure and shall act strictly in accordance with Constitution and the law as guided by the principles laid down by this Court in the case of Sindh High Court Bar Association vs. Federation of Pakistan (PLD 2009 SC 879). Any order SMC No.1 of 2022 3 passed by the Prime Minister and the President shall be subject to the order of this Court. 6. We have also been informed that Pakistan Peoples Party as well as the Supreme Court Bar Association have filed Constitution Petitions under Article 184(3) of the Constitution on the same subject. Let the office register these and notices be issued to the respondents therein and to all the political parties that are already before us in Const. Petition No.2 of 2022 i.e. Pakistan Tehreek-e-Insaf, Pakistan Muslim League (N), Pakistan People’s Party, Jamiat Uleme-e-Islam(F), Balochistan National Party (Mengal) and Awami National Party through their respective Secretary Generals, who shall be heard only through their counsel on their behalf. Notice be also issued to the Federal Secretary Interior and the Secretary Defence to report the steps being taken to ensure public order, peace and tranquillity throughout the country. Notice be also issued to Supreme Court Bar Association and the Pakistan Bar Council to assist the Court in these Suo Moto proceedings and the Constitution Petitions filed under Article 184(3) ibid. The Attorney General for Pakistan be also issued notice under Order XXVIIA CPC in these matters. 7. Mr. Azam Nazeer Tarar, ASC has reported that the proceedings of the Punjab Provincial Assembly were fixed today for the election of the new Chief Minister of Punjab. These proceedings have been adjourned by the Deputy Speaker of the Assembly to another date without citing any reason or cause. A large number of MPAs are still in the premises of the House of the Provincial Assembly which is creating an unpleasant SMC No.1 of 2022 4 situation both inside and outside the House. Notice under Order XXVIIA CPC be issued to Advocate General Punjab to examine the vires of the decision by the Deputy Speaker of the Punjab Assembly and the situation that has arisen as a consequence thereof. All the political parties involved in the process of election of the new Chief Minister shall exercise restraint and maintain peace and public order. It is directed that the state functionaries and the law enforcement agencies of the Province shall ensure that peace and public order is maintained in the Province and they act strictly in accordance with the Constitution and the law guided by the principle laid down by this Court in Sindh High Court Bar Association’s case (ibid). 8. Since these matters relate to an urgent issue, therefore, office is directed to fix the same tomorrow i.e. 04.04.2022 at 1:00 pm before a larger bench. Chief Justice Judge Judge Islamabad 03.04.2022

1 The Office has placed before me a request by a learned two member Bench of the Court, made in its order dated 16.02.2023 in Civil Petition No.3988 of 2022 that the suo motu jurisdiction of the Court under Article 184(3) of the Constitution be invoked. The request is made in the following terms: “…7. We note that the Provincial Assembly of Punjab stood dissolved on 14.01.2023 pursuant to the Advice of the Chief Minister, Punjab dated 12.01.2023. As such, elections to the Punjab Provincial Assembly are required to be held within 90 days of the said date in terms of Article 224(2) of the Constitution. However, no progress appears to have taken place in this regard and there is a real and eminent danger of violation of a clear and unambiguous constitutional command. 8. In view of the fact that this matter is not before us in the present lis, we are not inclined to pass any order in this regard in view of the principle of law laid down by this Court in its judgment reported as Suo Motu Case No. 4 of 2021: In the matter of (PLD 2022 SC 306). We are, however, of the view that the matter brought to our notice during these proceedings raises a serious question of public importance with reference to enforcement of Fundamental Rights conferred by Chapter-1 of Part-II of the Constitution. Considering the fact that unless timely steps are taken to remedy the situation, there is an eminent danger of violation of the Constitution which we are under a constitutional, legal and moral duty to defend. We therefore consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction of this Court under Article 184(3) of the Constitution, who may if he considers appropriate after invoking jurisdiction under the said Article constitute a bench to take up the matter. Let the office place this file before the Hon’ble CJP for appropriate orders. 9. To the extent of Civil Petition No. 3988 of 2022 alongwith all miscellaneous applications, the matter shall be taken up tomorrow i.e 17.02.2023.” 2. The context of the request is that the Punjab and Khyber Pakhtunkhwa Assemblies were dissolved on 14.01.2023 and 18.01.2023 respectively. In both cases, the then Chief Ministers tendered advice to their respective Governors under Article 112(1) of the Constitution to dissolve the Assembly. In the case of the Punjab Province the Governor chose not to act on the said advice so that the Assembly stood dissolved on the expiry of 48 hours, on the date mentioned above. In the case of 2 the KPK Province, the Governor did act on the advice and made an order dissolving the Assembly on 18.01.2023. 3. Almost immediately after the dissolution of both Assemblies a question was raised as to who had the constitutional responsibility and authority to appoint the date of the general election to obtain the mandate of the electorate and elect fresh Assemblies. It is to be noted that Article 224(2) requires that a general election be held within a period of 90 days after the dissolution, and the use of the word “shall” indicates that this is, prima facie, a constitutional imperative. 4. In respect of the appointment of the date for the holding of the general elections to the dissolved Provincial Assemblies there is Constitution Petition No.1 of 2023 (Islamabad High Court Bar Association vs. Election Commission of Pakistan) already filed and pending in this Court prior to the making of the request by the Bench. Subsequently, Constitution Petition No.2 of 2023 has been jointly filed, inter alia, by Muhammad Sibtain Khan and Mushtaq Ahmad, Speakers of Punjab and Khyber Pakhtunkhwa Provincial Assemblies respectively, seeking the same relief. 5. Apart from the foregoing, it appears that several petitions were filed in the Lahore High Court, inter alia, seeking compliance of the constitutional obligation imposed by Article 224(2). By judgment dated 10.02.2023 a learned Single Judge in Chambers concluded that the authority lay with the Election Commission of Pakistan and called upon the same “to immediately announce the date of election of the Provincial Assembly of Punjab with the Notification specifying reasons, after consultation with the Governor of Punjab, being the constitutional Head of the Province, to ensure that the elections are held not later than ninety days as per the mandate of the Constitution.” Reportedly both the Governor and the Election Commission have filed Intra Court Appeals which are pending before a learned Division Bench of the High Court. It seems to be the Governor’s case that since he did not act on the advice tendered by the then Chief Minister and made no order dissolving the Assembly, he does not have the responsibility or authority to appoint the date for the general election. The Election 3 Commission has, it appears, also taken the position that under the Constitution it has no authority to appoint the date for a general election, though it has categorically stated (as reported in the public media, both print and electronic) that it is fully committed to conducting the said election in accordance with the Constitution. At the same time, the Governor of KPK Province has also not appointed a date for the holding of the general election and a petition in this regard is pending before the Peshawar High Court. 6. There is another material development in the last few days. It appears that subsequent to certain correspondence initiated by the President of Pakistan with the Election Commission, the President has taken the position that it is he who has the authority and responsibility for appointing a date for the general elections, in terms as provided in section 57(1) of the Elections Act, 2017. By an order made on 20.02.2023 the President has appointed 09.04.2023 to be the date for the holding of the general elections in both Provinces and has called upon the Election Commission to fulfill its constitutional and statutory obligations in this regard. 7. More than one month has now elapsed since the dissolution of the Provincial Assemblies and it seems prima facie that even the matter of appointing the date of the general elections which is the first step towards the holding of the elections, has still not been resolved. Constitutional authorities appear to hold divergent, and perhaps even conflicting, views on the issue. Thus, several Federal Ministers appear to have contested the authority asserted by the President. Since Ministers act under the constitutional rule of collective responsibility it appears, prima facie, that this is the view taken by the Federal Cabinet as a whole. There is, to put it shortly, a lack of clarity on a matter of high constitutional importance. It is also to be noted that statements attributed to the Election Commission have appeared in the public record to the effect that it is not being provided the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution. 4 8. Having considered the above, and the material placed before me, I am of the view that the issues raised require immediate consideration and resolution by this Court. Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement, inter alia, of the fundamental right of political parties and the citizens who form the electorates in the Punjab and KPK Provinces to exercise their right to elect representatives of their choice to constitute fresh Assemblies and Provincial Cabinets. This is necessary for government in the two Provinces to be carried on in accordance with the Constitution. These matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement. 9. Accordingly, I hereby invoke the suo motu jurisdiction of the Court under Article 184(3) of the Constitution and constitute a nine member Bench to consider, if so deemed appropriate, inter alia, the questions set out below. The Bench shall comprise of the following Hon’ble Judges: Mr. Justice Umar Ata Bandial, CJP Mr. Justice Ijaz ul Ahsan Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Mr. Justice Jamal Khan Mandokhail Mr. Justice Muhammad Ali Mazhar Mr. Justice Athar Minallah 10. The questions referred for the consideration of the Hon’ble Bench if so deemed appropriate are, inter alia, as follows: a) Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a Provincial Assembly, upon its dissolution in the various situations envisaged by and under the Constitution? b) How and when is this constitutional responsibility to be discharged? 5 c) What are the constitutional responsibilities and duties of the Federation and the Province with regard to the holding of the general election? 11. The Office is directed to register an appropriate Suo Motu Case in the above terms and fix the same along with the petitions pending in the Court as noted above, and fix the same before the Hon’ble Bench on 23.02.2023 at 2:00 pm. Sd/- Chief Justice 22.02.2023. Addl. Registrar (Judicial)

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU CASE NO.20 OF 2016 AND HUMAN RIGHTS CASES NO.7094-P, 26591-P, 15518-P/2015, 25917-S AND 26252- S/2016 AND 3910-K, 3911-S, 3912-P, 3913-G AND 3914-P/2018 AND CONSTITUTION PETITION NO.45/2016 AND C.M.APPEAL NO.203/2016 IN CONST.P.NO.NIL/2016 AND CIVIL MISC. APPLICATIONS NO.7394 & 7484/2016 AND 141, 288, 3772, 3374, 892, 1496, 2076, 2655, 2656, 3797, 3912, 3913, 4252, 4253, 4254, 4291, 8234, 9172, 9312, 9313 & 9314/2017 AND 57, 45, 301, 381, 454, 577, 511, 592, 593, 652, 653, 654, 727, 728, 735, 777, 778, 779, 813, 780 & 883/2018 SMC 20/2016: Suo motu action regarding non-payment of retirement benefits by the relevant departments HRC 7094-P/2015: Mehmood-ul-Hassan Vs. Secretary Privatization Commission and another HRC 26591-P/2015: Muhammad Hanif (R) District Population Welfare Officer, Multan Vs. Government of Punjab etc. HRC 15518-P/2015: Muhammad Hanif (R) District Population Welfare Officer, Multan Vs. Government of Punjab etc. HRC 25917-S/2016: Dr. Khawar Ubaid Alvi Vs. Secretary, Local Govt. Sindh HRC 26252-S/2016: Syed Imtiaz Ali Vs. Local Government Department, Sindh HRC 3910-K/2018: Application by Anwar Khan HRC 3911-S/2018: Application by Abdul Shakoor Shaikh HRC 3912-P/2018: Application by Muhammad Din HRC 3913-G/2018: Application Muhammad Ameer Khan HRC 3914-P/2016: Malik Niaz Shami Vs. Malik Fazal Khan Shamir Const.P.45/2016: Saif-ur-Rehman and others Vs. Federation of Pakistan and others C.M.Appeal 203/2016: Khan Muhammad Khan Vs. Islamic S.M.C.No.20/2016 etc. -: 2 :- Republic of Pakistan through President of Pakistan and others CMA 7394/2016: Application for impleadment by Muhammad Ayub CMA 7484/2016: Application by Mahboob Ahmed Soomro CMA 141/2017: Application by Sultan Mehmood CMA 288/2017: Application by Rao Nasim Tehsin CMA 3772/2017: Application for impleadment by Mian Muhammad Saleem and others Vs. VC University of Engineering and Technology Lahore and others CMA 3774/2017: Application for Impleadment by Mohammad Naseem Tahir & others Vs. VC. University Engineering and Technology Lahore & others CMA 892/2017: Application by Hazoor ul Islam Abbasi CMA 1496/2017: Application for impleadment by Zahid Amin Khan and others CMA 2076/2017: Application for impleadment by Mahmood Ahmed CMA 2655/2017: Application for impleadment by Shafaqat Hussain CMA 2656/2017: Application for impleadment by Nazar Abbas Shah CMA 3797/2017: Application by Bashir Ahmad Lodhi CMA 3912/2017: Application for impleadment by Sadiq Masih and other Vs. President Habib Bank CMA 3913/2017: Application for impleadment by Muhammad Zareen and others Vs. VC University Engineering and Technology, Lahore CMA 4252/2017: Application by Dildar Muhammad Awan CMA 4253/2017: Application by Syed Maqsood Hussain Kazmi CMA 4254/2017: Application by Muhammad Rafique CMA 4291/2017: Application by Rehmat Ali and others CMA 8234/2017: Application by Muhammad Farooq S.M.C.No.20/2016 etc. -: 3 :- CMA 9172/2017: Application by Zahid Ahmed Barlas CMA 9312/2017: Application by Abdul Jabbar and others CMA 9313/2017: Application by Walayat Hussain and others CMA 9314/2017: Application by Ghulam Hussain and others CMA 57/2018: Application by Mumtaz Ahmed CMA 45/2018: Application by Muhammad Farooq CMA 301/2018: Application by Muhammad Rafique Sohail CMA 381/2018: Application by Mubarik Ali CMA 454/2018: Application by Muhammad Rafiq CMA 577/2018: Application by Mst. Kali Jan CMA 511/2018: Application by Nasir Hussain Shah CMA 592/2018: Application by Arshad Ali Khan CMA 593/2018: Application by Syed Sajid Ali shah CMA 652/2018: Application by Rafiq Ahmed CMA 653/2018: Application by Arshad Khan CMA 654/2018: Application by Abdullah Khan CMA 727/2018: Application by Kausar Parveen CMA 728/2018: Application Angori CMA 735/2018: Application by Saranjam Khan CMA 777/2018: Application by Yasmeen Ayaz CMA 778/2018: Application by Mohammad Iqbal Khan CMA 779/2018: Application by Muhammad Saeed CMA 813/2018: Application by Kalsum Lahkar CMA 780/2018: Application by Ali Gohar CMA 883/2018: Application by Muhammad Anwar etc. In attendance: Mr. Muhammad Waqar Rana, Addl.A.G.P. Mr. Rashid Hafiz, DAG Mian Abdul Rauf, A.G. Islamabad Mr. Shehryar Qazi, Addl.A.G. Sindh Mr. Ayaz Swati, Addl.A.G. Balochistan Mr. Farid Dogar, AAG, Balochistan. Mr. Zahid Yousaf Qureshi, Addl. AG KPK. S.M.C.No.20/2016 etc. -: 4 :- Mr. Tariq Waheed, Dy Accounts Officer for D.C. RWP Mr. Nasir Mehmood, LO Finance Dept. Pb. Syed Afzal Hassan, Accounts Officer AGPR Mr. Saqib Javed Abbasi, AAO AGPR Mr. Aziz Ahmed, Director CGA Islamabad Mr. Sohail Ijaz, AAO Syed Imtiaz Hussain, AAO CGA Mr. Fayad Durrani, Accountant General, Peshawar Mr. Abid Hussain Channa, SO M/o Finance Mr. M. Ikram Abbasi, Law Officer, Education Department, Punjab Mr. M. Naseem Butt, Accounts Officer Legal for Accountant General Punjab Mr. Abdul Razzaq, Asstt. Accountant Officer, MAG RWP Mr. Rehan Akhtar, AO for AG Balochistan Mr. Bakhtiarullah, AO for AG KPK Rana Amanullah, Dir. (Finance) Local Board Punjab. Rana Tariq Shaukat, Dy. Dir. Colleges, Punjab. Mr. Tariq Hameed, Dy. Secy. HE Dept. Punjab. Mr. Shahid Anwar Bajwa, ASC (For HBL & ABL) Mr. Sikandar Bashir Mohmand, ASC Mr. Tariq Aziz, AOR (For UBL) Mr. Hashmat Ali Habib, ASC (In CMA 288/2017) Mr. Farrokh Niaz, in person (In CMA 8404/2016) Mr. Abdul Raheem Bhatti, ASC Syed Rifaqat Hussain Shah, AOR (In CMA 1496/2017, CMA 558/18) Ms. Ayesha Hamid, ASC Raja Muhammad Sarfraz, in person (For retired UBL employees) Syed Ali Zafar, ASC Mr. Zahid Nawaz Cheema, ASC (For HBL) Mr. Salman Aslam Butt, Sr. ASC Mr. Mehr Khan Malik, AOR. (For UBL/Resp.4 in Const.P.45/2016) Mr. Babar A. Khilji, ASC (CMA 883/18) S.M.C.No.20/2016 etc. -: 5 :- Mr. Shoaib Shaheen, ASC (in CMA 3797/17) Mr. Javed Iqbal, ASC (For PPCBL) Mr. Umer Aslam Khan, ASC (In CMA 7394/2016) Rai M. Nawaz Khan Kharal, ASC (In CMA 9172/2017) Mr. Tariq Mehmood Khokhar, ASC. Syed Rifaqat Hussain Shah, AOR. (for Allied Bank employees In CMA 8234, 9312- 9314/2017) Raja M. Farooq, ASC Syed Rifaqat Hussain Shah, AOR (In CMA 892/2017) Mr. Ahmed Awais, ASC Mr. Tipu Salman Makhdoom, ASC Mr. Mehmood A. Sheikh, AOR (In Const.P.45/2016) Syed Rifaqat Hussain Shah, AOR (In CMA 45/2018) Raja Muhammad Sarfraz (UBL) Nazar Abbas (UBL) (CMA 2656/2017) Muhammad Naseem Qazi (UBL) (CMA 1459/2017) Mr. Khan Muhammad (WAPDA) (In C.M. Appeal 203/2016) Sultan Mahmood (CMA 141/2017) Shafqat Hussain (CMA 2655/2017) Hazoorul Islam Abbasi (HBL) Mehboob Ahmed Soomro (HBL) Dildar Awan, Maqsood Hussain Kazmi, M. Rafique (ZTBL) Muhammad Farooq (CMA 8234/2017) Mian Muhammad Aslam (CMA 3772/2017) Dr. Khawar Ubaid Alvi (HRC 25917-S/2016) Dr. Surraya Khawar (HRC 25917-S/2016) Syed Imtiaz Ali (HRC 26252/2016) Mian Muhammad Saleem (UET) M. Ishaque, in-person. (HRC 26252/2016) Amicus Curiae: Mr. Makhdoom Ali Khan, Sr. ASC S.M.C.No.20/2016 etc. -: 6 :- On Court’s notice: Ms. Seema Kamil, President UBL Mr. Aamir Karachiwala, CFO UBL Mr. Raymond H. Kotwal, President HBL Mr. Jamal Nasir, Head HR Mr. Tahir Hassan Qureshi, President ABL Mr. Atif Izhar, SVP/Head of HR Deptt. ABL Date of Hearing: 14.12.2017, 16.01.2018, 17.01.2018, 18.01.2018, 06.02.2018 & 13.02.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- These Suo Motu proceedings initially arose when a large number of complaints were submitted to the Human Rights Cell of this Court, wherein retired employees of various departments complained about non-payment of their pensionary benefits. We took notice of the same and the case was first heard as SMC No.20/2016 on 14.11.2016. 2. On the said date some of the present applicants/petitioners, retirees of United Bank Limited (hereinafter the “UBL”) and Allied Bank Limited (hereinafter the “ABL”) also approached this Court with the grievance that they were receiving meagre amounts by way of pension from the banks and the latter were not granting increases in the pensionary benefits for many years. On the very next date of hearing they were joined by applicants/pensioners of Habib Bank Limited (hereinafter the “HBL”); they cited similar grievances. Whilst a whole gamut of grievances to do with pensionary benefits were dealt with separately, we heard the matters relating to the pensioners of the aforesaid three banks together as the facts are so similar as to be almost interchangeable and in all material particulars the three banks and their respective pensioners are similarly placed. Nevertheless, we will give a brief synopsis of the admitted facts pertaining to the three banks. S.M.C.No.20/2016 etc. -: 7 :- UBL 3. The UBL was originally a private bank. It was nationalized in 1974 pursuant to the Banks (Nationalization) Act, 1974 (hereinafter the “Act 1974”), and came to be wholly owned by the Government of Pakistan. The pensioners of the UBL may be broadly divided into three categories; namely, the ‘original retirees’, the ‘recently retired’ and the ‘retrenched employees’. The ‘original retirees’ may be typified by the petitioner in CMA No.1686/2017 who joined UBL on 11.10.1973 and served for 25 years, 1 month, 17 days before retiring on 28.11.1998. His basic pay drawn as on 28.11.1998 was Rs.4,530/- per month. Fifty percent of the gross pension was commuted and paid to him at the time of retirement whereas Rs.1,321/- was held to be payable to him on monthly basis as his pension. Thereafter, 18 years later his monthly pension remains Rs.1,321/-. The pension of ‘original retirees’ (in clerical cadres) of the bank was calculated on the basis of Memorandum # F:6(1)-REV-I/75, dated 07.01.1977, issued by the Finance Division, Government of Pakistan. It provided that the liberalized pension rules for civil servants were also applicable to employees of nationalized banks. UBL informed its employees in clerical and non-clerical cadres through Staff Circular No.158 dated 25.02.1977 that the aforesaid Memorandum dated 7.1.1977 would be applicable to them. The grievance of these petitioners is that the UBL has illegally withheld increases in their pensionary benefits which ought to have been granted in parity with those given to civil servants over the years. 4. The ‘recently retired’ category of pensioners may be represented by the likes of petitioners in CMA No.2825/2017 wherein the petitioner No. 1 joined UBL on 09.08.1976, and after thirty-seven (37) years in service retired on 31.10.2013 as Vice President. His last S.M.C.No.20/2016 etc. -: 8 :- drawn basic pay on 31.10.2013 was Rs. 93,207/-. However the monthly pension being paid to him in the sum of Rs. 3,823/- has been calculated on the basis of his basic salary as on 30.06.2001 (11 years earlier) in the sum of Rs. 9,930/- . The other five petitioners whose service history with UBL is presented in the said CMA also variously served the bank for 36, 40, 38, 41 and 38 years and all retired when they were drawing handsome salaries between 2011 and 2014. They are however receiving pensions which are linked to the salaries drawn on 30.06.2001. For the ‘recently retired’ category the pensionary benefits were governed by the Notification No. 17 (9)-IF, XI/77 dated 30.11.1977 addressed to the Chairman, Pakistan Banking Council, the Government of Pakistan, Finance Division (Internal Finance Wing) whereby a scheme of pensions and retirement benefits for bank employees similar to that applicable to civil servants was introduced. In order to give effect to the instructions of the Federal Government, UBL issued Staff Circular No. 192 dated 24.12.1977, informing its officers and executives of the change in the scheme of pension and retirement benefits applicable to them; pursuant to paragraph 3(f) of the Circular No. 192/1977, the pension payable to a retired employee of UBL was to be calculated on the basis of the “average monthly basic pay plus dearness allowances drawn … during the last three years of service” (hereinafter the “Original Pension Scheme”). On 18.07.2001, the Human Resource Development department of UBL issued Staff Circular No. 943/2001, to notify the management of an across the board 40% average increase in the gross salaries as on 30.06.2001. At the same time the pensionary benefits were curtailed and it was ordained that henceforth for those employees continuing with the Original pension scheme, “In such cases, on S.M.C.No.20/2016 etc. -: 9 :- retirement/death, they will get their pension benefits calculated on the basis of their frozen basic pay admissible to them as on 30th June 2001.”. The grievance of these petitioners is two-fold; firstly that UBL could not have illegally pegged their pensionary benefits to the ‘frozen’ pay as on 30.06.2001 and secondly, that they have received no increases in the pension since 2001. 5. The category of ‘retrenched employees’ are typified by the petitioners in CMA No.2424/2017. Petitioner No.1 in the said CMA joined UBL on 5.06.1982. Vide Letter Ref: LOR/375128/97 dated 10.10.1997 (hereinafter “UBL’s Retrenchment letter”) UBL terminated his services with immediate effect, after he had served the bank for 15 years. He was paid a total amount of Rs.4,42,682/- as benefits under the Retrenchment Scheme. He was paid no pension. In this category those retrenchees who had served more than 30 years were also given pension. The grievance of these petitioners is two-fold; firstly that the UBL could not have illegally withheld their pensionary benefits once they had qualified for the same upon ten years’ service and secondly, in case of those who did receive one, that they did not receive any increases in the said pensions. ABL 6. At that time of enactment of Act, 1974, four (4) banks namely Australasia Bank, Sarhad Bank, Pak Bank and Lahore Commercial Bank were merged into one entity. It was renamed initially as the Allied Bank of Pakistan Ltd. (hereinafter the “ABL”). ABL came to be wholly owned by the Government of Pakistan. It was subsequently privatized on 09.09.1991. ABL through Circular no.P- INST-77/47 dated 15.04.1977 informed all employees that Memorandum # F:6(1)-REV-I/75, dated 07.01.1977 and # F.6(1)- REV-I/75 dated 25.01.1977, issued by the Finance Division, S.M.C.No.20/2016 etc. -: 10 :- Government of Pakistan, which set out the liberalized pension rules for civil servants were also applicable to employees of nationalized banks. The ‘original retirees’ of ABL are typified by the petitioner in CMA No.8404/2016 [Farrokh Niaz] who joined ABL on 21.05.1971 and after serving for 26 years, 7 months retired on 28.12.1997. His basic pay drawn on 28.12.1997 was Rs.13,935/- per month. Fifty percent1 of the gross pension was commuted and paid to him at the time of retirement. Thereafter Rs.5,500/- was held to be payable to him on monthly basis as his pension. In 1991 it was increased to Rs.6,054.75 on the basis of a letter of the President of ABL, 18 years later his monthly pension is still Rs.6,054.75 per month. The grievance of ABL pensioners is the same as that of UBL pensioners. HBL 7. HBL was nationalized in 1974 pursuant to the Act 1974 and came to be wholly owned by the Government of Pakistan. The Finance Division’s Circular # 17(9)-F.XI/77 dated 30.11.1997 introduced a new scheme of pension and retirement benefits for the officers and executives of nationalized banks and financial institutions along the same lines as those pertaining to civil servants. Letter/circular # GN/280 dated 22.02.1978 the Finance Division 1977 Circular ibid was circulated to the employees of the HBL. In terms thereof, at the time of retirement the pension of the employees of the HBL was to be calculated @ 70% of the average emoluments on completion of 30 years of qualifying service. However, vide Bank’s Circular # STF/98/90 dated 30.12.1998 [hereinafter “HBL 1998 Circular”] the Board of HBL introduced a new pension regime whereby the aforesaid pensionary benefits were reduced from 70% to 33% whereas gratuity and Provident Fund contribution (own plus 1 Rs.16,23,663/- paid in 1997. S.M.C.No.20/2016 etc. -: 11 :- bank) was also reduced by almost 50% of the basic pay. Thereafter vide Circular # STF/2005/16 dated 04.03.2005 [hereinafter “HBL 2005 Circular”] the Board of HBL once again curtailed the pensionary benefits and ordained that pension would be henceforth calculated on the basis of the salary of the employees as on 31.03.2005. In addition, the option of commutation of the pension was discontinued and medical facilities were curtailed. Thereafter vide Circular # STF/20/2/30 dated 31.03.2012 [hereinafter “HBL 2012 Circular”] the Board of HBL once again revised the pensionary benefits such that the gross pension would again be calculated on the basis of the last drawn basic salary. Vide Circular # STF/2014/063 dated 26.09.2014 [hereinafter “HBL 2014 Circular”] the Board of HBL again revised the basis for calculating pensionary benefits such that they would be calculated on the basis of last drawn salary as on 31.03.2014 and the number of years of service for the purposes of calculation would be till 31.03.2005. The pensioners of the HBL who were originally governed by the terms of the Finance Division’s 1977 Circular ibid and subsequently found their pensionary benefits curtailed under successive HBL circulars joined common cause with the ‘original retirees’ and the ‘recently retired’ categories of pensioners of UBL. 8. Ms. Ayesha Hamid, ASC represented the first three categories of UBL pensioners set out hereinabove. She argued that Notification No. 17 (9)-IF, XI/77 dated 30.11.1977 issued by the Government of Pakistan, Finance Division (Internal Finance Wing) [hereinafter the “1977 Notification”] introduced a scheme of pensions and retirement benefits for bank employees similar to that introduced for civil servants. It was given effect by the UBL Staff Circular No. 192 dated 24.12.1977, informing its officers and S.M.C.No.20/2016 etc. -: 12 :- executives of the change in the scheme of pension and retirement benefits applicable to them. This 1977 Notification pertained to the officers/executives of the bank. With respect to the bank employees in clerical and non-clerical cadres a similar regime obtained whereby Memorandum # F:6(1)-REV-I/75, dated 07.01.1977, issued by the Finance Division, Government of Pakistan was given effect by the UBL Staff Circular No. 158 dated 25.02.1977, informing its clerical and non-clerical staff of the change in the scheme of pension and retirement benefits applicable to them. Circular Nos. 158 & 192/1977 were therefore statutory instruments with the backing of the 1977 Notifications which were also statutory. In this regard she relied on a recent judgment rendered by this Court in the case of Bahadur Khan and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and others (2017 SCMR 2066) in which this Court held that the 1977 Notification is a statutory instrument. She stated that the pensioners devoted the best years of their lives in the service of the banks. The purpose of pension is, in consideration of their past services, to enable employees who are past their working lives to be maintained in a dignified and a comfortable manner. A pension therefore is an instrument of socio-economic justice and economic security2. It is self-evident that the pensioners cannot possibly maintain themselves on the pensions of e.g. Rs.1321/- per month which are illusory and offend against the dignity of man promised to them in terms of Article 14 of the Constitution of the Islamic Republic of Pakistan (Constitution). She argued that whilst a right to pension may not be a fundamental right per se, once an employee has worked for a number of years and fulfilled the requisite criteria for obtaining pension then the right to a 2 D.S. Nakara v Union of India (AIR 1983 SC AIR 130) = [1983 (2) SCR 165] S.M.C.No.20/2016 etc. -: 13 :- reasonable pension becomes perfected and such right once having accrued becomes a vested right and cannot be abridged by UBL as later done through decisions that set at naught the pensionary benefits earned under the 1977 Notification. She argued that pensioners are entitled to pension which ought to have been increased in terms of the cost of living to ensure that they received a minimum living wage; to deny them increases in their pension is to deny them a right to a livelihood which constitutes denial of their right to life in terms of Article 9 of the Constitution. She stated that vide Declaration of Trust dated 13.06.1995 (hereinafter the “Trust”) the UBL established a trust for the purposes of managing and distributing the Pension Fund created by UBL for the benefit and welfare of its employees. Clauses 3 and 14 of the Trust provided that, the privatization of the UBL would not in any way affect the objects of the Trust, and entitlement of employees to receive pensionary benefits from the Fund. The pensioners, according to her, are entitled to the monies held in the Pension Fund. Despite the fact that the UBL was privatized through Agreement for Sale dated 19.10.2002 [“Privatization Agreement”] whereby the Privatization Commission and State Bank of Pakistan agreed to sell, and the Bestway Group agreed to purchase the shareholding of 51% of the total issued and paid up capital of UBL, for the total sum of Rs.12.35 billion, upon the terms and conditions stipulated in the Agreement; UBL remained liable for the pensions due to the pensioners. They (the private owners) bought UBL after a process of due diligence and on “as is, where is” basis. Therefore UBL cannot be allowed to walk away from its responsibilities to the pensioners. With respect to ‘retrenched employees’ she stated that there was no element of voluntariness to their retrenchment which was simply imposed on the 5416 S.M.C.No.20/2016 etc. -: 14 :- employees who were retrenched. This was an unconscionable contract imposed upon them by an all-powerful employer and was liable to be set aside on this count too. She relied on Ora Lee Williams v Walker Thomas Furniture Company [350 F .2d 445 (1965)], Marybeth Armandariz v Foundation Health Psychcare [99 Cal.Rptr.2d 745 (2000), Supreme Court of California], Cresswell v Potter [(1978) 1 WLR 255 (note)], The Port Caledonia and The Anna [(1903) P 184 Probate Division], Fry v Lane [(1888) 40 Ch D 312, 322], Portman Building Society v Dusangh [(2000) 2 All ER (Comm) 221, Court of Appeal] and Boustany v Pigott [(1995) 69 P & CR 298 Privy Council]. When questioned about maintainability of the petitions she argued that a writ could issue to UBL in terms of Article 199(1)(c) of the Constitution as it was a matter of enforcement of fundamental rights but that her primary argument was that the increase in the pensionary benefits of the pensioners was the bank’s liability in terms of the Privatization Agreement whereby they stepped into the shoes of the Federal Government. And the question of public importance arose out of the fact that the Federal Government had made a sovereign commitment to the pensioners in the form of the 1977 Notification and this Court was liable to enforce the same. In this regard she relied upon Dewan Salman Fibre Ltd. and others Vs. Federation of Pakistan, through Secretary, M/O Finance and others (2015 PTD 2304). 9. Mr. Ahmed Awais, ASC also appeared for pensioners of UBL in Constitutional Petition No.45/2016. He stated that he had appended with his petition the complete list of those employees of the ‘recently retired’ category whose pensions were pegged to their salaries as frozen on 30.06.2001. Petitioner No.1 (in CP 45/2016) retired when he was earning Rs.150,000/- per month but his pension per month S.M.C.No.20/2016 etc. -: 15 :- today is only Rs.4,400/; which is below even the minimum wage. The 40% increase in salaries given at the same time as the ‘freezing’ of the pension was not unusually generous as it was given after a period of 8.5 years and was the result of a bank-wide strike in 2001. At the time of the privatization it was the Government which failed to protect the rights of the employees. 10. Mr. Hashmat Ali Habib, ASC appeared on behalf of some of the HBL Retired Executive Officers Association in CMA No.288/2017. He stated that pension was a right of the persons who had rendered services in banks and that the 1977 Notification was still in force. As the petitioners retired before privatization of HBL in 2004, the bank was liable to honour commitments made by it under the 1977 Notification. He adopted the arguments of Ms. Ayesha Hamid, ASC. 11. Rai M. Nawaz Kharal, ASC appearing in CMA No.9172/2017 on behalf of Mr. Barlas, pensioner of HBL adopted the arguments of Ms. Ayesha Hamid, ASC. 12. Mr. Abdul Rahim Bhatti, ASC appeared in CMA No.1496/2017 on behalf of HBL pensioners. He apprised us of the family pension being paid to one Khushal Bibi in the sum of Rs.243.72/- per month. Another pensioner Mst. Manzoor Fatima was being paid the “handsome” amount of Rs.360/- per month by way of pension. He stated that as per the provisions of the 1977 Notification an employee became eligible for pension after service of 10 years in the bank. As per this Notification a valid contract existed between the employees and the then nationalized HBL. On 30.12.1998 HBL arbitrarily and unilaterally changed the terms and conditions provided under the statutory 1977 Notification. This was illegal and could not have been done to the detriment of the employees. He referred to I.A. Sharwani and others Vs. Government of Pakistan through S.M.C.No.20/2016 etc. -: 16 :- Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), and Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693). 13. Mr. Mahboob Ahmad Soomro, petitioner in person in CMA No.7484/2016 stated that a different criterion for calculation of pensions of officers and clerical staff was being used which was discriminatory. [However, on reading his CMA it appears that the petitioner had not even retired at the time of filing the same and therefore he does not fall the category of pensioners that we are considering. As and when he retires, his pensionary benefits will be determined and affected by this judgment, in terms of his class wise entitlement and not on the basis of his individual petition]. 14. Mr. Tariq Mehmood Khokar, ASC appeared for the pensioners of ABL in CMAs No.8234, 9312, 9313 and 9314/2017. He made three allegations against the bank, that it failed to grant increases in pension, the pension fund was worth Rs.5.6 billion at the time of privatization and the bank has ‘reversed’ this amount and illegally misappropriated this money and, lastly, when ABL was privatized in 2004 it was required to make contributions to pension fund but it did not do so. 15. Mr. Salman Butt, ASC appeared on behalf of the UBL. He stated that UBL was established in 1959 as a private bank and a Trust Deed was executed to set up a Provident Fund on 27.8.1960. The Staff as well as UBL were to contribute to this Provident Fund. He referred to Article 260 of the Constitution and the definition of “pension” given therein to argue that this was the definition which would apply in this case. He argued that as certain pensioners had taken a major portion of their pension in commuted form this too would count as pension and it would be simplistic to say that the UBL was only paying, for S.M.C.No.20/2016 etc. -: 17 :- example only a sum of Rs.4000/- per month to a pensioner. Coming to the 1977 Notification he stated that it was NOT a statutory instrument as it was never notified in the official gazette: at best it was a policy guideline. In this regard he relied on Saghir Ahmed through Legal Heirs Vs. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261 @ 266), Muhammad Suleman etc. Vs. Abdul Ghani (PLD 1978 SC 190), Government of Sindh through Secretary Agriculture and Livestock Department and others Vs. Messrs Khan Ginners (Private) Limited and 57 others (PLD 2011 SC 347) and Chief Administrator Auqaf Vs. Mst. Amna Bibi (2008 SCMR 1717). He also submitted a comparative chart and stated that the 1977 Notification in the case of UBL was slightly different in its terms and conditions. The Notification upheld as statutory in the Bahadur Khan’s case (supra) was different. He argued that all banks were nationalized in terms of the Act 1974 which was to have overriding effect in terms of Section 16 thereof. He categorically stated that privatization also took place under the same Act 1974. The Act 1974 was amended in 1991 and Sections 5A and 5B were added. In terms whereof once UBL was privatized the Act 1974 ceased to apply to it and no obligations under the said law would continue to operate against UBL. The Act 1974 was amended through Banks (Nationalization) (Amendment) Act XVIII 1997 and the Pakistan Banking Council stood dissolved. Thereafter the Board of the UBL was authorized to take decisions with respect to the pensionary benefits of the pensioners. It validly did so in the form of Staff Circular 943 dated 18.07.2001 (when UBL had not yet been privatized) whereby the employees were given an unprecedented 40% increase in gross salary as on 30.06.2001 which they accepted and benefited from, that the revision of pensionary benefits was a part of S.M.C.No.20/2016 etc. -: 18 :- this overall package. With respect to pension, the employees could have opted for ‘Option II’ i.e. joining the Provident Fund and the Gratuity Scheme and opting out of the Original Pension Scheme altogether. But as the employees/pensioners did not do so they were deemed to have opted for ‘Option I’ whereby they remained in the Original Pension Scheme but their pensionary benefits were to be calculated on the basis of the ‘frozen’ pay due to them as on 30.06.2001. The UBL’s pensioners were therefore estopped from claiming additional benefits. At this juncture it is also pertinent to mention that the learned counsel also mentioned a number a petitioners who had originally opted to remain in the 1960 Provident Fund scheme and on that count were not liable to be treated under the 1977 Notification in any event. He also cited the principles of waiver and acquiescence as operating against the aggrieved petitioners. He made submissions with respect to lack of maintainability of the petitions, and stated that Article 184(3) would be regulated by Article 175(2) of the Constitution. The learned counsel stated that the UBL being a private bank was not amenable to issuance of a writ. It did not even remotely pass the function test to qualify as a person performing functions in connection with the affairs of the Federation or the Provincial Government and therefore no action against UBL could be taken in exercise of constitutional jurisdiction. He relied on the case of Abdul Wahab & others Vs. HBL & others (2013 SCMR 1383) to state that this Court had already held that a matter involving the benefits of 310 employees of HBL was not a matter of public importance. Theirs was a private grievance and the bank being a private entity was not amenable to writ jurisdiction. In this case the relationship inter se the pensioners and the UBL was one of master and servant and our entire jurisprudence has developed to hold that the petitioners cannot invoke the jurisdiction of this Court. He S.M.C.No.20/2016 etc. -: 19 :- provided a detailed chart to aid a comparison of Articles 184 and 199 with similar provisions of the Indian Constitution. He also relied on Muhammad Ashraf and others Vs. United Bank Limited and others (2015 SCMR 911), The Commissioner of Income-Tax, Rawalpindi Zone, Rawalpindi Vs. Messrs Haji Maula Bux Corporation Limited Sargodha (PLD 1990 SC 990 @ pg. 1006 & 1024), Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such Judges (PLD 2013 SC 829 @ pg. 944 & 1002), State Life Insurance Employees Federation of Pakistan, Karachi Vs. Federal Government of Pakistan through, Secretary Commerce, Islamabad and 2 others (1994 SCMR 1341), Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883 @ pg. 2912), All Pakistan Newspapers Society and others Vs. Federation of Pakistan and others (PLD 2004 SC 600@ pg. 621), Syed Zulfiqar Mehdi and others Vs. Pakistan International Airlines Corporation through M.D., Karachi and others (1998 SCMR 793 @ pg. 801), S.M. Waseem Ashraf Vs. Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others (2013 SCMR 338 @ pg. 345). He concluded his arguments by stating that the revised composite scheme introduced in 2001, as implemented in 2003, acted upon and benefited from, cannot be challenged by the petitioners. In this behalf he relied on State Bank of Pakistan Vs. Khyber Zaman and others (2004 PLC (CS) 1213), State Bank of Pakistan through Governor and another Vs. Imtiaz Ali Khan and others (2012 SCMR 280), M.C.B. Bank Ltd., through Authorized Representative Vs. State Bank of Pakistan through Governor and 2 others (2010 CLD 338), Trustees of the Port of Karachi Vs. S.M.C.No.20/2016 etc. -: 20 :- Organization of Karachi Port Trust Workers and others (2013 SCMR 238), Pakistan International Airlines Corporation Vs. Aziz- ur-Rehman Chaudhry and another (2016 SCMR 14) and Wali-ur- Rehman and others Vs. State Life Insurance Corporation and others (2007 PLC (CS) 836). 16. Mr. Ali Zafar, ASC appeared on behalf of the HBL. He stated that HBL was owned by the Agha Khan Foundation which was at the forefront of charitable work and would like to help the pensioners but within the law. There is no legal basis to foist the responsibilities of the Government onto HBL in a post-privatization scenario. His submissions with respect to the 1977 Notification were that it was issued by the Finance Division to the Pakistan Banking Council who would in turn instruct the bank. Therefore it has to be read with Section 9 of the Act 1974. When the Pakistan Banking Council stood dissolved through the Banks (Nationalization) (Amendment) Act XVIII 1997 in terms of Section 11 of the Act 1974 the powers previously vesting in the Council now came to vest in the Board of HBL. HBL’s Board consequently offered a new ‘deal’ to its’ employees whereby they benefitted by receiving enormous increases in their salaries while the pensionary benefits were changed. He submitted that after 1998 no employee was given any benefits under the original dispensation of the 1977 Notification and after HBL was privatized in 2004 the pension scheme was abandoned altogether in favour of more beneficial Provident and Gratuity Funds. He stated that pension is not a fundamental right, but at best a contractual right and therefore the grievance of the pensioners is a private grievance. When questioned, he conceded that pension may be a statutory right too. The learned Counsel stated that the pensioners’ demand for increase in their pensions is not maintainable in terms of Article 184(3) of the S.M.C.No.20/2016 etc. -: 21 :- Constitution. HBL is not owned/controlled by the Government and the functions test does not apply. The relationship inter se the HBL and the pensioners is of master and servant. Therefore relying on the ratio of the Abdul Wahab case (supra) the jurisdiction of Article 184(3) of the Constitution would not be attracted. He stated that even if, without conceding, the 1977 Notification is taken as a statutory instrument then it would not apply in perpetuity and certainly not after dissolution of the Pakistan Banking Council. If at all this Court decides that the pensioners are entitled to increase in their pensions it would be for the Government to make good on its commitments and on no account could a private bank such as HBL be burdened with the liabilities of the Government in a post privatization scenario. The government could fund such a liability through deficit financing funding and borrowing. However the bank required its capital for generating further income through giving out loans. He pointed out that particular petitioners being habitual litigants were disentitled to relief. He relied on Muhammad Zaman and others Vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571). 17. Mr. Sikandar Bashir Mohmand, ASC on behalf of UBL submitted a detailed written note and chose not to make oral submissions on account of the fact that he would be repeating himself as Mr. Salman Butt, also appearing on behalf of UBL had earlier made the same arguments. His contentions will be reflected at relevant points of this opinion. 18. Mr. Shahid Anwar Bajwa, ASC appeared on behalf of ABL in CMA No.8200/2016. He stated that ABL was originally established as the Australasia bank in 1942 having its head office in Shah Chiragh Building in Lahore. It was nationalized in 1974 and denationalized on S.M.C.No.20/2016 etc. -: 22 :- 9.9.1991. Before nationalization there was a Contributory Provident Fund available for the employees of the bank to which they contributed 8.33% of their salaries. The bank matched these contributions. There was also gratuity equal to one month’s salary for each year of completed service. When the 1977 Notification (which he referred to as the 1977 “Letter”) came about there was no longer any contribution by the bank. It introduced a pension and a General Provident Fund scheme, with no contribution by the bank. Employees were repeatedly given the choice of joining the later schemes. This “Letter” is addressed to the Pakistan Banking Council. The “Letter” was not a statutory instrument notwithstanding Bahadur Khan case (supra). This Court had according to him, failed to consider certain provisions of the Act 1974; it failed to consider section 11 and also the position that the government had 100% control of the bank and could anyway issue this Letter by way of instructions. When confronted with the fact that there was a judgment in the field (Bahadur Khan’s case), he adopted a novel approach. He stated that since this Court had failed to consider certain provisions of law in deciding the case, even a Civil Judge, 3rd Class would be entitled to ignore the same. We will not dignify this argument with so much as a rebuttal other than to say that we expect a better standard of arguments from counsel of this Court. Mr. Bajwa further stated that assuming, the “letter” was statutory it was repealed once the bank was privatized. In view of Section 5A of the Act 1974 the “letter” would cease to have any effect. No rights would accrue to the pensioners after privatization in 1991. In ABL’s case the freezing of salaries for pensions took place in 2002 (post-privatization). He referred to Muhammad Tariq Badr and another Vs. National Bank of Pakistan and others (2013 SCMR 314) as well as Saeed Ahmad Vs. The State (PLD 1964 SC 266 @ 290) to submit that repeal and S.M.C.No.20/2016 etc. -: 23 :- amendment have the same effect. He also relied on Federation of Pakistan Vs. Muhammad Siddiq (PLD 1981 SC 249 @ 261) in this regard. He maintained that those who accepted VSS (Voluntary Separation Scheme) were not entitled to pensionary benefits on the basis of the ratio of State Bank of Pakistan through Governor and another Vs. Imtiaz Ali Khan and others (2012 P L C (C.S.) 218 @ para 28). Besides, according to him, the right to pension only accrues at retirement and not after ten years’ service. The learned counsel took similar grounds as the other counsels representing UBL and HBL with respect to lack of maintainability of the claims of the pensioners by urging that receiving pension was not a fundamental right. 19. We had appointed Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court as Amicus Curiae in these matters to assist this Court and he very kindly agreed. He argued that there appeared to be consensus between both sides with respect to the fact that the jurisdiction of this Court would only be attracted in terms of Article 184(3) of the Constitution if and when a matter involved both a question of fundamental rights and a question of public importance. The Abdul Wahab judgment (supra) calls these the two foundational principles. He then drew our attention to different fundamental rights enshrined in Chapter II of the Constitution. He stated that certain fundamental rights impose a duty on the state to do something or abstain from doing something (as defined in Article 7). These are therefore by their very nature enforceable against the State. As an example of this category of fundamental right he cited Article 8(2) which imposes upon the State a duty not to make any laws that may take away or abridge the rights of its citizens. Were the State to make such a law, this fundamental right would be enforceable against the State. Similarly the duty to ensure that citizens are afforded due S.M.C.No.20/2016 etc. -: 24 :- process of law, or not subjected to double punishment; are duties which by their very nature are imposed on the State. This may be contrasted and compared with Article 9 or 14, where no person, including an individual and not just the State alone is barred from infringing a citizen’s right to life and liberty or dignity. The learned Amicus stated that this subtle difference may be better appreciated by comparing our Constitution with that of the US. In their system it is the Congress which is responsible for granting/ensuring fundamental rights. This means that in certain cases their Supreme Court has had to come up with novel and inventive ways to increase the amplitude of their reach. When we speak of right to life, is the only remedy available to a citizen lies under Article 199 or 184 for enforcement of the same? If it not available the court will not say that the right is not available, it will only say that the forum is wrong, approach the right forum. The question whether the person has locus standi to put the machinery of law into motion has never been a question of jurisdiction since the case of Col. Lt. Col. Nawabzada Muhammad Amir Khan Vs (1) the Controller of Estate Duty etc. (PLD 1961 SC 119 @ 127), followed by The Murree Brewery Co. Ltd. Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1971 SC 279 @ 287), this Court said that the clauses relating to who is entitled to bring the case do not oust jurisdiction of the Court. Such clauses are procedural in nature and used by courts to regulate their own jurisdiction. 20. Referring to the Wattan Party through President Vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 679 @ 717), Mr. Makhdoom Ali Khan stated that in that matter he had argued that when a larger bench of this Court had heard a matter relating to a S.M.C.No.20/2016 etc. -: 25 :- large number of people it would by itself be treated as a matter of public importance. Mr. Makhdoom Ali Khan then turned his attention to the language of Articles 199 (1) (a) (i) and 199 (1) (c) and stated that in terms of the latter there is no restriction per se on the power of this Court to issue a writ, only to a person performing functions in connection with the affairs of the Federation, Province etc. The writs of mandamus and prohibition can only be issued to a person performing functions in connection with the affairs of the Federation, Province or a Local Authority. A writ of declaration is similarly limited in its scope. But this is in marked contrast to the “person” envisaged in Article 199 (1)(c) where there is per se no apparent restriction on the power of Court to issue a writ only to a person performing functions in connection with the affairs of the Federation , a Province or a Local Authority. In terms of Article 199 (1) (b) the Court does not require an aggrieved person to relate to the Court that a person is being held in illegal custody where a writ of habeas corpus is contemplated. The same rule applies to a writ of quo warranto. He has pointed out the language of each of the sub-articles is different, in keeping with what is to be achieved. 21. Mr. Makhdoom Ali Khan, referred to Human Rights Commission of Pakistan and 2 others Vs. Government of Pakistan and others (PLD 2009 SC 507 @ 527), relating to bonded labour being detained by a private party. Relying on the said judgment he stated that Article 199 and 184 confer a special jurisdiction on the High Court as well as this Court regarding enforcement of fundamental rights. Article 199 (1) (c) allows the Court, according to this judgment to issue a writ, even to a private person where another’s fundamental rights may otherwise be violated. He then referred to the definition of person as given in Article 199 (5) to argue that the words ‘body S.M.C.No.20/2016 etc. -: 26 :- corporate’ are to be read disjunctively with the words ‘authority under the control of the government’. He maintained that natural person was not excluded from this definition. With respect to whether pension is a fundamental right he submitted that the question before this Court was not whether pension is or is not a fundamental right. According to him it was an admitted position that all the respondent banks were paying a pension were obviously doing so because they recognized the right of the employees to receive pension. Therefore the question then arises that once it is accepted that the pension is to be paid after an employee has put in a particular period of service, can the employer pay him a pension which denies him a right to life and livelihood? If pensioner can establish that the pension being given to him falls below a minimum threshold then a case for enforcement of fundamental rights is made out. He apprised us of the concept of minimum, fair and living wages and how these concepts may relate to pension. He went on to point out that as per a 2014 Notification by the Federal Government the minimum pension for a civil servant is Rs. 6000 per month whereas the minimum pension paid by EOBI to retired workers who are registered with the Employees Old-Age Benefits Institution (EOBI) is Rs. 5,500 per month. Similarly the norm in most other departments is that after commutation about 60% of the pension is paid to a retiree and therefore 60% of the minimum wage established by the Federal government may be taken as another benchmark of the minimum threshold of pension to be set by the Court. The cases of termination from service were however distinguished by the learned counsel as being those where the nature of the grievance was a personal one. He pointed out the Abdul Wahab case (supra) may be distinguished on this basis. He stated that the matter of payment of pensions was a national issue, and it needs to be determined if an employer can freeze S.M.C.No.20/2016 etc. -: 27 :- pension at a level which denies the employee the right to life? If the answer is in the negative, then the matter crosses both thresholds of being a matter of fundamental rights and being one of public importance. 22. The learned Amicus submitted that in this particular case, this Court may not need to go as far as the area covered in Human Rights Commission of Pakistan and 2 others Vs. Government of Pakistan and others (PLD 2009 SC 507). This is for the reason that if at all new parameters have to be determined, it may be more appropriate for a larger bench to do so. He further submits that this matter may be decided without taking an overly expansive view of Article 199 (1)(c). He maintains that in suitable and appropriate cases this Court may apply the functions test even to a private person/entity who performs a public function. He submits that in applying the function test the court can take into consideration the fact that the current majority shareholders, at the time of signing the privatization agreement with the State, purchased the shares of the government at a price which they were or should have been aware (being savvy businessmen), factored in the value of the assets as well as the possible liabilities. Having made the offer at that time, they took over the pubic liabilities/obligations of the State which included obligations with respect to payment of pensions in terms of the 1977 Notification. Having taken over all rights and liabilities they cannot now be allowed to keep the assets but walk away from the liabilities and obligations. He argues that another possible test is that where a private person takes over a public obligation/duty/liability to which the State was committed, such private person cannot later on say when it is true to discharge the obligation that it should be treated as a private person and hence beyond the scope of writ jurisdiction of the court. When the S.M.C.No.20/2016 etc. -: 28 :- privatization agreements were examined, it was apparent that the banks took over assets and assumed the liabilities as well; had liabilities been excluded perhaps the government would have priced the shares differently. He relied on Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others (AIR 1989 SC 1607) to support his contention. Relying on the Bahadur Khan case (supra) he argued that the 1977 Notification was statutory in nature; but even if it is taken as non-statutory, it was still a solemn commitment by the employer (the State) to its employees for nearly twenty years. Since then the employer (Limited Company) has not changed. Only the shareholders have changed. The sovereign shareholder has sold its shareholding to private shareholders. Had the government sold only the assets a case could have been made out that the liability remained with the government which is clearly not the case. Referring to the concept of judicial engagement, the learned counsel submitted that the instant set of cases, in their peculiar set of facts and circumstances provided a perfect opportunity for judicial engagement. The court can and should exercise jurisdiction and engage with the respondent banks to ease the genuine miseries of the petitioners. He submits that a reasonable formula can be agreed upon with mutual consultation to ameliorate the miseries of the petitioners. He however stated that any increase (if) granted to the pensioners ought to be prospective. 23. Mr. Waqar Rana, Additional Attorney General, addressed us briefly and stated that the government remains a shareholder in these banks and its liability is limited only to the extent of its shareholding. The claim to a pension is a right to property in terms of Article 23 and 24 in addition to right to life in terms of Article 9. S.M.C.No.20/2016 etc. -: 29 :- Therefore the petitions are maintainable in law. However, he states that the Federation takes no stance with respect to the merits of the case. 24. We heard the learned counsels at great length and perused the voluminous record. During the course of the hearing of the case we called the presidents/chief executives of the banks who appeared before us: they independently apprised us that all the banks are before us engaged in many separate charitable endeavors and take their corporate social responsibility very seriously. They sought time to come up with a scheme to address the grievances of the pensioners. 25. The question is once pension is being paid, whether under statutory provision, common law or contract, can it be in an amount so modest that it denies the pensioner a decent living, thereby denying him/her the right to life? Article 14 of our Constitution provides protection to the citizens of our country. Dignity of man shall be inviolable as envisaged in Article 14 of the Constitution. If a man serves his employer for a number of years, during the prime of his life and gives of his honest labour to his employer and where he is promised pension, whether under statute, common law or contract then he should be able to plan his financial future for his declining years keeping in mind such promises of a pension. When that pension is given but is of a sum which is illusory and by no amount of prudent budgeting can it be used to sustain a man independently, and forces him to turn to his children or other relatives/sources for ‘help’, offends against his dignity. To subject a pensioner to a life of penury and impoverishment, is a clear violation of his fundamental rights to life and dignity as enshrined in Articles 9 and 14 respectively. The entitlement to pension is not a fundamental right but must be duly earned. Once that right has been perfected and earned, as has been by the petitioners, it is no longer a question S.M.C.No.20/2016 etc. -: 30 :- whether they are entitled to the pension or not. The fundamental right that is to be enforced is that the pension given to such pensioners must be of a level which allows them to keep body and soul together. 26. We are happy to note that on being called upon and encouraged by us the boards of the banks showed generosity, magnanimity, great sense of corporate social responsibility to come up with a scheme whereby there will be an immediate and substantial increase in the minimum pension paid to the pensioners. The minimum amount voluntarily offered by the banks was Rs.5,250/- per month. The offer is without prejudice to the legal stance taken by the banks in this case and without prejudice to their objections as to the maintainability etc. of the present petitions. We therefore refrain from recording any finding on the merits of the case or the question of maintainability or the question whether a writ can be issued against a private/privatized bank/party/entity leaving these matters to be examined in some appropriate case. However, using our discretion in the matter, we enhance the aforesaid amount voluntarily offered by the banks and we direct as follows: 1. With immediate effect the minimum pension paid to any pensioner (including their widows, where applicable) of UBL, HBL and ABL will be Rs. 8,000 (rupees eight thousand) per month. 2. The payments will be prospective, that is, from the date of this judgment. 3. There will be an increase of 5% in the aforesaid pension every year, effective on the 1st of January every year. 4. The aforesaid pension will be paid to all three categories of pensioners mentioned above, i.e. the “original retirees”, those whose pensions were linked to basic pay “frozen” in past years, and in the case of UBL to retrenched employees including those who had served the bank for more than ten years on the date of retrenchment. For S.M.C.No.20/2016 etc. -: 31 :- avoidance of doubt it is clarified that the pension of employees who are receiving sums in excess of Rs.8,000/- shall continue to do so, and those whose pension would fall below the minimum pension (after 5% annual increase, effective on the 1st of January) they shall be paid the minimum pension with 5% annual increase. However, those who have availed the benefit of VSS (Voluntary Separation Scheme) or Golden Handshake Scheme will not be benefitted by this judgment. 27. We would like to take this opportunity to express our heartfelt gratitude to Mr. Makhdoom Ali Khan, Sr. ASC for his able assistance and valuable input which greatly helped us in deciding this matter. 28. In view of the above, the matter stands disposed of. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 13th of February, 2018 Approved for reporting Waqas Naseer

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikahr Muhammad Chaudhry, CJ Mr. Justice Javed Iqbal Mr. Justice Raja Fayyaz Ahmed Mr. Justice Muhammad Sair Ali Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ghulam Rabbani SUO MOTU CASE No.24 of 2010 (Regarding Corruption in Hajj Arrangements in 2010) Human Rights Cases No.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P & 58118-K of 2010 (Applications by Abdul Rasheed & others) On Court notice: Moulvi Anwar-ul-Haq Attorney General for Pakistan Ch. Khadim Hussain Qaiser, Addl. AG, Punjab Syed Arshad Hussain Shah, Addl. AG, KPK Mr. Azam Khattak, Addl. AG Balochistan Mr. Muhammad Mir Qasim Jat, ASC (on behalf of AG, Sindh) Raja Abdul Ghafoor, AOR For Members of Committee Nemo of Parliamentarians: Former Minister S&T: Senator Muhammad Azam Khan Sawati in person For former Minister Mian Khalid Habib Elahi, ASC Religious Affairs: Mr. Mehmood A. Sheikh, AOR For M/o Religious Affairs: Mr. Shaukat Hayat Durrani, Secretary For former Secretary Mr. Ahmar Bilal Soofi, ASC Religious Affairs: For Establishment Division: Mr. Abdul Hafeez Pirzada, Sr. ASC Mr. Abdur Rauf Ch, Secy. Mr. Khalid Akhlaq Gillani, Addl. Secy. Mr. Muhammad Hafeez, J.S. Mr. Afzal Latif, J.S. Mr. Muhammad Arshad Khan, Dy. Secy. SMC 24/2010 [HAJJ SCAM] 2 For NAB: Mr. Muhammad Akbar Tarar, Addl. PGA Mr. Fauzi Zafar, ADPGA For FIA: Syed Jawed Ali Bukhari, Addl.DG Incharge Investigation Mr. Hussain Asghar, Director Mr. M. Azam Khan, Director (Law) Mr. Muhammad Niaz, S.I. Police with Rao Shakeel, former DG Hajj (in custody) In C.M.A No.218/2011: Nemo For Tour Operators: Nemo For Contract Officers: Raja Muhammad Irshad, Sr. ASC Raja Abdul Ghafoor, AOR Mr. M. Ilyas Khan, Sr. ASC Col. (R) Abdul Wahid Khan, SSP, ATC Karachi Date of hearing: 01.03.2011 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ – Syed Jawed Ali Bukhari, Addl. DG, FIA has submitted progress report, a perusal whereof indicates that no effective progress has been shown as is also evident from the reports, which were being sent on daily basis for perusal of one of us (Raja Fayyaz Ahmed, J. in Chambers). On perusal of these reports, it has been concluded that – “Plainly, it is reflected from the progress reports referred to above that deliberate delay has been and is being caused for reaching to the truth and in taking the pieces of incriminating material brought so far on record linking the accused persons to its logical conclusion. These reports lack necessary particulars and details, which lead to no where. It is also apparent from the steps taken during the course of investigation that in a way protection is being extended to the offenders so that eventually they can get rid of the offences to which they appear to have SMC 24/2010 [HAJJ SCAM] 3 been exposed and to be escaped from lawful punishments likely to be awarded after trial. Also, it does not transpire that the accused persons prima facie involved in the case have been interrogated and if so whether during the course of interrogation all the substantial and material incriminating points/material remained in the mind of the investigator or otherwise. It seems quite evident that investigation in the case is not being conducted independently and in a transparent manner, as well as; it can hardly be believed that in presence of the present D. G. FIA effective and impartial investigation in the case can be conducted in respect of whom specific observations have also recorded by this Court in its order dated 10.2.2011 and in the subsequent order dated 15.2.2011 expressing dissatisfaction on the investigation being conducted in the case.” 2. It is important to note that Syed Imran Ali Shah, who had made an allegation that out of the misappropriated/defrauded amount of Hajj scam, one bullet proof vehicle was purchased by Abdul Qadir Gillani through his friend Zain Iftikhar Sukhera at UAE, which was brought to the latter’s residence at Sahiwal, when called upon to furnish evidence to substantiate allegation, failed to do so, as it is mentioned in the report in clear terms. We may observe here that on the basis of a bald and baseless allegation, such statement should not have been made by Syed Imran Ali Shah. However, the Addl. DG may look into the matter and proceed against him if he considers that false information was furnished. 3. It is informed by the Addl. DG that efforts are being made to cause the arrest of the accused persons, but they are SMC 24/2010 [HAJJ SCAM] 4 getting bails from the courts of law. However, it has been pointed out to him that they should approach the same court or the higher court and provide them assistance to pass appropriate orders under the law. 4. It is also complained by the Addl. DG that about four letters have been sent to the State Bank of Pakistan for the purpose of furnishing details of bank accounts of accused Abdullah Khokhar, Syed Hamid Saeed Kazmi, Aftab-ul-Islam Raja and others, but so far no cooperation has been extended. The Governor State Bank is hereby directed to cooperate with the FIA and issue instructions to the concerned authorities to do the needful. 5. Mr. Shaukat Hayat Durrani, Secretary Religious Affairs has submitted a report, which is quite satisfactory as payment of Pak Rupees equal to SR 700 per pilgrim has already been made to 99 % affected pilgrims. We appreciate the task, which has been completed by the Secretary and he may take further steps to distribute the left over amount to the remaining one percent pilgrims. 6. Mr. Abdul Hafeez Pirzada, Sr. ASC has stated that a Committee has already been constituted to look into the cases of persons who were appointed on contract basis. We may observe in loud and clear terms that appointments on contract basis are not allowed to be continued in terms of section 14 of the Civil Servants Act, 1973, and the Policy unless the conditions specified therein are satisfied. Apparently, it seems that the Government is not interested in obeying the order of the Court because so far the contract appointments of only 9 officers have been terminated whereas there is a list of more than 100 persons serving on contract basis in SMC 24/2010 [HAJJ SCAM] 5 different capacities, including Secretaries awaiting orders thereon. It is also to be noted that this Court has more than once observed that incumbent DG, FIA who himself is holding this post on contract basis in a disciplined force, is responsible for not allowing the investigation of the instant case to proceed in a transparent manner, however, despite these observations, no action has been taken against him. Mr. Pirzada has stated that the fate of DG, FIA will be decided within 3 days and report shall be submitted to the Registrar of this Court for perusal in Chambers. 8. Let the main case be adjourned for a period of two weeks. In the meanwhile, as already directed, the Addl. DG shall continue submitting report for perusal by one of us (Raja Fayyaz Ahmed, J in Chambers). IFTIKHAR MUHAMMAD CHAUDHRY, C.J. JAVED IQBAL, J. RAJA FAYYAZ AHMED, J. MUHAMMAD SAIR ALI, J. ASIF SAEED KHAN KHOSA, J. GHULAM RABBANI, J. ISLAMABAD 1st March, 2011

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR Suo Moto Case No. 25 of 2009 (Cutting of Trees for Canal Widening Project Lahore). In Attendance: Ms. Imrana Tiwana, Convener LBT (Lahore Bachao Tehrik / Save Lahore Movement) Ms. Iram Aftab, LBT Ms. Ayesha Batool Mr. Ali Hassan for WWF, Pakistan. Ms. Naumana Amjad, Assistant Professor of Psychology, Punjab University. Mr. Kamil Khan Mumtaz, (Architect). Ms. Saima Ameen Khawaja Lt. Col. (R) Ijaz Nazim. NGO Shajardost. Mr. Alexander Uvidine For Govt of Punjab: Ch. Hanif Khatana, Addl.A.G. Pb. Mr. Jawwad Hassan, Addl. A.G. Pb. Mr. Salman Aslam Butt, ASC Nasim ur Rehman, Dy: Director, Environmental Protection Authority Court Mediator: Dr. Parvaiz Hassan, Sr. ASC Date of Hearing: 15.08.2011. JUDGMENT Tassaduq Hussain Jillani, J. –Any city gets what it admires and what it pays for and ultimately deserves. And we will probably be judged not for the monuments we build but the monuments we destroy. Echoing the spirit behind this powerful quote (by Ada Louise Hustable, Pulitzer Prize Winning Architecture Critic), the petitioner Lahore Bachao Tehrik (‘LBT’) has challenged the project of Suo Moto Case No. 25 of 2009 2 Government of Punjab for widening of the 14 Km long Canal Bank Road (“Canal Road”) Section falling between Dharampura Underpass and Thokar Niaz Baig in Lahore (“Canal Road Project”) which, according to it, would not only destroy the green belt/park on both sides of the Bambawali-Ravi-Bedian (BRB) Canal, but also fail to solve the problem of traffic congestion at Canal Road for which the Canal Road Project has purportedly been designed. It is contended by the petitioner that the issues of traffic congestion can be resolved by complying with Urban Town Planning and sustainable urban transport which include alternatives based on public transportation instead of private transportation. The petitioner has also prayed that the Canal Park/Green Belt along the Canal Road be notified as a heritage site. The petition reflects a strong passion for issues of environmental and ecological concern. 2. Petitioner is statedly an umbrella organization consisting of members from other organizations such as Institute of Architects Pakistan, Pakistan Council of Architects and Town Planners, the World Wide Fund for Nature-Pakistan, the Pakistan Medical Association, the Pakistan Environmental Lawyers Association, Simorgh, Shirkatgah, Shehri-CBE, the Lahore Conservation Society, Shajar Dost, Subh-e-Nau, Lahore Chitrkar, the Office of Conservation and Community Outreach, the Punjab Urban Resource Center, other NGOs, professionals, architects, town planners, environmentalists, doctors, lawyers, historians, economists, the academics and students of schools, universities, colleges as well as the citizens of Lahore. It was formed in 2006 with the object to protest against the proposal framed by the Traffic Engineering and Planning Agency (“TEPA”) to widen the Canal Road. 3. Initially this petition was a letter from LBT addressed to the Honorable Chief Justice of Pakistan in which LBT claimed that the Canal Road Project was a violation of fundamental rightof life guaranteed under the Suo Moto Case No. 25 of 2009 3 Constitution. The Hon’ble Chief Justice converted it into a petition and issued a suo moto notice under Article 184(3) of the Constitution to the respondent- authorities. In compliance of the suo moto notice, the Government of Punjab filed its comments/written statement. 4. In support of this petition, it was submitted and argued by the petitioners as follows:- (i) that the declared objectives of the Canal Road Project i.e. (i) the facilitation of fast and efficient traffic movement; (ii) overcoming traffic congestion and bottlenecks, and (iii) to provide easy traveling conditions between the northern and southern parts of the city of Lahore would not be achieved by widening of the road. (ii) that Environmental Impact Assessment carried out and the report (EIA Report) so submitted approving the Canal Road Project is flawed because it does not consider the following alternatives to alleviate traffic congestion which are (i) investment in public transport including taxi services; (ii) rationalization of parking fees, (iii) congestion charging; (iv) soft traffic management; (v) demand management; (vi) better use of existing facilities; (viii) avoiding VIP traffic congestion and (ix) enforcement and implementation of traffic regulations. (iii) that the three traffic bottlenecks along the Canal Road which have been cited as justification for widening the said road are not caused by the width of the road but by the fact that traffic must “crisscross” on account of underpasses’ position on alternate sides of the road. The EIA Report failed to point out that this cause of traffic disruption would be further Suo Moto Case No. 25 of 2009 4 confounded by widening of the road and allowing more traffic unto it. (iv) that both the EIA Report and the TEPA have not considered the impact of Lahore Ring Road Project as well as of proposed public transport initiative of the Government of Punjab i.e. Lahore Rapid Mass Transit Project and the Lahore Bus Company Project which have taken place after the grant of environmental approval. The Precautionary Principle in environmental regulations warrants that a separate EIA of Canal Road Project should include consideration of the afore- referred new developments. (v) that according to the Precautionary Principle of environmental regulations, enshrined in our jurisprudence by the Shehla Zia Case (PLD 1994 SC 693), it is imperative “to first consider the welfare and safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible dangers or make such alternate precautionary measures which may ensure safety”, it is argued that the Government of Punjab should adhere to the Precautionary Principle and have EIAs conducted of Canal Road Project. The Precautionary Principles enjoins decision makers to err on the side of caution when it comes to project likely to cause an adverse environmental effect. (vi) that the environmental approval granted to the Canal Road Project is illegal, void and of no legal effect because the Environmental Protection Agency, Punjab (“EPA-Punjab”) unlike the Pakistan Environment Protection Agency (the “Pak- Suo Moto Case No. 25 of 2009 5 EPA”) set up under section 5 of the Pakistan Environmental Protection Act, 1997 (“PEPA”), is not an independent agency. The EPA-Punjab is very much part of the Government of Punjab and, to date, no clear demarcation has been made of between its functions and the functions of the Environment Protection Department of the Government of Punjab. As such, it is a violation of the principles of natural justice that EPA- Punjab presided over the determination/consideration of the Canal Road Project when the main financer of the said project was the Government of Punjab. In the afore-referred circumstances, it was contended that EIA of the TEPA Project ought to have been carried out by the Pak-EPA, which is the only unbiased institution within the scope of PEPA that can conduct reviews of EIAs submitted by Provincial or Federal Government agencies. (vii) that the environmental impact of the Canal Road Project should be taken into account before commencing it. (viii) that the World Wide Fund for Nature-Pakistan conducted an ecological assessment of flora, fauna and wildlife along the Canal Road. This area has immense ecological importance with a lot of wild life specie of birds, trees and small animals. With the proposed widening of the road, the centuries old ecological linkages would be broken resulting in habitat destruction for birds and small animals. (ix) that the habitat of Lahore Canal Bank has different types of trees and shrubs. As per WWF-Pakistan 2008 Report, there are 14,873 trees and 6,557 shrubs in the area. Major trees include Suo Moto Case No. 25 of 2009 6 Eucalyptus, Poplar, Jaman, Mango, Banyan, Pipal, Amaltas and Bottle Brush etc. All these trees and shrubs were thoroughly identified and counted. (x) that the trees and plants contribute significantly towards purification. They make their own food from Carbon Dioxide and release Oxygen for us to breath. They also help to settle out, trap and hold particulate pollutant (dust, ash, pollen and smoke) that can damage human lungs. Particulates are trapped and filtered by leaves, stems and twigs, and washed to the ground on rainfall. The loss of trees in our urban areas not only intensifies the urban heat-island effect from the loss of shade and evaporation but we lose a principal absorber of carbon dioxide and the trappers of air pollutants as well. A single tree can absorb as much as 330 lbs of carbon dioxide, 4 lbs of ground level ozone and 3 lbs of particulate matter. (xi) that the Lahore Canal through its distributaries has played a pivotal role in nurturing the city landscape in the growth of gardens and other green areas. (xii) that the canal with the passage of time, however, has lost its original role of supplying water to the city but has assumed a new role as a roadway and a continuous belt of green space that stretches from one end of the city to the other. The widening of the road project is likely to adversely affect the said green belt/park. (xiii) that the well known “Doctrine of Public Trust” as recognized and reiterated in various judgments of the High Court and of this Court enjoins city fathers to maintain guardianship and Suo Moto Case No. 25 of 2009 7 stewardship of the people’s priceless and historic natural resources as they transform their utility, over the course of time, to meet the needs of people of a city. 5. In the concise statement submitted by the Government of Punjab, it has been averred as follows:- (i) that the Canal Road Project was designed and approved in public interest and with a view to improve the drastically deteriorating traffic conditions on the Canal Road. The total cost of Canal Road Project is Rs.800 Million. (ii) that the Canal Road Project contemplates addition of 18 feet wide lane to the already existing two lane Canal Road along with earthen shoulder of 6 feet on both sides of the canal as well as bus bays and shelters, traffic control and service level improvements, development of green areas along the Canal Road and plantation of trees thereon. (iii) Explaining the background and justification of the project, it was further averred that according to Economic Survey of Pakistan for the year 2008-09 conducted by the Ministry of Finance, Government of Pakistan, the current population of Pakistan is 163.76 Million which is estimated to grow to 197 Million by the end of 2020 and 55% of the population lives in the Province of Punjab. (iv) that Lahore besides being the socio-economic and cultural capital of the Province of Punjab is the second largest city in Pakistan and its current population is estimated to be in excess of 9 Million. In addition thereto, the city accommodates an Suo Moto Case No. 25 of 2009 8 additional one million visitors from the adjoining areas/districts as well as from across Pakistan. (v) that on account of the population explosion and demographic changes in the city of Lahore, following factors have led to increase in volume of traffic in general and on the Canal Road in particular:- (a) In order to accommodate the ever growing population of Lahore, after 1978, a number of housing schemes like Awan Town, Campus Colony, Canal View Cooperative Housing Society, Hamid Park Housing Scheme (HS), Rehmanabad, Township etc. got approval from the Government of Punjab. As the demand for housing further increased at an exponential rate, there was a boom of housing schemes in Lahore from early 1990’s onwards. The major schemes developed in this period were West Wood Colony, Ittefaq Town, Campus View Town, Tech Society, Pakistan International Airline (PIA) Housing Scheme Phase I & II, Ghousia Town, Pakistan Council of Scientific and Industrial Research (PCSIR) Cooperative Housing Society Phase I & II, National Fertilizer Corporation Housing Scheme, Punjab Govt. Employees Housing Scheme Phase-II, WAPDA Town, Beharia Town, Eden Housing Scheme to name but a few (collectively the Southern Residential Areas) wherein reside hundreds of thousands of people from all socio-economic backgrounds. It may be noted that most, if not all, of these housing schemes are situated south/south-west of Lahore and are Suo Moto Case No. 25 of 2009 9 accessible from various points within the city mainly via the Canal Road. (b) Lahore also witnesses rapid industrialization due to the phenomenal success of the textile industry in Pakistan. As a consequence whereof, at present there are currently hundreds of industrial units operating on the southern/south-western side of Lahore, particularly along the Multan Road and Raiwind Road which employ hundreds of thousands of people from Lahore. In this regard, it is pertinent to point out here that both Multan Road and the Raiwind Road are accessible from various points within the city mainly via the Canal Road. (c) The Multan Road, being situated at the tip of the southern- most section of the Canal Road, also serves as Lahore’s main entry/exit point for millions of people annually. (d) The Canal Road is the main artery and the spine of Lahore. It is also the longest double road connecting areas lying to the north of the City (for example Dharampura, the Mall Road etc) to those in the south (for example the southern residential areas, the Multan Road and Raiwind Road). In addition thereto, as the Canal Road cuts across the city, it also serves as the main feeder/link road to all the major inner-city roads such as the Link Road, Ferozepur Road, Jail Road, the Mall Road etc. (e) The traffic conditions on the Canal Road have been gradually deteriorating over the past many years on account of the fact that over the past two decades (1981- Suo Moto Case No. 25 of 2009 10 2000) the number of vehicles in the city have increased from 13 vehicles per 1000 inhabitants to 35 vehicles per 1000 inhabitants and are likely to grow even further in the coming years. Furthermore, in the years leading up to 2006, traffic volumes on the Canal Road have grown to more than twice the existing road capacity of approximately 100,000 vehicles per day, making it one of the busiest roads in Lahore. (vi) that on account of immense increase in volume of traffic, the successive Provincial Governments have been taking steps to improve the traffic conditions in Lahore especially along the Canal Road which included construction of nine underpasses and inter-sections at major junctions along the Canal Road. There has also been widening of other roads along the length of underpasses/inter-sections to a certain extent i.e. several roads including Jail Road, Ferozepur Road, Wahdat Road and Bund Road were widened. (vii) that the Provincial Government also took steps to promote public transport by setting up Lahore Transport Company, acquisition of more than 2000 environmental friendly CNG busses, phasing out of existing diesel busses, conversion of existing diesel busses to CNG buses, phasing out of pollution causing two stroke auto rickshaws and replacing it with environmental friendly four stroke CNG rickshaws in the city and the rickshaws drivers have been given loans on easy installments to purchase the afore-referred four stroke CNG Suo Moto Case No. 25 of 2009 11 rickshaws. Besides the above, the Government has also decided to introduce Rapid Mass Transit System in the city. (viii) that despite the measures taken by the Provincial Governments from time to time to which reference has been made above, traffic load on the Canal Road has been ever increasing and many traffic related problems/issues necessitated the need for widening Canal Road. Some of these issues are as follows:- (ix) that before commencement of the project, it was deemed imperative to conduct Environmental Impact Assessment (EIA) for approval of the Punjab Environmental Protection Agency in terms of section 12(1) of PEPA read with Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 (“Review of IEE and EIA Regulations”). For the said purpose a public notice was given through English Daily ‘Pakistan Times’ and Urdu Daily ‘Nawa-e-Waqt’ and tenders were called from reputable companies having requisite skill and experience to carry out the EIA of the Canal Road Project. Two consulting firms applied and ultimately National Engineering Services of Pakistan (“NESPAK”) was chosen as consultants for carrying out the EIA of the Canal Road Project. (x) that EIA of the Canal Road Project was duly prepared by the NESPAK in January 2007 in accordance with PEPA, the Review of IEE and EIA Regulations as well as the Guidelines for Preparation of and Review of Environmental Report. (xi) that EIA Report explained in depth the rationale of the Canal Road Project, its benefits and also cautioned against its negative impact as it required cutting down of trees growing Suo Moto Case No. 25 of 2009 12 along the right of way of the Canal Road. It also conducted a tree count along the Canal Road in order to determine type and number of trees required to be removed. For the said purpose, the Canal Bank is divided into three sections. According to the said report, approximately 60% of trees on the road are eucalyptus (Sufaida) which according to it is not a native tree of the country and is rather hazardous because it consumes much quantity of water and thereby lowering the water table; it causes soil erosion of the adjoining areas; the oil released from the roots of the eucalyptus plant is known to contaminate underground water reservoirs; it does not have any significant impact in removing air pollution. It does not support nestling for local as well as migratory birds and because of its negative environmental impact, the Government of Punjab had banned its plantation except in water-logged areas. The EIA Report concludes that cutting of eucalyptus trees would in fact have positive impact on environment. Nevertheless, cutting of trees in general was found to have overall adverse effects on environment and the EIA Report recommended certain mitigation measures during the construction phase as well as the operation phase of the Canal Road Project. Among other measures, it suggested that TEPA in coordination with the Punjab Parks and Horticulture Authority should initiate a program for plantation of four type of indigenous tree specie along the Canal Road for every tree felled/removed. EIA concluded that new plantation of indigenous tree species would not only improve the ecological habitat of the Canal Road, but Suo Moto Case No. 25 of 2009 13 would also minimize excess noise, vehicular and dust pollution. This suggestion qua tree plantation, according to EIA, is being implemented forthwith. (xii) that EIA Report was duly submitted by TEPA to the EPA- Punjab for approval pursuant to S.R.O. 1251(1)/98 dated 27.10.1998 of the Ministry of Environment, Local Government and Rural Development, Government of Pakistan. Prior to its approval in terms of Regulation 10 of Regulations read with section 12(3) of PEPA, a public hearing was done through public notice appearing in two daily newspapers. The public hearing took place and various objections and suggestions were considered. Some of the objections raised concern that the number of trees to be cut down would be approximately 30,000; that the project would entail conversion of 50 acres of green belt/park running along the Canal Road and thereby resulting in change of land use; that since both EPA and respondent No.1 are under control of Government of Punjab, the EIA should have been submitted to Federal Environmental Protection Agency and that NESPAK was not competent to undertake EIA of the project. Respondent made the afore- referred objections by filing a detailed statement before the Environmental Protection Agency and among other things, it was pointed out that the number of trees to be cut down would not be 30,000 but only 1850 and that the apprehended adverse effects on environment resulting from the project after removal of trees stand negated by complying with the Environment Mitigation Plan recommended in the EIA by NESPAK. Suo Moto Case No. 25 of 2009 14 (xiii) that the EPA-Punjab after receipt of written reply from TEPA constituted a Committee of experts in terms of Regulation 11 of the IEE and EIA Regulations with a view to assist it in assessing the environmental impact of the Canal Road Project. The recommendations of said Committee of Experts were considered by EPA-Punjab whereafter it approved the Canal Road Project vide approval bearing No. DDEIA/F- 22/Cir/EIA/3725 dated 19.7.2007 (Environmental Approval). The said Environmental Approval laid down stringent conditions for TEPA in undertaking the construction phase of the Canal Road Project wherein some of the measures which were directed to be undertaken are as follows:- (a) strict adherence to the Environmental Management Plan in order to minimize any negative impacts on soil, ground water, air and biological resources of the project area; (b) strict compliance with the National Environmental Quality Standards; (c) the carrying out of extensive tree plantation, especially indigenous species in and around the project area in consultation with the PHA and to make all arrangements for the transplantation of existing trees; and (d) the plantation of four (4) trees having 6-7 feet height for every single uprooted tree. (xiv) that on account of delay in its implementation, the cost of the Canal Road Project has increased significantly, the traffic Suo Moto Case No. 25 of 2009 15 conditions on the said road have been worsening/deteriorating in line with the traffic forecast of EIA Report submitted by NESPAK and the Government of Punjab has to inject an additional sum of Rs.2.00 billion for initiation/completion of the Canal Road Project. 6. On 14.2.2011, a Bench of this Court headed by the Hon’ble Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry with the consent of the convener of LBT Ms. Imrana Tawana and respondent-Provincial Government nominated Dr. Pervez Hassan (who has an expertise in environmental law and has illustrious background of public service in the said field both at international and domestic levels) as a mediator. The order further stipulated that he may associate any other person or expert or official of the Government of Punjab for the purpose of such mediation and for finding suitable resolution of the matter. 7. Dr. Pervez Hassan submitted a detailed report to the Court on 14th of May, 2011 which indicates that he in consultation with learned counsel for the petitioner Mr. Ahmer Bilal Soofi and counsel for the Provincial Government Mr. Salman Butt formed a Committee of eights members having illustrious background of public service in various fields. The members of Committee were:- (i) Syed Babar Ali, former President, WWF International and WWF Pakistan. (ii) Mr. Sartaj Aziz, Vice Chancellor, Beaconhouse National University. (iii) Sardar Ayaz Sadiq, Member, National Assembly. (iv) Mr. Javed Jabbar, Vice President, IUCN. (v) Mr. Arif Hassan, urbanist and planner. (vi) Dr. Abid Qaiyum Suleri, Executive Director, Sustainable Development Policy Institute Islamabad. (vii) Mr. Nadeem Hassan Asif, Commissioner Lahore. (viii) Dr. Mira Phailbus, former Principal, Kinnaird College for Women. Suo Moto Case No. 25 of 2009 16 8. One of the petitioners namely Mr. Ahmad Rafay Alam was appointed as Secretary of the Committee. The committee held several meetings, made visits of the Canal Road, solicited the opinions of experts, carried out public hearings, considered the stand of LBT and also of the Government of Punjab and barring one exception (Dr. Arif Hassan) made recommendations with consensus which are as follows:- Consensus of the Committee Based on the information presented to it, the Committee notes the rapid increase in the number of automobiles registered in Lahore from 702,734 in 2004 to 1,747,600 in 2011. This rate of increase in the number of automobiles registered in Lahore is greater than the rate of population increase, which is a fact that points to the widening social and income disparities. The Committee also noted that, at the current rate, the number of automobiles registered in the city of Lahore could double every six (6) to seven (7) years. The mushroom increase in automobiles has also led to an increase in automobile emissions (which are greenhouse gases that contribute to climate change) and to a detrimental effect on the quality of air in Lahore. The Committee noted with some concern that the recorded air quality in Lahore was in excess of National Ambient Air Quality Standards and was classified as unhealthy in some areas. The urbanization of Lahore has also been unprecedented. The population of the city was less than 900,000 at the time of Partition and has since grown to about 10 million today. Future demographic projections estimate that, by 2020, the city will have a population of 15 million. This increase in population has placed – and will continue to place – considerable stress on available housing stock, the sewage and sanitation infrastructure, healthcare facilities, education institutions and recreational spaces. The Committee noted with concern that the rapid growth of the city has not been helped by the unplanned mushrooming of private housing societies, industrial units and hospitals. The Committee is of the view that societies that do not anchor their growth on long term plans are afflicted with the on-going urban issues the city of Lahore is currently facing. The Committee examined the salient features of the Master Plan for Greater Lahore, 1966, the Master Plan of Greater Lahore 1980, the Comprehensive Study on Transportation System in Lahore prepared by the Japan International Cooperation Agency (“JICA”) in 1991 and the integrated Master Plan for Lahore 2021 prepared by the NESPAK and approved by the Suo Moto Case No. 25 of 2009 17 Lahore Zila Council in 2004 (for a detailed analysis of these previous plans, reference may be had to presentation by Mr. Umar Farooq attached as Annexure D/10 and for a quick reference to the 1991 JICA Plan and Lahore Mass Transit Project, reference may be had to Annexure G. The Committee was also informed of the Lahore Rapid Mass Transit Project and the ongoing Lahore Urban Transport Master Plan study being jointly conducted by the Transport Department of the Government of Punjab and JICA. It was also informed of the various road engineering projects underway and planned by the Government of Punjab. The Committee is of the view that the cumulative effect of the forces affecting the city of Lahore has been to remove and exclude its residents, especially the common man, from the growth and development of their city. The Committee recognizes that every citizen of the city has, at some level, a right to the city and that this right, in its essence, is one of meaningful participation in the growth and development of the city. The Committee is of the opinion that its proceedings are atleast one example of the exercise of such a right and has proceeded with the intent and purpose of giving the city of Lahore back to the people. It appears imperative to move towards public transportation and mandatory school/college bus transportation to achieve these goals of social equity and thereby reducing traffic congestion. G. Recommendations There was a general consensus at the hearings that the present design and engineering of the Canal Road has serious flaws that contribute in no small measure not only to traffic congestion but also to road safety hazards. Even if one were inclined to support the plea of the Punjab Government for the widening of the road on the ground of increasing traffic congestion, the most revealing admission before the Committee was that this widening would, in the absence of other required mitigating measures, serve the traffic needs only for the next 4-5 years. In effect, we would need more lanes in the future. This way, most of the green belt of the Canal Bank Corridor, a valuable part of Lahore’s legacy and heritage, could be lost for future generations. The Committee cannot, in all good conscience, be a party to the disappearance of the Canal and its green belt. Based on the opinions and weighty engineering data provided by experts, the Committee makes the following recommendations: 1. Declare the Lahore Canal Area to be a Heritage Urban Park The green belt along the Lahore Canal and on either side of the Lahore Canal Road, from where it begins near (Jallo) the BRB- Suo Moto Case No. 25 of 2009 18 Link Canal till Thokar Niaz Beg should be declared a heritage urban park under special legislation drafted specifically for this purpose. Declaring the Canal Road area a heritage urban park would be to protect its ecosystem from further degradation, make it accessible to the public and common man as well as for the purposes of controlling traffic along the Canal Road and for taking measures to clean the water that flows in the Lahore Canal. A proposed draft of the Lahore Canal (Heritage Urban Park) Act, 2011 is attached as Annexure H. The Government of the Punjab is requested to initiate the implementation of this recommendation. 2. Correct the “Incorrect Underpasses” on the Canal Road During the proceedings of the Committee, it became clear that the design of the underpasses at Jail Road and Ferozepur Road (the “Incorrect Underpasses”), the first two underpasses built in Lahore and designed by NESPAK, were not in accordance with appropriate traffic engineering solutions and that these Incorrect Underpasses constitute a serious traffic safety hazard. The Incorrect Underpasses are incorrectly situated in the slower/left lanes. International design standards and conventions stipulate that underpasses are to be located in the fast lane. Due to this flaw, the through traffic movement towards the Incorrect Underpasses is suddenly diverted to the left lane instead of flowing straight in the right lane as is the case with all the other underpasses later correctly constructed along the Lahore Canal Road. A diagrammatic representation of the design flaw in the Incorrect Underpasses is given below: 2 20 April 2011 Lahore Bachao Tehreek It can be seen that for the through traffic moving in the right/fast lane, electing to use an underpass (red lines) requires an abrupt change in lanes and a move to the slower/left lanes. This “weaving” creates a direct conflict with the traffic moving in the slow lane, which is forced to dangerously traverse on to the right lane towards the at-grade-junction/intersection. Fast-moving traffic moving through and out of the Incorrect Underpasses also meets with slower vehicular movement coming from the at-grade-junction / intersection (green line). Resultantly, the fast-moving traffic going through and coming out of the Incorrect Underpasses criss-crosses with slow Suo Moto Case No. 25 of 2009 19 moving traffic and creates direct conflict points (red circles) instead of smooth weaving and merging. This raises serious road/traffic safety issues and destructs the smooth flow of traffic. As Mr. Karamat Ullah Chaudhry, former Managing Director, NESPAK, explained, in an email to the Committee dated 3 May 2011: The reason I said the design was wrong was based on the fact that in these two underpasses at Jail and Ferozepur Road, the traffic from the slow lane not wishing to enter the underpass has to cross the fast lane if it wants to exit. Secondly, on the other side the traffic entering the main flow coming out of the underpass enters the fast lane. … [I]f the vehicle is a rickshaw how it can manage this…. Traffic wishing to leave or enter a main flow should always do so from/to slow lane, or the lane on the left. If traffic enters the fast lane, it is downright dangerous. The Incorrect Underpasses, therefore, need to be re-aligned and reconstructed in accordance with internationally accepted design standards and parameters. Similarly, the Committee noted that the bypasses at the Jinnah and Doctor’s Hospital intersections required geometric improvements as the fast and slow-moving traffic do not smoothly weave and merge. This causes traffic conflict points and creates traffic safety hazards. A representation of the problem is given below: 22 20 April 2011 Lahore Bachao Tehreek 3. Re-engineer the Junctions along the Canal Road There are, broadly, two (2) categories of intersections along the Canal. These are: (1) Roads traversing through the Canal Road With respect to these types of intersections, the Committee noted the fact that, in all, there were twelve (12) such intersections over the Lahore Canal and that several of these intersections carried significantly higher traffic volumes across the Canal Road than the traffic that flowed on the Canal Road. Suo Moto Case No. 25 of 2009 20 The straight and turning traffic movement along the Canal Road that does not go through the underpasses also uses these intersections. It was observed by the Committee that the designed capacity of these intersections is not sufficient to accommodate the large traffic volumes and that as a result, there are bottlenecks on these intersections. It is recommended that these intersections are re-modelled after a traffic capacity analysis and designed in accordance with standard geometric design. This will help to have a smooth flow of traffic at these intersections and will reduce congestion. In addition, signals along the corridor and at intersections over the Canal Road should be gully actuated and traffic signage should be of international standard. (2) Roads and streets connecting to the Canal Road These roads and streets connect the Canal Road and predominantly emanate from housing schemes and individual houses. The Committee noted that these were unplanned access routes built for a variety of reasons, which provide connectivity to the housing schemes or private residences along the Canal Road. The traffic entering and exiting from these intersections slows traffic movement along the Canal Road. This leads to undue stoppages and causes congestion. The Committee is of the opinion that there should not be direct connections of the Canal Road to housing schemes and private residences. Traffic generated and attracted by these housing schemes and residences requires the construction of a network of service roads, preferably in a one-way loop system, with proper geometrics to enable smooth weaving and merging of traffic from and onto the Canal Road. Also, bus bays constructed along the length of the Canal Road require redesigning in order to facilitate the smooth entry and exit of vehicles and to minimize traffic turbulence. 4. Construct Service Roads along Certain Parts of the Canal Road The Committee specially notes that there is no service road along the stretch of the Lahore Canal from the Doctor’s Hospital intersection to Thokar Niaz Beg. The absence of a service road along this stretch of the Canal road corridor has resulted in numerous direct access roads, connecting the various housing schemes and private residences. The direct traffic entry and exit from these developments on to the Canal Road results in traffic conflict points, disrupts smooth flow of traffic and causes congestion, delays and accidents. The Committee is of the opinion that there is an immediate requirement to provide a one-way loop service road system along the entire length of the Canal Road (except the Punjab University premises between the Campus underpass and the Suo Moto Case No. 25 of 2009 21 Jinnah Hospital underpass) with appropriately designed smooth entry and exit points to avoid traffic turbulence and congestion. In addition, the Committee recommends that housing schemes and academic institutions that have absorbed service lanes within their boundaries or in violation of zoning laws should be approached to rectify this mistake. However, the Committee also noted that some of these measures are already being undertaken by the Punjab Government. The service lanes can also serve as an alternative route for emergency vehicles during traffic congestion as pointed out by Dr. Rizwan Naseer (Annexure D/8). 5. Implement Traffic Management Programs The Committee noted with some concern that the TEPA, LDA and Government of Punjab had no medium term traffic management programs for the city of Lahore. Such programs, which are in contrast to the road development and infrastructure projects being pursued elsewhere in the city, are for the management of traffic. Such programs treat the existing road network as a resource and generate management plans geared to maximizing the usage of the resource. Management proposals could include restricting the usage along certain parts of the Canal Road to certain categories of vehicles. For example, goods vehicles should be required to use the Ring Road to access the M2 or N5, private vehicles can be discouraged at certain times and along certain places and so on. Incentives/disincentives can be created to influence traffic frequency on the Canal Bank Road. These can, inter alia, be congestion charges during certain hours, staggering the school hours of educational institutions, requiring minimum number of passengers in a car at peak hours to encourage pooling arrangements. 6. Public Transportation The Punjab Government has announced a dedicated commitment to public transport. In the first phase, it plans to put 400 new buses on the road by December 2011. This number should be increased. Apart from increasing the number of buses, the Punjab Government should require all major educational school and college systems to provide mandatory bus services for all their students and staff. This would drastically reduce congestion of cars on the Canal Bank Road and other roads. Public transportation systems should be supported by state of the art maintenance and servicing facilities. There is need for a rapid mass transit system. This would be planning in the right direction for a major urban metropolis. A pictorial representation of the effect of potential public transport on reduction of traffic congestion is given below: Suo Moto Case No. 25 of 2009 22 7. Divert the Through-Traffic on the Canal Road onto New Traffic Corridors The Committee noted that the main entry and exit traffic hub for the city of Lahore was towards its northern side from Shahdara along the G.T. Road (N-5). This is due to the up and down country traffic movement and the heavy influx from nearby Gujranwala and Sheikhupura cities. The traffic congestion on the Canal Bank Road is already being relieved by recent completion/construction/planning of the Northern Loop of the Ring Road and Multan Road. It is imperative that the Southern Bypass connecting Ferozepur Road be completed soonest. A pictorial representation of the diversion to other/new traffic corridors is given below: N5 – Multan Road 2 20 April 2011 Lahore Bachao Tehreek Lahore Ring Road M2 Lahore Canal A detailed description of the broad overall planning guidelines for the city of Lahore can be seen in Mr. Umar Farooq’s presentation (Annexure D/10) and to a summary of the same provided for in Annexure G. Suo Moto Case No. 25 of 2009 23 8. Declare the Punjab University New Campus area as a “Go- Slow” Area The Committee noted the fact that the present site of the New Campus of the Punjab University was selected, befitting an educational institution, because of its tranquil and serene nature removed from the bustle of the city and perfect for academic reflection. The unplanned growth of the city, however, has placed the New Campus in the middle of the city and along an increasingly congested and noisy Canal Road. The Committee is of the view that the length of the Lahore Canal through the New Campus of the Punjab University is of a particularly significant nature and that efforts to reduce traffic congestion along this length of the Canal Road was most important. Accordingly, given the status of the educational institution, the Committee recommends that the length of the Lahore Canal and Canal Road along and through the New Campus of the Punjab University should be declared a special traffic calming zone where a much lower speed limit, coupled with speed breakers and other traffic calming devices, should be enforced. 9. Treat the Lahore Canal in a Holistic Manner The Committee was mindful that its terms of reference extended along the Lahore Canal only from the Dharampura underpass to the Thokar Niaz Beg overpass. However, the Committee was of the opinion that the traffic management and urban planning issues of Lahore were such that the Canal Road should be considered in its entirety from where it begins near the BRB-Link Canal through the Thokar Niaz Beg overpass. A holistic view of the city was necessary and this could only be done if the Lahore Canal is perceived within the overall comprehensive future of Lahore and its surroundings. 10. Noise Pollution The Committee also recognized that the increasing traffic on the Lahore Canal Road would create huge noise and air pollution in the years to come. The present noise levels already require some mitigation measures such as the use of noise pads for adjoining residential colonies, hospitals, and schools. But the trend to keep adding more traffic lanes to meet increasing traffic over years would reduce the Lahore Canal corridor to an unacceptable noisy and polluted part of Lahore. The Committee’s recommendations are shaped by this vision of the future. 11. Ecosystem Preservation In his presentation, Study of Some Tree Species in Canal Bank Area – The Long Green Corridor of Lahore (Annexure D/5), Dr. Khalid Hamid Sheikh concluded, on a study of twenty four (24) species of randomly selected trees, that the trees along the Canal were “well developed”. Suo Moto Case No. 25 of 2009 24 The WWF-Pakistan, in its Study of Ecology and Ecological Linkages of Lahore Canal Bank from Mustafabad Bridge to Thokar Niaz Beg found that there were some 21,430 trees and shrubs along the Canal and some forty-four (44) bird species were identified. The study also found that birds were ecologically linked to the tree species growing along the Canal. Also, cavity nesters such as rose- ringed parakeets, common mynas, spotted owl and coppersmith barbets were observed nesting in the poplar, eucalyptus and pipal trees along the Canal. A copy of the WWF-Pakistan ecological survey is attached as Annexure I. The Committee was of the opinion that the ecological heritage represented by the Canal should be preserved for future generations of Lahoris to enjoy. 12. Cleaning and Improving Water Quality of Canal The sources of effluent, sewage and waste into the Lahore Canal should be identified. Civil society as well as government agencies should team up to clean the Lahore Canal so that exposure to its water is not harmful or dangerous to health and with an aim of bringing the quality of the water of the Lahore Canal to the minimum guidelines determined by the World Health Organization for recreational water use. The Committee was inspired by the examples of civil society and government initiatives in cleaning up the Boston Harbour in the USA and the Cheonggyecheon Stream in Seoul, South Korea. The Cheonggyecheon Stream before and after its greening 13. People-Centric Planning The Committee noted that the urban planning agenda currently in place is heavily in favour of automobile induced urban sprawl. Sprawl is resource inefficient and takes away from what the Committee believes should be the inspiration for urban planning and development: the people of the city. The Committee would like to recommend a change in the urban agenda to include a more people-friendly and people-centric development. Pedestrians and Suo Moto Case No. 25 of 2009 25 cyclists are routinely ignored in road planning. This orientation needs to be balanced. 14. Restoring Communal Life on Canal With reference to Recommendation 13 above, the Committee appreciated the efforts of Mr. Abdul Jabbar Shaheen in creating people-friendly environments along the Canal Road particularly near Dharampura. The sight of the common man enjoying recreational facilities, so ably put in place by Mr. Jabbar, is a great example of how small efforts can restore communal life in our cities. The Committee recommends the addition of such recreation spots along the entire length of the Canal so as to promote and protect democratic social interaction. In addition, and in furtherance of Recommendations 12 and 13, the Committee recommends the introduction and implementation of a monthly “car free day” along the Canal Road. Such an event can be organized in selected sectors of the Canal Bank Road, on a rotational basis, with the assistance of the local administration and would involve declaring the Lahore Canal a “car free” pedestrian zone between given times of the day, promoting various sports and recreational activities along the Canal and encouraging residents and citizens to participate. This needs to be planned around available parking facilities. The cleaner waters of the Canal would be reclaimed as the largest urban swimming pool and a monthly Lahore Canal “Carnival”/Meena Bazaar developed around the “car free day” would soon develop into the city’s most used park. Example of the PHA’s work along the Canal Road near Dharampura/Shalimar Underpasses 15. Public Participation in Lahore Canal Governance The Committee is of the view that active communities and civil society are necessary conditions for good governance and that, the commitment of the members of the LBT in campaigning for the preservation of the Lahore Canal displays an enormous goodwill. The Committee is of the view that this enormous goodwill should be harnessed for the greater good of this and future generations of Lahoris and that, to this end, an Advisory Committee should be established for the purposes of implementing and overseeing the Suo Moto Case No. 25 of 2009 26 recommendations of the Committee. This is included in Chapter III of the proposed Lahore Canal (Heritage Urban Park) Act, 2011 (Annexure H). 16. Ambulance/Medical Emergencies The officials of Rescue 1122 emergency services repeatedly stressed the importance of removing encroachments along the Canal Road and ensuring a smooth flow of traffic at all times for the purpose of facilitating emergency vehicles taking patients to hospitals. The officials were of the view that while it was acceptable that alternative routes to hospital and healthcare facilities should be identified and developed in the long term, there was a strong need for a short term solution to the congestion along the Canal Road such as selected widening of the Road. 17. Limited Widening of Road The total distance on one side of the Canal Road from Dharampura to Thokar Niaz Beg is 14.5 KM. Out of these different sections, 6.59 KM road has already been widened before the reference of this matter to mediation. The congestion on the remaining about 8 KM is particularly acute in certain locations, leading not only to prolonged delays but also causing safety hazards because ambulances and rescue vehicles are caught up in traffic and unable to move swiftly. The Committee, after a detailed site visit to these stretches of the Canal Road and discussion with the concerned officials, recommends that this short-term congestion can be relieved to some extent if the third lane is allowed to be added at the following locations on both sides of the Canal: ? Mall Road to Jail Road … 525 M (Eastern) 460 M (Western) ? Jail Road to F.C. College… 550 M (Eastern) … 550 M (Western) ? University Campus to Jinnah Hospital… 1,700 M (Eastern) … 1,700 M (Western) ? Jinnah Hospital to Doctors Hospital… 700 M (Eastern) … 750 M (Western) These stretches totalling a maximum of 3.525 KM on each side, as shown in Annexure J/1 to J/4, have 642 trees. And 60% (about 385) of these trees are of eucalyptus specie. Every effort should be made to build the third lane in these stretches on the edges of the existing road to reduce to a minimum the area taken from the green belt on both sides of the Canal Road. The last stretch from Doctors Hospital to Thokar Niaz Beg (2.6 KM) is getting increasingly congested because of the volume of traffic generated from housing colonies like M.A. Johar Town and Suo Moto Case No. 25 of 2009 27 a large number of other colonies beyond Thokar Niaz Beg and areas on and around Raiwind Road. However, with the construction of service roads, as per Recommendation No. 4, the flow on the Canal Road can be reduced. In addition, some improvement can be achieved without encroaching on the green belt, if the trees on the edges of the road causing bottlenecks (about 460 trees including about 310 eucalyptus) (Annexure K), are removed to improve earthen shoulders and bus bays are provided at suitable points. The Committee does not recommend the widening of the Canal Road through a third lane in this stretch. For each tree felled in any sector of the Lahore Canal Road, the Punjab Government will plant at least a hundred (100) mature trees in replacement. 18. Sector-Specific Recommendations Although the mandate of the Committee from the Supreme Court was only for the Canal Bank Road from Dharampura to Thokar Niaz Beg, our recommendations cover, because of the interdependence of urban planning issues, the area upstream of Dharampura as well as downstream from Thokar Niaz Beg in the following, sector-specific recommendations: (1) Jallo Mor to Dharampura Underpass The Committee recommends a moratorium on all new commercial activity and draws attention to the ongoing unplanned development and encroachment (of green belt) activity in this sector. Service roads in this sector deserve special attention. The Punjab Government has no proposal for the Canal Bank Road or an underpass in this sector but its future planning should be guided by the Recommendations of the Committee. (2) Dharampura Underpass to Mall Road Underpass The Committee is of the opinion that this sector is working well but indicates that the encroachments and restrictions along the service road should be removed in order to facilitate a smooth flow of traffic. The Punjab Government has no proposal for the Canal Bank Road or an underpass in this sector but its future planning should be guided by the Recommendations of the Committee. (3) Mall Road Underpass to Jail Road Underpass The Committee is of the opinion that entry and exit points along this sector may be streamlined to promote smooth entry and exit from the Canal Road and to minimize traffic turbulence. Suo Moto Case No. 25 of 2009 28 (4) Jail Road Underpass to F.C. College Underpass In addition to its Recommendation No. 2 above, the Committee recommends the enforcement of land-use and zoning laws in the areas adjacent to the Lahore Canal in this sector. (5) Campus Underpass to Jinnah Underpass As per the recommendation of the Committee, this sector of the Canal will be subject to traffic diversions to Multan Road on the north of the Canal and Usmani Road on the South of Canal. Appropriate signage will also be necessary to announce these diversions. These diversions will also benefit from the signal free corridor being constructed at Kalma Chowk for traffic flowing from Garden Town to Liberty Market. (6) Jinnah Underpass to Thokar Niaz Beg The Committee reiterates its Recommendation No. 7 above, namely that traffic to the Old CBD and New CBD should be diverted from the Canal Road and onto the Multan Road and the Southern Bypass respectively. The Committee also recommends the construction of radial/arterial roads along a northwest-southeast axis as proposed by the 1991 JICA Lahore Urban Transport Master Plan. These radial/arterial roads will also assist in diverting traffic from the Canal Road as envisaged in Recommendation No. 4 above. The Committee is also of the view that the results of the current Lahore Urban Transport Master Plan study being conducted by the Transport Department of the Government of the Punjab will be instructive in this regard. (7) Beyond Thokar Niaz Beg The Committee recommends a moratorium on new commercial development as well a check on unplanned development along this sector of the Lahore Canal just as it recommended in No. (1) above. H. Conclusions In conclusion, the Committee points out that its Recommendations form a complete package with each component interlinked and complementing each another. The Committee is of the opinion that the strength and weight of its recommendations will be diluted if there is any “cherry picking” of its recommendations. The implementation of the Recommendations should be owned by the Government of the Punjab at the outset so that these recommendations are implemented holistically both in letter and spirit, through a detailed and co-ordinated work Suo Moto Case No. 25 of 2009 29 plan, as a “compact” of the Government of the Punjab with the city of Lahore.” 9. Copies of the Mediation Committee Report were given to the petitioner and all concerned. Petitioners mostly agreed with the recommendations but have raised written objections mainly qua clause 17. Some of the objections related to the procedure adopted by the Committee and some related to inclusion of three members who according to petitioner, have political affiliations with the Provincial Government and which may have affected their neutrality. It was averred that out of eight committee members only two professional experts were included. During course of arguments, on Court query, the Convener of the LBT, Ms. Imrana Tiawana however, candidly stated that she agreed with 95% of the recommendations made by Mediation Committee but took serious exception to Clause 17 of the recommendations wherein the widening of road has been increased from initial 1.5 KM to 3.5 KM without any reason. This widening was opposed by the petitioner as according to her, after adoption of the proposed Heritage Park Act and the recommended policy for the Canal Road as suggested by the Mediation Committee, there would be no need for widening of the road because the alternate measures proposed by the Mediation Committee would solve the traffic congestion and other related issues. The recommended measures include improvement of junctions, better traffic management systems, better utilization of service roads, completion of other traffic related projects such as the ring road and southern bypass, and the improvement of public urban transport, creation of “go slow” areas and the improvement of the secondary and tertiary road network etc will obviate the need of widening the Canal Road. 10. Mr. Arif Hassan who represented the petitioners in the Mediation Committee also objected only to the proposed widening. He was of the view as follows:- Suo Moto Case No. 25 of 2009 30 “I fully endorse the conceptual framework of mediation report and recommendations 1 to 16. However, I do not endorse recommendation 17 and feel the recommendations in item 18 should be subservient to concept of not widening any length of Canal Bank Corridor…….. The loss of 3.525 kilometers of exceptionally beautiful landscape and flora should, in my opinion, not be permitted simply because of automobile pressure. I would go a step further and say that the some of the areas lost to automobile along the Canal Bank can be reclaimed without increasing traffic congestion.” 11. Having considered the submissions made by petitioners, learned counsel for the parties, the report submitted by the Mediation Committee and the precedent case law relied upon, the issues which crop up for consideration broadly speaking are as follows:- i) Whether the Canal Road Project is violative of the Pakistan Environmental Protection Act (PEPA) and the regulations framed thereunder? ii) Whether the approval granted by the Environmental Protection Authority-Punjab (EPA-Punjab) was mechanical at the asking of the Government of Punjab and does not reflect conscious application of mind? iii) Whether the Canal Road Project is in consonance with the concept of sustainable urban development? iv) Whether the precautionary principles of ecological protection as reiterated in Shehla Zia’s case have been ignored in designing and approving the Canal Road Project? v) Whether having consented to the referral of the matter to the mediation, can the petitioners join issue with the recommendations made by the Mediation Committee? Suo Moto Case No. 25 of 2009 31 vi) Whether the policy making domain in which the Canal Road Project falls, is the exclusive preserve of Executive Authority and can this Court, in these proceedings, interfere in the said domain? vii) Whether the project entailing widening of the road on both sides of the Canal, which would have the effect of reducing the area of green belt, is violative of the Doctrine of Public Trust? and viii) Whether the Canal Road Project, if implemented, is likely to cause environmental degradation and thereby would be violative of the fundamental rights of Right to life (Article 9 of the Constitution) and Right to human dignity (Article 14 of the Constitution)? Issues No. (i) Whether the Canal Road Project is violative of the Pakistan Environmental Protection Act (PEPA) and the regulations framed thereunder? 12. Before dilating on the legality of the Canal Road Project, it would be in order to refer to some of the relevant provisions under which it was examined and approved. Section 12 of the PEPA mandates that initial environmental examination and EIA would be carried out by concerned government agency which in the instant case is Provincial Government of Punjab. Section 12 reads as follows:- “12. Initial environmental examination and environmental impact assessment.--(I) No proponent of a project shall commence construction or operation unless he has filed with the Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Federal Agency approval in respect thereof. (2) The Government Agency shall subject to standards fixed by the Federal Environmental Protection Agency--- (a) ……. (b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, require that the environmental impact assessment be re-submitted after such modifications as may be Suo Moto Case No. 25 of 2009 32 stipulated or reject the project as being contrary to environmental objectives. (3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to-- (i) …….. (ii) …….. (iii) ……. (4) The Federal Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder. 26. Power to delegate.--(.1) The Federal Government may, by notification in the official Gazette, delegate any of its or of the Federal Agency's powers and functions under this Act and the rules and regulations made thereunder to any; Provincial Government any Government Agency, local council or local authority. (2) The Provincial Government may, by notification in the official Gazette, delegate any of its or of the Provincial Agency's powers or functions under this Act and the rules and regulations made thereunder to any Government Agency of such Provincial Government or any local council or local authority in the Province.” 13. The powers of the Federal Government to carry out the EIA under the law were delegated to the Provincial Government under the afore-referred provision vide Notification No. SRO.1251(I)/98 dated 27.10.1998 which reads as follows:- “S.R.O. 1251 (I)/98.---In exercise of the powers conferred by sub-section (1) of section 26 of the Pakistan Environmental Protection Act, 1997 (XXXIV of 1997), the Federal Government is pleased to delegate to the Provincial Government, Province of the Punjab, the powers Suo Moto Case No. 25 of 2009 33 and functions of the Pakistan Environmental Protection Agency under the provisions of the said Act specified in column (2) of the table below subject to the conditions and limitations specified in column (3) of that table.” 14. To give effect to PEPA, the Federal Government issued the Review of IEE and EIA Regulations. A reference to some of these regulations would be in order:- “3. Projects requiring an IEE. A proponent of a project falling in any category listed in Schedule I shall file an IEE with the Federal Agency, and the provisions of section 12 shall apply to such project. 4. Projects requiring an EIA. A proponent of a project falling in any category listed in Schedule II shall file an EIA with the Federal Agency, and the provisions of section 12 shall apply to such project. 8. Filing of IEE and EIA. (1) Ten paper copies and two electronic copies of an IEE or EIA shall be filed with the Federal Agency. (2) Every IEE and EIA shall be accompanied by--- (a) an application, in the form prescribed in Schedule IV; and (b) copy of receipt showing payment of the Review Fee. 10. Public participation---(1) In the case of an EIA, the Federal Agency shall, simultaneously with issue of confirmation of completeness under clause (a) of sub- regulation (1) of Regulation 9, cause to be published in any English or Urdu national newspaper and in a local newspaper of general circulation in the area affected by the project, a public notice mentioning the type of project, its exact location, the name and address of the proponent and the places at which the EIA of the project can, subject to the restrictions in sub-section (3) of section 12, be accessed. (2) The notice issued under sub-regulation (1) shall fix a date, time and place for public hearing of any comments on the project or its EIA. (5) All comments received by the Federal Agency from the public or any Government Agency shall be collated, tabulated and duly considered by it before decision on the EIA. 11. Review (1) The Federal Agency shall make every effort to carry out its review of the IEE within 45 days, and of the EIA Suo Moto Case No. 25 of 2009 34 within 90 days, of issue of confirmation of completeness under Regulation 9. (2) In reviewing the IEE or EIA, the Federal Agency shall consult such Committee of Experts as may be constituted for the purpose by the Director-General, and may also solicit views of the sectoral Advisory Committee, if any, constituted by the Federal Government under subsection (6) of section 5. (3) The Director-General may, where he considers it necessary, constitute a committee to inspect the site of the project and submit its report on such matters as may be specified. (4) The review of the IEE or EIA by the Federal Agency shall be based on quantitative and qualitative assessment of the documents and data furnished by the proponent, comments from the public and Government Agencies received under Regulation 10, and views of the committees mentioned in sub-regulations (2) and (3) above. 12. Decision On completion of the review, the decision of the Federal Agency shall be communicated to the proponent in the form prescribed in Schedule V in the case of an IEE, and in the form prescribed in Schedule VI in the case of an EIA. 13. Conditions of approval (1) Every approval of an IEE or EIA shall, in addition to such conditions as may be imposed by the Federal Agency, be subject to the condition that the project shall be designed and constructed, and mitigatory and other measures adopted, strictly in accordance with the IEE/EIA, unless any variation thereto have been specified in the approval by the Federal Agency. (2) Where the Federal Agency accords its approval subject to certain conditions, the proponent shall – (a) before commencing construction of the project, acknowledge acceptance of the stipulated conditions by executing an undertaking in the form prescribed in Schedule VII; (b) before commencing operation of the project, obtain from the Federal Agency written confirmation that the conditions of approval, and the requirements in the IEE/EIA relating to design and construction, adoption of mitigatory and other measures and other relevant matters, have been duly complied with.” Suo Moto Case No. 25 of 2009 35 15. An examination of the material placed before this Court reveals that the afore-referred provisions of the Act and the Regulations framed thereunder were strictly complied with. Admittedly, the project designed by TEPA was initially approved by the Provincial Government and then was referred to EPA-Punjab which in terms of Sub-section (3) of Section 12 read with Rule 4 of the Regulations carried out public hearing. It also constituted a committee consisting of ten experts in terms of Regulation No. 11 (2) of Review of IEE and EIA Regulations who were consulted before the grant of approval and in terms of Rule 13. The EPA-Punjab also laid down stringent conditions/precautionary measures as also ameliorative steps to minimize the effect of cutting of some trees and damage to the green belt on both sides of the road. In the light of the afore- referred facts, we find that the approval was granted by strictly complying with PEPA and the regulations framed thereunder and there was no illegality whatsoever. Issues No. (ii), (iv) & (viii) (ii) Whether the approval granted by the Environmental Protection Authroity- Punjab (EPA-Punjab) was mechanical at the asking of the Government of Punjab and does not reflect conscious application of mind? (iv) Whether the precautionary principles of ecological protection as reiterated in Shehla Zia’s case have been ignored in designing and approving the Canal Road Project? and (viii) Whether the Project, if implemented, is likely to cause environmental degradation and thereby would be violative of the fundamental rights of Right to life (Article 9 of the Constitution) and Right to human dignity (Article 14 of the Constitution)? 16. This Court took suo moto notice of the letter addressed to the Hon’ble Chief Justice of Pakistan because it was canvassed that the project under challenge would result in de-forestation and depletion of the green belt; would give fatal blow to the Flora and Fauna on both sides of the Canal Road and Suo Moto Case No. 25 of 2009 36 thereby lead to an ecological and environmental disaster. This fallout, it was contended, would be violative of the Fundamental Right to Life (Article 9 of the Constitution) and may also have the effect of degrading human existence (violation of Article 14 of the Constitution). The Courts in almost all liberal democracies have given an expanded meaning to the Fundamental Right to Life in the wake of growing urbanization and the environmental changes that it brings. Dilating on the ambit of fundamental right of right to life, this Court in Shehla Zia v. WAPDA (PLD 1994 SC 693) held as follows:- “Article 9 of the Constitution provides that no person shall be derived of life or liberty save in accordance with law. The word `life' is very significant as it covers all facts of human existence. The word `life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act or omission or commission of a third person in the neighborhood or at a far off place, is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the, possibility of danger come forward and this has happened so in the present case. According to Oxford dictionary, `life' meant state of all functional activity and continual change peculiar to organized matter and specially to the portion of it Suo Moto Case No. 25 of 2009 37 constituting an animal or plant before death and animate existence." In Black's Law Dictionary, `life' means "that state of animals, humans, and plants or of an organized being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions. The interval between birth and death. The sum of the forces by which death is resisted………."Life" protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the right to marry, establish a home and bring up children, freedom of worship, conscience; contract, occupation, speech, assembly and press". The Constitutional Law in America provides an extensive and wide meaning to the word `life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word `life' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable.” 17. The Canal Road Project is neither a plant omitting hazardous gases nor releasing pollutants in the canal water. It aims at widening the road on both sides of the Canal Bank which of necessity would cause some damage to the green belt and thereby affect environment. The apprehended change or damage which has neither been quantified nor ascertained per se may not be violative of Fundamental Right of Right to Life (Article 9 of the Constitution) unless it is shown by placing incontrovertible material before this Court that it would lead to hazardous effects on environment and ecology to an extent; that it would seriously affect human living. A close perusal of Canal Road Project indicates that before its approval, TEPA referred the matter to NESPAK which carried out the requisite studies and after detailed analysis came to the conclusion that the Canal Road Suo Moto Case No. 25 of 2009 38 Project is environmentally viable; that only 1800 trees would be cut as against the apprehension that it would lead to cutting of 33000 trees; that 60% of the trees which are likely to be affected are eucalyptus which are even otherwise not beneficial to the soil and environment. The EIA Report also reflects that feasibility of other alternative solutions suggested to combat traffic congestion were considered by it and it was found that the project prepared by TEPA was most feasible. It also suggested mitigative measures and precautions to ensure that there was minimum damage to ecology and environment of the area. The argument that the widening of roads on both side of the Canal would be devastating and would have irreparable effects on ecology has been attended to, both while granting environmental clearance by the competent authority and also by the report of the Mediation Committee. Every project of this kind would have some adverse impact on environment but that would be negligible as compared to the ameliorative effects it is expected to have on traffic congestion and convenience of commuters and on improvement in traffic safety levels. When challenge is thrown to such projects, the Courts have to take into consideration the issues and problems that would remain unresolved and the resultant hardship of the people if the road is not widened and project is stayed. The ecological and environmental concerns, on the one hand, and hardship of the city commuters, on the other, faced with traffic congestions pose a dilemma. A balance needs to be struck between these two competing issues. The Courts may not be ideally suited for striking such a balance because such an exercise would entail factual enquiry, research work and expert knowledge of specialists in the relevant field. The Court noted that when NESPAK carried out the requisite EIA, it held public hearing, considered the objections of the petitioners, examined the alternative solutions suggested and found that the project in hand was preferable to all other solutions suggested. The report submitted by NESPAK in turn was placed before the EPA- Suo Moto Case No. 25 of 2009 39 Punjab, which granted approval and environmental clearance to the Canal Road Project. This approval was neither mechanical nor without conscious application of mind, rather the precautionary principles of environmental regulations reiterated by this Court in Shehla Zia (Supra) were fully kept in view. 18. Conscious of some change which may be caused in environment, some of the measures/conditions recommended by EPA-Punjab while granting environment clearance are as follows:- (a) strict adherence to the Environmental Management Plan in order to minimize any negative impacts on soil, ground water, air and biological resources of the project area; (b) strict compliance with the National Environmental Quality Standards; (c) the carrying out of extensive tree plantation, especially indigenous species in and around the project area in consultation with the PHA and to make all arrangement for the transplantation of existing trees; and (d) the plantation of four (4) trees having 6-7 feet height for every single uprooted tree. 19. In the afore-referred circumstances, in our judgment, the approval of the Canal Road Project was granted with conscious application of mind considering all relevant material and the attending circumstances. The Canal Road Project neither contravenes Fundamental Right of Right to Life (Article 9) nor the Right to Human Dignity (Article 14). Issue No. (vii) (vii) Whether the project entailing widening of the road on both sides of the Canal, which would have the effect of reducing the area of green belt, is violative of the Doctrine of Public Trust? 20. The concept of Public Trust is as old as the organized human living and the advent of State. This concept appeared in codified law for the first Suo Moto Case No. 25 of 2009 40 time during the Roman Empire. Roman Emperor Justinian codified the law in Corpus Juris Civilis about 1500 years ago. The genesis of this concept was laid by Justinian in 529 BC in a section of the said Code in these words: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea”. Much after the fall of the Roman Empire, the Corpus Juris Civilis was rediscovered in Pisa and the concept spread throughout Europe. In England this concept was codified in the Magna Carta and in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting rights, because this violated the public’s right to access these common resources. Thereafter, it became a part of the Common Law and traveled to U.S. during its founding years. As part of the Common Law tradition, it became a concept of judicial comment for the first time in 1821 in U.S. in the case of Arnold v. Mandy (6N.J.L.1, 53 (1821) wherein it as held:- “…….the government could not, “consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.” 21. This was followed by another case Illinois Central Railroad v. Illinois (146 U.S. 387 (1892) wherein the Supreme Court thwarted the attempt of the executive to give the entire lakeshore to a private railroad. The Supreme Court held that: “…….a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” 22. According to Professor David Takacs (“The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property” (http://www.ielrc.org/content/a0804.pdf), the afore-referred case is seminal as it Suo Moto Case No. 25 of 2009 41 played a pivotal role in the evolution of Public Trust Doctrine in American jurisprudence and its three elements are: (i) the sovereign holds certain resources in trust for the common good; (ii) the public has some kind of right to protection of these resources: and (iii) while democracy may seem subverted when a court overrules the acts of elected officials, such judicial acts in fact serve democracy by preserving rights invested in all the people. 23. The academic debate on this concept was laid by Professor Joseph Sax and according to one estimation, it was he who revived a dormant area of law which now continues to be relied upon by the courts in several jurisdictions. Over the years it has come to serve two purposes: first, it mandates affirmative State action for the effective management of natural resources, and, second, it enables the citizen to question the decision making in the management of those resources. It guarantees public access to public trust resources and also adds an element of accountability in how the State treats these resources. 24. The concept of public trust has given birth to new area of jurisprudence i.e. to treat environmental rights as Fundamental Human Rights. Professor Joseph L. Sax in his Article titled as “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” (http://www.uvm.edu/~gflomenh/PA395-CMN-ASSTS/articles/sax.pdf) justified the doctrine by holding that, “some public interests in the environment are intrinsically important, the gifts of nature’s bounty ought not be constrained for private use, and some uses of nature are intrinsically inappropriate”. The advocates of environmental human rights canvass that clean water or clean air or functioning ecosystems are rights because human life cannot exist without them; these gifts of nature’s bounty ought not be traded away for the use of private entities at the expense of what is essential to every single human’s life. Suo Moto Case No. 25 of 2009 42 25. Courts in many jurisdictions have sanctified the environmental human rights by raising environmental concerns and by equating them with other Fundamental Rights. The innovative approach gave an extended meaning to the Fundamental Right of Right to Life. For instance, in India the Fundamental Right of Right to Life (Article 21 of the Indian constitution) which declares that no person shall be deprived of his life or personal liberty except according to procedure established by law was interpreted to include the right to healthy environment and ecosystem as they ultimately effect to the Right to Life. In Rural Litig. & Entitlement Kendra v. State of Uttar Pradesh (AIR 1985 SC 652, 656), the Supreme Court of India stopped unauthorized mining causing environmental damage by observing that said order was imperative for protecting and safeguarding the rights of the people to live in a healthy environment with minimal disturbance of ecological balance. 26. In Charan Lal Sahu v. Union of India (Bhopal Disaster case) (AIR 1990 SC 1480), this view was reiterated. In M.C. Mehta v. Kamal Nath (1997 1 S.C.C. 388), the Court stopped a developer to build a motel at the mouth of a river by propounding the public trust doctrine and held that:- “[t]he notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land.” 27. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999 S.C.C. 464), the Supreme Court of Indian for the first time hitched the Public Trust Doctrine to the constitutionally guaranteed right to life. 28. In Th. Majra Singh v. Indian Oil Co. (AIR 1999 J&K 81), the Court granted a manufacturing plant to be constructed conditionally only if the Government observed its Public Trust Doctrine duties to ensure that all possible pollution safeguards were implemented. Suo Moto Case No. 25 of 2009 43 29. In Pakistan, the Supreme Court as early as 1994 in Shehla Zia’s case (PLD 1994 SC 693), interfered with the construction of an electricity grid station where it was apprehended that it would cause damage to the safety of human beings and to the environment by extending the meaning of Fundamental Right of Right to Life. 30. In Moulvi Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394), the Supreme Court stopped the conversion of a public park into a commercial project (Mini Golf Course) by giving an extended meaning to yet another Fundamental Right i.e. the right to have access to public places without discrimination under Article 26 of the Constitution. Speaking for the Court, Mr. Justice Iftikhar Muhammad Chaudhry, Hon’ble Chief Justice of Pakistan observed as under:- “Now we will examine whether in view of the given facts and circumstance of the case, any of the fundamental rights guaranteed to the citizens of Pakistan have been denied. Islamabad, being a capital city, attracts representation from all over Pakistan in different capacities. Thus it is their right to enjoy access to the places of entertainment like the Jubilee Park, etc. under Article 26 of the Constitution. The same is the position of the inhabitants of the area where the Park is situated. As it has been stated herein above that necessary documents have been withheld by the C.D.A. from the Court for which, observation have been smade herein above. Thus, it is held that Jubilee Park was earmarked in the original scheme of Sector F-7, as it was meant for low income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such Parks for commercial activity with the collaboration of multinational companies, would deny the rights guaranteed to them.” 31. South Africa is one of those few centuries where the Environmental Rights have been protected as Fundamental Human Rights in the Constitution. In terms of section 24 of the Bill of Rights, it has been unequivocally declared that everyone has the right: a) to an environment that is not harmful to their health or well-being; and b) to have the environment Suo Moto Case No. 25 of 2009 44 protected, for the benefit of present and future generations, through reasonable legislative and other measures that: i) prevent pollution and ecological degradation; ii) promote conservation; and iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. 32. The afore-referred survey of the academic, judicial pronouncements and Constitutional provisions indicate that the concept of Public Trust Doctrine is increasingly becoming part of the jurisprudence in several jurisdictions and Environmental Human Rights are being classified as Fundamental Human Rights. But what are the parameters of this concept? How far the public or private project can be stalled by invoking this concept and to what extent the public use of a trust resource can be converted to private use or for a different public purpose? This aspect has also been a subject of academic comment. Prof. Serena A. Williams in his article titled as “Sustaining Urban Green Spaces: Can Public Parks be Protected under the Public Trust Doctrine?” (http://works.bepress.com/serena_williams/2/) lays down two broad approaches: the legislative approach which prohibits the alienation or diversion of resource without plain and explicit legislation to that end and second the substantive test approach. The latter approach consists of five factors to be considered by a Court while determining whether diversion or alienation of public trust property violates the said test. These factors are as follows:- “(1) that public bodies would control use of the area in question; (2) that the area would be devoted to public purposes and open to the public; (3) the diminution of the area of original use would be small compared with the entire area; (4) that none of the public uses of the original area would be destroyed or greatly impaired; and (5) that the disappointment of those wanting to use the area of new use for former purposes was negligible when compared to the greater convenience to be afforded those members of the public using the new facility.” Suo Moto Case No. 25 of 2009 45 33. According to Professor Williams if alienation of a parkland is allowed, courts must rigorously scrutinize the alienation from public use to a private entity to ensure that the transfer continues to serve a public use and is carried out with minimum possible harm to the remaining parkland. He further observed that: “Diversions in the use of public trust land should be approved only when three factors are met: (1) the area would continue to be devoted to a broad public purpose which is either consistent with the public uses of the original area or is one that outweighs the public use of the area as a park; (2) a public body would retain control over the use of the area in question; and (3) the diverted use would be one open to the public. These three factors are the crux of the five-criteria balancing approach. If the park use must succumb to a new public use that is determined to be paramount to the park use, the public must maintain control over the new use and continue to have easy access to it for a general public purpose.” 34. He adds that “Courts generally find such a change in purpose valid when the diversion is from one broad public purpose to another, particularly when the area diverted is relatively small compared to park area preserved. For example, a road widening project that would require the diversion of one half acre of park space was upheld under the public trust doctrine as ‘merely a diversion of a minimal quantum of public land from one public purpose to another public purpose.” (Emphasis is supplied). 35. The case in hand, if examined, in the light of the Doctrine of Public Trust as explained by the academics and construed by the Courts including the Pakistan Supreme Court leads to an inescapable conclusion that the green belt around both sides of the Canal is a Public Trust resource; that it cannot be converted into private use or any other use other than a public purpose; that widening of the road as proposed is a public purpose; that a minimum area is being affected and the remaining green belt/public park is much larger; that the same has been recommended by the Mediation Committee to be declared as Suo Moto Case No. 25 of 2009 46 Heritage Park and the recommendations of the said Committee have been accepted by the Province of Punjab in totality. In these circumstances, the Doctrine of Public Trust cannot be said to have bee n compromised. Issue No. (iii) (iii) Whether the Canal Road Project is in consonance with the concept of sustainable urban development? 36. The concept of “Sustainable Development” was given recognition for the first time in Stockholm Declaration of 1972 and its definition given in the Brundtland report was accepted i.e. ‘development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.’ In Pakistan this concept though referred to in some of the earlier judgments of this Court (Shehla Zia Supra) was defined for the first time in section 2 of PEPA which is as under:- “(2)(xlii) ‘sustainable development’ means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs.” 37. This is an evolving concept and the definition given in section 2(xlii) above appears to have been inspired by the Stockholm Declaration 1972. In the preparatory meeting for the URBAN21 Conference (Berlin July 2000) a more comprehensive definition of sustainable urban development was adopted which lays down as under:- “Improving the quality of life in a city, including ecological, cultural, political, institutional, social and economic components without leaving a burden on the future generations. A burden which is the result of a reduced natural capital and an excessive local debt. Our aim is that the flow principle, that is based on an equilibrium of material and energy and also financial input/output, plays a crucial role in all future decisions upon the development of urban areas.” Suo Moto Case No. 25 of 2009 47 38. Yet another definition focuses more on communities, on human spirit, on goals and visions of sustainable development and participatory dimension of social, economic and ecological development of a society. According to the Institute for Sustainable Communities (http://www.iscvt.org/FAQscdef.html) , sustainable communities are defined as under:- “Sustainable communities are defined as towns and cities that have taken steps to remain healthy over the long term. Sustainable communities have a strong sense of place. They have a vision that is embraced and actively promoted by all of the key sectors of society, including businesses, disadvantaged groups, environmentalists, civic associations, government agencies, and religious organizations. They are places that build on their assets and dare to be innovative. These communities value healthy ecosystems, use resources efficiently, and actively seek to retain and enhance a locally based economy. There is a pervasive volunteer spirit that is rewarded by concrete results. Partnerships between and among government, the business sector, and nonprofit organizations are common. Public debate in these communities is engaging, inclusive, and constructive. Unlike traditional community development approaches, sustainability strategies emphasize: the whole community (instead of just disadvantaged neighborhoods); ecosystem protection; meaningful and broad-based citizen participation; and economic self-reliance.” 39. Examining the project under challenge, in the light of concept of sustainable development, as defined in section 2(xlii) of the Act, we note that given the resource constraint, the values of sustainable development were kept in view while designing and approving the Canal Road Project which is evident, inter alia, from the following measures. It has been assured to this Court: (a) that the green belt on both sides of the Canal Road would be retained and the entire area would be declared/notified as Heritage Park, through an Act of the Legislature; Suo Moto Case No. 25 of 2009 48 (b) that minimum possible area from the green belt be affected on account of the widening of the Canal Road; (c) that the widening of the road was necessitated to cater to the needs of the current and future generations; (d) that the existing traffic flow and the likely increase in the volume of traffic on the road was kept in view while designing the project; (e) that stringent conditions were attached by the EPA- Punjab while granting environmental approval to the project which included strict adherence to the Environmental Management Plan in order to minimize any negative impacts on soil, ground water, air and biological resources of the project area; (f) that strict compliance with the National Environmental Quality Standards would be observed; (g) that carrying out of extensive tree plantation, especially indigenous species in and around the project area in consultation with the PHA (Parks and Horticulture Authority) and to make all arrangement for the transplantation of existing trees; and (h) that the plantation of four (4) trees having 6-7 feet height for every single uprooted tree. 40. In the afore-referred circumstances, the contention that the Canal Road Project approval is violative of the concept of sustainable development would not be tenable. Suo Moto Case No. 25 of 2009 49 Issue No. (v) Whether having consented to the referral of the matter to the mediation, can the petitioners join issue with the recommendations made by the Mediation Committee? 41. The matter was referred for mediation in terms of this Court’s order dated 14.2.2011 which reads as follows:- “Mr. Salman Butt, learned ASC stated that the case required to be disposed of expeditiously in view of the rush of traffic on the Canal Road as due to pendency of matter the project has already been delayed. On the other hand Ms. Imrana Tawana stated that there are so many other alternate options available to the Punjab Government to manage the traffic flow instead of cutting off the trees on the Canal Road, Lahore. Dr. Parvez Hassan who was appearing in another case admittedly enjoys the expertise in law and has vast experience in the field of environmental management, offered to intervene between the petitioner i.e. Lahore Conservation Society and the Government of Punjab for finding a viable solution for the critical issue herein raised. Accordingly, both the parties agreed to the mediation of Dr. Parvez Hassan who is thus nominated as the mediator and submit a report on the next date of hearing. Adjourned to a date in office after one month. Dr. Parvez Hassan may associate any other persons or experts or officials of the Government of Punjab for the purpose of such medication and for finding suitable resolution of the matter.” 42. Although Dr. Parvez Hassan was the sole Mediator appointed to mediate with agreement of both the parties, however, it was stipulated in the order that he could “associate any other persons or experts or officials of the Government of Punjab for the purpose of such mediation and for finding suitable resolution of the matter”. In accord with canons of propriety and to keep the petitioners on board at each stage, he constituted a Committee of eight members to be called the Mediation Committee in consultation with learned counsel for the petitioners Mr. Ahmer Bilal Soofi and respondents’ counsel Mr. Suleman Butt. One of the petitioners namely Mr. Ahmad Rafay Alam who has the reputation of being a dedicated environmentalist was made Secretary of the Committee. The Suo Moto Case No. 25 of 2009 50 Mediation Committee comprised of people of eminence from various fields and they arrived at a consensus barring one dissent in terms of which the report was submitted which has been reproduced in Para-11 above. The only dissenting report opinion is of Dr. Arif Hassan whose note of dissent was placed on record along with the report which has been reproduced in para 10 above. 43. As noted earlier, in the written objections to the report of the Mediation Committee, the petitioner did not join issue with most of the recommendations made except clause 17 of the report i.e. widening of road on both sides of canal. On Court query, Miss Imrana Tiwana candidly conceded that she agrees with 95% of the report submitted by the Mediation Committee but reiterated that arguments/suggestions given by her would effectively tackle the issue of traffic congestion and the widening of road besides being hazardous to environment is unnecessary. This Court in detail has considered the report of the NESPAK with reference to alternate suggestions as also the approval report of the EPA-Punjab and finds that the exercise carried out by the concerned agency and authority under the law is well reasoned and do not call for review in these proceedings. Even otherwise, in absence of any cogent material, it would not be possible for this Court in these proceedings to hold that the alternative solutions suggested by the petitioners should be preferred to the project designed by competent authorities under the law. 44. In a case decided by the International Court of Justice in not distant past (The Gabcikovo-Nagymaros Project dispute between Hungary and Slovakia decided on 25.9.1997), the construction of a barrage system at Danube River was challenged and Hungary contended that it was violative of a treaty to which both Hungary and Slovakia were party and that it would adversely affect the rights of the former as it would divert the waters of Danube thereby causing loss and damage to the country and its nationals. Despite taking note of the Suo Moto Case No. 25 of 2009 51 environmental concerns of Hungary with regard to apprehended loss to the nationals and damage to environment, the Court restrained itself from interfering in the ongoing project and advised the parties to settle the dispute through mutual negotiations. The Court did not interfere, inter alia, for the reason that the issue mooted entailed factual enquiry and left the matter to be resolved through negotiation in the spirit of mediation. The Court observed as follows:- “The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind –for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the GabCikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river. It is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses. The Court will recall in this context that, as it said in the North Sea Continental Shelfcases: "[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it" (I.C.J. Reports 1969, p. 47, para. 85). Suo Moto Case No. 25 of 2009 52 45. In the instant case as well, the Court referred the matter for mediation on similar considerations and with consent of both the parties. Petitioner’s attempt to resile from the said mode of resolution may not warrant a flattering comment. Because the Mediation Committee was constituted in consultation with petitioner’s learned counsel, Mr. Ahmer Bilal Soofi and the allegation that two members of the Committee had affiliation with the Provincial Government is too general and vague to shake their credibility. In S.E. Makudam Mohammad v. T.V. Mahommad Sheik Abdul Kadir (1936 Madras 856), a party agreed for decision of the matter in the light of the report to be submitted by the Commission, subsequently when the report was submitted, the party wanted to resile but the Court relying on an earlier judgment of Privy Council Burgess v. Morton (1896) A.C.136, held as follows:- “When a party invites the Court to adopt a procedure which is not contemplated by the Civil P.C., and is in fact a procedure extra cursum curiae, he cannot turn around and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion. As was held in (1896) AC 136(1), where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which affirmed that the judgment of the Court below pronounced extra cursum curiae, is in the nature of an arbiter’s award and that as a general rule at least no appeal from it will lie.” 46. The maxim extra cursum curiae which underpins the afore- referred judgment was reiterated by this Court in Mst. Sharif Bibi v. Muhammad Nawaz Shah (2008 SCMR 1702) wherein the judgment of the learned High Court was upheld and appeal dismissed. Suo Moto Case No. 25 of 2009 53 47. For afore-referred reasons, it would not be open for the petitioner to challenge Mediation Committee’s report, particularly when they have agreed to 95% of the recommendations made by the said Committee. Issue No. (vi) Whether the policy making domain in which the Canal Road project falls, is the exclusive preserve of Executive Authority and can this Court, in these proceedings, interfere in the said domain? 48. One of the foundational values enshrined in the Constitution of Islamic Republic of Pakistan is principle of trichotomy of powers i.e. the Legislature would legislate, the Executive would administer law and Judiciary would interpret the law. In Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), this Court highlighted the principle of trichotomy of powers as follows:- “167. At this stage, it is necessary to elucidate through our own jurisprudence and that of other jurisdictions the principle of trichotomy of powers and the power of judicial review vested in the superior Courts. Case-law from the Indian jurisdiction is particularly instructive on account of common origins of constitutionalism springing from the Government of India Act, 1935 read with the Indian Independence Act, 1947. The Supreme Court of India, in the case of Minerva Mills Ltd v. Union of India (AIR 1980 SC 1789) held that the judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits.” 49. By according an expanded meaning to the Fundamental Rights provisions of the Constitution, the Courts under Article 199 and 184(3) of the Constitution have taken notice of public interest issues which has led to the development of public interest litigation. The public interest litigation was given new dimension by successive Chief Justices of this country by developing the Human Rights cases jurisprudence whereunder petitions filed by less privileged class of society on issues of public concern have been entertained and decided Suo Moto Case No. 25 of 2009 54 where contravention of fundamental rights was proved. Mr. Suleman Butt, ASC placed on record an article by Dr. Parvez Hassan titled as “Role of Commissions in Public Interest Environmental Litigation in Pakistan” wherein he referred to a judgment (2000 CLC 471 Lahore) authored by one of us (Tassaduq Hussain Jillani, J.) where the genesis of public interest litigation in the developing world has been commented upon. It was observed:- “The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficacy and corruption at various levels. In such a socio- economic and political milieu, the non-intervention by Court in complaints of matters of public concern will amount to abdication of judicial authority.” 50. This Court does not interfere in every issue of public concern under Article 184(3) of the Constitution but only where the action/order of the executive authority raises the question of enforcement of a Fundamental Right. In Pakistan Tobacco Company Ltd. v. Federation of Pakistan (1999 SCMR 382), this Court candidly held as follows:- “maintainability of a petition under Article 184(3) of the Constitution is to be examined not on the basis as to who has filed the same but if the controversy involves question of public importance with reference to enforcement of any of the fundamental right, petition will be sustainable.” 51. Again in Javed Ibrahim Paracha v. Federation of Pakistan (PLD 2004 SC 482), this view was reiterated as follows:- “a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word `pro bono publico' as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means `for the public good' or `for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. `Public interest' in the Black Law Dictionary, Suo Moto Case No. 25 of 2009 55 has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as `pro bono publico.” 52. Explaining the ambit of Article 199 of the Constitution, this Court in Muhammad Bashir v. Abdul Karim (PLD 2004 SC 271), laid down as follows:- “This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress". (Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538(FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar.599 (FB). It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v. Hameeda Begum 1986 SCMR 1561, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party". (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41). In our considered view, Suo Moto Case No. 25 of 2009 56 technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive.” 53. Many a time, policies/actions of executive authorities are challenged and issues are brought before the Court which have socio-political or economic dimensions; issues of lopsided policies being pursued, issues which have polarized the nation, issues which have bled & divided the nation and issues which reflect immoral or unwise use of public funds. Judges are humans. It is painful to sit back and watch the successive marches of folly. However, the Constitutional constraint reflected in the trichotomy of powers obliges the Court to observe judicial restraint. It intervenes only when the policy/action of the State authority reflects violation of any law or a Constitutional provision or when it relates to the enforcement of a Fundamental Right which inter alia includes Environmental Human Rights. The people/Constitution makers did not vest this Court to sit over judgment on a purely policy decision taken by the competent executive authority unless of course it violates the law of the land. In the U.S. Constitution as well, the principle of separation of powers is one of the foundational values. In deference to the Constitutional Scheme, the U.S. Supreme Court observes self-restraint in such matters. In Trop vs. Dulles (356 U.S. 86, 120 (1958), this approach is candidly reflected where the Court held as follows: - “It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.” 54. When an order of governmental authority is challenged before the Court raising an environmental issue, the Court would examine as to whether the Suo Moto Case No. 25 of 2009 57 authority which passed the order was conscious of the relevant considerations; whether it deliberated over those and whether it took the decision after having the expert opinion and complying with the mandate of law? The issues which underpin the project under challenge related to traffic congestion, the widening of the Canal Road and the apprehended damage to ecology and environment. The Court would have intervened if the issues of rising traffic flow and congestion had not necessitated remedial measures; if feasibility of other alternative proposals had not been examined by the concerned department; if it had not got conducted Environmental Impact Assessment from a consultant and if the Environmental Protection Authority had not given environmental clearance after taking into consideration the relevant factors; if the doctrine of Public Trust or of Precautionary Principle for environmental protection was being violated or if the respondent-Provincial government had not whole heartedly accepted the Mediation Committee’s report which inter alia recommend declaring the greenbelt on both sides of the Canal as Heritage Park and had recommended only a partial widening of the road in question. These concerns, in our view, have been adequately addressed by the competent bodies under the law. It is for the concerned department of the government to examine how best to meet traffic congestion and in this exercise it can solicit consultation from another agency or a body of experts to study the feasibility which in the instant case was initially carried out by NESPAK and thereafter the matter was placed before the EPA- Punjab which again having solicited the opinion of experts granted approval with certain conditions. In such cases the Court may not have the requisite expertise to adjudicate. This is why the Court seeks the assistance of experts or experts’ committee. The advantage of the experts’ committees is that it enables the Court to receive technical expertise while the Judges are left to decide questions of law. Such committees reduce the chances of judicial arbitrariness and adds legitimacy Suo Moto Case No. 25 of 2009 58 to the judgments. The only aspect the Court would examine is whether the policy/act under challenge is violative of any provision of the law or the Constitution or any of the Fundamental Rights guaranteed under the Constitution and as interpreted by the Courts from time to time. In Narmada Bachao Andolan v. Union of India (AIR 2000 SC 3751), the Indian Supreme Court came to a similar conclusion when it observed as follows:- “Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them. Public Interest Litigation (PIL) was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. With the passage of time, the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largess in the form of licences, protecting environment and the like. But the balloon should not be inflated so much that it bursts. Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or ‘Private Inquisitiveness Litigation’.” 55. Respectfully reiterating the earlier view taken by this Court in the precedent case law to which reference has been made above and in view of the report of the Mediation Committee which has been accepted in entirety by the Provincial Government, we are of the view that no intervention is called for. 56. In passing the Court may add that it is conscious of the historic and emotional appeal of the Canal which was built initially by the last Muslim Suo Moto Case No. 25 of 2009 59 Ruling Dynasty, the Mughals and extended in 1861 by the British. It is indeed an environmental asset. The greenery around it adds beauty and romance to the city. In times gone by there must have been flourishing fields, meadows and green valleys. Much later when the road on both sides of the Canal was metalled, there would hardly have been a few residential colonies. But slowly and gradually, as the population increased, residential colonies were built to cater to the needs of the populace. The mushroom growth of residential colonies is a post independence phenomenon. It assumed a greater momentum in the last 3/4 decades. This caused massive damage to the flourishing fields, the orchards and to the habitats. The ill-conceived commercialization of residential areas had its toll as well. Industrialization on the outskirts of the city further confounded the situation and this resulted in traffic flow to multiply manifolds. The loss of those green valleys evokes a natural lament and nostalgia. But this is what happens to environment and ecology when human needs increase and the cities expand bringing in their wake pains, issues & Thomas Hardy’s “Madding Crowd”. The famous German Philosopher Frederick Engels (1820-1895) who belonged to the same period when the canal was built, was alluding to this paradox when he said:- “Let us not, however, flatter ourselves overmuch on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first. The people who, in Mesopotamia, Greece, Asia Minor and elsewhere, destroyed the forests to obtain cultivable land, never dreamed that by removing along with the forests the collecting centres and reservoirs of moisture they were laying the basis for the present forlorn state of those countries. When the Italians of the Alps used up the pine forests on the southern slopes, so carefully cherished on the northern slopes, they had no inkling that by doing so they were cutting at the roots of the dairy industry in their region; they had still less inkling that they were thereby depriving their mountain springs of water for the greater part of the year, and making it possible for them to pour still more furious torrents on the plains during the rainy seasons. Those who spread the potato in Europe were not Suo Moto Case No. 25 of 2009 60 aware that with these farinaceous tubers they were at the same time spreading scrofula.” (The Part Played by Labour in the Transition From Ape to Man) 57. This however, is the flip side of human saga. It has a positive dimension too. If humans had shunned reason and the civilizational impact or had taken their love of nature too far, they would still have been living in caves, eating insects and raw meat and mating like animals. The discovery and development of the bounties and beauties of nature are partly attributable to human perception, ingenuity, struggle and its harnessing. John Keats, the poet of nature and beauty was referring to these human virtues, when he said:- Who, of men, can tell That flowers would bloom, or that green fruit would swell To melting pulp, that fish would have bright mail, The earth its dower of river, wood, and vale, The meadows runnels, runnels pebble-stones, The seed its harvest, or the lute its tones, Tones ravishment, or ravishment its sweet If human souls did never kiss and greet? Endymion, bk.i, I. 835 58. The beauty of the canal and of the greenbelt on both sides of the Canal Road lie partly in beholder’s eye i.e. human aesthetics, imagination, design and engineering. It is the human needs which require widening of the road. 59. Before parting with this judgment, we would like to acknowledge the admirable spirit demonstrated by petitioners’ organization, by those individuals, architects, urban planners, academics and students for protection of city’s ecological and environmental horizons. During hearing of this case, the Court was touched by the rainbow of idealism, of intellect, of architectural ability, Suo Moto Case No. 25 of 2009 61 of urban development and mental health expertise of graces and youthful exuberance. This was a living testimony to a vibrant civil society. This vibrance, vigilance and zeal must have acted as a watchdog for those entrusted with design and planning of the Canal Road Project and those who accorded environmental clearance. The widening of the road which is now confined to only a part of the Canal Road and the conditional approval granted by EPA, Punjab attaching stringent conditions to allay the environmental concerns is a vindication of the object for which the petitioners brought this issue before this Court. As long as this spirit is alive, we are sanguine, the authorities and the leadership would continue to be guided by the values of sustainable human and urban development. We would also place on record our deep appreciation for the Mediation Committee in general and for Dr. Parvez Hassan in particular for developing a broad consensus reflected in the report of the Mediation Committee. For Mr. Babar Ali (who has the distinction of succeeding the Duke of Edinburgh as President of World Wide Fund for Nature) one of the eminent city fathers, who responding to the ecological and environmental concerns, made his valuable contribution as Member of the Mediation Committee. The able assistance rendered by Mr. Suleman Butt also deserves a word of commendation. 60. In view of what has been discussed above and keeping in view the stance of the Government of Punjab that they have accepted the report of the Mediation Committee in entirety, we hold and direct as under:- (i) The Bambawali-Ravi-Bedian (BRB) Canal and the green belt on both sides of the Canal Road (from Jallo Park till Thokar Niaz Beg) is a Public Trust. It shall be treated as Heritage Urban Park forthwith and declared so by an Act to be passed Suo Moto Case No. 25 of 2009 62 by the Assembly as undertaken by the respondent-Provincial Government; (ii) Widening of the road on both sides of the Canal Bank shall be in accord with the report submitted by the Mediation Committee; (iii) Necessary corrections/modification of some of the underpasses on the Canal Road shall be carried out as suggested in the report of the Mediation Committee; (iv) Proper Traffic Management Program shall be made and given effect to; (v) Further improvement in public transport system shall be ensured; (vi) Where needed and as recommended by the Committee, re-engineering of the junctions along the Canal Bank would be undertaken; (vii) The service roads along certain parts of the Canal Road shall be constructed/improved; (viii) Report of the Mediation Committee shall be implemented as agreed by the respondent-Provincial Government in letter and spirit; (ix) Respondent-Provincial Government and TEPA shall ensure that minimum damage is caused to green belt and every tree cut would be replaced by four trees of the height of 6/7 feet and this replacement when commenced and completed shall be notified through press releases for information of general public, copies of which would be sent to the Registrar of this Court for our perusal; and Suo Moto Case No. 25 of 2009 63 (x) Elaborate measures / steps be taken to ensure that the Canal is kept clean and free of pollution. The steps should inter alia include throwing of liter and discharge of any pollutant in the Canal a penal offence. The Chief Secretary, Government of Punjab shall ensure that a comprehensive action plan is prepared in this regard by the concerned department and report is submitted to the Registrar of this Court within six weeks of the receipt of this judgment. 61. For what has been discussed above, since most of the prayers and concerns have been taken care of in the Mediation Committee Report, the petition to the extent of those prayers is disposed of as having fructified and the petition is allowed in terms of the Report of the Mediation Committee which stands accepted even by the respondent Provincial Government. The petition in so far as it challenged the Project of widening of road is dismissed. JUDGE JUDGE Announced in Open Court at Islamabad on 15.9.2011 JUDGE Khurram Anees APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MUNIB AKHTAR S.M.C. NO. 26 OF 2007, H.R.C. NOs. 2698/2006, 133/2009, 778- P/2009, 13933/2009, 14072-P/2009, C.M.A. NOs. 4662/2011, 302/2010, 4249/2018 & CONSTITUTION PETITION NO. 64/2009 (Deadbeats got loans 54 billions written off) In Attendance: For the Petitioner: Barrister Zafarullah Khan, ASC (In Const.P.64/2009) For Federation: Mr. Khalid Jawed Khan, Attorney Gen Syed Nayyar Abbas Rizvi, Addl. AGP. For NAB Mr. Jehanzeb Khan Bharwana, P.G. NAB. For PIDB: Raja Abdul Ghafoor, AOR For IDBL Mr. Zarghoon Shah, Chief Manager, IDBL. For ZTBL, SME, Pak Libya Holding Co Mr. Muhammad Rasheed Qamar, ASC For HBL & Kraf Kitput Ltd Nemo For Utility Store Mr. Kashif Farooq, GM+ Mr.Masood Alam Niazi, Sr.G.M.HR., Mr. Liaqat Hussain, G.M. Accounts For Saudi Pak Industrial Investment Co. Mr. Iftikhar Ahmed, Manager Law For State Bank Raja Abdul Ghafoor, AOR. a/w Mr. Asad Ahmad Gani, Advocate on behalf of Dr. Pervez Hassan Sr. ASC. For NBP: Kh. M. Farooq, Sr. ASC For FBR: Mr. M. Habib Qureshi, ASC On Court’s notice: Mr. Farooq H. Naek, Sr. ASC For Orient Rice Mills, Rizek Industries, Abbas Steel, Misto Industries, Petro Commodities, Abbas Engineering (CMA 5048-5053/18) Mr. M. S. Khattak, AOR. For Ahmed Food Industries Mr. Nadeem Ahmed Sheikh, ASC for Afghan Gheen industrieis, Hakim Textile Mills Mr. Zafrullah Khan Cheema, ASC for SCHON SMC No. 26/2007 etc 2 Industries. Mr. Farhat Nawaz Lodhi, ASC. For Paksitan National Textile Mills, Kurdistan Trading Co. Agha Muhammad Ali, ASC. Mr. Nawaz Khan, CEO, A-lAbas Fabrico. Mr. Tariq Aziz, AOR. For Tutripax Foods Ltd. , Taha Spinning Mills, Alaji Ismail Mills. Ltd. Syed Qalb-e-Hassan, ASC in CMA 5409/2018 Sardar M. Aslam, ASC for Langar Sulemani Food Ltd. Mr. Fazal ur Rehman, in person for Latif Shakil Textile Mills Mr. Umar Alvi, ASC for Prodential Textile Mills Ltd, M/s Rubicon Industries. (CMA 5033- 5034/18) Sh. Muhammad Akram, ASC for Footcare Pvt. Ltd. And its directors. (CMA 5035-5039/18 Nemo for Jam Jafees Ali s/o Jam Sher Ali Mr. Mehr Khan Malik, AOR for Irum Textile Mills Mr. Shahid Ikram Siddiqi, ASC for Kashif Steel Mills Ch. Akhtar Ali, AOR. (CMA 5195/18) Mr. Shehzad Ata Elahi, ASC (CMA 5014/18) (For Mubarik Textile Mills, Shafiq Textile Mills, Chaudhry Electrodes Ltd, Siraj Steel Ltd, Techno Agriculture Ltd, Al- Asif Sugar Mills, National Bulbs Pvt Ltd, Icepack Ltd) Syed Moazzam Ali Shah, ASC (For Choti Textile Mills Ltd) (CMA 5040/18) Malik Muhammad Ahmad Qayyum, Sr. ASC Mr. Abbas Mirza, ASC (For Chohan Vegetable Mills/CMA 5421/2018) Mr. Fauzi Zafar, ASC (CMA 5362/18) (For Farooq Habib Textile Mills Ltd) Mr. Ahmed Qayyum, ASC for Ibex Textile Mian Tariq Manzoor, ASC. Mr. Abdul Haleem Paracha, for Zamir Textile Mills Mr. Shah Khawar, ASC for Sooraj Mukh Co. Mr. Hamid Ali Shah, ASC SMC No. 26/2007 etc 3 Mr. Ayaz Aslam Ch. For Salar Textile Mills ad Munarak Knitwear Ltd. Mr. Rab Nawaz Khichhi, Trantice Ltd. Mr. Khurram Raza, ASC. For SS Oil Mills Ltd. Mr. Asif Jabbar Khan, for Spectrum Chemicals Ch. Akhtar Ali, AOR (CMA 5556, 5557/18) for Ayaz Textile Mills (HBL), Dascon Pvt. Ltd. (HBL), Pak Pattan Dairies Ltd (ZTBL), Punjab Propylene Industries Ltd Service Fabrics & Monnoo Dairies Mr. Azid Nafees, ASC. For Sinsas Pvt. Ltd., Azeem Foods Industries, Electronic Information & Energy System (CMA 5396/18) Mr. Jahangir Jadoon, ASC for Kashmir Poultry Mills. Mr. Haq Nawaz Chatha, ASC for Compact Particle Board Ltd., Expo International Pvt. Ltd. And Continental Rice Mills Ltd. Syed Mudassar Ameer ASC for mala Ghee Pvt. Ltd. Mr. Zulfiqar Chohan, Director Chohan Ghee Mills Ltd Agha Muhammad Ali, ASC for Al-Abbas Fabrics Ltd. Mr. Hasan Akbar, ASC. For Taha Spinning Mills Ltd. & Haji M. Ismail Mills Mr. Irfan Bannu for Bannu Dairies Mr. Zafarullah Cheema, for Shan Knitwear Ltd. Mr. Mudasir Khalid Abbasi, ASC for Pak Green Fertilizers Co & Multan Edible Oil Ltd. Mr. Wajid Jawad, Associated Industries Ltd. (CMA 5406/2018) Mr. Shehryar Kasuri, ASC for Lion Steel Industries Pvt Ltd. Mr. Shabbir Hussain Dir. Batala Ghee Mills Raja Qasit Nawaz, Advcoate for Ghulam Muhammad & Co. SMC No. 26/2007 etc 4 Mr. Saalim Saleem Khan, ASC for Ahmad Foods Pvt. Ltd. (CMA 5047/2018) Barrister Haris Azmat, ASC for Kotri Textile Mills Ltd. Mr. Shakil Jamil Anjum for Continental Beverages Ltd. Nemo for Gadoon Synthetic Mills Ltd. & Attock Textile Mills Ltd. Syed Rifaqat Hussain Shah, AOR for Mian Muhammad Sugar Mills, Oberio Textile Mills Ltd. Mr. Abid S. Zuberi, ASC (CMA 5403/18) Mr. Tariq Aziz, AOR for Kiran Sugar Mills Ltd, Pak Land Cement, Saudi Cement, Sarbaz Traders, Kiran Enterprises Ltd. Dewan Cement Mr. Zahid Minhas, ASC for Haye Sons Raja Muhammad Shafqat Abbasi, ASC for Mehr Dastagir Spinning Mills, Dastagir Leather & Foot wear industries Ltd (CMA 5394-5395/18) Mr. Shahid Anwar Bajwa, ASC for Kakashian Oil & Kakashian Feed Mills Ltd Malik Qamar Afzal, ASC for Spectrum Pvt Ltd Chemicals (CMA 5411/18) Mr. Abdul Rauf, Director Shariq International Ltd Mr. Imtiaz Ahmed, Director Jaiguar Mating Pvt Ltd Mr. Aleem Baig Chughtai, ASC for Novalty Fabrics Pvt Ltd Mr. Khalid Mehmood Khan, ASC for Frontier Dextroz Ltd (CMA 5408/18) Mr. Arif Khan, ASC in CMA 5005, 5207, 5208, 3210/2018 Mian Javed Iqbal Arain, ASC for Ali Knitwear Mr. Hasan Nawaz Makhdoom, ASC for Taimoor Spinning Mills (CMA 5558/2018) Mr. Hafeez ur Rehman, ASC for Ravi Dairy Products Ltd Mr. Tariq Aziz, AOR for AM Pak Dairies Pvt Ltd SMC No. 26/2007 etc 5 Raja Inaam Minhas, ASC (CMA 5168, 5172/2018) Mr. Tariq Aziz, AOR for Aslam ginning & Press Factory Pvt Ltd Mr. Zahid Ibrahim, ASC in CMA 5205, 5208, 5209, 5210/2018 Mian Abdul Rauf, ASC Ch. Muhammad Akram Nat, in person for Rani Agro Dairy Products Ltd. Mr. Haider Waheed, ASC (Shan Foods CMA 5361/18) Sardar Abdus Sami, ASC (CMA 5397- 5399/18). Mr. Adam Malik, Advocate in person for Pasban Soap Mr. Umar Aslam, ASC (CMA 5404-5405/18) Mr. Ahmad Qayyum, ASC (CMA 5044/18). Mr. Abdur Rauf Rohaila, ASC (Salala Industries) Mr. Shahzada Mazhar, ASC Harrpa Textile Mills Sardar Qasim Farooq Ali, ASC (For Aziz Spinning Mills & Sheikhoo Mills) Date of hearing: 4.7.2018 ORDER Learned counsel for the borrowers (the ones whose loans have been written off) seek time to consult their clients about accepting the option given by this Court. Let the needful be done by 17.7.2018 which acceptance shall be submitted in the office. No option shall be accepted after 17.7.2018. After such date, the Court will pass an order for the recovery of or initiation of the process as to how these matters have to be dealt with. Re-list thereafter. CHIEF JUSTICE JUDGE Islamabad, the 4th of July, 2018 Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU CASE NO.28 OF 2018 (Regarding Discussion in TV Talk Show with regard to a Sub-judice Matter) In attendance: Mr. Sohail Mehmood, DAG Mr. Faisal Fareed Hussain, ASC a/w Mr. Arshad Sharif in person. Mr. Faisal Siddiqui, ASC (For PBA) Mr. Saleem Baig, Chairman PEMRA Date of hearing: 12.9.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- While conducting a talk show titled ‘Power Play’ on 28.08.2018 on ARY News, the anchor Mr. Arshad Sharif made certain comments and raised queries about a matter pending adjudication before this Court. Despite the fact that the panelists on the show repeatedly advised him that his comments may amount to encroachment upon the proceedings before this Court, Mr. Sharif insisted that the Chief Justice of Pakistan should call him before the Court in order for him to point out the contradictions in the affidavit filed by Former President, Mr. Asif Ali Zardari, and to further respond to his queries. In the above background, this Court initiated the instant suo motu proceedings against Mr. Arshad Sharif. A summary/excerpt of this program is reproduced below (as provided in pages 3 to 6 of the main paperbook):- SUO MOTU CASE NO.28 OF 2018 -: 2 :- SUO MOTU CASE NO.28 OF 2018 -: 3 :- SUO MOTU CASE NO.28 OF 2018 -: 4 :- Notice was issued to Mr. Sharif vide order dated 29.08.2018 to explain his position in this regard, particularly considering the fact that the content of his show could potentially cause prejudice to a matter sub judice before this Court, not only in the minds of the public at large but also the Bench seized of the matter. Mr. Sharif appeared and tendered an unconditional and unqualified apology before the Court. 2. Apart from the foregoing, vide order dated 29.08.2018, this Court also issued notice to the Pakistan Broadcasters Association (PBA) to explain whether there exists any code of professional ethics for the media and whether the same was being followed and if not, what kind of action should be initiated against the delinquents. Pursuant thereto, the learned Deputy Attorney General, learned counsel for PBA and the Chairman, Pakistan Electronic Media Regulatory Authority (PEMRA) appeared. At the outset, this Court was informed that about 24 other television (TV) programmes were aired the same day, i.e. 28.08.2018, with similar content although the prejudicial remarks made therein were not as serious as those made in ‘Power Play’. When questioned whether the conduct of Mr. Sharif and other media persons conducting their programmes on any sub judice matters was acceptable under international standards of responsible journalism, a significant number of media personnel present in Court were unable to justify the same. When questioned, Mr. Sharif agreed that as a SUO MOTU CASE NO.28 OF 2018 -: 5 :- journalist he lacked the legal acumen to analyze a document submitted as evidence in the matter pending before this Court. He admitted that he lacked expertise and knowledge of the law of evidence, etc., and in discussing a purely legal issue, he risked causing serious prejudice to the case. Mr. Faisal Fareed learned counsel for Mr. Sharif also agreed that there was a need for a code of conduct for the print and broadcast media relating to matters pending before Courts. At this juncture, Mr. Faisal Siddiqi, learned counsel for PBA, pointed out that in fact a statutory code of conduct already exists namely, the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 (the Code of Conduct), which was notified by the Federal Government vide S.R.O. No.1(2)/2012-PEMRA-COC on 19.08.2015 in exercise of its powers under Section 39 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 [the Ordinance, as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007]. He submitted that the Code of Conduct came into being on the basis of consensus reached between PBA, other stakeholders and the Federal Government pursuant to a case before this Court titled Hamid Mir and another Vs. Federation of Pakistan and others (Const. P. No.105 of 2012, etc.) and enjoys the force and blessings of an order of this Court dated 18.06.2015. He pointed out that Clause 4(3) of the Code of Conduct (reproduced below) prohibits airing of subjective commentary on sub judice matters by media licensees. He also stated that if implemented in its letter and spirit, the Code of Conduct enjoins upon licensees the duty to strictly monitor implementation and compliance therewith. Be that as it may, the learned counsel present and the Chairman, PEMRA agreed that despite existence of the Code of Conduct since 2015, and the punitive measures available in Section 33 of the Ordinance for violations of its provisions, sub judice matters are being openly discussed in talk shows thereby acting as de facto Courts, announcing what they deem would and should amount to justice. A prime example of such SUO MOTU CASE NO.28 OF 2018 -: 6 :- conduct is the episode of the programme ‘Power Play’ hosted by Mr. Sharif from which these suo motu proceedings were initiated. 3. In light of the above, it is deemed appropriate to scrutinize the issue of commentaries on sub judice matters as it has become a recurring problem and professional standards (national and international) of media reporting on such matters are being disregarded. First and foremost, it is important to lay out the essential elements of the particular programme presently under consideration which triggered the risk of causing serious prejudice to the relevant sub judice case:- i) Documents/affidavits which are or may be relevant to a pending proceeding were deliberated upon; ii) Two affidavits of the former President, Mr. Asif Ali Zardari were placed before the guests in the programme and the fate of the pending trial was discussed by asking them to determine which of the two was the correct affidavit, insisting that the two were mutually contradictory and implying that at least one did not reflect the truth; iii) A shadow of doubt was cast on the veracity of statements made and documents submitted by the person involved in the ongoing proceedings; and iv) Despite being told that his leading questions amounted to a ‘media trial’ in a sub judice matter, the anchor, Mr. Sharif, repeatedly insisted on grounds of his mistaken belief that it was his duty as a journalist to inquire from experts to determine the veracity of these documents/affidavits. It is in the light of the above circumstances and the absolutely flawed belief of the anchor regarding his responsibility as a journalist which leads us to the conclusion that the journalist community and media at large is either misinformed or if not misinformed have silently tolerated such demeanor for so long that the internationally accepted standards for responsible journalism are so far from their line of sight that they fail to see its limits SUO MOTU CASE NO.28 OF 2018 -: 7 :- that they so carelessly and recklessly exceed without so much as a speck of remorse. 4. At the heart of the debate is the need for a balance to be struck between freedom of expression and the administration of justice. In the context of International law and Pakistan’s international commitments in this regard, lies the International Covenant on Civil and Political Rights (ICCPR) to which Pakistan is a signatory since 2008. While Article 19 of the ICCPR protects, inter alia, the right to hold opinions without interference, the right to freedom of expression and right to impart information (although Pakistan has made reservations to Article 19 ibid stating that it shall be so applied to the extent that it is not repugnant to the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 and Sharia laws), Article 14 thereof protects the administration of justice, particularly the right to a fair trial and the principle of presumption of innocence until proven otherwise, and provides in part that:- “(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or guardianship of children. (2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” [Emphasis supplied] Pursuant to the above Article, to the extent of international commitments of Pakistan, the right of presumption of innocence under Article 14(2) of the ICCPR and the power of the Courts to exclude the press and public from all SUO MOTU CASE NO.28 OF 2018 -: 8 :- or part of the trial in the interest of justice and in order to protect a person’s right to a fair trial by an impartial judiciary, trumps the right of expression under Article 19 of the ICCPR in the light of the fact that Pakistan has specifically made reservations to Article 19 ibid to the extent that it conflicts with the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and Shariah laws. 5. For a closer perusal of the international standards laid down for reporting or commentary on sub judice matters in other countries, the laws prevailing in the United Kingdom (UK), United States of America (USA), Australia and India have been touched upon in this judgment. However at the very outset, we find it pertinent to mention that under the law prevailing in Pakistan as well as the other jurisdictions examined below, there are two means of dealing with prejudicial comments on sub judice matters: (1) imposing prior restraints on discussions/comments by the media or any other form of publication; and/or (2) imposing sanctions in the form of sub judice contempt, for interference in the administration of justice. It is also worthy to note certain distinctions between the prevailing laws in these countries and the law in Pakistan with regard to freedom of information and the protection of the right to a fair trial. In USA, after the First Amendment to the US Constitution, freedom of press and right to information is recognized as an absolute right, as can be gauged from the language thereof reproduced below:- “Article [I] (Amendment 1 – Freedom of expression and religion). Congress shall make no law…abridging the freedom of speech, or of the press…” This is in stark contrast to the fundamental rights of freedom of speech and information guaranteed under Article 19 and 19A of our Constitution, the SUO MOTU CASE NO.28 OF 2018 -: 9 :- language used in which specifically subjects both these rights to ‘reasonable restrictions’ imposed by law:- “19. Freedom of speech, etc. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence. 19A. Right to information. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.” [Emphasis supplied] The aforementioned difference in the constitutional provisions of the USA and Pakistan need to be kept in mind when considering American cases such as Bridges Vs. California [314 US 252 (1941)] in which it was held that any restrictions on the press prior to a trial or proceeding or during its pendency are prima facie unlawful. Nevertheless, in light of the Fourteenth Amendment to the US Constitution and the due process and equal protection clauses contained therein, in certain cases where a display of irresponsible journalism has led to tainting the presumption of innocence of a person prior to trial, it has been deemed necessary to ‘neutralize’ the effect of prejudicial comments on sub judice matters through neutralizing techniques/procedural safeguards which broadly fall into three categories: (1) the availability of procedural protections during trial to the concerned individual; (2) placing of limitations on statements made by lawyers, court officers and law enforcement officers; and (3) Bench-Bar agreements. The first category includes procedural safeguards, such as, where the Court deems it necessary, it may adjourn the case till the threat of prejudice abates or transfer the case to another jurisdiction, or if the need arises the Court SUO MOTU CASE NO.28 OF 2018 -: 10 :- may on its accord, order sequestration of jury or the judge may issue certain instructions to the jury or caution the press against reporting certain matters etc., or it may place a limit on the number, position and activity of the press in the Courtroom {Sheppard v. Maxwell [348 US 333 (1966)]}. In this category of neutralizing methods, where a person involved in a sub judice matter apprehends prejudice during a trial due to the media attention on it he may request for in-camera hearing, alternatively, where he feels that the Court has failed to place adequate procedural protections to protect his right to a fair trial, he may move for a new trial or appeal against the conviction. The second category entails placing certain standards for regulating information which may be released to the press by attorneys, court officers and law enforcement officers prior to the proceedings, for example, prohibiting the release of prior criminal record of the accused, prohibiting any opinion with regards to the guilt of the person involved or prohibiting the release of an opinion on the merits of the case, although the first two categories of these safeguards differ from State to State. The third category entails agreements between the Bench, Bar and broadcasters such as radio, newspapers or television channels etc. which places on them voluntary regulations and the responsibility of safeguarding certain information with regards to the trial or prevent discussion thereof. However, these safeguards to ‘neutralize’ the effect of prejudicial comments are not available to every sub judice matter and may be imposed on a case to case basis where the same is deemed necessary {Near v. Minnesota Ex Rel. Olson, County Attorney [283 US 697 (1931)]}. 6. In the absence of a written constitution, there exists no constitutional provision for the protection of the right to speech or information in the UK, and it is the Courts and the Parliament that carve out the permissible protections and limits to the same through judgments and legislation including, for instance, common law principles that have evolved over the years, the Freedom of Information Act, 2000 and the Contempt of SUO MOTU CASE NO.28 OF 2018 -: 11 :- Court Act, 1981 (Act of 1981). A brief historical background of the common law principles in this regard is essential in order to comprehend as to how the law of sub judice contempt has evolved in the UK. The approach of the UK Courts as well as the Legislature has been to promote the protection of the administration of justice, while striking a fair balance with the protection of right of expression and information. One of the most lauded judgments which prompted the debate of the unacceptability of a simultaneous ‘media trial’ in a pending proceeding as well as the common law rule of ‘sub judice contempt’ in the UK was that of Lord Denning in the case of Attorney General v. Times Newspaper ([1973] 1 All ER 815) wherein he laid down the outer ambit of the sub judice contempt rule in the following words:- “It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a substantial danger of prejudice to the trial of the action, as for instance by influencing the judge, the jurors or the witnesses, or even by prejudicing mankind in general against a party to the cause…Even if the person making the comment honestly believes it to be true, still it is contempt of court proceedings…To that rule about fair trial, there is this further rule about bringing pressure to bear on a party, none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his compliant, or give up his defense, or to come to a settlement on terms which he would not otherwise have been prepared to entertain…We must not allow trial by newspaper or ‘trial by television’ or trial by any medium other than the courts of law.” The learned Judge had strong reservations on trial by any medium besides the Courts of law. This translated into his belief in a complete prohibition on any discussions by the press/media during the time when a proceeding is ‘active’ before any Court, i.e. not only when the Court has taken cognizance of the matter, but when proceedings have commenced therein. Evidently therefore, according to the principles enunciated by him, while a mere risk SUO MOTU CASE NO.28 OF 2018 -: 12 :- or potential danger was sufficient to trigger protection by the law, a “real or substantial danger of prejudice to the trial of the case or to the settlement of it” could only exist when a proceeding is actively ongoing before the Court and hence only in such circumstances could complete prohibition on publication with regards to it be justifiably placed. He strongly maintained that the Court should simultaneously also not be oblivious of the interest of the public in matters of national concern and freedom of press to make fair comment on such matters, adding that:- “Our law of contempt does not prevent comment before the litigation is started, nor after it has ended. Nor does it prevent it when litigation is dormant and is not being actively pursued. If the pending action is one which, as a matter of public interest, ought to have been brought to trial long ago, or ought to have been settled long ago, the newspapers can fairly comment on the failure to bring it to trial or to reach a settlement. No person can stop comment by serving a writ and letting it lie idle; nor can he stop it by entering an appearance and doing nothing more. It is active litigation which is protected by law of contempt, not the absence of it.” Hence, he clarified that before such proceedings become ‘active’, and after a final decision has been announced by the Court(s), the press is free to discuss or comment on the matter concerned. To put it simply, dormant proceedings are free for comment or discussion by the media/publications/press, but ongoing proceedings are not. Although this decision of the Court of Appeal was unanimously overturned by the House of Lords for an even narrower view by five Law Lords (Lord Reid, Lord Morris of Borth- Y-Gest, Lord Diplock, Lord Simon of Glaisdale and Lord Cross of Chelsea);1 the latter view too was overturned on appeal to the European Court of Human Rights2 which, in a decision increasingly in favor of public interest and freedom of expression held that the law of contempt may be used for “maintaining the 1 ([1973] 3 W.L.R. 298). 2 The Sunday Times v. United Kingdom [(1979) 2 EHRR 245]. SUO MOTU CASE NO.28 OF 2018 -: 13 :- authority and impartiality of the judiciary”. Lord Reid’s opinion in the House of Lords judgment holds importance with regard to the matter before us since he held that what was regarded as most objectionable was “that a newspaper or television programme could seek to persuade the public, by discussing the issues and evidence in a case before the Court, whether civil or criminal, that one side is right and the other is wrong.” In 1974, the Phillimore Committee submitted its report on contempt of Court, inter alia, on account of prejudicial comments on sub judice matters wherein it concluded that it was “necessary to preserve the principle of the law of contempt, as a means of preventing or punishing conduct which tends to obstruct, prejudice or abuse the administration of justice.” 7. Several years after this report, the law of sub judice contempt was codified in the Act of 1981 and in line with the abovementioned principles, the rule of strict liability was created in Section 2 thereof whereby any conduct, regardless of intent, which tended to interfere in the course of justice, constituted contempt. The prohibited conduct in this rule included any publication (speech, writing, broadcasting or any other communication to the public at large) which creates a substantial risk that the course of justice in the concerned pending proceedings will be seriously impeded or prejudiced. In other words, under UK law the protection afforded to sub judice matters against publication in the form of speech, broadcasted content or any other widely circulated publication, extends to any proceeding wherein the mere danger of substantial prejudice exists and where the concerned pending proceedings are active [Section 2(3) of the Act of 1981], i.e. they had not remained dormant for a considerable period of time. The only defense to this was if the publisher or broadcaster despite having taken reasonable care was not aware of the fact that the relevant proceedings were ‘active’. In Odhams Press Ltd., ex p. Attorney-General ([1956] 3 All ER 494), the Divisional Court stated that “The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result.” In the UK, prejudicial comments which amount to interference with the right to fair SUO MOTU CASE NO.28 OF 2018 -: 14 :- trial or constitute ‘trial by media’ in a civil or criminal proceeding fall in the category of criminal contempt, as opposed to civil contempt where an individual disobeys a court order. It is given the same weightage as that of scandalizing the Court, which also constitutes criminal contempt as both these result in undermining public confidence in the Courts and lack of faith in the judiciary to protect their lawful rights, including the right of presumption of innocence unless proven guilty. The same has been emphasized by Lord Diplock in Attorney General v. Leveller Magazine Ltd. ([1979] AC 440) in the following words:- “[A]lthough criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” 8. In Australia, although no constitutional provision for protection of the right of freedom of speech or information exists nor is there any statutory law with regards to sub judice matters, much uncertainty has prevailed in the Courts with regards to the balancing of the right to information in public interest matters and the right to fair trial and thus to cure this ambiguity, certain measures were identified in the 2003 report of the New South Wales Law Reform Commission (NSWLRC), which focused specifically on issues arising within contempt by publication and rules regarding sub-judice contempt. These measures largely consisted of adopting a ‘substantial risk’ rule similar to that in the UK, however emphasis was maintained on using the right to information in public interest as a defense although the burden of proving the same lies on the publisher. Applying the traditional common law rule, in the New South Wales Court of Appeal judgment of John Fairfax Publications Pty. Ltd. v. Doe [(1995) 37 NSWLR 81], Kirby P. stated:- SUO MOTU CASE NO.28 OF 2018 -: 15 :- “[I]t would be a complete misreading of the recent development of constitutional law in Australia to suggest that the implied constitutional right of free communication deprives courts such as this of the power and, in the proper case, the duty to protect an individual’s right to a fair trial where it is, as a matter of practical reality, under threat. Whatever limitations may be imposed by the constitutional development protective of free communication upon certain matters upon the law of contempt…I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion. Fair trial is itself a basic right in Australia.” Thus, as evident from the above paragraph, to uphold the right of fair trial the Australian Courts impose publication bans through the exercise of their inherent jurisdiction to regulate their own proceedings. 9. The law in India regarding protection of the right to fair trial and protection from prejudicial comments with regards to sub judice matters, in some ways is similar to the law in Pakistan since in the Indian Constitution as well, the right to freedom of speech has been made subject to reasonable restrictions by law in terms of Article 19(2) thereof. In In Re: Harijai Singh and others [1996 (6) SCC 466] the Indian Supreme Court held that journalists do not hold any special freedom of expression or immunity from the law and their right to expression is also a qualified one:- “9. …It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication. 10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be mis- understood as to be a press free to disregard its duty to be SUO MOTU CASE NO.28 OF 2018 -: 16 :- responsible. Infact, the element of responsibility must be present in the conscience of the journalists. In an organised society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings…It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression.” The High Court of Orissa in the case of Bijoyananda Patnaik Vs. Balakrushna Kar and another (AIR 1953 Orissa 249) observed that “[i]t is not necessary that the mind of the Judge should be affected”, rather anything that “has a reasonable tendency to prejudice and obstruct the orderly administration of justice” could constitute contempt. Furthermore, the High Court of Punjab in the judgment reported as Rao Harnarain Singh Sheoji Singh Vs. Gumani Ram Arya (AIR 1958 Punjab 273) held that:- “20. …It is little realised that improper news items and comments regarding causes which are either pending or about to be taken up before Courts of law, very often hamper and hinder the proper functioning of the Courts. Taking of sides in criminal cases, suggesting innocence or guilt of accused persons can cause grave prejudice, by either influencing the minds of Judges, Jurors, witnesses, or by creating a climate of sympathy for, or prejudice against the accused. It is but essential, that those, who are engaged in the administration of justice, should be free from outside influence, and the judicial machinery should be left unaffected by popular feelings as to guilt or innocence of persons being tried or awaiting trial on a criminal charge. The legal machinery, according to our law for adjudging the culpability of accused persons, or in civil causes, for determining the rights of the parties, carefully excludes from consideration facts and circumstances, other than those which SUO MOTU CASE NO.28 OF 2018 -: 17 :- are presented in a formal manner, according to the rules of procedure and evidence. The decision rests on the material on the record, and extraneous matters, howsoever palpable, or seemingly important, are kept severely outside the judicial purview. Any outside comment upon a pending case, and any criticism of the parties or the witnesses, which is calculated to influence the decision, has to be placed under a legal ban. Journalists, whether out of good or evil intentions, who intrude themselves on the due and orderly administration of justice, are guilty of contempt of Court and can be subjected to summary punishment. The Courts do not countenance any interference which is calculated to impede, embarrass or obstruct the administration of justice. Any publication, which has a tendency to foil or thwart a fair and impartial trial, or any conduct, which in any manner prejudices or prevents judicial investigation, whether by intimidation of or by reflection on the Court, counsel, parties or witnesses, in respect of a pending cause, constitutes contempt of Court.” Therefore, like the approach of the Courts in the UK and the USA, the Indian Courts too hold the view that judges are not immune from influence when prior to the proceedings the judges seized of the matter come across any publication that promotes the perspective of one of the parties involved therein. In the case of Sahara India Real Estate Corporation Limited and others Vs. Securities and Exchange Board of India and another [(2012) 10 SCC 603] the Supreme Court of India held that excessive prejudicial publicity leading to usurpation of functions of the Court not only interferes with the administration of justice which is sought to be protected under Article 19(2) of the Indian Constitution, it also interferes with legal proceedings by encroaching upon the right to be presumed innocent until proven otherwise and therefore, superior courts are duty-bound under their inherent jurisdiction to protect the presumption of innocence which is now recognized by them as a human right. One method of protecting this right by the Courts is by imposing ‘prior restraint’, i.e. limitations be put in place prior to the proceedings or placing a ban or delaying publication of SUO MOTU CASE NO.28 OF 2018 -: 18 :- prejudicial publications for the duration of the trial/proceeding, although such prior restraints are imposed only where there exists a substantial danger or risk of causing prejudice to the proceeding sub judice at the time and this is not a blanket protection available to all sub judice matters but is imposed on a case to case basis. The concept of prejudicing a sub judice matter was recently given hype in the case relating to the airing of a controversial documentary titled as ‘India’s Daughter’ regarding the infamous 2012 gang rape in India wherein, in relation to placing a ban on the documentary ‘India's Daughter’ it was held that while the proceedings against the accused in the Delhi gang rape were sub judice, the said documentary which reflected that the accused showed no remorse for their conduct, amounted to substantial danger of influencing the judges seized of the matter as it explored an aspect of the matter which should otherwise be determined during the proceedings.3 In the case of State of Maharashtra Vs. Rajendra Jawanmal Gandhi [(1997) 8 SCC 386] it was held that “A trial by press, electronic media or public agitation is the very antithesis of rule of law.” Thus, similar to the view of the Courts in the UK and the USA, it is strongly opposed to ‘trial by media’ in a sub judice matter, as also observed in R. K. Anand Vs. Registrar, Delhi High Court [(2009) 8 SCC 106]:- “…What is trial by media? The expression "trial by media" is defined to mean: The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny…” 3 As referred to and described by the Delhi District Court in a case titled Satyaveer Singh Rathi Vs. M/s. Zee Television Ltd. (judgment dated 23.01.2016 passed in CS No. 324/2013). SUO MOTU CASE NO.28 OF 2018 -: 19 :- While we may not share the strong views in the above quoted paragraph entirely, it is not uncommon for the media to sensationalize issues of public importance and deduce guilt before any substantial finding has been recorded regarding the person undergoing trial/investigation/inquiry, and where this results in the mere risk of a substantial danger of the judges seized of the matter no longer remaining impartial, the right to fair trial of the person facing trial/investigation is irreparably lost. 10. The foregoing discussion of the law in various other jurisdictions with regards to sub judice contempt as well as the common law principles on the protection of right to fair trial in sub judice matters reveals that the international community at large gives the right to fair trial the highest priority and that measures have been taken either vide statutory law or common law principles to ensure that the right to freedom of speech and expression is safeguarded so long as it does not encroach upon any person’s right to be treated in accordance with the law without any extraneous influences. At the heart of this sub judice rule lies the view that an essential element of fair trial is an impartial judiciary and one simply cannot turn a blind eye to the fact that comment on a sub judice matter in the media or any other widely circulated publication has at least the potential of having an indirect effect on the minds of the judges seized of a matter. Although judges have the ability to ignore any irrelevant considerations while adjudicating a matter, the mere risk or danger of causing prejudice to a pending matter is sufficient for the law to step in to protect the right of the one being adversely affected. While public interest may at times require that information be provided regarding a certain case, strict guidelines with regards to such publication are necessary to be imposed so as to ensure that the fundamental rights of all persons are given equal weightage including the accused or those involved in such proceedings. The International community in terms of Article 14 of the ICCPR as well as the law in their respective SUO MOTU CASE NO.28 OF 2018 -: 20 :- jurisdictions on sub judice contempt is in consensus to the extent that anything in the nature of pre-judgment of a case or specific issues thereof is objectionable and although it is believed that the mass media and broadcasters would do their best to be fair in their comments but there is always the possibility of ill-informed, inconsiderate or careless comments that may prejudice sub judice proceedings and this potential or risk of substantial danger of pre-judgment is sufficient to trigger the protection of the law with regards to the right of a person to an impartial judiciary, due process and right to put forth his defense before anyone else gives his subjective opinion on the same. Therefore, we deem it expedient that strict guidelines be implemented to prevent any prejudicial comments on pending cases; believing that this will in no manner take away from the freedom of the press/mass media/broadcasters and will only aid in upholding the rule of law and fair and impartial trials in the larger interest of justice. 11. Under Pakistani law, prejudicial comments on sub judice matters are dealt with through prior restraint and/or contempt of Court proceedings. The latter is rooted in the provisions in the Constitution which read as under:- “204. Contempt of Court. – (1) In this Article, “Court” means the Supreme Court or a High Court. (2) A Court shall have the power to punish any person who, (c) does anything which tends to prejudice the determination of a matter pending before the Court.” The above constitutional provision is similar to the provisions on sub judice contempt in the Act of 1981 of the UK, except that the said statute requires further that these pending proceedings be ‘active’ and a ‘substantial danger’ must exist with regards to prejudicing the pending trial/proceedings. However, in light thereof, while we reserve our inherent jurisdiction under the above constitutional provision (which shall be elaborated below), the approach of imposing prior restrictions on the media and other publications with regards SUO MOTU CASE NO.28 OF 2018 -: 21 :- to all sub judice matters is the more logical approach. This is because contempt laws cannot erase the prejudice caused to a sub judice case nor can it erase the damage caused to the case of the person involved in such proceedings, particularly, since the Code of Conduct already exists which is in consonance with Article 14 of the ICCPR which promotes the right of presumption of innocence until proven guilty and the right to a fair trial before an impartial judge/judiciary. With regards to imposing prior restraints on the media, it must be clarified that while in the UK there is a complete ban on discussions on sub judice matters and in the USA and India publications may be banned or delayed, the Code of Conduct in fact takes a relatively more lenient approach by allowing the media to provide information about sub judice matters and only subjective and prejudicial commentary is prohibited as is elaborated upon later in this judgement. No doubt, Article 19 of the Constitution ensures to every citizen the right to freedom of speech and expression and that there shall also be freedom of the press, however these rights and freedoms have been specifically made subject to reasonable restrictions imposed by law. The same is the case with Article 19A of the Constitution which guarantees every citizen the right to have access to information in all matters of public importance but subject to regulation and reasonable restrictions imposed by law. At this juncture, we find it appropriate to reproduce various extracts from the judgment reported as Pakistan Broadcasters Association and others Vs. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692) which are germane to the instant matter:- “11. No doubt freedom of speech goes to the very heart of a natural right of a civilized society to impart and acquire information about their common interests. It helps and individual in self accomplishment, and leads to discovery of truth, it strengthens and enlarges the capacity of an individual to participate in decision making and provides a mechanism to SUO MOTU CASE NO.28 OF 2018 -: 22 :- facilitate achieving a reasonable balance between stability and social change. 12. The concept of freedom of media is based on the premise that the widest possible dissemination of information from diverse and antagonistic sources is sine qua non to the welfare of the people. Such freedom is the foundation of a free government of a free people. Any attempt to impede, stifle or contravene such right would certainly fall foul of the freedom guaranteed under Article 19 of the Constitution of Pakistan. 13. However even the core free speech, which propagates social, political or economic ideas, promotes literature or human though, though fully protected, is subject to reasonable restrictions contemplated under Article 19 of the Constitution…” However, this Court went further and elaborated upon the phrase ‘reasonable restriction’ and held as under:- “16. Undoubtedly no one can be deprived of his fundamental rights, such rights being incapable of being divested or abridged. The legislative powers conferred on the State functionaries can be exercised only to regulate these rights through reasonable restrictions, and that too only as may be mandated by law and not otherwise. The authority wielding statutory powers conferred on it must act reasonably (emphasis supplied) and within the scope of the powers so conferred. 18. However, in examining the reasonableness of any restriction on the right to freedom of expression it also should essentially be kept in mind as to whether in purporting to exercise freedom of expression one is infringing upon the aforesaid right of others…” 12. This indicates that the rights provided in Articles 19 and 19A of the Constitution are in no manner unqualified rights and may be made subject to regulation and reasonable restrictions. Therefore, while they are to be safeguarded, they cannot be used as a casual excuse to trample on other fundamental rights of another, particularly those which guarantee citizens SUO MOTU CASE NO.28 OF 2018 -: 23 :- the right to be dealt in accordance with law and the right to fair trial and due process enshrined in Articles 4 and 10A of the Constitution:- “4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. 10A. Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” [Emphasis supplied] 13. A balance therefore must be struck between the right to freedom of speech and information on one hand and the right to fair trial, to be dealt with in accordance with law and of due process on the other. No person must be deprived of his fundamental right to be tried by an impartial judiciary and unbiased judge and an objective and fair trial unless a certain allegation is proved against him strictly in accordance with the law. We find that the Code of Conduct, particularly Clause 4(3) thereof (reproduced later in this opinion), encompasses these principles. In Clause 4(3) ibid a balance has been struck with regards to programmes on sub judice matters. While on one hand such programmes are allowed to be aired thereby protecting the freedom of speech and the right to information; the requirement that they ought to be aired in an informative and objective manner and that no content should be aired which tends to prejudice the determination by a court, tribunal or any other judicial or quasi-judicial forum, ensures that the right to fair trial, to be dealt with in accordance with law and of due process are duly safeguarded. In fact, the Code of Conduct aids the broadcast media and distribution services in compliance of their responsibility under the Code of Conduct by providing pragmatic measures to ensure that they stay within the permissible boundaries of freedom of speech prescribed in the law when it comes to reporting sub judice matters. In order to regulate the rights SUO MOTU CASE NO.28 OF 2018 -: 24 :- under Articles 19 and 19A of the Constitution, PEMRA has, under Section 4 of the Ordinance, been entrusted with the responsibility to regulate the establishment and operation of all broadcast media and distribution services in Pakistan. Section 39 of the Ordinance empowers PEMRA to make rules, with the approval of the Government, to carry out the purposes of the said Ordinance while Section 19(5) thereof states that PEMRA shall devise a Code of Conduct for programmes and advertisements for compliance by the licensees. Pursuant thereto, PEMRA has issued the PEMRA Rules 2009 (the Rules) and the Code of Conduct (incorporated as Schedule A). According to Section 20(f) of the Ordinance, a person who is issued a license under the Ordinance shall, inter alia, comply with the codes of programmes and advertisements approved by PEMRA. Furthermore, Rule 15(1) of the Rules provides that the contents of the programmes and advertisements which are broadcast or distributed by the broadcast media or distribution service operator shall conform to the provisions of Section 20 of the Ordinance, the Rules, the Code of Conduct and the terms and conditions of the license. This Code of Conduct to which reference is made multiple times in the Ordinance and the Rules that admittedly exists, was made with the blessings of the Supreme Court of Pakistan and the consensus of all the stakeholders and PEMRA, was duly notified by the Federal Government and incorporated in the Rules. The language of the Code of Conduct reflects that primary responsibility to comply therewith lies with the licensees which covenant with PEMRA that such compliance shall be ensured. 14. Clause 4 the Code of Conduct is relevant for the purposes of the instant matter which reads as follows:- “4. News and current affairs programmes: - the licensee shall ensure that: (3) Programmes on sub-judice matters may be aired in informative manner and shall be handled objectively: SUO MOTU CASE NO.28 OF 2018 -: 25 :- Provided that no content shall be aired, which tends to prejudice the determination by a court, tribunal or any other judicial or quasi-judicial forum; (4) News shall be clearly distinguished from commentary, opinion and analysis; (6) Content based on extracts from court proceedings, police records and other sources shall be fair and correct; (9) News or any other programme shall not be aired in a manner that is likely to jeopardize any ongoing inquiry, investigation or trial.” [Emphasis supplied] While Clause 4(3) of the Code of Conduct allows programmes on sub judice matters to be aired, thereby guaranteeing the rights enshrined in Articles 19 and 19A of the Constitution mentioned above, the regulation and reasonable restrictions imposed are that such programmes are aired in an informative manner, are handled objectively [Clause 4(3) of the Code of Conduct], and that no content is to be aired which would tend to prejudice the determination by a Court, Tribunal or any other judicial or quasi-judicial forum [Proviso to Clause 4(3) of the Code of Conduct]. Furthermore, Clause 4(6) of the Code of Conduct states that content based on extracts from court proceedings, police records and other sources shall be fair and correct, while Clause 4(9) thereof prohibits news or any other programme from being aired in a manner that is likely to jeopardize any ongoing inquiry, investigation or trial. Therefore, the foregoing clauses ensure that the freedom of speech and right to information (Articles 19 and 19A of the Constitution) are protected, and at the same time provide that the discussion of sub judice matters must be conducted in a manner which does not negatively affect another person’s fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution). 15. It is imperative to clarify that there is a difference between causing prejudice to a sub judice matter as opposed to merely providing SUO MOTU CASE NO.28 OF 2018 -: 26 :- information regarding the case without going into its merits. In this regard, we find it expedient to discuss the meaning of ‘tend’ and ‘prejudice’ as provided in various treatises. The term ‘tend’ means “to serve, contribute or conduce in some degree or way…to have a more or less direct bearing or effect...to…have a tendency to an end, object or purpose” (as per Black’s Law Dictionary, 9th Edition) whereas the term ‘prejudice’ on the other hand is defined as follows:- Chambers 21st Century Dictionary (June 1996):- “bias, injury, hurt, disadvantage.” Words and Phrases (Permanent Edition, Vol. 33):- “to the harm, to the injury, to the disadvantage of someone. Com. v. DeBellas, Pa., 9 Bucks 87, 91.” ““Prejudice” imports formation of a fixed anticipatory judgment as contra-distinguished from those opinions which may yield to substantial evidence, and it includes the forming of an opinion without due knowledge or examination, though it does not necessarily indicate any ill feeling. In re Adoption of Richardson, 59 Cal. Rptr. 323, 251 C. A.2d 222.” Black’s Law Dictionary (9th Edition):- “damage or detriment to one’s legal rights or claims.” Corpus Juris Secundum, Volume 72:- “As a noun, “prejudice” is defined as meaning a bias or leaning toward one side or the other of a question from considerations other than those belonging to it; an unreasonable predilection prepossession for or against anything, especially an opinion or leaning adverse to anything, formed without proper grounds or before suitable knowledge; an opinion or judgment formed beforehand, or without due examination; As a noun “prejudice” has been held synonymous with “prejudgment”.” [Emphasis supplied] From the above definitions, it is clear that the phrase ‘tend to prejudice’ in the context of sub judice matters would mean that a sub judice matter is SUO MOTU CASE NO.28 OF 2018 -: 27 :- discussed in a manner which is likely to, or has a mere tendency to result in a pre-judgment or forming of an opinion to the disadvantage of any person involved therein, without proper grounds or knowledge with regards to such proceedings/investigation/inquiry. As observed in the above paragraphs, the mere tendency to cause substantial prejudice has been deemed sufficient in the UK for placing a complete ban on commentary by the press on sub judice matters throughout the period of its active pendency, while in the USA and India the same has been deemed as a sufficient ground to place prior restraints on case to case basis. The law in Pakistan by virtue of the Code of Conduct in fact places greater trust in its media and journalist community by trusting that they will provide objective information about pending proceedings while taking precautions that they do not pass subjective or prejudicial comments in such regard. 16. The identical phrase ‘tends to prejudice’ contained in Clause 4(3) of the Code of Conduct is reflected in Article 204(2)(c) of the Constitution and therefore in our view, such phrase has the same meaning and parameters as discussed above. We find that the said powers of the Supreme Court or any High Court which have been conferred thereupon by the Constitution and therefore superlative to, and shall apply notwithstanding, the powers granted to PEMRA under the relevant statute, rules, and codes of conduct, etc., whenever the Supreme Court or any High Court is of the opinion that it is appropriate in the facts and circumstances of the case for such Court to take cognizance of the matter and exercise its powers under Article 204 ibid. 17. The oft-used term of ‘media trial’ is a real phenomenon and cannot be allowed. Where the fate of sub judice matters is being decided on public forums, not only the minds of the public are being influenced, but also potentially the minds of the judges seized of the sub judice matter, and lawyers and investigators, etc. involved in such matter, this would obviously tend to prejudice the sub judice matter. Most alarmingly, as had happened in the particular episode of ‘Power Play’ that caused this Court to take notice of SUO MOTU CASE NO.28 OF 2018 -: 28 :- the instant issue, evidence brought on the record in a sub judice case was critically examined and experts were invited to express their opinions on the veracity of such evidence and the possible fate of the case. Drawing assumptions, inferences and conclusions from evidence or the documents filed in a case and stepping into the shoes of a judge on broadcasted programmes may not only convict the accused in the eyes of the public regardless of whether he is ultimately exonerated by a Court, but certain comments or opinions may be voiced which could potentially instill bias and prejudice in the minds of the judges, particularly to those who are dealing with the sub judice matter, thereby violating the fundamental rights under Articles 4 and 10A of the Constitution of the persons involved in such matter. Taking support from Lord Diplock’s words, it is fair to state that prejudicial comments which interfere in the administration of justice, in a way amount to the flouting of justice itself, and must be treated as such by the society in the spirit of upholding the rule of law. Notwithstanding the fact that the alleged contemnor, Mr. Sharif has tendered an unqualified apology, we find it absolutely necessary to explicitly state that considering the pending proceedings before this Court, inter alia, regarding the inquiry by FIA against the former President, Mr. Asif Ali Zardari, the comments made on this particular episode of the programme ‘Power Play’ led to a substantial danger of prejudicing his case and thus potentially trampled upon his right to a fair trial and due process guaranteed under Article 4 and Article 10-A respectively of the Constitution. 18. The Ordinance and the Code of Conduct mandate that licensees maintain a strict check on the programmes being conducted and periodically update PEMRA as to whether they are duly discharging this duty. The relevant provisions of the Ordinance are reproduced below:- “20. Terms and conditions of license.– A person who is issued a license under this Ordinance shall.– SUO MOTU CASE NO.28 OF 2018 -: 29 :- (f) comply with the codes of programmes and advertisements approved by the Authority and appoint an in- house monitoring committee, under intimation to the Authority, to ensure compliance of the Code; 26. Council of Complaints.– (5) The Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or licensee for violation of the codes of programme content and advertisements as approved by the Authority as may be prescribed.” The relevant clauses of the Code of Conduct read as under:- “4(10). Editorial Oversight: the licensee shall ensure that its representatives, hosts and producers shall discuss and review the contents of the programme prior to programme going on air/being recorded and ensure that its contents conform to, in letter and spirit, this Code of Conduct.” 17. Monitoring committee:- Licensee shall comply with this Code and appoint an in-house monitoring committee under intimation to the PEMRA to ensure compliance of the Code. 19. Facts and opinion:- The licensee shall ensure that:- (1) If during a talk show or news show a guest makes or asserts an opinion that is presented as a fact, on a serious issue, the channel and or its representative must intervene and protect the audience by clarifying this is an opinion and not a fact. (2) If the host/moderator is giving his or her own opinion, he or she must also clarify that this is a personal opinion and not a fact. 20. Responsibility for compliance and training of employees:- (1) It shall remain the sole responsibility of the Licensee to ensure that the content aired by it complies with the Code. (2) Licensee shall arrange for regular training of its employees that may be helpful in performing their duties better. 24. Standards of behavior:- (1) This Code presents the standards to be complied with by all the licensees and it shall always be the sole responsibility of the licensee to ensure the content aired by it is in compliance with the Code of Conduct. SUO MOTU CASE NO.28 OF 2018 -: 30 :- (2) This Code represents an affirmative declaration of understanding and compliance with the basic values and objectives that licensees, including its employees and officials shall adhere to, and these shall be observed in letter and spirit.” Clause 4(10) of the Code of Conduct is very important because by discussing and reviewing the contents of a programme prior to the time it is aired or recorded, the licensee can ensure that the contents of such programme conform to the Code of Conduct. Therefore, licensees can make certain that programmes on sub judice matters are aired in an informative manner and are handled objectively [Clause 4(3) of the Code of Conduct] and that content based on extracts from court proceedings, police records and other sources are fair and correct [Clause 4(6) of the Code of Conduct], and that no programme is aired or recorded which contains content that tends to prejudice the determination by a court, tribunal or any other judicial or quasi-judicial forum [Proviso to Clause 4(3) of the Code of Conduct] or that is likely to jeopardize any ongoing inquiry, investigation or trial [Clause 4(9) of the Code of Conduct]. Section 20(f) of the Ordinance mandates licensees to comply with the codes of programmes and advertisements approved by the Authority. A plain reading of Clauses 20 and 24 of the Code of Conduct makes it crystal clear that the responsibility of ensuring compliance with the Code of Conduct is primarily that of the licensee, including its employees and officials. Licensees are also required to arrange regular training of its employees to ensure that they perform their duties better [Clause 20(2) of the Code of Conduct]. Section 20(f) of the Ordinance read with Clause 17 of the Code of Conduct requires the licensee to appoint an in-house monitoring committee (Monitoring Committee) under intimation to PEMRA to constantly ensure compliance of the Code of Conduct, while Clause 19 places on the licensee, the responsibility to ensure that any opinion expressed in a broadcasted programme is distinguished and presented in a manner that it is not mistaken as a fact by the average SUO MOTU CASE NO.28 OF 2018 -: 31 :- viewer/audience. Finally, Section 26(5) of the Ordinance provides that the Council of Complaints may recommend to PEMRA appropriate action of censure or fine against a broadcast station or licensee for violation of the Code of Conduct. The foregoing appears to be an adequate mechanism to prevent violations of the Code of Conduct by the media so long as such measures are practically and effectively adopted and enforced. 19. There remains no ambiguity in our minds with regards to the laxity of the licensees in ensuring compliance with the Code of Conduct and of PEMRA as a regulatory authority in penalizing licensees on account of any violations of the Code of Conduct. If voluntary violations of the Code of Conduct or even negligence by the licensees to ensure adherence thereto is not penalized by PEMRA, the Code of Conduct will be reduced to a mere paper tiger and be rendered absolutely redundant. We therefore issue a writ of mandamus to PEMRA to ensure that the following parameters laid down in the law and the Code of Conduct are adhered to in letter and spirit and that no violations thereof shall be tolerated by PEMRA:- i) The Code of Conduct ensures that the freedom of speech and the right to information (Articles 19 and 19A of the Constitution) are protected, and at the same time provide that the discussion of sub judice matters must be conducted in a manner which does not negatively affect another person’s fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution). ii) All licensees should be sent a notice/reminder of their basic ethics and objectives, standards and obligations under the Code of Conduct, particularly Clause 4(10) thereof, in that, editorial oversight should be observed prior to the airing of all programmes and any programme, the subject or content of which is found or deemed to be in violation of the Code of Conduct in its true letter and spirit, should not be aired by the licensee; iii) Any discussion on a matter which is sub judice may be aired but only to the extent that it is to provide information to the public SUO MOTU CASE NO.28 OF 2018 -: 32 :- which is objective in nature and not subjective, and no content, including commentary, opinions or suggestions about the potential fate of such sub judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired; iv) While content based on extracts of court proceedings, police records and other sources are allowed to the extent that they are fair and correct, any news or discussions in programmes shall not be aired which are likely to jeopardize ongoing inquiries, investigations or trials; v) In compliance with Clause 5 of the Code of Conduct, all licensees should strictly ensure that an effective delaying mechanism is in place for broadcasting live programmes to ensure stern compliance with the Code of Conduct and Articles 4, 10A and 204 of the Constitution; vi) In compliance with Clause 17 of the Code of Conduct, an impartial and competent in-house Monitoring Committee shall be formed by each licensee, with intimation to PEMRA which shall be duty bound to ensure compliance of the Code of Conduct; vii) With regards to the Monitoring Committee, we direct that licensees include (for each of its meetings) at least one practicing lawyer of at least 5 years or above practice, with adequate understanding of the law to advise the licensee regarding any potential violations of the Code of Conduct by programmes to be aired in the future; viii) In compliance with Clause 20 of the Code of Conduct, each licensee shall be required to hold regular trainings of its officers, employees, staff, anchors, representatives etc. with regards to ensure compliance with the Code of Conduct with the schedule and agenda of these regular trainings to be intimated to PEMRA through the Monitoring Committee; ix) If any licensee is found to have violated or failed to observe the Code of Conduct in its true letter and spirit, particularly Clause 4 of thereof, and/or Articles 4, 10A and 204 of the Constitution, strict and immediate action should be taken against such licensee in accordance with Section 33 of the Ordinance. The SUO MOTU CASE NO.28 OF 2018 -: 33 :- Supreme Court or any High Court retains the power to take cognizance of the matter and shall exercise its powers under Article 204 ibid where such Court is of the opinion that it is appropriate in the facts and circumstances of the case for it to do so; and x) The unconditional and unqualified apology tendered by Mr. Sharif is accepted in view of the fact that in our opinion it has been tendered sincerely and he has expressed remorse and regret promising not to repeat such reckless and irresponsible behaviour in the future. Mr. Sharif is also warned to be extremely careful in the future. In light of the foregoing, this matter is accordingly disposed of. CHIEF JUSTICE Islamabad, the 12th of September, 2018 Approved For Reporting JUDGE JUDGE M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU CASE NO.2 OF 2018 AND CONSTITUTION PETITION NO.72 OF 2011 S.M.C.2/2018: Suo motu action regarding maintaining of Foreign Currency Accounts by Pakistani Citizens without disclosing the same/paying taxes Const.P.72/2011: Senator Muhammad Ali Durrani Vs. Government of Pakistan and others In attendance: Syed Nayyar Abbas Rizvi, Addl. A.G.P. Mr. Muhammad Ali Durrani, petitioner (In Const.P.72/2011) Mr. Tariq Mehmood Bajwa, Governor, State Bank of Pakistan Mr. Tariq Mehmood Pasha, Chairman FBR Mr. Arif Ahmed Khan, Federal Secretary Finance Mr. Bashir Ahmed Memon, D.G. FIA Dr. M. Rizwan, Director Immigration FIA Dr. Usman Anwar, Director FIA Mr. Ali Sher Jakhrani, Director Law FIA Mr. Imran Ahmed Khan, Sr. Joint Secy. M/o Finance Mr. Fazal Mehmood, Director, State Bank of Pakistan Mr. Sanaullah Gondal, Deputy Legal Advisor, Mr. Zahid Khokhar, Member Customs, FBR, Dr. Iftikhar Ahmed, Director Law, FBR, Mr. Mehmood Mandviwala, ASC, Syed Shabbar Zaidi, Sr. Partner, A.F. Ferguson & Co., On Court’s Call: Ch. Aitzaz Ahsan, Sr. ASC Mr. Hamid Khan, Sr. ASC SMC NO.2 OF 2018 ETC. -: 2 :- Date of hearing: 12.6.2018 ORDER By order of the Court dated 26.03.2018, a Committee of 12 Experts (“Committee”) having insight into the process of accumulation of undeclared foreign movable and immovable assets by Pakistani citizens was appointed by this Court. They were tasked with deliberating and recommending legislative and executive measures for tracing and retrieving such assets held abroad. The members of the Committee are named below: 1. Mr. Tariq Bajwa, Governor, State Bank of Pakistan. 2. Mr. Arif Ahmed Khan, Secretary, Finance Division. 3. Mr. Tariq Pasha, Chairman, Federal Board of Revenue. 4. Mr. Khalid Anwer, Sr. ASC. 5. Mr. Mehmood Mandviwalla, Barrister at Law, Senior Partner Mandviwalla and Zafar. 6. Dr. Ikramul Haq, ASC and Partner Huzaima and Ikram. 7. Mr. Muhammad Waqar Rana, Additional Attorney General. 8. Syed Shabbar Zaidi, Senior Partner, AF Ferguson and Co. 9. Mr. Bashir Ali Muhammad, Business Leader. 10. Mr. Tariq Paracha, Business Leader. 11. Mr. Atif Bajwa, Senior Banker. 12. Mr. Nisar Muhammad Khan, Former Chairman, FBR. 2. A final report of the Committee was submitted on 13.04.2018 to the Court. During the course of hearing before us today, the Governor State Bank of Pakistan explained the Terms of Reference of the Committee. These primarily revolve around the object expressed in item No.II thereof as follows: “II. Examine existing legal regime and practices (especially related to foreign exchange and taxation), bilateral treaties and multilateral conventions that can be used to stem the unregulated outflow of foreign exchange from Pakistan, trace undeclared assets held abroad by Pakistani SMC NO.2 OF 2018 ETC. -: 3 :- citizens and retrieve such assets especially the ones generated with proceeds of crime.” 3. The Terms of Reference accordingly invite the identification of the administrative actions and amendments in the legislative framework that are necessary for achieving the purpose and object reproduced above. In the first instance, the Committee delineated ten factors that have caused substantial foreign exchange outflows from Pakistan for creating liquid, movable or immovable assets in foreign jurisdictions. Briefly these are: 1. Cash feeding of foreign currency accounts and the immunity of such transactions under the provision of the Protection of Economic Reforms Act, 1992 (“PERA”) from scrutiny of the source and the movement of funds deposited in foreign currency accounts. 2. Free cash movement of foreign currency of any amount within and out of Pakistan under, PERA without check or scrutiny; thereby assisting its smuggling to foreign jurisdictions. 3. Misuse of retained foreign exchange by exporters. Laxity in the regulatory framework for the retained portion of export proceeds has facilitated its leakage and the accumulation of undeclared assets abroad. 4. Under invoicing and over-invoicing in foreign trade transactions. The weaknesses of the information and regulatory systems for the valuation of goods/services by the FBR and the SBP have fostered unauthorized retention of foreign exchange abroad. 5. Section 111(4)(a) of the Income Tax Ordinance, 2001 provided an opportunity for misuse of the immunity to inward remittances brought through normal banking channels; as such black money stashed abroad could be whitened without payment of tax. 6. The Hundi and Hawala means of foreign currency transfers have remained available in the market as illegal channels for transfer of ill-gotten or tax evaded funds. 7. Short limitation periods in tax laws for initiating legal action against tax evaders and defaulters have blocked assessment and recovery of tax on global income and wealth of citizen. 8. Scant bilateral tax treaties with other countries for mutual cooperation and exchange of information have hampered detection of foreign assets accumulated by citizen. SMC NO.2 OF 2018 ETC. -: 4 :- 9. Lacunae in tax laws and regulations have enabled avoidance of tax on technical grounds. These lacunae include vague or insufficient definition of key concepts like “resident”, “non-resident”, “foreign company”, “trust”, “settlor” and “beneficiary” of a trust. 10. Failure of the present income and wealth tax declaration forms to require disclosure of foreign assets and income of citizen. 4. Recommendations have been made by the Committee to deal with the said deficiencies in foreign exchange regulation and tax collection. The recommendations note the experience of incentive schemes floated in other jurisdictions to encourage voluntary disclosure of foreign assets. These include schemes initiated in the recent past in Italy, India and Indonesia. It is stated that the Tax Amnesty Scheme, 2016 offered in Indonesia was highly successful and the Committee supported its emulation in Pakistan. 5. The Committee’s report has highlighted that during the financial year 2016-17 a staggering amount, US$15.253 billion, was transferred abroad by individual account holders in Pakistan through normal banking channels. It is also suggested that during the said period a substantial amount of transfers took place from Pakistan under unauthorized and undocumented Hundi and Hawala mechanisms. Clearly, both types of outflows have a huge impact on the stability of the foreign exchange reserves of the country and adversely affect the exchange rates of the Pakistani Rupee. Also as a result, the national economy can become vulnerable to pressure due to foreign currency obligations of the State; can suffer undue and disruptive SMC NO.2 OF 2018 ETC. -: 5 :- inflation and can drain the exchequer of substantial amounts of tax on account of escaped income and wealth. 6. In the above circumstances, the Committee has recommended that a scheme for voluntary disclosure of foreign assets owned by Pakistani citizens be announced by the Federal Government. This would provide such declarants with an opportunity to declare and/or transfer their foreign assets to Pakistan in lieu of payment of tax. In this regard, we were informed that after our order dated 26.03.2018, the Federal Government had promulgated the Foreign Assets (Declaration and Repatriation) Ordinance, 2018. The Committee has impliedly supported its provisions. 7. Before us today, several Committee members have reiterated their support for the voluntary disclosure scheme announced by the Federal Government. This scheme has in May, 2018 been re-enacted as the Foreign Assets (Declaration and Repatriation) Act, 2018. (“Act, 2018”). The significant feature of the Act, 2018 is the promised immunity from taxation and penal action in respect of undeclared foreign assets subject to payment of tax at the following rates: 1. Liquid foreign assets that are not repatriated, 5% of the value of the foreign assets. 2. Immovable assets outside Pakistan, 3% of the value of foreign assets. 3. Liquid assets repatriated and invested in Pakistan government securities, 2% of the value of the foreign assets. 4. Liquid assets repatriated to Pakistan, 2% of the value of the foreign assets. SMC NO.2 OF 2018 ETC. -: 6 :- 8. It is also informed that the government has made legislative amendments in the relevant laws for curtailing and regulating the cash feeding of foreign currency accounts by restricting that privilege to tax filers only. A regulatory check in cash movement of foreign currency above US$100,000/- within Pakistan has been imposed. Likewise, immunity from taxation of inward remittances under Section 111(4)(a) of the Income Tax Ordinance, 2001 has been limited to a maximum US$100,000/- per annum. It is acknowledged by the Governor State Bank and the Members of the Committee present in Court today that these Suo Motu proceedings have encouraged the review by the Federal Government of its policy on the subject leading to the above mentioned legislative and regulatory changes. With respect to the remaining factors identified by the Committee for unauthorized foreign currency outflows from Pakistan, we are informed that no legislative or regulatory provisions have so far been made by the Federal Government. 9. This Court is not an expert in economic, fiscal or financial matters. It was persuaded to initiate these Suo Motu proceedings for the grave public interest concerns: firstly, regarding the declining foreign exchange reserves of the country, the depreciating exchange rate of the Rupee and the corresponding inflationary trend of imported essential commodities; and secondly, by the governmental indifference towards the unhindered outflows of valuable foreign exchange from the economic wealth and resources of the country SMC NO.2 OF 2018 ETC. -: 7 :- encouraged by immunities from scrutiny and from taxation granted to foreign currency transfers abroad that were also depriving the exchequer of vital tax revenue. 10. Accordingly, these proceedings have aimed to draw the attention of the Federal legislative and regulatory bodies toward the key issues pertaining to the aforementioned matters of national priority. The fact that the Federal Government has brought legislation on the subject is a good start to curtail misuse of privileges granted by the law and executive regulation. No challenge to the provisions of the different legislative and regulatory initiatives undertaken in the matter by the government is presently before the Court. Also we are not prescient about subtle technicalities of foreign exchange and balance of payment stabilization nor about fiscal or other economic matters so as to anticipate deficiencies in the Federal Government’s actions. Likewise, in the absence of a concrete challenge, the Court is not inclined to unilaterally sit in academic judgment on the legality or propriety of the provisions of the scheme of voluntary disclosure of foreign assets under the Act, 2018. 11. Having said that, it is observed that any measures taken by the Federal Government in the public interest to protect the foreign exchange reserves of the country and to bring the hitherto undeclared foreign assets within the tax net are welcomed by the Court. Nevertheless, there are other deficiencies of the current tax laws and in the regulatory framework for the holding and transfer of foreign exchange SMC NO.2 OF 2018 ETC. -: 8 :- that promote the accumulation of undeclared foreign assets and corresponding income. These have been highlighted by the Committee but remain unaddressed by the Federal Government. They require careful attention and deliberation by the concerned authorities. Let the Federal Government, FBR and the State Bank of Pakistan state their respective positions about these matters pointed out by the Committee and indicate if any reform is proposed to correct or remedy the same. 12. Relist after one month at the Principal seat of this Court. Chief Justice Judge Judge Lahore 12.06.2018 Naseer

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Mr. Justice Muhammad Ali Mazhar SUO MOTO CASE NO.2 OF 2022 (Re: Apprehension of Undermining the Criminal Justice System by Persons in Authority. Prima Facie Violation of Article 10A, 25 and 4 of the Constitution). In attendance: Mr. Ashtar Ausaf Ali, Attorney General for Pakistan Date of Hearing : 19.05.2022 ORDER Notice is issued to the Secretary, Ministry of Interior, the Director General, FIA, the Chairman/Regional Directors, NAB, the Prosecutor Generals and Advocates Generals in the Provinces and the ICT and the Head of Prosecution Branch in FIA and NAB. The said officers shall file their statements in writing, answering to the extent relevant to them, the allegations, the facts and the material that are contained in the order of 18.05.2022 and the opinion of the learned recommending Judge for commencement of these proceedings. The points that are SMC 2 OF 2022 2 involved for response and explanation by the said officers are: (i). The names of such officers and their successors in the Investigating Branch and the Prosecution Branch of FIA and NAB in High profile cases who have been transferred, posted, removed from their positions in the last six weeks. (ii) The names of persons who have been removed from ECL during the said period and the process employed in distinguishing their cases for the relief granted. The description of the process now adopted for dealing with the ECL affectees and whether the previous process has been amended or abandoned as a result. Status quo shall be maintained till the next hearing. (iii) The steps taken for the preservation of the case files and the case record with the Investigating Branch, the Prosecution Branch and the Record of the concerned Trial Court whether a Special Court (Central) or an Accountability Court. (iv) The Investigation and Prosecution record in respect of high profile cases pending with both the FIA and the NAB shall, unless required for submission in Court, be checked, verified and kept in safe custody of the head of the concerned department and a report stating compliance to the SMC 2 OF 2022 3 said effect shall be presented to the Court on the next date of hearing. (v) No prosecution case shall be withdrawn until the next date of hearing. 2. Notice shall also be issued to the Registrars of the High Courts of the Provinces and ICT for conveying this order to the Courts of Special Judge (Central) and Accountability Courts functioning within the jurisdiction of the respective High Courts. 3. The Court is concerned with the guarantees provided by the Constitution to the peoples of Pakistan in Article 4 for the rule of law, Article 10 for compliance with due process and Article 25 of the Constitution for equal protection of and equal treatment of all persons in accordance with law. These guarantees serve to assure the integrity, sanctity and fairness of the Criminal Justice System; and to secure that alone is the object of these proceedings. 4. Transfers, postings and removals of persons involved in the investigation of or prosecution of high profile cases falling within charge and jurisdiction of the Courts of Special Judge (Central) and the Accountability Courts shall not be removed, transferred or posted till further orders. SMC 2 OF 2022 4 5. The learned Attorney General for Pakistan seeks leave to file documents that to his mind shall be of assistance in the matter of securing, promoting and ensuring the integrity, sanctity and the fairness of the Criminal Justice system in the Investigation, Prosecution and trial of high profile cases before the above mentioned Courts. 6. Adjourned to 27.05.2022 CHIEF JUSTICE JUDGE JUDGE JUDGE Islamabad 19.05.2022 Naseer JUDGE SMC 2 OF 2022 5

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED S.M.C. NO. 03 OF 2014 AND H.R.C. 17126-G/2013 & H.R. MISC. 27/2013, H.R.C. 17891-G/2013, H.R.M.A. 120/2013 IN H.R.C. 17126-G/2013 & CONSTITUTION PETITION 40/2013 & C.M.A. NO. 5369/2013 AND C.M. APPEAL NO. 37 OF 2014 IN CONSTITUTION PETITION NO. NIL OF 2014 AND CONSTITUTION PETITION NO. 05 OF 2014 S.No. Case No. Parties name 1. S.M.C. NO. 03/2014 Suo moto action upon an incident of indiscriminate firing and suicide attack in District Courts, Islamabad 2. HRC 17126-G/2013 & H.R. MISC. NO. 27/2013 For arrest of the accused involved in cases of torture and murder of the Advocate 3. HRC 17891-G/2013 Regarding torture on lawyers in Rawalpindi 4. H.R.M.A. 120/2013 IN H.R.C. 17126-G/2013 News clipping of Daily Express Tribune dated 4.5.2013 regarding arrest of the accused 5. CONSTITUTION PETITION NO. 40/2013 & C.M.A. 5369/2013 (For security of lawyers community and the members of the judiciary) Pakistan Supreme Court Bar Association Vs. Federation of Pakistan 6. C.M. APPEAL NO. 37/2014 IN CONSTITUTION PETITION NO. NIL OF 2014 (Misc appeal against the order of Registrar) M. Tariq Asad Vs. Federation of Pakistan and others 7. CONSTITUTION PETITION NO. 05/2014 Riaz Hanif Rahi vs. Federation of Pakistan and others In Attendance: Mr. Mohsin Akhtar Kiyani, President, IHCBA Mr. Mustafa Ramday, A.G. Punjab Mr. Zahid Yousaf, A.G. KPK Mr. Muhammad Farid Dogar, AAG Balochistan Ms. Shireen Imran, Gen Secretary, IHCBA Mr. Jawad Paul, Commissioner, Islamabad Mr. Jamil Hashmi, SP, CIA Mr. Azhar Hussain Shah, DSP/L, ICT Mr. Ghulam Mustafa, Inspector Legal, ICT Mr. Muhammad Riaz, S.I, P.S. Industrial Area Mr. Muhammad Imtiaz, S.I, P/s Civil Lines Mr. Allah Yar, Inspector/SHO, Sadiqabad, Rawalpindi Malik Arshad, SHO, Warish Khan, Rwp Mr. Sajid Ilyas Bhatti, DAG Mr. Dil Muhammad Khan Alizai, ASC Date of Hearing: 07.04.2014 ORDER The inquiry report from the Islamabad High Court which was conducted by Mr. Justice Shoukat Aziz Siddiqui has been received. President of the High Court Bar Association seeks permission to examine that and make his submissions. He may inspect the report in the office but would not make it public during the pendency of these proceedings. To come up on 9.4.2014. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 7th of April, 2014 Not Approved For Reporting Khurram